PROSPECTUS SUPPLEMENT
- ---------------------
(To Prospectus Dated June 6, 1997)
$800,000,000
IMC HOME EQUITY LOAN TRUST 1997-3
INDUSTRY MORTGAGE COMPANY, L.P.
[LOGO] Seller and Servicer
IMC SECURITIES, INC.
Depositor
The IMC Home Equity Loan Pass-Through Certificates, Series 1997-3 (the
"Certificates") will consist of (i) 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 and the Class A-7 Certificates
(collectively, the "Class A Certificates"), (ii) the Class M-1 Certificates and
the Class M-2 Certificates (collectively, the "Mezzanine Certificates"), (iii)
the Class B Certificates (collectively with the Mezzanine Certificates, the
"Subordinate Certificates") and (iv) a residual Class of Certificates (the
"Class R Certificates"). Only the Class A Certificates, the Mezzanine
Certificates and the Class B Certificates (collectively, the "Offered
Certificates") are offered hereby.
For a discussion of significant matters affecting investment in the
Certificates, see "Risk Factors" beginning on page S-17 herein, "Prepayment and
Yield Considerations" beginning on page S-30 herein and "Risk Factors" beginning
on page 6 in the Prospectus.
The Certificates represent an undivided ownership interest in a pool of
fixed rate home equity loans (the "Home Equity Loans") held by IMC Home Equity
Loan Trust 1997-3 (the "Trust"). The Certificates will represent undivided
ownership interests in the Home Equity Loans, which are secured by first and
second lien mortgages or deeds of trust primarily on one- to four-family
residential properties. The Certificates also represent an undivided ownership
interest in all interest and principal due under the respective Home Equity
Loans after June 1, 1997 (the "Cut-Off Date"), security interests in the
properties which secure the related Home Equity Loans (the "Properties"), funds
on deposit in certain trust accounts, and certain other property.
(continued on following page)
THE OFFERED CERTIFICATES REPRESENT BENEFICIAL INTERESTS IN THE TRUST ONLY AND DO
NOT REPRESENT INTERESTS IN OR OBLIGATIONS OF THE DEPOSITOR, THE SELLER,
THE SERVICER, EXCEPT AS DESCRIBED HEREIN, OR ANY OF THEIR AFFILIATES.
NEITHER THE OFFERED CERTIFICATES NOR THE HOME EQUITY LOANS
ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY.
------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. 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.
<TABLE>
<CAPTION>
====================================================================================================================================
Initial Certificate Pass-Through Price to Underwriting Proceeds to
Principal Balance Rate Public (1) Discount Depositor(1)(2)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Per Class A-1 Certificate $154,090,000.00 6.69% 99.99394% 0.125% 99.86894%
- ------------------------------------------------------------------------------------------------------------------------------------
Per Class A-2 Certificate $122,750,000.00 6.58% 99.99818% 0.175% 99.82318%
- ------------------------------------------------------------------------------------------------------------------------------------
Per Class A-3 Certificate $108,340,000.00 6.71% 99.98354% 0.200% 99.78354%
- ------------------------------------------------------------------------------------------------------------------------------------
Per Class A-4 Certificate $108,310,000.00 6.84% 99.97400% 0.250% 99.72400%
- ------------------------------------------------------------------------------------------------------------------------------------
Per Class A-5 Certificate $ 81,250,000.00 7.14% 99.97191% 0.300% 99.67191%
- ------------------------------------------------------------------------------------------------------------------------------------
Per Class A-6 Certificate $ 37,260,000.00 7.52% 99.97137% 0.450% 99.52137%
- ------------------------------------------------------------------------------------------------------------------------------------
Per Class A-7 Certificate $ 80,000,000.00 7.08% 99.99506% 0.400% 99.59506%
- ------------------------------------------------------------------------------------------------------------------------------------
Per Class M-1 Certificate $ 32,000,000.00 7.32% 99.95954% 0.600% 99.35954%
- ------------------------------------------------------------------------------------------------------------------------------------
Per Class M-2 Certificate $ 44,000,000.00 7.55% 99.97409% 0.700% 99.27409%
- ------------------------------------------------------------------------------------------------------------------------------------
Per Class B Certificate $ 32,000,000.00 7.87% 99.98661% 0.850% 99.13661%
- ------------------------------------------------------------------------------------------------------------------------------------
Total $800,000,000.00 $799,876,359.67 $2,398,300.00 $797,478,059.67
====================================================================================================================================
</TABLE>
(1) Plus accrued interest, if any, from June 1, 1997.
(2) Before deducting expenses, estimated to be $600,000.
The Offered 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 Offered
Certificates in book-entry form will be made through the facilities of The
Depository Trust Company ("DTC") on or about June 13, 1997.
------------------
Bear, Stearns & Co. Inc.
PaineWebber Incorporated
Nomura Securities International, Inc.
------------------
The date of this Prospectus Supplement is June 6, 1997
<PAGE>
(cover continued from previous page)
The Class M-1 Certificates are subordinate in right of distribution to the
Class A Certificates to the extent described herein. The Class M-2 Certificates
are subordinate in right of distribution to the Class A Certificates and the
Class M-1 Certificates to the extent described herein. The Class B Certificates
are subordinate in right of distribution to the Class A Certificates and the
Mezzanine Certificates to the extent described herein. The initial aggregate
Certificate Principal Balance of the Subordinate Certificates will equal
approximately 13.50% of the initial aggregate Certificate Principal Balance of
all of the Certificates.
The Original Aggregate Loan Balance of the Home Equity Loans as of the
Cut-Off Date was $706,087,864.36 (of which approximately 87.22% by principal
balance are first liens and the remainder are second liens). The Home Equity
Loans were originated or purchased by Industry Mortgage Company, L.P. (the
"Seller" and "Servicer"). The Trust will be created pursuant to a Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") to be dated as of
June 1, 1997 among the Seller, the Servicer, the Depositor and The Chase
Manhattan Bank, as Trustee (the "Trustee").
The Pooling and Servicing Agreement provides that additional Home Equity
Loans (the "Subsequent Home Equity Loans") may be purchased by the Trust from
the Depositor from time to time on or before June 30, 1997 from funds on deposit
in the Pre-Funding Account. On the Closing Date (as defined below), an aggregate
cash amount of $93,912,135.64 will be deposited with the Trustee in the
Pre-Funding Account to be used to acquire Subsequent Home Equity Loans for the
Trust.
Distributions of principal and interest will be made to holders (the
"Owners") of the Certificates on the 20th day of each month (or, if such day is
not a business day, the next following business day) beginning July 21, 1997
(each, a "Payment Date"). To the extent available, interest will be passed
through on each Payment Date to the Owners of the Offered Certificates based on
the related Certificate Principal Balance (as defined herein) at the
Pass-Through Rate applicable to such Class of Certificates, subject to the
limitations described herein. The Pass-Through Rate for each Class of Offered
Certificates is set out on the cover hereof.
As described further herein, the Mezzanine Certificates and Class B
Certificates may not be acquired by Plans (as defined herein). See "ERISA
Considerations" herein.
The yield to investors on the Offered Certificates sold at prices other
than par may be extremely sensitive to the rate and timing of principal payments
(including prepayments, repurchases, defaults and liquidations) on the related
Home Equity Loans, which may vary over time. 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 the Trust Estate (other than certain
accounts contained therein) as a real estate mortgage investment conduit (a
"REMIC") for federal income tax purposes. As described more fully herein, all
Classes of the Offered Certificates will constitute a "regular interest" in the
REMIC. See "Federal Income Tax Consequences" herein.
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 liquidity, or that it will continue for the life
of the Offered Certificates. The Underwriter intends, but is not obligated, to
make a market in the Offered Certificates.
-----------------
UNTIL 90 DAYS AFTER THE DATE OF THIS PROSPECTUS SUPPLEMENT, ALL DEALERS
EFFECTING TRANSACTIONS IN THE OFFERED CERTIFICATES, WHETHER OR NOT PARTICIPATING
IN THIS DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS SUPPLEMENT AND THE
PROSPECTUSTO 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 Offered 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 June 6, 1997, 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.
-----------------
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN, OR OTHERWISE AFFECT THE PRICE OF THE CERTIFICATES
OFFERED HEREBY, INCLUDING OVER-ALLOTMENT, STABILIZING TRANSACTIONS, SYNDICATE
SHORT COVERING TRANSACTIONS AND PENALTY BIDS. FOR A DESCRIPTION OF THESE
ACTIVITIES, SEE "UNDERWRITING" HEREIN.
<PAGE>
TABLE OF CONTENTS
Prospectus Supplement
Page
----
SUMMARY OF TERMS.................................................... S-1
RISK FACTORS........................................................ S-17
THE SELLER AND SERVICER............................................. S-20
General........................................................ S-20
Credit and Underwriting Guidelines............................. S-21
Delinquency, Loan Loss and Foreclosure Information............. S-22
THE DEPOSITOR ...................................................... S-24
USE OF PROCEEDS..................................................... S-24
THE HOME EQUITY LOAN POOL........................................... S-24
General........................................................ S-24
Conveyance of Subsequent Home Equity Loans..................... S-29
Interest Payments on the Home Equity Loans..................... S-30
PREPAYMENT AND YIELD CONSIDERATIONS................................. S-30
General........................................................ S-30
Mandatory Prepayment........................................... S-31
Prepayment and Yield Scenarios for Offered Certificates........ S-31
Payment Lag Feature of Offered Certificates.................... S-35
FORMATION OF THE TRUST AND TRUST PROPERTY........................... S-35
ADDITIONAL INFORMATION.............................................. S-36
DESCRIPTION OF THE OFFERED CERTIFICATES............................. S-36
General........................................................ S-36
Payment Dates.................................................. S-36
Distributions.................................................. S-37
Pre-Funding Account............................................ S-39
Capitalized Interest Account................................... S-39
Book Entry Registration of the Offered Certificates............ S-39
Assignment of Rights........................................... S-41
CREDIT ENHANCEMENT.................................................. S-41
Subordination of Subordinate Certificates...................... S-41
Application of Realized Losses................................. S-42
Application of Monthly Excess Cashflow Amounts................. S-42
THE POOLING AND SERVICING AGREEMENT................................. S-45
Covenant of the Seller to Take Certain Actions with Respect to
the Home Equity Loans in Certain Situations.................. S-45
Assignment of Home Equity Loans................................ S-46
Servicing and Sub-Servicing.................................... S-47
Removal and Resignation of Servicer............................ S-50
The Trustee.................................................... S-51
Reporting Requirements......................................... S-51
Removal of Trustee for Cause................................... S-52
Governing Law.................................................. S-53
Amendments..................................................... S-53
Termination of the Trust....................................... S-53
Optional Termination........................................... S-53
FEDERAL INCOME TAX CONSEQUENCES..................................... S-54
REMIC Election................................................. S-54
ERISA CONSIDERATIONS................................................ S-54
RATINGS............................................................. S-57
LEGAL INVESTMENT CONSIDERATIONS..................................... S-57
UNDERWRITING........................................................ S-57
CERTAIN LEGAL MATTERS............................................... S-60
INDEX TO LOCATION OF PRINCIPAL DEFINED TERMS........................ A-1
<PAGE>
Prospectus
Page
----
SUMMARY OF PROSPECTUS .............................................. 1
RISK FACTORS........................................................ 6
DESCRIPTION OF THE CERTIFICATES..................................... 9
General........................................................ 9
Classes of Certificates........................................ 10
Distributions of Principal and Interest........................ 11
Book Entry Registration........................................ 12
List of Owners of Certificates................................. 13
THE TRUSTS.......................................................... 13
Mortgage Loans................................................. 14
Mortgage-Backed Securities..................................... 15
Other Mortgage Securities...................................... 16
CREDIT ENHANCEMENT.................................................. 16
SERVICING OF MORTGAGE LOANS......................................... 21
Payments on Mortgage Loans..................................... 21
Advances....................................................... 22
Collection and Other Servicing Procedures...................... 22
Primary Mortgage Insurance..................................... 23
Standard Hazard Insurance...................................... 24
Title Insurance Policies....................................... 24
Claims Under Primary Mortgage Insurance Policies and Standard
Hazard Insurance Policies; Other Realization
Upon Defaulted Loan.......................................... 24
Servicing Compensation and Payment of Expenses................. 25
Master Servicer................................................ 25
ADMINISTRATION...................................................... 26
Assignment of Mortgage Assets.................................. 26
Evidence as to Compliance...................................... 28
The Trustee.................................................... 28
Administration of the Certificate Account...................... 28
Reports........................................................ 29
Forward Commitments; Pre-Funding............................... 30
Servicer Events of Default..................................... 30
Rights Upon Servicer Event of Default.......................... 30
Amendment...................................................... 31
Termination.................................................... 31
USE OF PROCEEDS..................................................... 32
THE DEPOSITOR....................................................... 32
CERTAIN LEGAL ASPECTS OF THE MORTGAGE ASSETS........................ 32
General........................................................ 32
Foreclosure.................................................... 33
Soldiers' and Sailors' Civil Relief Act........................ 38
LEGAL INVESTMENT MATTERS............................................ 38
ERISA CONSIDERATIONS................................................ 39
FEDERAL INCOME TAX CONSEQUENCES..................................... 40
Federal Income Tax Consequences For REMIC Certificates......... 41
Taxation of Regular Certificates............................... 42
Taxation of Residual Certificates.............................. 47
Treatment of Certain Items of REMIC Income and Expense......... 49
Tax-Related Restrictions on Transfer of Residual Certificates.. 51
Sale or Exchange of a Residual Certificate..................... 53
Taxes That May Be Imposed on the REMIC Pool.................... 53
Liquidation of the REMIC Pool.................................. 54
Administrative Matters......................................... 54
Limitations on Deduction of Certain Expenses................... 55
Taxation of Certain Foreign Investors.......................... 55
Backup Withholding 56 Reporting Requirements................... 56
Federal Income Tax Consequences for Certificates as
to Which No REMIC Election Is Made......................... 57
Standard Certificates.......................................... 57
Premium and Discount........................................... 58
Stripped Certificates.......................................... 60
Reporting Requirements and Backup Withholding.................. 62
Taxation of Certain Foreign Investors.......................... 63
Taxation of Securities Classified as Partnership Interests..... 63
PLAN OF DISTRIBUTION................................................ 63
RATINGS............................................................. 64
LEGAL MATTERS....................................................... 64
FINANCIAL INFORMATION............................................... 64
INDEX TO LOCATION OF PRINCIPAL DEFINED TERMS........................ A-1
<PAGE>
[THIS PAGE INTENTIONALLY LEFT BLANK]
<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 to Location of
Principal Defined Terms" for the location of the definitions of certain
capitalized terms.
Issuer: IMC Home Equity Loan Trust 1997-3 (the "Trust").
Certificates
Offered: $800,000,000 IMC Home Equity Loan Pass-Through Certificates,
Series 1997-3, to be issued in the following Classes (each, a
"Class") and original Certificate Principal Balances (each, a
"Certificate Principal Balance"), set forth below:
Initial Certificate Pass-Through
Principal Balance Rate Class
----------------- ---- -----
$154,090,000 6.69% Class A-1 Certificates
$122,750,000 6.58% Class A-2 Certificates
$108,340,000 6.71% Class A-3 Certificates
$108,310,000 6.84% Class A-4 Certificates
$81,250,000 7.14% Class A-5 Certificates
$37,260,000 7.52% Class A-6 Certificates
$80,000,000 7.08% Class A-7 Certificates
$32,000,000 7.32% Class M-1 Certificates
$44,000,000 7.55% Class M-2 Certificates
$32,000,000 7.87% Class B Certificates
The Certificates will consist of (i) 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," and the "Class
A-7 Certificates" (collectively, the "Class A
Certificates"), (ii) the "Class M-1 Certificates" and the
"Class M-2 Certificates" (collectively, the "Mezzanine
Certificates") and (iii) the "Class B Certificates" (and
together with the Mezzanine Certificates, the "Subordinate
Certificates"). Only the Class A Certificates, the Mezzanine
Certificates and the Class B Certificates (collectively, the
"Offered Certificates") are offered hereby.
The initial aggregate Certificate Principal Balance of the
Subordinate Certificates will equal 13.50% of the initial
aggregate Certificate Principal Balance of all Certificates.
The Subordinate Certificates are subordinate in right of
distribution to the Class A Certificates to the extent
described herein. The Class M-1 Certificates are subordinate
to the Class A Certificates to the extent described herein.
The Class M-2 Certificates are subordinate to the Class A
Certificates and Class M-1 Certificates to the extent
described herein. The Class B Certificates are subordinate
to the Class A Certificates and the Mezzanine Certificates
to the extent described herein.
On any date after the Closing Date, the "Aggregate
Certificate Principal Balance" is the sum of the Certificate
Principal Balance of all Classes of the Offered
Certificates.
S-1
<PAGE>
Depositor: IMC Securities, Inc. (the "Depositor"), a Delaware
corporation.
Seller and
Servicer: Industry Mortgage Company, L.P. (the "Seller" and the
"Servicer"), a Delaware limited partnership. The Seller's and
Servicer's principal executive offices are located at 3450
Buschwood Park Drive, Suite 250, Tampa, Florida 33618. The
general partner of the Seller and Servicer is Industry
Mortgage Corporation, a Delaware corporation.
Trustee: The Chase Manhattan Bank, a New York banking corporation, as
trustee (the "Trustee"). The Trustee shall receive a fee (the
"Trustee Fee") equal to 0.00375% per annum, payable monthly
at one-twelfth the annual rate of the aggregate outstanding
Loan Balance of the Home Equity Loans.
Cut-Off Date: As of the close of business on June 1, 1997 (the "Cut-Off
Date").
Closing Date: On or about June 13, 1997.
Description of the
Certificates The Offered Certificates represent fractional undivided
Offered: interests in the Trust and have the rights described in the
Pooling and Servicing Agreement dated as of June 1, 1997
among the Depositor, the Seller, the Servicer and the Trustee
(the "Pooling and Servicing Agreement"). The Trust assets
(not all of which will be included in the REMIC election)
will include the home equity loans (the "Home Equity Loans"),
all interest and principal due under the respective Home
Equity Loans after the Cut-Off Date, security interests in
the properties securing such Home Equity Loans (the
"Properties"), funds on deposit in the Non-REMIC Accounts and
certain other property. See "Formation of the Trust and Trust
Property" herein.
On the Closing Date, an aggregate cash amount of
$93,912,135.64 will be deposited in a trust account in the
name of the Trustee (the "Pre-Funding Account"). It is
intended that additional 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 June
30, 1997 from funds on deposit in the Pre-Funding Account. As
a result, the aggregate principal balance of the Home Equity
Loans 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 herein under "Pre-Funding Account") on the Offered
Certificates attributable to the provisions allowing for
purchase of Subsequent Home Equity Loans after the Cut-Off
Date.
Other
Certificates: In addition to the Offered Certificates, the Trust will
issue, pursuant to the Pooling and Servicing Agreement, a
residual Class of Certificates (the "Class R Certificates")
which will represent an undivided ownership interest in the
Trust. The Offered Certificates and the Class R Certificates
are herein referred to as the "Certificates." Only the
Offered Certificates are offered hereby.
S-2
<PAGE>
Denominations: The Offered Certificates are issuable in minimum
denominations of an original principal amount of $25,000 and
multiples of $1,000 in excess thereof.
The Home Equity
Loans: The Home Equity Loans to be conveyed to the Trust by the
Depositor on the Closing Date (the "Initial Home Equity
Loans") consist of fixed rate conventional home equity loans
and the Notes relating thereto.
The Home Equity Loans are secured by first and second lien
mortgages or deeds of trust primarily on one- to- four family
residential properties located in 48 states and the District
of Columbia. No Loan-to-Value Ratio (based upon appraisals
made at the time of origination of the related Home Equity
Loan) relating to any Initial Home Equity Loan exceeded 85%
as of the Cut-Off Date except for 622 loans with an aggregate
Loan Balance of $58,581,731.50 (or 8.30% of the aggregate
Loan Balance of the Initial Home Equity Loans), which had a
Loan-to-Value Ratio not greater than 100%. None of the
Initial Home Equity Loans are insured by pool mortgage
insurance policies and no significant portion of the Initial
Home Equity Loans are insured by primary mortgage insurance
policies. The Home Equity Loans are not guaranteed by the
Depositor, the Seller, the Servicer, the Trustee or any of
their affiliates. The Home Equity Loans will be serviced by
the Servicer generally in accordance with the standards and
procedures required by FannieMae for FannieMae
mortgage-backed securities and in accordance with the terms
of the Pooling and Servicing Agreement.
As of the Cut-Off Date, the average Loan Balance of the
Initial Home Equity Loans was $63,060.45. The minimum and
maximum Loan Balances of the Initial Home Equity Loans as of
the Cut-Off Date were $955.50 and $549,699.57, respectively.
The weighted average interest rate (the "Coupon Rate") of the
Initial Home Equity Loans was 11.55%; the Coupon Rates of the
Initial Home Equity Loans ranged from 7.45% to 22.50%; the
weighted average combined Loan-to-Value Ratio of the Initial
Home Equity Loans was 74.49%; the weighted average remaining
term to maturity of the Initial Home Equity Loans was 217
months; and the remaining terms to maturity of the Initial
Home Equity Loans ranged from 4 months to 360 months. As of
the Cut-Off Date 87.22% of the aggregate Loan Balances of the
Initial Home Equity Loans were secured by first mortgages and
12.78% of the aggregate Loan Balances of the Initial Home
Equity Loans were secured by second mortgages. Initial Home
Equity Loans containing "balloon" payments represented not
more than 50.58% of the Initial Home Equity Loans. No Initial
Home Equity Loan will mature later than May 5, 2027. See "The
Home Equity Loan Pool" herein.
Final Scheduled
Payment Date: The Final Scheduled Payment Date for each Class of the
Offered Certificates is as set forth below, although it is
anticipated that the actual final Payment Date for each Class
of the Offered Certificates will occur significantly earlier
than the related Final Scheduled Payment Date. See
"Prepayment and Yield Considerations" herein.
S-3
<PAGE>
Final Scheduled
Payment Date
------------
Class A-1 Certificates July 20, 2009
Class A-2 Certificates January 20, 2012
Class A-3 Certificates January 20, 2012
Class A-4 Certificates October 20, 2013
Class A-5 Certificates September 20, 2023
Class A-6 Certificates August 20, 2028
Class A-7 Certificates August 20, 2028
Class M-1 Certificates August 20, 2028
Class M-2 Certificates August 20, 2028
Class B Certificates August 20, 2028
Distributions--
General: On the 20th day of each month, or if such a day is not a
Business Day, then the next succeeding Business Day,
commencing July 21, 1997 (each such day being a "Payment
Date"), the Trustee will be required, subject to the
availability of amounts therefor, pursuant to the cashflow
priorities hereinafter described, to distribute to the
Owners of each Class of Certificates of record as of the
last day of the calendar month preceding the month in which
such Payment Date occurs (the "Record Date") the applicable
"Class Distribution Amount" which shall be the sum of (x)
the related Current Interest, (y) the related Interest Carry
Forward Amount, if any, and (z) the related Principal
Distribution Amount (each as defined below).
A "Business Day" is any day other than a Saturday or Sunday
or a day on which banking institutions in The City of New
York, Tampa, Florida or the city in which the corporate
trust office of the Trustee is located are authorized or
obligated by law or executive order to be closed.
Interest: On each Payment Date the Interest Remittance Amount will
be distributed in the following order of priority:
First, to the Trustee, the Trustee Fee and any Trustee
Reimbursable Expenses;
Second, to the Owners of the Class A Certificates, the
related Current Interest plus the Interest Carry Forward
Amount with respect to each Class of Class A Certificates
without any priority among such Class A Certificates ;
provided, that if the Interest Remittance Amount less the
amount paid to the Trustee as the Trustee Fee and Trustee
Reimbursable Expenses (such amount, the "Interest Amount
Available") is not sufficient to make a full distribution of
interest with respect to all Classes of the Class A
Certificates, the Interest Amount Available will be
distributed among the outstanding Classes of Class A
Certificates pro rata based on the aggregate amount of
interest due on each such Class, and the amount of the
shortfall will be carried forward with accrued interest;
Third, to the extent of the Interest Amount Available then
remaining, to the Owners of the Class M-1 Certificates, the
related Current Interest;
Fourth, to the extent of the Interest Amount Available then
remaining, to the Owners of the Class M-2 Certificates, the
related Current Interest;
S-4
<PAGE>
Fifth, to the extent of the Interest Amount Available then
remaining, to the Owners of the Class B Certificates, the
related Current Interest; and
Sixth, the amount, if any, of the Interest Amount Available
remaining in the Certificate Account after application with
respect to the priorities set forth above is defined as the
"Monthly Excess Interest Amount" for such Payment Date and
shall be applied as described below under "Credit
Enhancement Application of Monthly Excess Cashflow Amounts"
in this Summary of Terms.
"Current Interest" with respect to each Class of Offered
Certificates means, with respect to any Payment Date (i) the
aggregate amount of interest accrued during the calendar
month immediately preceding the month in which such Payment
Date occurs (the "Accrual Period") at its applicable
Pass-Through Rate on the Certificate Principal Balance of
such Class of Certificates plus (ii) the Preference Amount
as it relates to interest previously paid on such Class of
the Offered Certificates prior to such Payment Date;
provided, however, that with respect to each Class of
Offered Certificates, Current Interest will be reduced by
such Class' pro rata share of any Civil Relief Interest
Shortfalls (as defined in the Pooling and Servicing
Agreement). 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.
"Interest Remittance Amount" means as of any Monthly
Remittance Date, the sum, without duplication, of (i) all
interest due during the related Remittance Period on the
Home Equity Loans (less the Servicing Fee), (ii) all
Compensating Interest paid by the Servicer on such Monthly
Remittance Date, (iii) the portion of any Substitution
Amount relating to interest, (iv) the portion of any
purchase price relating to interest on any Home Equity Loan
repurchased during the related Remittance Period and (v) the
portion of Net Liquidation Proceeds relating to interest.
The "Interest Carry Forward Amount" with respect to any
Class of the Offered Certificates for any Payment Date is
the sum of (x) the amount, if any, by which (i) the sum of
the Current Interest for such Class as of the immediately
preceding Payment Date and all prior unpaid Interest Carry
Forward Amounts exceeded (ii) the amount of the actual
distribution with respect to interest made to the Owners of
such Class of Offered 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 Offered Certificates.
Principal: On each Payment Date (a) before the Stepdown Date or (b)
with respect to which a Trigger Event is in effect, Owners
of the Class A Certificates will be entitled to receive
payment of 100% of the Principal Distribution Amount for
such Payment Date as follows: first, to the Owners of the
Class A-7 Certificates, the Class A-7 Lockout Distribution
Amount and then sequentially to the Owners of each Class of
Class A Certificates in the order of their numerical Class
designations beginning with the Class A-1 Certificates until
the Certificate Principal Balance of each Class of Class A
Certificates has been reduced to zero.
On each Payment Date (a) on or after the Stepdown Date and
(b) as long as a Trigger Event is not in effect, the Owners
of all Classes of the Offered Certificates
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will be entitled to receive payments of principal, in the
order of priority, in the amounts set forth below and to the
extent of the Principal Distribution Amount as follows:
First, the lesser of (x) the Principal Distribution Amount
and (y) the Class A Principal Distribution Amount shall be
distributed to the Owners of the Class A-7 Certificates, in
an amount equal to the Class A-7 Lockout Distribution
Amount, with the remainder paid sequentially to the Owners
of each Class of Class A Certificates, in the order of their
numerical Class designations until the Certificate Principal
Balance of each Class of Class A Certificates has been
reduced to zero;
Second, the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the
Owners of the Class A Certificates in clause First above and
(y) the Class M-1 Principal Distribution Amount shall be
distributed to the Owners of the Class M-1 Certificates,
until the Class M-1 Certificate Principal Balance has been
reduced to zero;
Third, the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the sum of the amount
distributed to the Owners of the Class A Certificates in
clause First above and the amount distributed to the Owners
of the Class M-1 Certificates in clause Second above and (y)
the Class M-2 Principal Distribution Amount shall be
distributed to the Owners of the Class M-2 Certificates,
until the Class M-2 Certificate Principal Balance has been
reduced to zero;
Fourth, the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the sum of the amount
distributed to the Owners of the Class A Certificates
pursuant to clause First above, the amount distributed to
the Owners of the Class M-1 Certificates pursuant to clause
Second above and the amount distributed to the Owners of the
Class M-2 Certificates pursuant to clause Third above and
(y) the Class B Principal Distribution Amount shall be
distributed to the Owners of the Class B Certificates, until
the Class B Certificate Principal Balance has been reduced
to zero; and,
Fifth, any amount of the Principal Remittance Amount
remaining after making all of the distributions in clauses
First, Second, Third and Fourth above shall be included as
part of the Monthly Excess Cashflow Amount and shall be
applied as described below under "Credit Enhancement
Application of Monthly Excess Cashflow Amounts" in this
Summary of Terms.
Notwithstanding the foregoing, in the event that the
Certificate Principal Balances of all of the Class A
Certificates have been reduced to zero, all amounts of
principal that would have been distributed to such Class A
Certificates will be distributed to the Subordinate
Certificates sequentially in the following order: Class M-1,
Class M-2 and Class B. Similarly, if the Certificate
Principal Balance of the Class M-1 Certificates has been
reduced to zero, all amounts of principal that would have
been distributed to such Class M-1 Certificates will be
distributed to the Class M-2 and Class B Certificates in
that order. Finally, if the Certificate Principal Balance of
the Class M-2 Certificates has been reduced to zero, all
amounts of principal that would have been distributed on
such Class M-2 Certificates will be distributed to the
related Class B Certificates.
<PAGE>
The Class A Certificates (other than the Class A-7
Certificates) are "sequential pay" classes such that the
Owners of the Class A-6 Certificates will receive no
payments of principal until the Class A-5 Certificate
Principal Balance has been reduced to zero, the Owners of
the Class A-5 Certificates will receive no payments of
principal until the Class A-4 Certificate Principal Balance
has been reduced to zero, the Owners of the Class A-4
Certificates will receive no payments of principal until the
Class A-3 Certificate Principal Balance has been reduced to
zero, the Owners of the Class A-3 Certificates will receive
no payments of principal until the Class A-2 Certificate
Principal Balance has been reduced to zero, and the Owners
of the Class A-2 Certificates will receive no payments of
principal until the Class A-1 Certificate Principal Balance
has been reduced to zero; provided, however, that on any
Payment Date on which the sum of the Certificate Principal
Balance of the Subordinate Certificates and the
Overcollateralization Amount is zero, any amounts of
principal payable to the Owners of the Class A Certificates
shall be distributed pro rata and not sequentially.
The Owners of the Class A-7 Certificates are entitled to
receive payments of the Class A-7 Lockout Distribution
Amount specified herein; provided, that if on any Payment
Date the Class A-6 Certificate Principal Balance is zero,
the Owners of the Class A-7 Certificates will be entitled to
receive the entire Class A Principal Distribution Amount for
such Payment Date.
In addition to the following definitions, the above
discussion makes use of a number of defined terms which are
defined under "Description of the Offered Certificates --
Distributions" herein.
"Principal Distribution Amount" means, as of any Payment
Date, the sum of (i) the Principal Remittance Amount minus,
for Payment Dates occurring on and after the Stepdown Date,
the Overcollateralization Release Amount, if any, and (ii)
the Extra Principal Distribution Amount, if any.
The "Class A-7 Lockout Distribution Amount" for any Payment
Date will be the product of (i) the applicable Class A-7
Lockout Percentage for such Payment Date and (ii) the Class
A-7 Lockout Pro Rata Distribution Amount for such Payment
Date. In no event shall the Class A-7 Lockout Distribution
Amount exceed the outstanding Class A-7 Certificate
Principal Balance.
The "Class A-7 Lockout Percentage" for each Payment Date
shall be as follows:
Payment Dates Lockout Percentage
------------- ------------------
July 1997 - June 2000 0%
July 2000 - June 2002 45%
July 2002 - June 2003 80%
July 2003 - June 2004 100%
July 2004 and thereafter 300%
The "Class A-7 Lockout Pro Rata Distribution Amount" for any
Payment Date will be an amount equal to the product of (x) a
fraction, the numerator of which is the Certificate
Principal Balance of the Class A-7 Certificates immediately
prior to such Payment Date and the denominator of which is
the aggregate Certificate Principal Balance of all Classes
of the Class A Certificates immediately prior to
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<PAGE>
such Payment Date and (y) the Class A Principal Distribution
Amount for such Payment Date.
The "Remittance Period" with respect to any Monthly
Remittance Date is the period from the second day of the
month immediately preceding such Monthly Remittance Date to
the first day of the month in which such 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 18th
day of each month, or if such day is not a Business Day, the
next preceding Business Day, commencing in July 1997.
"Principal Remittance Amount" means as of any Monthly
Remittance Date, the sum, without duplication, of (i) the
principal actually collected by the Servicer on the Home
Equity Loans during the related Remittance Period, (ii) the
Loan Balance of each Home Equity Loan that was repurchased
from the Trust during the related Remittance Period, (iii)
any Substitution Amount relating to principal delivered by
the Seller in connection with a substitution of a Home
Equity Loan during the related Remittance Period, and (iv)
all Net Liquidation Proceeds actually collected by the
Servicer during the related Remittance Period (to the extent
such Net Liquidation Proceeds related to principal).
A "Trigger Event" has occurred with respect to a Payment
Date if the percentage obtained by dividing (x) the
principal amount of 60+ Day Delinquent Loans by (y) the
aggregate outstanding Loan Balance of the Home Equity Loans
as of the last day of the immediately preceding Remittance
Period equals or exceeds one-half of the Senior Enhancement
Percentage.
"Stepdown Date" means the earlier to occur of (i) the later
to occur of (x) the Payment Date in July 2000 and (y) the
first Payment Date on which the Senior Enhancement
Percentage (after taking into account distributions of
principal on such Payment Date) is greater than or equal to
the Senior Specified Enhancement Percentage and (ii) the
Payment Date on which the Certificate Principal Balance of
the Class A Certificates has been reduced to zero.
"Class A Principal Distribution Amount" means as of any
Payment Date (a) prior to the Stepdown Date or with respect
to which a Trigger Event is in effect, 100% of the Principal
Distribution Amount and (b) on or after the Stepdown Date
and as long as a Trigger Event is not in effect the excess
of (x) the aggregate Certificate Principal Balance of the
Class A Certificates immediately prior to such Payment Date
over (y) the lesser of (A) the product of (i) 69.50% and
(ii) the outstanding Loan Balance of the Home Equity Loans
as of the last day of the related Remittance Period and (B)
the aggregate outstanding Loan Balance as of the last day of
the related Remittance Period minus $4,000,000.
"Class M-1 Principal Distribution Amount" means as of any
Payment Date on or after the Stepdown Date and as long as a
Trigger Event is not in effect, the excess of (x) the sum of
(i) the aggregate Certificate Principal Balance of the Class
A Certificates (after taking into account the payment of the
Class A Principal Distribution Amount on such Payment Date)
and (ii) the Class M-1 Certificate Principal Balance
immediately prior to such Payment Date over (y) the lesser
of (A) the product of (i) 77.50% and (ii) the outstanding
Loan Balance of the Home Equity Loans as of the last day of
the related Remittance Period and (B) the
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<PAGE>
aggregate outstanding Loan Balance as of the last day of the
related Remittance Period minus $4,000,000.
"Class M-2 Principal Distribution Amount" means as of any
Payment Date on or after the Stepdown Date and as long as a
Trigger Event is not in effect, the excess of (x) the sum of
(i) the aggregate Certificate Principal Balance of the Class
A Certificates (after taking into account the payment of the
Class A Principal Distribution Amount on such Payment Date),
(ii) the Class M-1 Certificate Principal Balance (after
taking into account the payment of the Class M-1 Principal
Distribution Amount on such Payment Date) and (iii) the
Class M-2 Certificate Principal Balance immediately prior to
such Payment Date over (y) the lesser of (A) the product of
(i) 88.50% and (ii) the outstanding aggregate Loan Balance
of the Home Equity Loans as of the last day of the related
Remittance Period and (B) the aggregate outstanding Loan
Balance as of the last day of the related Remittance Period
minus $4,000,000.
"Class B Principal Distribution Amount" means as of any
Payment Date on or after the Stepdown Date and as long as a
Trigger Event is not in effect, the excess of (x) the sum of
(i) the aggregate Certificate Principal Balance of the Class
A Certificates (after taking into account the payment of the
Class A Principal Distribution Amount on such Payment Date),
(ii) the aggregate Class M-1 Certificate Principal Balance
(after taking into account the payment of the Class M-1
Principal Distribution Amount on such Payment Date), (iii)
the aggregate Class M-2 Certificate Principal Balance (after
taking into account the payment of the Class M-2 Principal
Distribution Amount on such date) and (iv) the Class B
Certificate Principal Balance immediately prior to such
Payment Date over (y) the lesser of (A) the product of (i)
96.50% and (ii) the outstanding aggregate Loan Balance of
the Home Equity Loans as of the last day of the related
Remittance Period and (B) the aggregate outstanding Loan
Balance as of the last day of the related Remittance Period
minus $4,000,000.
"Overcollateralization Amount" means as of any Payment Date
the difference between (x) the Loan Balance of the Home
Equity Loans as of the last day of the immediately preceding
Remittance Period and (y) the Aggregate Certificate
Principal Balance (after taking into account all
distributions of principal on such Payment Date).
"Senior Enhancement Percentage" for any Payment Date is the
percentage obtained by dividing (x) the sum of (i) the
aggregate Certificate Principal Balance of the Subordinate
Certificates and (ii) the Overcollateralization Amount, in
each case after taking into account the distribution of the
Principal Distribution Amount on such Payment Date by (y)
the aggregate Loan Balance of the Home Equity Loans as of
the last day of the related Remittance Period.
"Senior Specified Enhancement Percentage" on any date of
determination thereof means 30.50%.
"Extra Principal Distribution Amount" means, as of any
Payment Date, the lesser of (x) the Monthly Excess Interest
Amount for such Payment Date and (y) the
Overcollateralization Deficiency for such Payment Date.
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<PAGE>
"Overcollateralization Deficiency" means, as of any Payment
Date, the excess, if any, of (x) the Targeted
Overcollateralization Amount for such Payment Date over (y)
the Overcollateralization Amount for such Payment Date,
calculated for this purpose after taking into account the
reduction on such Payment Date of the Aggregate Certificate
Principal Balance resulting from the distribution of the
Principal Remittance Amount (but not the Extra Principal
Distribution Amount) on such Payment Date, but prior to
taking into account any Applied Realized Loss Amount on such
Payment Date.
"Overcollateralization Release Amount" means, as of any
Payment Date, the lesser of (x) the Principal Remittance
Amount for such Payment Date and (y) the excess of (i) the
Overcollateralization Amount for such Payment Date, assuming
that 100% of the Principal Remittance Amount is applied on
such Payment Date to the payment of principal on the Offered
Certificates and (ii) the Targeted Overcollateralization
Amount for such Payment Date.
"Targeted Overcollateralization Amount" means, as of any
Payment Date, (x) prior to the Stepdown Date, $14,000,000
and (y) on and after the Stepdown Date, the greater of (i)
3.50% of the aggregate outstanding Loan Balance of the Home
Equity Loans as of the last day of the related Remittance
Period and (ii) $4,000,000.
"Preference Amount" means any amount previously distributed
to an Owner on an Offered Certificate that is recoverable
and sought to be recovered as a voidable preference by a
trustee in bankruptcy under the United States Bankruptcy
Code (11 U.S.C.) as amended from time to time, in accordance
with a final nonappealable order of a court having competent
jurisdiction.
Monthly Servicing
Fee:
The Servicer will retain a fee (the "Servicing Fee") equal
to 0.50% per annum, payable monthly at one-twelfth the
annual rate of the then outstanding principal balance of
each Home Equity Loan as of the first day of each Remittance
Period. Such Servicing Fee will be reduced with respect to
any Home Equity Loan that has a Coupon Rate that is less
than the sum of (x) the Pass-Through Rate on the Class B
Certificates and (y) the Expense Fee Rate (as defined
herein). As of the Cut-Off Date, there are 30 such Home
Equity Loans. No Subsequent Home Equity Loan can have such a
Coupon Rate.
Credit
Enhancement: The Credit Enhancement provided for the benefit of the
Owners of the Offered Certificates consists of the
subordination of the Subordinate Certificates to the Class A
Certificates, the further subordination within the
Subordinate Certificates, the priority of application of
Realized Losses and the application of Monthly Excess
Cashflow Amounts.
Subordination of Subordinate Certificates. The rights of the
Owners of the Subordinate Certificates and the Class R
Certificates to receive distributions with respect to the
Home Equity Loans will be subordinated, to the extent
described herein, to such rights of the Owners of the Class
A Certificates. This subordination is intended to enhance
the likelihood of regular receipt by the Owners of the Class
A Certificates of the full amount of their scheduled monthly
payment of interest and principal and to afford such Owners
protection against Realized Losses.
The protection afforded to the Owners of the Class A
Certificates by means of the subordination of the
Subordinate Certificates and the Class R Certificates will
be
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<PAGE>
accomplished by the preferential right of the Owners of the
Class A Certificates to receive, prior to any distribution
being made on a Payment Date in respect of the Subordinate
Certificates and the Class R Certificates, the amounts of
interest due them and principal available for distribution
on such Payment Date, and, if necessary, by the right of the
Owners of the Class A Certificates to receive future
distributions of amounts that would otherwise be payable to
the Owners of the Subordinate Certificates and the Class R
Certificates.
In addition, the rights of the Owners of the Class M-2,
Class B and Class R Certificates to receive distributions
will be subordinated, to the extent described herein, to
such rights of the Owners of the Class A and Class M-1
Certificates. This subordination is intended to enhance the
likelihood of regular receipt by the Owners of the Class A
and Class M-1 Certificates of the amount of interest due
them and principal available for distribution and to afford
such Owners with protection against Realized Losses.
The rights of the Owners of the Class B and Class R
Certificates to receive distributions will be subordinated
in the same manner to such rights of the Owners of the Class
A, Class M-1 and Class M-2 Certificates and the rights of
Owners of the Class R Certificates to receive distributions
will be subordinated in the same manner to such rights of
the Owners of the Offered Certificates.
Application of Realized Losses. The Pooling and Servicing
Agreement provides that if a Home Equity Loan becomes a
Liquidated Loan during a Remittance Period, the Net
Liquidation Proceeds relating thereto and allocated to
principal may be less than the Loan Balance of such Home
Equity Loan. The amount of such insufficiency is a "Realized
Loss". Realized Losses will, in effect, be absorbed first,
by the Retained Certificates (both through the application
of the Monthly Excess Interest Amount to fund such
deficiency and through a reduction in the
Overcollateralization Amount), second, by the Owners of the
Class B Certificates, third, by the Owners of the Class M-2
Certificates, and, fourth, by the Owners of the Class M-1
Certificates.
To the extent that the pool of Home Equity Loans experiences
Realized Losses, such Realized Losses will reduce the
aggregate outstanding Loan Balance of the Home Equity Loans
(i.e, a reduction in the collateral balance will occur).
Since the Overcollateralization Amount is the excess, if
any, of the collateral balance over the Aggregate
Certificate Principal Balance, Realized Losses will in the
first instance reduce the Overcollateralization Amount.
The Pooling and Servicing Agreement requires that the
Overcollateralization Amount be initially increased to, and
thereafter maintained at, the Targeted Overcollateralization
Amount. This increase and subsequent maintenance is intended
to be accomplished by the application of Monthly Excess
Interest Amounts to the funding of the Extra Principal
Distribution Amount. Such Extra Principal Distribution
Amounts, since they are funded from interest collections on
the collateral but are distributed as principal on the
Offered Certificates, will increase the
Overcollateralization Amount.
If, on any Payment Date after taking into account all
Realized Losses experienced during the prior Remittance
Period and after taking into account the distribution of
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<PAGE>
principal (including the Extra Principal Distribution
Amount) with respect to the Offered Certificates on such
Payment Date, the Aggregate Certificate Principal Balance
exceeds the aggregate Loan Balance of the Home Equity Loans
as of the end of the related Remittance Period (i.e., if the
level of overcollateralization is negative), then the
Certificate Principal Balance of the Subordinate
Certificates will be reduced (in effect, "written down")
such that the level of overcollateralization is zero, rather
than negative. Such a negative level of
overcollateralization is an "Applied Realized Loss Amount",
which is applied as a reduction in the Certificate Principal
Balance of the Subordinate Certificates in reverse order of
seniority (i.e., first against the Class B Certificate
Principal Balance until it is reduced to zero, then against
the Class M-2 Certificate Principal Balance until it is
reduced to zero and then against the Class M-1 Certificate
Principal Balance until it is reduced to zero). The Pooling
and Servicing Agreement does not permit the "write down" of
the Certificate Principal Balance of any Class A
Certificate.
Once the Certificate Principal Balance of a Class of
Subordinate Certificates has been "written down," the amount
of such write down will no longer bear interest, nor will
such amount thereafter be "reinstated" or "written up,"
although the amount of such write down may, on future
Payment Dates be paid to Owners of the Subordinate
Certificates which experienced the write down, in direct
order of seniority (i.e., first, the Class M-1 Certificates,
second, the Class M-2 Certificates and, third, the Class B
Certificates). The source of funding of such payments will
be the amount, if any, of the Monthly Excess Cashflow Amount
remaining on such future Payment Dates after the funding of
the Extra Principal Distribution Amount and after the
payment of Interest Carry Forward Amounts with respect to
the Subordinate Certificates on such Payment Date.
Application of Monthly Excess Cashflow Amounts. The weighted
average net Coupon Rate for the Home Equity Loans is
expected to be generally higher than the weighted average of
the Pass-Through Rates on the Offered Certificates, thus
generating certain excess interest collections which, in the
absence of losses will not be necessary to fund interest
distributions on the Offered Certificates. The Pooling and
Servicing Agreement provides that this excess interest be
applied to the extent available, to make accelerated
payments of principal (i.e., the Extra Principal
Distribution Amount) to the Class or Classes then entitled
to receive distributions of principal; such application will
cause the Aggregate Certificate Principal Balance to
amortize more rapidly than the pool of Home Equity Loans,
resulting in overcollateralization.
The required level of overcollateralization for any Payment
Date is the Targeted Overcollateralization Amount for such
Payment Date. The Targeted Overcollateralization Amount is
initially (i.e., prior to the Stepdown Date) $14,000,000.
Since the actual level of the Overcollateralization Amount
is $0 as of the Closing Date, in the early months of the
transaction, subject to the availability of Monthly Excess
Interest Amounts, Extra Principal Distribution Amounts will
be paid, with the result that the Overcollateralization
Amount will increase to the level of the Targeted
Overcollateralization Amount.
If, once the Targeted Overcollateralization Amount has been
reached, Realized Losses occur, such Realized Losses will
result in an Overcollateralization Deficiency (since such
Realized Losses reduce the Loan Balance of the Home Equity
Loans without giving rise to a corresponding reduction of
the Aggregate
S-12
<PAGE>
Certificate Principal Balance). The cashflow priorities of
the Trust require that, in this situation, an Extra
Principal Distribution Amount be paid (subject to the
availability of any Monthly Excess Interest Amount) for the
purpose of re-establishing the Overcollateralization Amount
at the then-required Targeted Overcollateralization Amount.
On and after the Stepdown Date, the Targeted
Overcollateralization Amount is permitted to decrease or
"step-down" below the $14,000,000 level to a level equal to
3.50% of the then current aggregate outstanding Loan Balance
(subject to a floor of $4,000,000). If the Targeted
Overcollateralization Amount is permitted to "step-down" on
a Payment Date, the Pooling and Servicing Agreement permits
a portion of the Principal Remittance Amount for such
Payment Date not to be passed through as a distribution of
principal on such Payment Date. This has the effect of
decelerating the amortization of the Offered Certificates
relative to the aggregate outstanding Loan Balance of the
Home Equity Loans, thereby reducing the actual level of the
Overcollateralization Amount to the new, lower Targeted
Overcollateralization Amount. This portion of the Principal
Remittance Amount not distributed as principal on the
Certificates therefore releases overcollateralization from
the Trust. The amount of such releases are the
Overcollateralization Release Amounts.
On any Payment Date, the sum of the Monthly Excess Interest
Amount and the Overcollateralization Release Amount is the "
Monthly Excess Cashflow Amount", which is required to be
applied in the following order of priority on such Payment
Date:
(1) to fund the Extra Principal Distribution Amount for such
Payment Date;
(2) to fund the Class M-1 Interest Carry Forward Amount, if
any;
(3) to fund the Class M-1 Realized Loss Amortization Amount
for such Payment Date;
(4) to fund the Class M-2 Interest Carry Forward Amount, if
any;
(5) to fund the Class M-2 Realized Loss Amortization Amount
for such Payment Date;
(6) to fund the Class B Interest Carry Forward Amount, if
any;
(7) to fund the Class B Realized Loss Amortization Amount
for such Payment Date;
(8) to the Servicer to the extent of any unreimbursed
Delinquency Advances or Servicing Advances;
(9) to the Trustee for reimbursement of expenses of the
Trustee that are not Trustee Reimburseable Expenses; and
(10) to fund a distribution to Owners of the Class R
Certificates.
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<PAGE>
Pre-Funding
Account: On the Closing Date, an aggregate cash amount (the
"Pre-Funded Amount"), of $93,912,135.64 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.
During the period (the "Funding Period") from the Closing
Date until June 30, 1997, the Pre-Funded Amount will be
maintained in the Pre-Funding Account. The 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.
Subsequent Home Equity Loans purchased on any date (each, a
"Subsequent Transfer Date") must satisfy the criteria set
forth in the Pooling and Servicing Agreement and will be
selected from a specified pool of home equity loans owned by
the Seller on the Closing Date. See "The Home Equity Loan
Pool -- Conveyance of Subsequent Home Equity Loans" herein.
Any Pre-Funded Amount remaining at the end of the Funding
Period will be distributed to the Owners of the Class A
Certificates then entitled to receive payments of principal
on the Payment Date in July 1997, thus resulting in a
partial principal prepayment of such Class A Certificates as
specified herein under "Description of the Class A
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.
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.
During the Funding Period, 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 amount of interest accruing at the weighted
average of the Pass-Through Rates of the Offered
Certificates on the amount by which the Aggregate
Certificate Principal Balance exceeds the aggregate Loan
Balance of the Home Equity Loans 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 the initial Payment Date to fund any such excess.
Any amounts remaining in the Capitalized Interest Account
not needed for such purpose will be paid to the depositor of
such funds at the end of the Funding Period. The Capitalized
Interest Account will not be an asset of the REMIC.
Mandatory
Prepayment
of Certificates: It is intended that the principal amount of Subsequent Home
Equity Loans sold to the Trust 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 Owners of the Class A Certificates
from the Pre-Funding Account. In the event that the
Depositor is unable to sell Subsequent Home Equity Loans to
the Trust during the Funding Period in an amount equal to
$93,912,135.64, principal prepayments to Owners of the Class
or Classes of Class A Certificates then entitled to receive
payments of principal will occur on the Payment Date in July
1997 in an amount equal to the Pre-Funded Amount remaining
at the end of the Funding Period.
Book-Entry
Registration
of the Offered
Certificates: Each Class of the Offered Certificates will initially be
issued in book-entry form. Persons acquiring beneficial
ownership interests in such Offered Certificates
("Beneficial Owners") may elect to hold their interests
through The Depository Trust Company ("DTC"). Transfers
within DTC will be in accordance with the usual rules and
operating procedures thereof. So long as the Offered
Certificates
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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. The Offered 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 Offered
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 Offered
Certificates are held by DTC. See "Description of the
Offered Certificates -- Book-Entry Registration of the
Offered Certificates" herein, and "Description of the
Certificates--Book-Entry Registration" in the Prospectus.
Optional
Termination: The Owners of the Class R Certificates will have the right
to purchase all the Home Equity Loans on any Monthly
Remittance Date when the aggregate Loan Balance of the Home
Equity Loans has declined to 10% or less of the sum of (x)
the Original Aggregate Loan Balance plus (y) the original
Pre-Funded Amount (such sum, the "Maximum Collateral
Amount"). See "The Pooling and Servicing Agreement--Optional
Termination" herein.
Ratings: It is a condition of issuance of the Class A Certificates
that the Class A Certificates receive ratings of "Aaa" by
Moody's Investors Services, Inc. ("Moody's") and "AAA" by
Fitch Investors Service, L.P. ("Fitch"). It is a condition
of issuance that the Class M-1, Class M-2 and Class B
Certificates receive ratings of "Aa2," "A2" and "Baa3,"
respectively, from Moody's and "AA+," "A+" and "BBB,"
respectively from Fitch. Moody's and Fitch are referred to
herein collectively as the "Rating Agencies". A security
rating is not a recommendation to buy, sell or hold
securities, and may be subject to revision or withdrawal at
any time by the assigning entity. No Rating Agency is
obligated to maintain any rating on any Certificate, and,
accordingly, there can be no assurance that the rating
assigned to any Class of Certificate upon initial issuance
thereof will not be lowered or withdrawn at any time
thereafter. See "Ratings" herein.
Federal Tax
Aspects: An election will be made to treat the Trust, exclusive of
the Pre-Funding Account and the Capitalized Interest Account
(such accounts collectively, the "Non-REMIC Accounts"),
created by the Pooling and Servicing Agreement as a "real
estate mortgage investment conduit" ("REMIC"). Each Class of
the Offered Certificates will be designated as a "regular
interest" in the REMIC and such Certificates will be treated
as debt instruments of the REMIC for federal income tax
purposes. The Class R Certificates will be designated as the
sole "residual interest" in the REMIC.
Owners of the Offered Certificates, including Owners that
generally report income on the cash method of accounting,
will be required to include interest on the Offered
Certificates in income in accordance with the accrual method
of accounting. In addition, the Offered Certificates may be
considered to have been issued with original issue discount
or at a premium. Any such original issue discount will be
includible in the income of the Owner as it accrues under a
method taking into account the compounding of interest and
using the Prepayment Assumption described herein. Premium
may be deductible by the Owner either as it accrues or when
principal is received. No representation is made as to
whether
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the Home Equity Loans will prepay at the assumed rate, or
any other rate. See "Prepayment and Yield Considerations"
herein. In general, as a result of the qualification of the
Offered Certificates as regular interests in a REMIC, the
Offered Certificates will be treated as "regular . . .
interest(s) in a REMIC" under Section 7701(a)(19)(C) of the
Internal Revenue Code of 1986, as amended (the "Code"), and
"real estate assets" under Section 856(c) of the Code in the
same proportion that the assets in the REMIC consist of
qualifying assets under such sections. In addition, 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. For further information
regarding the federal income tax consequences of investing
in the Offered Certificates, see "Federal Income Tax
Consequences" herein.
ERISA
Considerations: Subject to the considerations discussed under "ERISA
Considerations" herein, the Class A Certificates may be
purchased by employee benefit plans that are subject to
ERISA. The Subordinate Certificates may not be purchased by
employee benefit plans that are subject to ERISA except as
provided herein. See "ERISA Considerations" herein and in
the Prospectus.
Legal Investment
Considerations: The Offered Certificates will not constitute "mortgage
related securities" for purposes of the Secondary Mortgage
Market Enhancement Act of 1984 ("SMMEA"). Accordingly, many
institutions with legal authority to invest in comparably
rated securities based on first home equity loans may not be
legally authorized to invest in the Offered Certificates.
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RISK FACTORS
Prospective investors in the Offered Certificates should consider,
among other things, the following risk factors (as well as the factors set forth
under "Risk Factors" in the Prospectus) in connection with the purchase of the
Offered Certificates.
Sensitivity to Prepayments. The majority of the Home Equity Loans may
be prepaid by the related Mortgagors in whole or in part, at any time without
payment of any prepayment fee or penalty. In addition, a substantial portion of
the Home Equity Loans contain due-on-sale provisions which, to the extent
enforced by the Servicer, will result in prepayment of such Home Equity Loans.
See "Prepayment and Yield Considerations" herein and "Certain Legal Aspects of
the Home Equity Loans--Enforceability of Certain Provisions" in the Prospectus.
The rate of prepayments on fixed rate 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 such 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 each Class of Offered Certificates, and, if
purchased at other than par, the yields realized by Owners of the Offered
Certificates will be sensitive to levels of payment (including prepayments of
the Home Equity Loans (the "Prepayments")) on the Home Equity Loans. In general,
the yield on a Class of Offered Certificates that is purchased at a premium from
the outstanding principal amount thereof will be adversely affected by a higher
than anticipated level of Prepayments and enhanced by a lower than anticipated
level. Conversely, the yield on a Class of Offered Certificates 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.
Trust Assets are the Only Source of Credit Enhancement. The
subordination of the Subordinate Certificates to the Class A Certificates, the
further subordination within the Subordinate Certificates, and the
overcollateralization provisions of the Trust are the sole sources of protection
against losses on the Home Equity Loans and other shortfalls in available funds.
If losses or other shortfalls exceed the protection afforded by such mechanism,
Owners of the Offered Certificates will bear their proportionate share of such
losses and shortfalls. The Certificates represent interests only in the Trust
and do not represent interests in, or obligations of the Depositor, the Seller,
the Servicer, the Trustee or any of their respective affiliates. The assets of
the Trust are the sole source of funds for distributions on the Certificates.
Subordination -- Limited Protection Afforded to Class A Certificates.
The rights of the Owners of the Class M-1 Certificates to receive distributions
with respect to the Home Equity Loans will be subordinate to the rights of the
holders of the Class A Certificates to receive such distributions, the rights of
Owners of the Class M-2 Certificates to receive distributions with respect to
the Home Equity Loans will be subordinate to the rights of the Owners of the
Class A and the Class M-1 Certificates to receive such distributions and the
rights of the Owners of the Class B Certificates to receive distributions with
respect to the Home Equity Loans will be subordinate to the rights of the Owners
of the Class A, Class M-1 and Class M-2 Certificates to receive such
distributions. The subordination of the Subordinate Certificates relative to the
Class A Certificates (and of the more lower-ranking Classes of the Subordinate
Certificates to the higher-ranking Classes thereof) is intended to enhance the
likelihood of regular receipt by the Owners of the Class A Certificates (and
such higher-ranking Classes) of the full amount of the monthly distributions
allocable to them, and to afford such Owners protection against losses.
Subordination -- Allocation of Losses to Subordinate Certificates. The
rights of the Owners of each Class of Subordinate Certificates to receive
distributions of principal with respect to the Home Equity Loans will be
subordinate to the rights of the Owners of the Class A Certificates to receive
such distributions and to the rights of the Owners of each higher-ranking Class
of Subordinate Certificates to receive such distributions. See "Credit
Enhancement Subordination of Subordinate Certificates" herein.
The yields to maturity on the Mezzanine Certificates and Class B
Certificates will be progressively more sensitive, to the rate, timing and
severity of defaults on the Home Equity Loans. Investors should fully consider
the risks
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associated with an investment in the Mezzanine Certificates or Class B
Certificates, including the possibility that such investors may not fully
recover their initial investment as a result of Realized Losses on the Home
Equity Loans. See "Credit Enhancement -- Application of Realized Losses".
The Subordinate Certificates will not be entitled to any principal
distributions until at least the Stepdown Date and during the continuation of a
Trigger Event (unless the aggregate Certificate Principal Balance of the Class A
Certificates has been reduced to zero.) As a result, the weighted average lives
of the Subordinate Certificates will be longer than would be the case if
distributions of principal were to be allocated on a pro rata basis among the
Class A and Subordinate Certificates. As a result of the longer weighted average
lives of the Subordinate Certificates, the Owners of such Certificates have a
greater risk of suffering a loss on their investments.
Nature of Collateral; Junior Liens. Because 12.78% of the aggregate
Loan Balance of the Initial Home Equity Loans 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 the event the mortgagor is in default thereunder. 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. The
Servicer generally will be required to advance such amounts in accordance with
the Pooling and Servicing Agreement. 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 values of
the Properties such that the outstanding balances of the Home Equity Loans,
together with any senior liens on the Properties, equal or exceed the value of
the Properties. 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.
The Subsequent Home Equity Loans and the Pre-Funding Account. Each
Subsequent Home Equity Loan will be selected from a pool of home equity loans
owned by the Seller on the Closing Date. 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 Seller
will not select such Subsequent Home Equity Loans in a manner adverse to the
interest of the Owners of the Offered Certificates; (iii) the Seller will
deliver certain opinions of counsel with respect to the validity of the
conveyance of such Subsequent Home Equity Loans; (iv) each Subsequent Home
Equity Loan will be a fixed rate Home Equity Loan; and (v) as of each cut-off
date (each, a "Subsequent Cut-Off Date") applicable thereto, the Home Equity
Loans at that time, including the Subsequent Home Equity Loans to be conveyed by
the Seller 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 Trust by the end of the Funding Period, the Owners of
the Class or Classes of Class A 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 Payment Date
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in July 1997. 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 therefore there will be
no material principal prepayment to the Owners of any Class of Class A
Certificates.
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 Seller using credit criteria
different from those which were applied to the Initial Home Equity Loans and may
be of a different credit quality. Following the transfer of Subsequent Home
Equity Loans to the Trust, it is anticipated that the aggregate characteristics
of the Home Equity Loans then held in the Trust will not vary significantly from
those of the Initial Home Equity Loans. See "The Home Equity Loan
Pool--Conveyance of Subsequent Home Equity Loans" herein.
Other Legal Considerations. Applicable state laws generally regulate
interest rates and other charges, require certain disclosures, and require
licensing of the Seller. 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 Home Equity Loans" 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 Home Equity Loans" 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,
which is 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 home equity loans with high interest rates or high
upfront fees and charges. In general, home equity 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 home equity loans originated on or after
October 1, 1995. These provisions can impose specific statutory liabilities upon
creditors who fail to comply with their provisions and may affect the
enforceability of the related loans. In addition, any assignee of the creditor
would generally be subject to all claims and defenses that the consumer could
assert against the creditor, including, without limitation, the right to rescind
the home equity loan. The Seller will represent and warrant in the Pooling and
Servicing Agreement that each Home Equity Loan was originated in compliance with
all applicable laws including the Truth-in-Lending Act, as amended.
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Risk of Higher Default Rates for Home Equity Loans with Balloon
Payments. 50.58% of the aggregate Loan Balance of the Initial Home Equity Loans
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"). The 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 up to 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 Seller 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 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 or the Depositor in the event of the insolvency of the Seller or the
Depositor, as applicable and will not be available to the creditors of the
Seller or the Depositor, as applicable. However, in the event of an insolvency
of the Seller or the Depositor, it is possible that a bankruptcy trustee or a
creditor of the Seller or the Depositor may argue that the transaction between
the Seller and the Depositor or between the Depositor and the Trust was a pledge
of such Home Equity Loans in connection with a borrowing by the Seller or the
Depositor 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, the Seller, the Depositor and the
Rating Agencies will have received an opinion of Arter & Hadden, counsel to the
Seller, with respect to the true sale of the Home Equity Loans from the Seller
to the Depositor and from the Depositor to the Trustee, in form and substance
satisfactory to the Rating Agencies.
THE SELLER AND SERVICER
General
The Seller and Servicer, Industry Mortgage Company, L.P., is a Delaware
limited partnership. The general partner of the Seller is Industry Mortgage
Corporation, a Delaware corporation, which is a subsidiary of IMC Mortgage
Company and an affiliate of the Depositor. IMC Mortgage Company completed a
public offering of certain shares of its common stock on June 25, 1996. The
principal executive offices of the Seller are located at 3450 Buschwood Park
Drive, Suite 250, Tampa, Florida 33618 and its telephone number is (813)
932-2211.
The Seller has been in the mortgage lending business since its
formation in 1993 and the Seller, IMC Mortgage Company and certain other
subsidiaries of IMC Mortgage Company are engaged in originating, purchasing and
servicing home equity loans secured by first and second mortgages and deeds of
trust on Properties located in at least 48 states and the District of Columbia.
The Seller will sell and assign each Home Equity Loan to the Depositor,
which will in turn sell and assign each Home Equity Loan to the Trust, in
consideration of the net proceeds from the sale of the Offered Certificates,
which are being offered hereby. The Seller will also service each Home Equity
Loan.
The Servicer may not assign its obligations under the Pooling and
Servicing Agreement, in whole or in part, unless it shall have first obtained
confirmation in writing from the Rating Agencies that such assignment shall not
result in a downgrade or withdrawal of the ratings assigned to the Certificates
by each respective Rating Agency; provided, however, that any assignee must meet
the eligibility requirements for a successor servicer set forth in the Pooling
and Servicing Agreement.
The Servicer may enter into sub-servicing agreements (the
"Sub-Servicing Agreements") with qualified sub-servicers (the "Sub-Servicers")
with respect to the servicing of the Home Equity Loans. None of the
Sub-Servicing arrangements discharge the Servicer from its servicing
obligations. Each Sub-Servicing Agreement shall be terminated
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at such time as the Servicer resigns or is removed. See "The Pooling and
Servicing Agreement--Servicing and Sub-Servicing" herein.
The Trustee, at the direction of a majority of the Owners, may remove
the Servicer, and the Servicer may resign, only in accordance with the terms of
the Pooling and Servicing Agreement. No removal or resignation shall become
effective until the Trustee or a successor servicer shall have assumed the
Servicer's responsibilities and obligations in accordance therewith. Any
collections received by the Servicer after removal or resignation shall be
endorsed by it to the Trustee and remitted directly to the Trustee.
Upon removal or resignation of the Servicer, the Trustee (x) may
solicit bids for a successor servicer as described in the Pooling and Servicing
Agreement and (y) until such time as a successor servicer is appointed pursuant
to the terms of the Pooling and Servicing Agreement, shall serve in the capacity
of Backup Servicer (the "Backup Servicer") subject to the right of the Trustee
to assign such duties to a party acceptable to the Owners of a majority of the
Offered Certificates. If the Trustee is unable to obtain a qualifying bid and is
prevented by law from acting as servicer, the Trustee will be required to
appoint, or petition a court of competent jurisdiction to appoint, an eligible
successor. Any successor (including the Backup Servicer) is required to be a
housing and home finance institution, bank or mortgage servicing institution
which has been designated as an approved seller-servicer by FannieMae or FHLMC
for first and second home equity loans having equity of not less than $5,000,000
as determined in accordance with generally accepted accounting principles, and
which shall assume all or any part of the responsibilities, duties or
liabilities of the Servicer.
The Certificates will not represent an interest in or obligation of,
nor are the Home Equity Loans guaranteed by, the Depositor, the Seller, the
Servicer, except as described herein, or any of their affiliates.
Credit and Underwriting Guidelines
The following is a description of the underwriting guidelines
customarily and currently employed by the Seller with respect to home equity
loans which it originates or purchases from others. Each Home Equity Loan was
underwritten according to those guidelines. The Seller revises such guidelines
from time to time in connection with changing economic and market conditions.
In certain cases loans may be acquired or originated outside of the
criteria included in the guidelines as then in effect with the prior approval of
a pre-designated senior official of the Seller and in light of compensating
factors or other business considerations. No information is available with
respect to the portion of the Home Equity Loans as to which exceptions to the
criteria specified in the guidelines described herein were made. Substantially
all of the Home Equity Loans were acquired or originated in accordance with the
underwriting guidelines described herein or with such permitted exceptions as
are described herein.
The Seller's business consists primarily of acquiring home equity
loans. The Seller specializes in home equity loans that do not conform to the
underwriting standards of FannieMae ("FannieMae") or the Federal Home Loan
Mortgage Corporation ("FHLMC") and those standards typically applied by banks
and other primary lending institutions, particularly with regard to a
prospective borrower's credit history.
The Seller acquires and originates home equity loans through its
principal office in Tampa, Florida and full-service branch offices in
Cincinnati, Ohio, Ft. Washington, Pennsylvania, Lincoln, Rhode Island and Cherry
Hill, New Jersey. In addition, the Seller maintains retail branch offices
throughout the United States and acquires home equity loans from a referral
network of mortgage lenders and brokers, banks and other referral sources, which
may include one or more affiliates of the Seller.
Home equity loans acquired from mortgage brokers and other lenders are
pre-approved by the Seller prior to funding, or purchased in bulk after funding,
only after each loan has been re-underwritten by the Seller in accordance with
its established underwriting guidelines. These guidelines are designed to assess
the adequacy of the real property which serves as collateral for the loan and
the borrower's ability to repay the loan. The Seller analyzes, among other
factors, the equity in the collateral, the credit history and debt-to-income
ratio of the borrower, the property type, and the characteristics of the
underlying senior mortgage, if any.
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The Seller purchases and originates home equity loans with different
credit characteristics depending on the credit profiles of individual borrowers.
The Seller primarily purchases and originates fixed rate loans which fully
amortize (subject to adjustments by reason of being simple interest loans) over
a period not to exceed 30 years. The Seller also acquires and originates Balloon
Loans, which generally provide for scheduled amortization over 30 years, with a
due date and a balloon payment generally at the end of the fifteenth year. The
principal amount of the loans purchased or originated by the Seller generally
ranges up to a maximum of $400,000. Under current policy the Seller generally
does not acquire or originate home equity loans where the combined Loan-to-Value
Ratio exceeds 85%. The collateral securing loans acquired or originated by the
Seller is generally one- to four-family residences, including condominiums and
townhomes. The Seller accepts mobile homes or unimproved land as collateral only
in limited circumstances. The Seller does not purchase loans where any senior
mortgage contains open-end advance, negative amortization or shared appreciation
provisions.
The Seller's home equity loan program includes: (i) a full
documentation program for salaried borrowers and (ii) a non-income qualification
program for self-employed, and in limited instances, salaried borrowers. The
borrower's total monthly debt obligations (which include principal and interest
on all other mortgages, loans, charge accounts and all other scheduled
indebtedness) generally cannot exceed 50% of the borrower's monthly gross
income. Loans to substantially all borrowers who are salaried employees must be
supported by current employment information in addition to employment history.
This information for salaried borrowers is verified based on written
confirmation from employers or one or more pay-stubs, recent W-2 tax forms,
recent tax returns or telephone confirmation from the employers. For the
Seller's non-income qualification program, proof of a two year history of
self-employment in the same business plus proof of current self-employed status
is required. The Seller typically requires lower combined Loan-to-Value Ratios
with respect to loans made to self-employed borrowers.
The Seller requires that a full appraisal of the property used as
collateral for any loan that is acquired or originated be performed in
connection with the origination of the loan. These appraisals are performed by
third party, fee-based appraisers. Appraisals of substantially all of the
Properties were completed on standard FannieMae/FHLMC forms and conform to
current FannieMae/FHLMC secondary market requirements for residential property
appraisals. Each such appraisal includes, among other things, an inspection of
the exterior of the subject property, photographs of two or more different views
of the property and data from sales within the preceding 12 months of similar
properties within the same general location as the subject property.
A credit report by an independent, nationally recognized credit
repository agency reflecting the applicant's credit history is required. The
credit report typically contains information reflecting delinquencies,
repossessions, judgments, foreclosures, garnishments, bankruptcies and similar
instances of adverse credit that can be discovered by a search of public
records.
Certain laws protect loan applicants by offering them a period of time
after loan documents are signed, termed the rescission period, during which the
applicant has the right to cancel the loan. The rescission period must have
expired prior to the funding of the loan and may not be waived by the applicant
except as permitted by law.
The Seller requires title insurance coverage issued by an approved ALTA
or CLTA title insurance company on all property securing home equity loans it
originates or purchases. The loan originator and its assignees are generally
named as the insured. Title insurance policies indicate the lien position of the
home equity loan and protect the Seller against loss if the title or lien
position is not indicated. The applicant is also required to secure hazard and,
in certain instances, flood insurance in an amount sufficient to cover the new
loan and any senior mortgage.
Delinquency, Loan Loss and Foreclosure Information
The Seller began originating or purchasing home equity loans in October
1993. In addition, from October 1993 to July 1994 the Seller sold all the home
equity loans it originated to third parties on a servicing released basis.
The delinquency and loss experience percentages indicated below are
calculated on the basis of the total home equity loans serviced as of the end of
the periods indicated. However, because the total amount of loans originated or
purchased by the Servicer has increased over these periods as a result of new
originations, the total amount of loans serviced as of the end of any indicated
period will include many loans which will not have been outstanding long enough
S-22
<PAGE>
to give rise to some or all of the indicated periods of delinquencies. In
addition, the information in the tables below has not been adjusted to eliminate
the effect of the significant growth in the size of the Seller's home equity
loan portfolio during the periods shown. Accordingly, loss and delinquency as
percentages of aggregate principal balance of home equity loans serviced for
each period would be higher than those shown if a group of home equity loans
were artificially isolated at a point in time and the information showed the
activity only in that isolated group. Accordingly, the historical delinquency
experience and loan loss information set forth below may not be indicative of
the future performance of the home equity loans.
Delinquency and Default Experience of the Servicer's Servicing
Portfolio of Home Equity Loans
<TABLE>
<CAPTION>
Three Months Ending
March 31, Year Ending December 31,
------------------- ------------------------
1997 1996 1995 1994
---- ---- ---- ----
Number Dollar Number Dollar Number Dollar Number Dollar
of Loans Amount of Loans Amount of Loans Amount of Loans Amount
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Portfolio At 40,824 $2,590,759,336 35,390 $2,148,068,446 9,376 $535,797,748 1,635 $92,003,157
Delinquency
Percentage (1)
30 - 59 days 3.069% 2.951% 3.390% 3.093% 2.613% 2.570% 1.040% 0.831%
60 - 89 days 0.884% 0.952% 1.077% 1.068% 0.672% 0.642% 0.183% 0.152%
90 + days 2.743% 2.860% 2.427% 2.616% 1.237% 1.223% 0.000% 0.000%
- -- ----- ----- ----- ----- ----- ----- ----- -----
Total Delinquency 6.696% 6.763% 6.894% 6.777% 4.522% 4.435% 1.223% 0.983%
===== ===== ===== ===== ===== ===== ===== =====
Default
Percentage (2)
Foreclosure 1.244% 1.452% 0.863% 1.003% 0.779% 0.749% 0.000% 0.000%
Bankruptcy (3) 1.048% 1.106% 1.064% 1.069% 0.576% 0.630% 0.122% 0.115%
Real Estate Owned 0.309% 0.337% 0.276% 0.313% 0.117% 0.160% 0.000% 0.000%
----- ----- ----- ----- ----- ----- ----- -----
Total Default 2.601% 2.895% 2.204% 2.385% 1.472% 1.539% 0.122% 0.115%
===== ===== ===== ===== ===== ===== ===== =====
</TABLE>
- -----------------
(1) The delinquency percentage represents the number and dollar value of account
balances contractually past due, including home equity loans in foreclosure
or bankruptcy but exclusive of real estate owned.
(2) The default percentage represents the number and dollar value of account
balances on home equity loans in foreclosure, bankruptcy or real estate
owned.
(3) The bankruptcy percentage represents all home equity loans that are in
bankruptcy regardless of delinquency status.
S-23
<PAGE>
Loan Loss Experience on the Servicer's Servicing
Portfolio of Home Equity Loans
<TABLE>
<CAPTION>
Three Months Ending
March 31, Year Ending December 31,
--------- ------------------------
1997 1996 1995 1994
---- ---- ---- ----
<S> <C> <C> <C> <C>
Average Amount Outstanding(1) $2,358,404,346 $1,207,171,960 $294,251,859 $52,709,250
Gross Losses(2) $962,804 $1,581,695 $278,632 $0
Recoveries(3) $0 $1,727 $0 $0
Net Losses(4) $962,804 $1,579,968 $278,632 $0
Net Losses as a Percentage of 0.163% 0.131% 0.095% 0.000%
Average
Amount Outstanding(5)
</TABLE>
- -----------------------
(1) "Average Amount Outstanding" during the period is the arithmetic average of
the principal balances of the home equity loans outstanding on the last
business day of each month during the period.
(2) "Gross Losses" are actual losses incurred on liquidated properties for each
respective period. Losses include all principal, foreclosure costs and
accrued interest to date.
(3) "Recoveries" are recoveries from liquidation proceeds and deficiency
judgments.
(4) "Net Losses" means "Gross Losses" minus "Recoveries."
(5) For the three months ending March 31, 1997, "Net Losses as a Percentage of
Average Amount Outstanding" was annualized by multiplying "Net Losses" by 4
before calculating the percentage of "Average Amount Outstanding."
THE DEPOSITOR
The Depositor was incorporated in the State of Delaware in November
1994. The Depositor maintains its principal offices at 3450 Buschwood Park
Drive, Tampa, Florida 33618. None of the Depositor, the Seller or the Servicer
or any of their affiliates will insure or guarantee distributions on the
Certificates.
USE OF PROCEEDS
The Seller will sell the Initial Home Equity Loans to the Depositor and
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 Offered
Certificates will be applied by the Depositor (i) to the purchase of the Initial
Home Equity Loans from the Seller, (ii) to pay off extensions of credit provided
by, among others, certain of the Underwriters with respect to certain Home
Equity Loans, (iii) to the deposit of the Pre-Funded Amount in the Pre-Funding
Account and (iv) to the deposit of certain amounts in 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 Class R Certificates
retained by the Seller) represent the purchase price to be paid by the Trust to
the Depositor and by the Depositor to the Seller for the Home Equity Loans.
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 from the Depositor from time to time on or before
June 30, 1997 from funds on deposit in the Pre-Funding Account. The Initial Home
Equity Loans and the Subsequent Home Equity Loans are referred to collectively
as the Home Equity Loans. The Subsequent Home Equity Loans to be purchased by
the Trust will be sold by the Seller to the Depositor and then by the Depositor
to the Trust.
S-24
<PAGE>
This subsection describes generally certain characteristics of the
Initial Home Equity Loans. Unless otherwise noted, all statistical percentages
in this Prospectus Supplement are measured by the aggregate principal balance of
the related Initial Home Equity Loans as of the Cut-Off Date. The columns
entitled "% of Initial Home Equity Loans" and "% of Aggregate Loan Balance" in
the following tables may not sum to 100% due to rounding.
The Initial Home Equity Loans to be transferred by the Depositor to the
Trust on the Closing Date will consist of 11,197 fixed rate conventional home
equity loans evidenced by promissory notes (the "Notes") secured by first and
second lien deeds of trust, security deeds or mortgages, which are located in 48
states and the District of Columbia. The Properties securing the Home Equity
Loans consist primarily of one- to- four family residential properties. The
Properties may be owner-occupied and non-owner occupied investment properties
(which includes second and vacation homes). All of the Initial Home Equity Loans
have a first payment date on or after December 1, 1988 and all of the Subsequent
Home Equity Loans will have been originated or purchased by the Seller prior to
the Closing Date. Initial Home Equity Loans aggregating 87.22% of the aggregate
Loan Balances of the Home Equity Loans as of the Cut-Off Date (the "Original
Aggregate Loan Balance") are secured by first liens on the related properties,
and the remaining 12.78% of Initial Home Equity Loans are secured by second
liens on the related properties.
The Loan-to-Value Ratios shown below were calculated based upon either
the appraised values of the Properties at the time of origination (the
"Appraised Values") or the sales price. 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 FannieMae 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
balances of the Home Equity Loans, together with the outstanding balances of any
first mortgage, become equal to or greater than the value of the Properties, the
actual rates of delinquencies, foreclosures and losses could be higher than
those now generally experienced in the mortgage lending industry.
As of the Cut-Off Date, the average Loan Balance of the Initial Home
Equity Loans was $63,060.45. The minimum and maximum Loan Balances of the
Initial Home Equity Loans as of the Cut-Off Date were $955.50 and $549,699.57,
respectively. The weighted average Coupon Rate of the Initial Home Equity Loans
was 11.55%; the Coupon Rate of the Initial Home Equity Loans ranged from 7.45%
to 22.50%; the weighted average combined Loan-to-Value Ratio of the Initial Home
Equity Loans was 74.49%; the weighted average remaining term to maturity of the
Initial Home Equity Loans was 217 months; and the remaining terms to maturity of
the Initial Home Equity Loans ranged from 4 months to 360 months. Initial Home
Equity Loans containing "balloon" payments represented not more than 50.58% of
the aggregate Loan Balance of the Initial Home Equity Loans. No Initial Home
Equity Loan will mature later than May 5, 2027.
<PAGE>
Geographic Distribution of Properties
The geographic distribution of the Initial Home Equity Loans by state,
as of the Cut-Off Date, was as follows:\
<TABLE>
<CAPTION>
Number of Initial Aggregate % of Aggregate
State Home Equity Loans Loan Balance Loan Balance
- ----- ----------------- ------------ ------------
<S> <C> <C> <C>
Alabama 5 $ 260,246.40 0.04%
Arizona 59 3,730,078.87 0.53
Arkansas 60 2,398,837.93 0.34
California 355 25,868,425.34 3.66
Colorado 110 7,461,703.71 1.06
Connecticut 241 19,579,092.58 2.77
Delaware 94 6,101,384.90 0.86
District of Columbia 112 7,595,513.37 1.08
Florida 780 45,742,368.51 6.48
Georgia 530 31,770,381.68 4.50
Hawaii 1 343,045.80 0.05
Idaho 32 2,020,985.23 0.29
Illinois 561 31,980,184.53 4.53
Indiana 317 14,765,811.33 2.09
Iowa 34 1,544,928.00 0.22
Kansas 14 579,178.88 0.08
Kentucky 59 2,492,077.04 0.35
Louisiana 50 1,798,458.05 0.25
Maine 20 1,112,069.02 0.16
Maryland 654 42,606,306.69 6.03
Massachusetts 269 16,858,001.62 2.39
Michigan 754 37,872,687.43 5.36
Minnesota 76 4,217,995.11 0.60
Mississippi 34 1,563,695.02 0.22
Missouri 97 4,424,217.04 0.63
Montana 6 342,858.79 0.05
Nebraska 54 2,257,086.12 0.32
Nevada 24 1,468,340.05 0.21
New Hampshire 17 885,816.13 0.13
New Jersey 750 51,812,326.43 7.34
New Mexico 62 4,103,339.42 0.58
New York 1,870 153,216,995.18 21.70
North Carolina 465 24,377,373.02 3.45
North Dakota 8 433,882.09 0.06
Ohio 395 21,026,398.29 2.98
Oklahoma 40 1,834,516.14 0.26
Oregon 112 8,694,326.50 1.23
Pennsylvania 757 43,281,592.86 6.13
Rhode Island 94 6,231,679.94 0.88
South Carolina 115 5,793,659.22 0.82
Tennessee 423 21,026,177.26 2.98
Texas 76 5,615,314.96 0.80
Utah 87 6,479,330.15 0.92
Vermont 7 596,980.78 0.08
Virginia 283 17,156,050.05 2.43
Washington 113 8,766,600.74 1.24
West Virginia 62 2,974,622.78 0.42
Wisconsin 57 2,951,364.68 0.42
Wyoming 2 73,558.70 0.01
- --------- ----
Total 11,197 $706,087,864.36 100.00%
====== =============== ======
</TABLE>
S-26
<PAGE>
Combined Loan-to-Value Ratios
The original combined loan-to-value ratios as of the origination dates
of the Initial Home Equity Loans (based upon appraisals made at the time of
origination thereof) (the "Combined Loan-to-Value Ratios") as of the Cut-Off
Date were distributed as follows:
<TABLE>
<CAPTION>
Range of Number of Initial Aggregate % of Aggregate
Original CLTV's Home Equity Loans Loan Balance Loan Balance
--------------- ----------------- ------------ ------------
<S> <C> <C> <C> <C> <C>
Up to 10.00% 10 $ 278,469.67 0.04%
10.01 to 15.00 31 695,071.68 0.10
15.01 to 20.00 65 1,970,361.06 0.28
20.01 to 25.00 62 1,813,590.62 0.26
25.01 to 30.00 90 3,296,732.68 0.47
30.01 to 35.00 118 4,521,783.15 0.64
35.01 to 40.00 167 6,354,508.92 0.90
40.01 to 45.00 205 9,571,848.12 1.36
45.01 to 50.00 310 15,128,749.65 2.14
50.01 to 55.00 290 14,938,775.21 2.12
55.01 to 60.00 525 28,328,567.27 4.01
60.01 to 65.00 771 45,151,261.13 6.39
65.01 to 70.00 1,228 77,771,228.48 11.01
70.01 to 75.00 1,683 115,512,942.90 16.36
75.01 to 80.00 2,890 209,545,239.09 29.68
80.01 to 85.00 1,270 88,838,642.23 12.58
85.01 to 90.00 802 62,661,698.95 8.87
90.01 to 95.00 172 5,544,451.33 0.79
95.01 to 100.00 508 14,163,942.22 2.01
--- ------------- ----
Total 11,197 $706,087,864.36 100.00%
====== =============== ======
</TABLE>
<TABLE>
<CAPTION>
Cut-Off Date Coupon Rates
The Coupon Rates borne by the Notes relating to the Initial Home Equity
Loans as of the Cut-Off Date were distributed as follows:
Range of Number of Initial Aggregate % of Aggregate
Coupon Rates Home Equity Loans Loan Balance Loan Balance
------------ ----------------- ------------ ------------
<S> <C> <C> <C>
7.001 to 8.000% 21 $ 1,821,621.84 0.26%
8.001 to 9.000 242 22,556,498.02 3.19
9.001 to 10.000 1,199 98,837,608.90 14.00
10.001 to 11.000 2,524 190,504,612.37 26.98
11.001 to 12.000 2,657 169,620,147.52 24.02
12.001 to 13.000 2,108 121,172,482.33 17.16
13.001 to 14.000 1,327 62,999,197.55 8.92
14.001 to 15.000 767 29,489,371.16 4.18
15.001 to 16.000 288 7,248,278.47 1.03
16.001 to 17.000 36 1,174,128.37 0.17
17.001 to 18.000 22 579,608.08 0.08
18.001 to 19.000 2 67,517.53 0.01
22.001 to 23.000 4 16,792.22 0.00
------ --------- -------
Total 11,197 $706,087,864.36 100.00%
====== =============== ======
</TABLE>
S-27
<PAGE>
Cut-Off Date Loan Balances
The distribution of the outstanding principal amounts of the Initial
Home Equity Loans as of the Cut-Off Date was as follows:
<TABLE>
<CAPTION>
Cut-Off Date Number of Initial Aggregate % of Aggregate
Loan Balances Home Equity Loans Loan Balance Loan Balance
------------- ----------------- ------------ ------------
<S> <C> <C> <C>
Up to $ 25,000.00 2,074 $ 37,830,480.61 5.36%
25,000.01 to 50,000.00 3,699 138,023,130.49 19.55
50,000.01 to 75,000.00 2,322 142,844,488.10 20.23
75,000.01 to 100,000.00 1,268 110,422,247.66 15.64
100,000.01 to 125,000.00 764 85,815,409.23 12.15
125,000.01 to 150,000.00 442 60,171,760.86 8.52
150,000.01 to 175,000.00 230 37,255,074.31 5.28
175,000.01 to 200,000.00 149 27,973,549.37 3.96
200,000.01 to 250,000.00 135 29,782,039.05 4.22
250,000.01 to 300,000.00 59 16,068,651.85 2.28
300,000.01 to 350,000.00 36 11,835,710.77 1.68
350,000.01 to 400,000.00 10 3,818,883.18 0.54
400,000.01 to 450,000.00 4 1,720,407.02 0.24
450,000.01 to 500,000.00 4 1,976,332.29 0.28
500,000.01 to 550,000.00 1 549,699.57 0.08
- ---------- ----
Total 11,197 $706,087,864.36 100.00%
====== =============== ======
</TABLE>
Types of Mortgaged Properties
The Properties securing the Initial Home Equity Loans as of the Cut-Off
Date were of the property types as follows:
<TABLE>
<CAPTION>
Number of Initial Aggregate % of Aggregate
Property Types Home Equity Loans Loan Balance Loan Balance
-------------- ----------------- ------------ ------------
<S> <C> <C> <C>
Single Family Detached 9,852 $615,129,583.81 87.12%
Two- to Four-Family 847 65,426,219.29 9.27
Condominium 162 8,216,412.03 1.16
Single Family Attached 146 6,961,152.00 0.99
Townhouse 80 4,459,243.05 0.63
Manufactured Housing 56 2,483,517.89 0.35
Multi-Family 39 2,268,603.88 0.32
Planned Unit Development 10 838,150.72 0.12
Mixed Use 5 304,981.69 0.04
- ---------- ----
Total 11,197 $706,087,864.36 100.00%
====== =============== ======
</TABLE>
Distribution of Months Since Origination
The distribution of the number of months since the date of origination
of the Initial Home Equity Loans as of the Cut-Off Date was as follows:
<TABLE>
<CAPTION>
Number of Months Number of Initial Aggregate % of Aggregate
Since Origination Home Equity Loans Loan Balance Loan Balance
----------------- ----------------- ------------ ------------
<S> <C> <C> <C>
0 to 1 50 $ 2,818,358.89 0.40%
2 to 12 10,742 686,074,961.66 97.17
13 to 24 285 13,669,006.16 1.94
25 or more 120 3,525,537.65 0.50
--- ------------ ----
Total 11,197 $706,087,864.36 100.00%
====== =============== ======
</TABLE>
S-28
<PAGE>
Distribution of Remaining Term to Maturity
The distribution of the number of months remaining to maturity of the
Initial Home Equity Loans as of the Cut-Off Date was as follows:
<TABLE>
<CAPTION>
Months Remaining Number of Initial Aggregate % of Aggregate
to Maturity Home Equity Loans Loan Balance Loan Balance
- ----------- ----------------- ------------ ------------
<S> <C> <C> <C>
Up to 120 584 $ 17,108,516.62 2.42%
121 to 180 7,545 462,059,111.92 65.44
181 to 240 1,475 85,623,255.67 12.13
241 to 300 28 1,779,424.43 0.25
301 to 360 1,565 139,517,555.72 19.76
----- -------------- -----
Total 11,197 $706,087,864.36 100.00%
====== =============== ======
</TABLE>
Occupancy Status
The occupancy status of the Properties securing the Initial Home Equity
Loans as of the Cut-Off Date was as follows:
<TABLE>
<CAPTION>
Number of Initial Aggregate % of Aggregate
Occupancy Status Home Equity Loans Loan Balance Loan Balance
- ---------------- ----------------- ------------ ------------
<S> <C> <C> <C>
Owner Occupied 10,188 $651,290,477.37 92.24%
Investor Owned 954 50,565,293.02 7.16
Vacation/Second Home 55 4,232,093.97 0.60
-- ------------ ----
Total 11,197 $706,087,864.36 100.00%
====== =============== ======
</TABLE>
Distribution by Lien Position
The lien position of the Initial Home Equity Loans as of the Cut-Off
Date was as follows:
<TABLE>
<CAPTION>
Number of Initial Aggregate % of Aggregate
Lien Position Home Equity Loans Loan Balance Loan Balance
- ------------- ----------------- ------------ ------------
<S> <C> <C> <C>
First Lien 8,504 $615,880,009.25 87.22%
Second Lien 2,693 90,207,855.11 12.78
----- ------------- -----
Total 11,197 $706,087,864.36 100.00%
====== =============== ======
</TABLE>
Conveyance of Subsequent Home Equity Loans
The Pooling and Servicing Agreement permits the Trust to acquire
$93,912,135.64 in aggregate principal balance of Subsequent Home Equity Loans.
Accordingly, the statistical characteristics of the Home Equity Loans will vary
as of Subsequent Cut-Off Date upon the acquisition of Subsequent Home Equity
Loans, but the Seller does not expect such variance to be material.
The obligation of the Trust to purchase a Subsequent Home Equity Loan
on a Subsequent Transfer Date for assignment to the Home Equity Loan Pool is
subject, among other factors, to the following requirements: (i) the ratings on
the Offered Certificates shall not have been downgraded by any Rating Agency;
(ii) such Subsequent Home Equity Loan may not be 30 or more days contractually
delinquent as of the related Subsequent Cut-Off Date (except that Subsequent
Home Equity Loans representing not more than 2% of the aggregate Loan Balance of
the Subsequent Home Equity Loans may not be more than 60 days Delinquent as of
the related Subsequent Cut-Off Date); (iii) such
S-29
<PAGE>
Subsequent Home Equity Loan will be a fixed rate Home Equity Loan; (iv) the
original term to maturity of such Subsequent Home Equity Loan may not exceed 30
years; (v) such Subsequent Home Equity Loan will have a Coupon Rate of not less
than 8.38%; (vi) following the purchase of such Subsequent Home Equity Loan by
the Trust, the Home Equity Loans (including the Subsequent Home Equity Loans)
(a) will have a weighted average Coupon Rate of at least 11.50%; (b) will have a
weighted average combined Loan-to-Value Ratio of not more than 75%; (c) will not
have Balloon Loans representing more than 53% by aggregate principal balance;
and, (d) will have no Home Equity Loan with a principal balance in excess of
$550,000.
Interest Payments on the Home Equity Loans
Approximately 97.79% of the Home Equity Loans provide that interest is
charged to the obligor (the "Mortgagor") 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 Home
Equity 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.
There are a number of Home Equity Loans on which interest is charged to
the Mortgagor at the Coupon Rate on the outstanding principal balance calculated
based on the number of days elapsed between receipt of the Mortgagor's last
payment through receipt of the Mortgagor's most current payment (such Home
Equity Loans, "Date-of-Payment Loans"). Such interest is deducted from the
Mortgagor's payment amount and the remainder, if any, of the payment is applied
as a reduction to the outstanding principal balance of such Note. Although the
Mortgagor is required to remit equal monthly payments on a specified monthly
payment date that would reduce the outstanding principal balance of such Note to
zero at such Note's maturity date, payments that are made by the Mortgagor after
the due date therefor would cause the outstanding principal balance of such Note
not to be reduced to zero on its maturity date. In such a case, the Mortgagor
would be required to make an additional principal payment at the maturity date
for such Note. If it were assumed that all the Mortgagors on the Date-of-Payment
Loans were to pay on the latest date possible without the Date-of-Payment Loans
being in default, the amount of such additional principal payment would be a de
minimis amount of the aggregate Loan Balance of the Home Equity Loans. On the
other hand, if a Mortgagor makes a payment (other than a Prepayment) before the
due date therefor, the reduction in the outstanding principal balance of such
Note would occur over a shorter period of time than would have occurred had it
been based on the schedule of amortization in effect on the Cut-Off Date.
Accordingly, the timing of principal payments to the Owners of the Offered
Certificates may be affected by the fact that actual Mortgagor payments may not
be made on the due date therefor.
PREPAYMENT AND YIELD CONSIDERATIONS
General
The weighted average life of, and, if purchased at other than par, the
yield to maturity on, the Offered Certificates will relate to the rate of
payment of principal of the Home Equity Loans, including, for this purpose,
Prepayments, liquidations due to defaults, casualties and condemnations, and
repurchases of Home Equity Loans by the Seller. A significant number of the Home
Equity Loans may be prepaid by the related Mortgagors, in whole or in part, at
any time without payment of any prepayment fee or penalty. The actual rate of
principal prepayments on pools of home equity 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 home equity loans at any time because of
specific factors relating to the home equity loans in the particular pool,
including, among other things, the age of the home equity loans, the geographic
locations of the properties securing the loans and the extent of the mortgagors'
equity in such properties, and changes in the mortgagors' housing needs, job
transfers and unemployment.
As with fixed rate obligations generally, the rate of prepayment on a
pool of home equity loans with fixed rates is affected by prevailing market
rates for home equity loans of a comparable term and risk level. When the market
interest rate is below the mortgage coupon, mortgagors may have an increased
incentive to refinance their home equity loans. Depending on prevailing market
rates, the future outlook for market rates and economic conditions generally,
some mortgagors may sell or refinance mortgaged properties in order to realize
their equity in the mortgaged properties, to meet cash flow needs or to make
other investments.
In addition to the foregoing factors affecting the weighted average
life of the Offered Certificates, the overcollateralization provisions of the
Trust result in an additional reduction 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 the Monthly
Excess Interest Amount to the payment of the related Certificate Principal
Balance
S-30
<PAGE>
of the Offered Certificates. This creates overcollateralization which
results from the excess of the aggregate Loan Balance of the Home Equity Loans
over the Aggregate Certificate Principal Balance. Once the Target
Overcollateralization Amount is reached, the application of the Monthly Excess
Interest Amount to pay down principal will cease, unless necessary to maintain
the Overcollateralization Amount at the Target Overcollateralization Amount.
Mandatory Prepayment
In the event that prior to the end of the Funding Period the Depositor
is unable to sell Subsequent Home Equity Loans to the Trust in an amount equal
to $93,912,135.64, the Owners of the Class or Classes of Class A Certificates
then entitled to receive payments of principal will receive a partial prepayment
on the Payment Date in July 1997 in an amount equal to the Pre-Funded Amount
remaining at the end of the Funding Period.
The Seller intends to use substantially all of the amount on deposit in
the Pre-Funding Account to purchase Subsequent Home Equity Loans such that no
material amount of principal is expected to be prepaid on the Payment Date in
July 1997.
Prepayment and Yield Scenarios for Offered Certificates
As indicated above, 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 Offered Certificates"), the yield to maturity on an
Offered 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 of the
Offered Certificates 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 of the Offered Certificates 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 Offered
Certificates is as set forth in the "Summary of Terms" hereof. These dates are
dates on which the "Initial Certificate Principal Balance" set forth in the
"Summary of Terms" hereof for the related Class as of the Closing Date would be
reduced to zero, assuming that no Prepayments are received on the Home Equity
Loans, that scheduled monthly payments of principal and interest on the Home
Equity Loans are timely received and that no Monthly Excess Interest Amount will
be used to make accelerated payments of principal to the Owners of the Class A
Certificates. The Final Scheduled Payment Date for the Class A-6 Certificates,
Class A-7 Certificates and each Class of the Subordinate Certificates is the
thirteenth Payment Date following the Remittance Period in which the Loan
Balances of all Home Equity Loans have been reduced to zero assuming that the
Home Equity Loans pay in accordance with their terms. The weighted average lives
of the Offered Certificates are 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 Dates with respect to the Offered
Certificates could occur significantly earlier than the Final Scheduled Payment
Dates because (i) Prepayments are likely to occur and (ii) the Owners of the
Class R Certificates may cause a termination of the Trust when the aggregate
outstanding Loan Balance of the Home Equity Loans is less than 10% 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 Offered Certificates will be influenced by the rate at which
principal of the Home Equity 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 home
equity loans are commonly measured relative to a prepayment standard or model.
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 home equity loans for the life of such home equity loans. A 100%
Prepayment Assumption assumes constant prepayment rates ("CPR") of 4% per annum
of the then outstanding principal balance of the Home Equity Loans in the first
month of the life of such Home Equity Loans and an additional 1.818% (precisely
20/11ths) per annum in each month thereafter until the twelfth month. Beginning
in the thirteenth month and in each month thereafter during the life of such
Home Equity Loans, 100% Prepayment Assumption assumes a constant prepayment rate
of 24% per annum each month. As used in the table below, 0% Prepayment
Assumption assumes prepayment rates equal to 0% of the Prepayment Assumption;
i.e., no prepayments. Correspondingly, 100% Prepayment Assumption assumes
prepayment rates equal to 100% of the Prepayment Assumption, and so forth. The
Prepayment Assumption does not purport to be a historical description of
prepayment experience or a prediction of the anticipated rate of prepayment of
any pool of home equity loans, including the Home Equity Loans. The Seller
believes that no existing
S-31
<PAGE>
statistics of which it is aware provide a reliable
basis for Owners of Offered 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 Offered 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 Offered Certificates may be made earlier or
later than as indicated in the tables.
For the purpose of the tables below, it is assumed that: (i) the Home
Equity Loans consist of pools of loans with level-pay and balloon amortization
methodologies, Cut-Off Date Loan Balances, gross coupon rates, net coupon rates,
original and remaining terms of amortization, and remaining terms to maturity as
applicable, as set forth in the "Representative Loan Pools" table below, (ii)
the Closing Date for the Certificates occurs on June 13, 1997, (iii)
distributions on the Certificates are made on the 20th day of each month
regardless of the day on which the Payment Date actually occurs, commencing in
July 1997 in accordance with the priorities described herein, (iv) the
difference between the Gross Coupon Rate and the Net Coupon Rate is equal to the
Servicing Fee and the Net Coupon Rate is further reduced by the Trustee Fee, (v)
the Home Equity Loans' prepayment rates are a multiple of the Prepayment
Assumption, (vi) prepayments include 30 day's interest thereon, (vii) no
optional termination is exercised, (viii) the "Targeted Overcollateralization
Amount" (as defined under "Credit Enhancement -- Overcollateralization
Provisions") 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 Home Equity Loans are sold to
the Trust as of the Closing Date; and (x) the scheduled monthly payments of
principal and interest on the Home Equity Loans will be timely delivered on the
first day of the Remittance Period (with no defaults).
REPRESENTATIVE LOAN POOLS
<TABLE>
<CAPTION>
Original Remaining Remaining
Term of Term of Term to
Pool Loan Gross Net Coupon Amortization Amortization Maturity Amortization
Number Balance Coupon Rate Rate (in months) (in months) (in months) Method
------ ------- ----------- ---- ----------- ----------- ----------- ------
<S> <C> <C> <C> <C> <C> <C> <C>
1 $ 498,868.32 12.000% 11.500% 59 56 56 Level
2 13,110,630.04 11.766 11.266 118 114 114 Level
3 124,774,547.73 11.871 11.371 180 174 174 Level
4 98,895,893.59 11.234 10.734 241 237 237 Level
5 158,073,343.10 11.053 10.553 360 355 355 Level
6 404,646,717.22 11.725 11.225 359 355 175 Balloon
</TABLE>
S-32
<PAGE>
The following tables set forth the percentages of the initial
principal amount of the Offered Certificates that would be outstanding after
each of the dates shown, based on a rate equal to 0%, 50%, 75%, 100%, 125% and
150% of the Prepayment Assumption (as defined above).
PERCENTAGE OF INITIAL CERTIFICATE PRINCIPAL BALANCE(1)
<TABLE>
<CAPTION>
Class A-1 Class A-2
Payment Date 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>
Initial 100 100 100 100 100 100 100 100 100 100 100 100
6/20/1998 86 33 7 0 0 0 100 100 100 76 43 10
6/20/1999 80 0 0 0 0 0 100 67 5 0 0 0
6/20/2000 73 0 0 0 0 0 100 0 0 0 0 0
6/20/2001 66 0 0 0 0 0 100 0 0 0 0 0
6/20/2002 58 0 0 0 0 0 100 0 0 0 0 0
6/20/2003 50 0 0 0 0 0 100 0 0 0 0 0
6/20/2004 40 0 0 0 0 0 100 0 0 0 0 0
6/20/2005 33 0 0 0 0 0 100 0 0 0 0 0
6/20/2006 24 0 0 0 0 0 100 0 0 0 0 0
6/20/2007 15 0 0 0 0 0 100 0 0 0 0 0
6/20/2008 4 0 0 0 0 0 100 0 0 0 0 0
6/20/2009 0 0 0 0 0 0 90 0 0 0 0 0
6/20/2010 0 0 0 0 0 0 72 0 0 0 0 0
6/20/2011 0 0 0 0 0 0 51 0 0 0 0 0
6/20/2012 0 0 0 0 0 0 0 0 0 0 0 0
6/20/2013 0 0 0 0 0 0 0 0 0 0 0 0
6/20/2014 0 0 0 0 0 0 0 0 0 0 0 0
6/20/2015 0 0 0 0 0 0 0 0 0 0 0 0
6/20/2016 0 0 0 0 0 0 0 0 0 0 0 0
6/20/2017 0 0 0 0 0 0 0 0 0 0 0 0
6/20/2018 0 0 0 0 0 0 0 0 0 0 0 0
6/20/2019 0 0 0 0 0 0 0 0 0 0 0 0
6/20/2020 0 0 0 0 0 0 0 0 0 0 0 0
6/20/2021 0 0 0 0 0 0 0 0 0 0 0 0
6/20/2022 0 0 0 0 0 0 0 0 0 0 0 0
6/20/2023 0 0 0 0 0 0 0 0 0 0 0 0
6/20/2024 0 0 0 0 0 0 0 0 0 0 0 0
6/20/2025 0 0 0 0 0 0 0 0 0 0 0 0
6/20/2026 0 0 0 0 0 0 0 0 0 0 0 0
6/20/2027 0 0 0 0 0 0 0 0 0 0 0 0
Weighted 5.8 0.8 0.6 0.5 0.4 0.4 13.7 2.3 1.6 1.2 1.0 0.9
Average
Life
(Years)(2)
</TABLE>
<TABLE>
<CAPTION>
Class A-3 Class A-4
Payment Date 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>
Initial 100 100 100 100 100 100 100 100 100 100 100 100
6/20/1998 100 100 100 100 100 100 100 100 100 100 100 100
6/20/1999 100 100 100 41 0 0 100 100 100 100 81 25
6/20/2000 100 100 10 0 0 0 100 100 100 32 0 0
6/20/2001 100 40 0 0 0 0 100 100 53 0 0 0
6/20/2002 100 0 0 0 0 0 100 88 15 0 0 0
6/20/2003 100 0 0 0 0 0 100 59 0 0 0 0
6/20/2004 100 0 0 0 0 0 100 35 0 0 0 0
6/20/2005 100 0 0 0 0 0 100 26 0 0 0 0
6/20/2006 100 0 0 0 0 0 100 13 0 0 0 0
6/20/2007 100 0 0 0 0 0 100 0 0 0 0 0
6/20/2008 100 0 0 0 0 0 100 0 0 0 0 0
6/20/2009 100 0 0 0 0 0 100 0 0 0 0 0
6/20/2010 100 0 0 0 0 0 100 0 0 0 0 0
6/20/2011 100 0 0 0 0 0 100 0 0 0 0 0
6/20/2012 0 0 0 0 0 0 4 0 0 0 0 0
6/20/2013 0 0 0 0 0 0 0 0 0 0 0 0
6/20/2014 0 0 0 0 0 0 0 0 0 0 0 0
6/20/2015 0 0 0 0 0 0 0 0 0 0 0 0
6/20/2016 0 0 0 0 0 0 0 0 0 0 0 0
6/20/2017 0 0 0 0 0 0 0 0 0 0 0 0
6/20/2018 0 0 0 0 0 0 0 0 0 0 0 0
6/20/2019 0 0 0 0 0 0 0 0 0 0 0 0
6/20/2020 0 0 0 0 0 0 0 0 0 0 0 0
6/20/2021 0 0 0 0 0 0 0 0 0 0 0 0
6/20/2022 0 0 0 0 0 0 0 0 0 0 0 0
6/20/2023 0 0 0 0 0 0 0 0 0 0 0 0
6/20/2024 0 0 0 0 0 0 0 0 0 0 0 0
6/20/2025 0 0 0 0 0 0 0 0 0 0 0 0
6/20/2026 0 0 0 0 0 0 0 0 0 0 0 0
6/20/2027 0 0 0 0 0 0 0 0 0 0 0 0
Weighted 14.6 3.9 2.6 2.0 1.6 1.3 14.6 6.8 4.2 3.0 2.3 1.9
Average
Life
(Years)(2)
</TABLE>
- -----------------------------
(1) The percentages in the following tables have been rounded to the nearest
whole number.
(2) The weighted average life of the Offered 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 Offered Certificate.
S-33
<PAGE>
PERCENTAGE OF INITIAL CERTIFICATE PRINCIPAL BALANCE(1)
<TABLE>
<CAPTION>
Class A-5 Class A-6
Payment Date 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>
Initial 100 100 100 100 100 100 100 100 100 100 100 100
6/20/1998 100 100 100 100 100 100 100 100 100 100 100 100
6/20/1999 100 100 100 100 100 100 100 100 100 100 100 100
6/20/2000 100 100 100 100 53 0 100 100 100 100 100 47
6/20/2001 100 100 100 93 29 0 100 100 100 100 100 45
6/20/2002 100 100 100 46 0 0 100 100 100 100 81 0
6/20/2003 100 100 84 19 0 0 100 100 100 100 46 0
6/20/2004 100 100 58 3 0 0 100 100 100 100 32 0
6/20/2005 100 100 53 2 0 0 100 100 100 100 32 0
6/20/2006 100 100 41 0 0 0 100 100 100 94 32 0
6/20/2007 100 99 27 0 0 0 100 100 100 76 30 0
6/20/2008 100 81 14 0 0 0 100 100 100 58 23 0
6/20/2009 100 63 2 0 0 0 100 100 100 43 13 0
6/20/2010 100 47 0 0 0 0 100 100 83 32 5 0
6/20/2011 100 32 0 0 0 0 100 100 65 22 0 0
6/20/2012 100 0 0 0 0 0 100 50 14 0 0 0
6/20/2013 96 0 0 0 0 0 100 41 8 0 0 0
6/20/2014 85 0 0 0 0 0 100 33 4 0 0 0
6/20/2015 72 0 0 0 0 0 100 26 0 0 0 0
6/20/2016 59 0 0 0 0 0 100 19 0 0 0 0
6/20/2017 46 0 0 0 0 0 100 12 0 0 0 0
6/20/2018 40 0 0 0 0 0 100 8 0 0 0 0
6/20/2019 34 0 0 0 0 0 100 5 0 0 0 0
6/20/2020 27 0 0 0 0 0 100 1 0 0 0 0
6/20/2021 19 0 0 0 0 0 100 0 0 0 0 0
6/20/2022 10 0 0 0 0 0 100 0 0 0 0 0
6/20/2023 0 0 0 0 0 0 100 0 0 0 0 0
6/20/2024 0 0 0 0 0 0 76 0 0 0 0 0
6/20/2025 0 0 0 0 0 0 49 0 0 0 0 0
6/20/2026 0 0 0 0 0 0 17 0 0 0 0 0
6/20/2027 0 0 0 0 0 0 0 0 0 0 0 0
Weighted 20.4 12.8 8.4 5.2 3.5 2.5 27.9 16.5 14.3 11.8 7.6 3.6
Average
Life
(Years)(2)
</TABLE>
<TABLE>
<CAPTION>
Class A-7 Class M-1
Payment Date 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>
Initial 100 100 100 100 100 100 100 100 100 100 100 100
6/20/1998 100 100 100 100 100 100 100 100 100 100 100 100
6/20/1999 100 100 100 100 100 100 100 100 100 100 100 100
6/20/2000 100 100 100 100 100 100 100 100 100 100 100 100
6/20/2001 99 92 89 90 93 99 100 100 89 67 49 35
6/20/2002 98 84 81 79 79 76 100 100 72 50 33 22
6/20/2003 96 74 68 63 58 47 100 87 58 37 23 14
6/20/2004 94 64 55 47 40 30 100 75 46 28 16 9
6/20/2005 86 40 28 22 22 19 100 64 37 20 11 5
6/20/2006 77 25 14 9 11 12 100 55 29 15 7 0
6/20/2007 68 15 7 3 3 5 100 47 23 11 5 0
6/20/2008 60 9 3 1 1 1 100 40 18 8 0 0
6/20/2009 51 6 2 0 0 0 100 34 15 6 0 0
6/20/2010 42 3 1 0 0 0 100 28 11 4 0 0
6/20/2011 34 2 0 0 0 0 100 23 9 0 0 0
6/20/2012 0 0 0 0 0 0 44 7 0 0 0 0
6/20/2013 0 0 0 0 0 0 41 5 0 0 0 0
6/20/2014 0 0 0 0 0 0 38 4 0 0 0 0
6/20/2015 0 0 0 0 0 0 35 1 0 0 0 0
6/20/2016 0 0 0 0 0 0 31 0 0 0 0 0
6/20/2017 0 0 0 0 0 0 27 0 0 0 0 0
6/20/2018 0 0 0 0 0 0 25 0 0 0 0 0
6/20/2019 0 0 0 0 0 0 23 0 0 0 0 0
6/20/2020 0 0 0 0 0 0 21 0 0 0 0 0
6/20/2021 0 0 0 0 0 0 19 0 0 0 0 0
6/20/2022 0 0 0 0 0 0 16 0 0 0 0 0
6/20/2023 0 0 0 0 0 0 13 0 0 0 0 0
6/20/2024 0 0 0 0 0 0 10 0 0 0 0 0
6/20/2025 0 0 0 0 0 0 7 0 0 0 0 0
6/20/2026 0 0 0 0 0 0 0 0 0 0 0 0
6/20/2027 0 0 0 0 0 0 0 0 0 0 0 0
Weighted 11.6 7.7 7.0 6.7 6.6 6.4 18.1 10.3 7.6 6.0 5.0 4.6
Average
Life
(Years)(2)
</TABLE>
- -----------------------------
(1) The percentages in the following tables have been rounded to the nearest
whole number.
(2) The weighted average life of the Offered 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 Offered Certificate.
S-34
<PAGE>
<TABLE>
<CAPTION>
PERCENTAGE OF INITIAL CERTIFICATE PRINCIPAL BALANCE(1)
Class M-2 Class B
Payment Date 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>
Initial 100 100 100 100 100 100 100 100 100 100 100 100
6/20/1998 100 100 100 100 100 100 100 100 100 100 100 100
6/20/1999 100 100 100 100 100 100 100 100 100 100 100 100
6/20/2000 100 100 100 100 100 100 100 100 100 100 100 100
6/20/2001 100 100 89 67 49 35 100 100 89 67 49 35
6/20/2002 100 100 72 50 33 22 100 100 72 50 33 19
6/20/2003 100 87 58 37 23 14 100 87 58 37 21 7
6/20/2004 100 75 46 28 16 8 100 75 46 27 10 0
6/20/2005 100 64 37 20 11 2 100 64 37 17 3 0
6/20/2006 100 55 29 15 6 0 100 55 29 9 0 0
6/20/2007 100 47 23 11 1 0 100 47 21 3 0 0
6/20/2008 100 40 18 8 0 0 100 40 14 0 0 0
6/20/2009 100 34 15 3 0 0 100 34 8 0 0 0
6/20/2010 100 28 11 0 0 0 100 28 4 0 0 0
6/20/2011 100 23 9 0 0 0 100 21 0 0 0 0
6/20/2012 44 4 0 0 0 0 44 0 0 0 0 0
6/20/2013 41 2 0 0 0 0 41 0 0 0 0 0
6/20/2014 38 0 0 0 0 0 38 0 0 0 0 0
6/20/2015 35 0 0 0 0 0 35 0 0 0 0 0
6/20/2016 31 0 0 0 0 0 31 0 0 0 0 0
6/20/2017 27 0 0 0 0 0 26 0 0 0 0 0
6/20/2018 25 0 0 0 0 0 24 0 0 0 0 0
6/20/2019 23 0 0 0 0 0 21 0 0 0 0 0
6/20/2020 21 0 0 0 0 0 18 0 0 0 0 0
6/20/2021 19 0 0 0 0 0 15 0 0 0 0 0
6/20/2022 16 0 0 0 0 0 11 0 0 0 0 0
6/20/2023 13 0 0 0 0 0 7 0 0 0 0 0
6/20/2024 10 0 0 0 0 0 2 0 0 0 0 0
6/20/2025 4 0 0 0 0 0 0 0 0 0 0 0
6/20/2026 0 0 0 0 0 0 0 0 0 0 0 0
6/20/2027 0 0 0 0 0 0 0 0 0 0 0 0
Weighted 18.1 10.1 7.6 5.9 4.9 4.3 17.7 10.1 7.4 5.6 4.6 4.0
Average
Life
(Years)(2)
- -----------------------------
</TABLE>
(1) The percentages in the following tables have been rounded to the nearest
whole number.
(2) The weighted average life of the Offered 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 Offered Certificate.
Payment Lag Feature of Offered Certificates
Pursuant to the Pooling and Servicing Agreement, an amount equal to
Mortgagor payments with respect to each Home Equity Loan (net of the Servicing
Fee) received by the Servicer during each Remittance Period is to be remitted to
the Trustee on or prior to the related Monthly Remittance Date while the Trustee
will not be required to distribute any such amounts to the Owners of the Offered
Certificates until the next succeeding Payment Date. As a result, the monthly
distributions to the Owners of the Offered Certificates generally reflect
Mortgagor payments during the prior Remittance Period, and the first Payment
Date will not occur until July 21, 1997. Thus, the effective yield to the Owners
of the Offered Certificates will be below that otherwise produced by the related
Pass-Through Rate because the distribution to the Owners of the Offered
Certificates in respect of any given month will not be made until on or about
the 20th day of the following month.
FORMATION OF THE TRUST AND TRUST PROPERTY
The Trust will be created and established pursuant to the Pooling and
Servicing Agreement. The Seller will convey without recourse the Home Equity
Loans to the Depositor, the Depositor will convey without recourse the Home
Equity Loans to the Trust and the Trust will issue the Offered Certificates and
the Class R Certificates to the Owners thereof.
The property of the Trust shall include all (a) the Home Equity Loans
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 may be held by the Servicer in the Principal and
Interest Account, if any, exclusive of investment earnings thereon (except as
otherwise
S-35
<PAGE>
provided) whether in the form of cash, instruments, securities or
other properties and (c) 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 (collectively, the "Trust
Estate").
The Offered 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.
In addition to the Offered Certificates, the Trust will also issue the
Class R Certificates which will be designated as the "residual interest" in the
REMIC for purposes of the Code. The Class R Certificates are not being offered
hereby.
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 Initial Home Equity Loans as
constituted at the close of business on the Cut-Off Date. Prior to the issuance
of the Offered 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 Seller 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 and the Subsequent Home Equity Loans will be added
to the pool after the issuance of the 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 Pooling and Servicing Agreement, with
the Securities and Exchange Commission within fifteen days after the initial
issuance of the Offered Certificates and within 15 days of the addition of any
Subsequent Home Equity Loans. In the event Initial Home Equity Loans are removed
from or added to, or Subsequent Home Equity Loans are added to, the pool as set
forth in the preceding paragraph, such removal or addition will be noted in a
current report on Form 8-K.
DESCRIPTION OF THE OFFERED CERTIFICATES
General
Each Offered 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.
Payment Dates
On each Payment Date, the Owners of each Class of the Offered
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 the Offered Certificates is
reduced to zero, and to the extent funds are available therefor, the related
Current Interest, any Interest Carry Forward Amount and the portion of the
Principal Distribution Amount, if any, allocated therefor as of such Payment
Date, allocated among the Classes of the Offered Certificates as described
below. Distributions will
S-36
<PAGE>
be made in immediately available funds to Owners of the 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 at least five Business Days prior to the Record Date, 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 Offered
Certificates--Book Entry Registration of the Offered 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 of the Pooling and Servicing Agreement.
Each Owner of record of the related Class of Offered 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 an Offered Certificate
as of any date of determination will be equal to the percentage obtained by
dividing the principal balance of such Offered Certificate as of the Cut-Off
Date by the Certificate Principal Balance for the related Class of Certificates
as of the Cut-Off Date.
Distributions
Upon receipt, the Trustee will be required to deposit into the
Certificate Account, (i) the proceeds of any liquidation of the assets of the
Trust, (ii) all remittances made to the Trustee by the Servicer and (iii) on the
first Payment Date, the Capitalized Interest Requirement (as defined in the
Pooling and Servicing Agreement) and any portion of the Pre-Funding Amount, if
any, to be transferred on such Payment Date.
The Pooling and Servicing Agreement establishes a pass-through rate on
each Class of the Offered Certificates (each, a "Pass-Through Rate") as set
forth in the Summary herein under "Certificates Offered." The "Expense Fee Rate"
will equal the sum of the per annum rates at which the Servicing Fee, the
Trustee Fee and any Trustee Reimbursable Expenses (as defined in the Pooling and
Servicing Agreement) are calculated.
On each Payment Date, the Trustee is required to make the following
disbursements and transfers from monies then on deposit in the Certificate
Account as specified below in the following order of priority of each such
transfer and disbursement with respect to interest and principal:
Interest: On each Payment Date the Interest Remittance Amount will be
distributed in the following order of priority:
First, to the Trustee, the Trustee Fee and any Trustee
Reimbursable Expenses;
Second, to the Owners of the Class A Certificates, the related
Current Interest plus the related Class A Interest Carry
Forward Amount with respect to each Class of Class A
Certificates without any priority among such Class A
Certificates ; provided, that if the Interest Amount Available
is not sufficient to make a full distribution of interest with
respect to all Classes of the Class A Certificates, the
Interest Amount Available will be distributed among the
outstanding Classes of Class A Certificates pro rata based on
the aggregate amount of interest due on each such Class, and
the amount of the shortfall will be carried forward with
accrued interest;
Third, to the extent of the Interest Amount Available then
remaining, to the Owners of the Class M-1 Certificates, the
related Current Interest;
Fourth, to the extent of the Interest Amount Available then
remaining, to the Owners of the Class M-2 Certificates, the
related Current Interest;
Fifth, to the extent of the Interest Amount Available then
remaining, to the Owners of the Class B Certificates, the
related Current Interest; and
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Sixth, the Monthly Excess Interest Amount shall be applied as
described under "Credit Enhancement Application of Monthly
Excess Cashflow Amount."
Principal: On each Payment Date (a) before the Stepdown Date or (b)
with respect to which a Trigger Event is in effect, Owners of the Class A
Certificates will be entitled to receive payment of 100% of the Principal
Distribution Amount as follows: first, to the Owners of the Class A-7
Certificates, the Class A-7 Lockout Distribution Amount and then sequentially to
the Owners of the each Class of the Class A Certificates, in the order of their
numerical designation until the Certificate Principal Balance of each Class of
Class A Certificates has been reduced to zero.
On each Payment Date (a) on or after the Stepdown Date and (b) as long
as a Trigger Event is not in effect, the Owners of all Classes of the Offered
Certificates will be entitled to receive payments of principal, in the order of
priority, in the amounts set forth below and to the extent of the Principal
Distribution Amount as follows:
First, the lesser of (x) the Principal Distribution Amount and
(y) the Class A Principal Distribution Amount shall be
distributed to the Owners of the Class A-7 Certificates, in an
amount equal to the Class A-7 Lockout Distribution Amount,
with the remainder paid sequentially to the Owners of each
Class of the Class A Certificates, in the order of their
numerical designation until the Certificate Principal Balance
of each Class of Class A Certificates has been reduced to
zero;
Second, the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the
Owners of the Class A Certificates in clause First above and
(y) the Class M-1 Principal Distribution Amount shall be
distributed to the Owners of the Class M-1 Certificates, until
the Class M-1 Certificate Principal Balance has been reduced
to zero;
Third, the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the sum of the amount
distributed to the Owners of the Class A Certificates in
clause First above and the amount distributed to the Owners of
the Class M-1 Certificates in clause Second above and (y) the
Class M-2 Principal Distribution Amount shall be distributed
to the Owners of the Class M-2 Certificates, until the Class
M-2 Certificate Principal Balance has been reduced to zero;
Fourth, the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the sum of the amount
distributed to the Owners of the Class A Certificates pursuant
to clause First above, the amount distributed to the Owners of
the Class M-1 Certificates pursuant to clause Second above and
the amount distributed to the Owners of the Class M-2
Certificates pursuant to clause Third above and (y) the Class
B Principal Distribution Amount shall be distributed to the
Owners of the Class B Certificates, until the Class B
Certificate Principal Balance has been reduced to zero; and,
Fifth, any amount of the Principal Remittance Amount remaining
after making all of the distributions in clauses First,
Second, Third and Fourth above shall be included as part of
the Monthly Excess Cashflow Amount as described under "Credit
Enhancement Application of Monthly Excess Cashflow Amounts" in
the Summary of Terms.
Notwithstanding the foregoing, in the event that the Certificate
Principal Balances of all of the Class A Certificates have been reduced to zero,
all amounts of principal that would have been distributed to such Class A
Certificates will be distributed to the Subordinate Certificates sequentially in
the following order: Class M-1, Class M-2 and Class B. Similarly, if the
Certificate Principal Balance of the Class M-1 Certificates has been reduced to
zero, all amounts of principal that would have been distributed to such Class
M-1 Certificates will be distributed to the Class M-2 and Class B Certificates
in that order. Finally, if the Certificate Principal Balance of the Class M-2
Certificates has been reduced to zero, all amounts of principal that would have
been distributed on such Class M-2 Certificates will be distributed to the Class
B Certificates.
The Class A Certificates (other than the Class A-7 Certificates) are
"sequential pay" classes such that the Owners of the Class A-6 Certificates will
receive no payments of principal until the Class A-5 Certificate Principal
Balance is reduced to zero, the Owners of the Class A-5 Certificates will
receive no payments of principal until the Class A-4 Certificate Principal
Balance has been reduced to zero, the Owners of the Class A-4 Certificates will
receive no payments of principal until the Class A-3 Certificate Principal
Balance has been reduced to zero, the Owners of the Class
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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; provided, however, that
on any Payment Date on which the sum of the Certificate Principal Balance of the
Subordinate Certificates and the Overcollateralization Amount is zero, any
amounts of principal payable to the Owners of the Class A Certificates on such
Payment Date shall be distributed pro rata and not sequentially.
Pre-Funding Account
On the Closing Date, the 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 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. Any Pre-Funded Amount remaining at the end of the Funding
Period will be distributed to the Owners of the Class or Classes of Class A
Certificates then entitled to receive principal payments on the Payment Date in
July 1997 in reduction of the Certificate Principal Balance of such Owner's
Certificates, thus resulting in a partial principal prepayment of such
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, will be used by the Trustee to
fund the excess, if any, of (i) the amount of interest accruing at the weighted
average of the Pass-Through Rates of the Offered Certificates on the amount by
which the Aggregate Certificate Principal Balance exceeds the aggregate Loan
Balance of the Home Equity Loans 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 the first Payment Date to fund any such excess. 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 of such
funds and will not thereafter be available for distribution to the Owners of the
Class A 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.
Book Entry Registration of the Offered Certificates
The Offered 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 participants of such system
("Participants"), or indirectly through organizations which are Participants.
The Book-Entry Certificates will be issued in one or more certificates per class
of Offered Certificates which in the aggregate equal the principal balance of
such Offered Certificates and will initially be registered in the name of Cede &
Co., the nominee of DTC. Investors may hold such beneficial interests in the
Book-Entry Certificates in minimum denominations representing principal amounts
of $25,000 and multiples of $1,000 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
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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).
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 Offered
Certificates, except under the limited circumstances described below. Unless and
until Definitive Certificates are issued, Beneficial Owners who are not
Participants may transfer ownership of Offered Certificates only through
Participants and indirect participants by instructing such Participants and
indirect participants to transfer such Offered Certificates, by book-entry
transfer, through DTC for the account of the purchasers of such Offered
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 Offered 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.
Transfers between Participants will occur in accordance with DTC rules.
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.
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. 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
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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. DTC may take actions, at the direction of the related
Participants, with respect to some Offered Certificates which conflict with
actions taken with respect to other Offered Certificates.
Definitive Certificates will be issued to Beneficial Owners of the
Book-Entry Certificates, or their nominees, rather than to DTC, only if (a) DTC
or the Depositor advises the Trustee in writing that DTC is no longer willing,
qualified or able to discharge properly its responsibilities as a nominee and
depository with respect to the Book-Entry Certificates and the Depositor or the
Trustee is unable to locate a qualified successor, (b) the Depositor, at its
sole option, elects to terminate a book-entry system through DTC or (c) DTC, at
the direction of the Beneficial Owners representing a majority of the
outstanding Percentage Interests of the Offered 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 has agreed to the foregoing procedures in order to
facilitate transfers of Certificates among Participants of DTC, it is 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.
CREDIT ENHANCEMENT
Subordination of Subordinate Certificates
The rights of the Owners of the Subordinate Certificates and the Class
R Certificates to receive distributions with respect to the Home Equity Loans
will be subordinated, to the extent described herein, to such rights of the
Owners of the Class A Certificates. This subordination is intended to enhance
the likelihood of regular receipt by the Owners of the Class A Certificates of
the full amount of their scheduled monthly payment of interest and principal and
to afford such Owners protection against Realized Losses.
The protection afforded to the Owners of the Class A Certificates by
means of the subordination of the Subordinate Certificates and the Class R
Certificates will be accomplished by the preferential right of the Owners of the
Class A Certificates to receive, prior to any distribution being made on a
Payment Date in respect of the Subordinate Certificates and the Class R
Certificates, the amounts of interest due them and principal available for
distribution on such Payment Date, and, if necessary, by the right of the Owners
of the Class A Certificates to receive future distributions of amounts that
would otherwise be payable to the Owners of the Subordinate Certificates and the
Class R Certificates.
In addition, the rights of the Owners of the Class M-2, Class B and
Class R Certificates to receive distributions will be subordinated, to the
extent described herein, to such rights of the Owners of the Class A and Class
M-1 Certificates. This subordination is intended to enhance the likelihood of
regular receipt by the Owners of the Class A and Class M-1 Certificates of the
amount of interest due them and principal available for distribution and to
afford such Owners with protection against Realized Losses.
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The rights of the Owners of the Class B and Class R Certificates to
receive distributions will be subordinated in the same manner to such rights of
the Owners of the Class A, Class M-1 and Class M-2 Certificates and the rights
of Owners of the Class R Certificates to receive distributions will be
subordinated in the same manner to such rights of the Owners of the Offered
Certificates.
Application of Realized Losses
The Pooling and Servicing Agreement provides that if a Home Equity Loan
becomes a Liquidated Loan during a Remittance Period, the Net Liquidation
Proceeds relating thereto and allocated to principal may be less than the Loan
Balance of such Home Equity Loan. The amount of such insufficiency is a Realized
Loss. Realized Losses will, in effect, be absorbed first, by the Class R
Certificates (both through the application of the Monthly Excess Interest Amount
to fund such deficiency and through a reduction in the Overcollateralization
Amount), second, by the Owners of the Class B Certificates, third, by the Owners
of the Class M-2 Certificates, and, fourth, by the Owners of the Class M-1
Certificates.
To the extent that the pool of Home Equity Loans experiences Realized
Losses, such Realized Losses will reduce the aggregate outstanding Loan Balance
of the Home Equity Loans, i.e, a reduction in the collateral balance will occur.
Since the Overcollateralization Amount is the excess, if any, of the collateral
balance over the Aggregate Certificate Principal Balance, Realized Losses, to
the extent experienced, will in the first instance reduce the
Overcollateralization Amount.
The Pooling and Servicing Agreement requires that the
Overcollateralization Amount be initially increased to, and thereafter
maintained at, the Targeted Overcollateralization Amount. This increase and
subsequent maintenance is intended to be accomplished by the application of
Monthly Excess Interest Amounts to the funding of the Extra Principal
Distribution Amount. Such Extra Principal Distribution Amounts, since they are
funded from interest collections on the collateral but are distributed as
principal on the Offered Certificates, will increase the Overcollateralization
Amount.
If, on any Payment Date after taking into account all Realized Losses
experienced during the prior Remittance Period and after taking into account the
distribution of principal (including the Extra Principal Distribution Amount)
with respect to the Offered Certificates on such Payment Date, the Aggregate
Certificate Principal Balance exceeds the aggregate Loan Balance of the Home
Equity Loans as of the end of the related Remittance Period (i.e. if the level
of overcollateralization is negative), then the Certificate Principal Balance of
the Subordinate Certificates will be reduced (in effect, "written down") such
that the level of overcollateralization is zero, rather than negative. Such a
negative level of overcollateralization is an Applied Realized Loss Amount,
which is applied as a reduction in the Certificate Principal Balance of the
Subordinate Certificates in reverse order of seniority (i.e., first against the
Class B Certificate Principal Balance until it is reduced to zero, then against
the Class M-2 Certificate Principal Balance until it is reduced to zero and then
against the Class M-1 Certificate Principal Balance until it is reduced to
zero). The Pooling and Servicing Agreement does not permit the "write down" of
the Certificate Principal Balance of any Class A Certificate.
Once the Certificate Principal Balance of a Class of Subordinate
Certificates has been "written down," the amount of such write down will no
longer bear interest, nor will such amount thereafter be "reinstated" or
"written up," although the amount of such write down may, on future Payment
Dates be paid to Owners of the Subordinate Certificates which experienced the
write down, in direct order of seniority (i.e., first, the Class M-1
Certificates, second, the Class M-2 Certificates and, third, the Class B
Certificates). The source of funding of such payments will be the amount, if
any, of the Monthly Excess Cashflow Amount remaining on such future Payment
Dates after the funding of the Extra Principal Distribution Amount and after the
payment of Interest Carry Forward Amounts with respect to the Subordinate
Certificates on such Payment Date.
Application of Monthly Excess Cashflow Amounts
The weighted average net Coupon Rate for the Home Equity Loans is
expected to be generally higher than the weighted average of the Pass-Through
Rates on the Offered Certificates, thus generating certain excess interest
collections which, in the absence of losses will not be necessary to fund
interest distributions on the Offered Certificates. The Pooling and Servicing
Agreement provides that this excess interest be applied to the extent available,
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to make accelerated payments of principal (i.e., the Extra Principal
Distribution Amount) to the Class or Classes then entitled to receive
distributions of principal; such application will cause the Aggregate
Certificate Principal Balance to amortize more rapidly than the pool of Home
Equity Loans, resulting in overcollateralization.
The required level of overcollateralization for any Payment Date is the
Targeted Overcollateralization Amount for such Payment Date. The Targeted
Overcollateralization Amount is initially (i.e., prior to the Stepdown Date)
$14,000,000. Since the actual level of the Overcollateralization Amount is $0 as
of the Closing Date, in the early months of the transaction, subject to the
availability of Monthly Excess Interest Amounts, Extra Principal Distribution
Amounts will be paid, with the result that the Overcollateralization Amount will
increase to the level of the Targeted Overcollateralization Amount.
If, once the Targeted Overcollateralization Amount has been reached,
Realized Losses occur, such Realized Losses will result in an
Overcollateralization Deficiency (since such Realized Losses reduce the Loan
Balance of the Home Equity Loans without giving rise to a corresponding
reduction of the Aggregate Certificate Principal Balance). The cashflow
priorities of the Trust require that, in this situation, an Extra Principal
Distribution Amount be paid (subject to the availability of any Monthly Excess
Interest Amount) for the purpose of re-establishing the Overcollateralization
Amount at the then-required level of the Targeted Overcollateralization Amount.
On and after the Stepdown Date, the Targeted Overcollateralization
Amount is permitted to decrease or "step-down," below the $14,000,000 level to a
level equal to 3.50% of the then current aggregate outstanding Loan Balance
(subject to a floor of $4,000,000). If the Targeted Overcollateralization Amount
is permitted to "step-down" on a Payment Date, the Pooling and Servicing
Agreement permits a portion of the Principal Remittance Amount for such Payment
Date not to be passed through as a distribution of principal on such Payment
Date. This has the effect of decelerating the amortization of the Offered
Certificates relative to the aggregate outstanding Loan Balance of the Home
Equity Loans, thereby reducing the actual level of the Overcollateralization
Amount to the new, lower Targeted Overcollateralization Amount. This portion of
the Principal Remittance Amount not distributed as principal on the Certificates
therefore releases overcollateralization from the Trust. The amount of such
releases are the Overcollateralization Release Amounts.
On any Payment Date, the sum of the Monthly Excess Interest Amount and
the Overcollateralization Release Amount is the Monthly Excess Cashflow Amount,
which is required to be applied in the following order of priority on such
Payment Date:
(1) to fund the Extra Principal Distribution Amount for such Payment
Date;
(2) to fund the Class M-1 Interest Carry Forward Amount, if any;
(3) to fund the Class M-1 Realized Loss Amortization Amount for such
Payment Date;
(4) to fund the Class M-2 Interest Carry Forward Amount, if any;
(5) to fund the Class M-2 Realized Loss Amortization Amount for such
Payment Date;
(6) to fund the Class B Interest Carry Forward Amount, if any;
(7) to fund the Class B Realized Loss Amortization Amount for such
Payment Date;
(8) to the Servicer to the extent of any unreimbursed Delinquency
Advances or Servicing Advances;
(9) to the Trustee for reimbursement of expenses of the Trustee that
are not Trustee Reimbursable Expenses; and
(10) to fund a distribution to Owners of the Class R Certificates.
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The Certificate Principal Balance of any Class of the Class A
Certificates is the Initial Certificate Principal Balance of such Class as
reduced by all amounts actually distributed to the Owners of such Class of Class
A Certificates on all prior Payment Dates.
"Class B Applied Realized Loss Amount" means, as to any Payment Date,
the lesser of (x) the Class B Certificate Principal Balance (after taking into
account the distribution of the Principal Distribution Amount on such Payment
Date, but prior to the application of the Class B Applied Realized Loss Amount,
if any, on such Payment Date) and (y) the Applied Realized Loss Amount as of
such Payment Date.
"Class B Certificate Principal Balance" means, as of any date of
determination, the Original Class B Certificate Principal Balance as reduced by
the sum of (x) all amounts actually distributed to the Owners of the Class B
Certificates on all prior Payment Dates on account of principal and (y) the
aggregate, cumulative amount of Class B Applied Realized Loss Amounts on all
prior Payment Dates.
"Class B Realized Loss Amortization Amount" means, as of any Payment
Date, the lesser of (x) the Class B Unpaid Realized Loss Amount as of such
Payment Date and (y) the excess of (i) the Monthly Excess Cashflow Amount over
(ii) the sum of the Extra Principal Distribution Amount, the Class M-1 Realized
Loss Amortization Amount, the Class M-2 Realized Loss Amortization Amount, the
Class M-1 Interest Carry Forward Amount, the Class M-2 Interest Carry Forward
Amount and the Class B Interest Carry Forward Amount in each case for such
Payment Date.
"Class M-1 Applied Realized Loss Amount" means, as to any Payment Date,
the lesser of (x) the Class M-1 Certificate Principal Balance (after taking into
account the distribution of the Principal Distribution Amount on such Payment
Date, but prior to the application of the Class M-1 Applied Realized Loss
Amount, if any, on such Payment Date) and (y) the excess of (i) the Applied
Realized Loss Amount as of such Payment Date over (ii) the sum of the Class M-2
Applied Realized Loss Amount and the Class B Applied Realized Loss Amount, in
each case as of such Payment Date.
"Class M-1 Certificate Principal Balance" means, as of any date of
determination, the Original Class M-1 Certificate Principal Balance as reduced
by the sum of (x) all amounts actually distributed to the Owners of the Class
M-1 Certificates on all prior Payment Dates on account of principal and (y) the
aggregate, cumulative amount of Class M-1 Applied Realized Loss Amounts on all
prior Payment Dates.
"Class M-1 Realized Loss Amortization Amount" means, as of any Payment
Date, the lesser of (x) the Class M-1 Unpaid Realized Loss Amount as of such
Payment Date and (y) the excess of (i) the Monthly Excess Cashflow Amount over
(ii) the sum of the Extra Principal Distribution Amount and the Class M-1
Interest Carry Forward Amount for such Payment Date.
"Class M-2 Applied Realized Loss Amount" means, as to any Payment Date,
the lesser of (x) the Class M-2 Certificate Principal Balance (after taking into
account the distribution of the Principal Distribution Amount on such Payment
Date, but prior to the application of the Class M-2 Applied Realized Loss
Amount, if any, on such Payment Date) and (y) the excess of (i) the Applied
Realized Loss Amount as of such Payment Date over (ii) the sum of the Class B
Applied Realized Loss Amount and the Class M-1 Applied Realized Loss Amount, in
each case as of such Payment Date.
"Class M-2 Certificate Principal Balance" means, as of any date of
determination, the Original Class M-2 Certificate Principal Balance as reduced
by the sum of (x) all amounts actually distributed to the Owners of the Class
M-2 Certificates on all prior Payment Dates on account of principal and (y) the
aggregate, cumulative amount of Class M-2 Applied Realized Loss Amounts on all
prior Payment Dates.
"Class M-2 Realized Loss Amortization Amount" means, as of any Payment
Date, the lesser of (x) the Class M-2 Unpaid Realized Loss Amount as of such
Payment Date and (y) the excess of (i) the Monthly Excess Cashflow Amount over
(ii) the sum of the Extra Principal Distribution Amount, the Class M-1 Realized
Loss Amortization Amount, the Class M-2 Interest Carry Forward Amount for such
Payment Date.
"Unpaid Realized Loss Amount" means for any Class of the Subordinate
Certificates and as to any Payment Date, the excess of (x) the aggregate
cumulative amount of related Applied Realized Loss Amounts with respect to such
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Class for all prior Payment Dates over (y) the aggregate, cumulative amount of
related Realized Loss Amortization Amounts with respect to such Class for all
prior Payment Dates.
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, the Seller, any Sub-Servicer, any Owner, the Custodian or the
Trustee that the representations and warranties set forth below are untrue in
any material respect as of the Closing Date with the result that the interests
of the Owners 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, the Seller will be required promptly to
cure such breach in all material respects or the Seller shall on or prior to the
second Monthly Remittance Date next succeeding such discovery, such 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 the Seller a "Qualified Replacement
Mortgage" (as such is defined in the Pooling and Servicing Agreement) and
deliver an amount equal to the excess, if any, of the Loan Balance of the Home
Equity Loan being replaced over the outstanding principal balance of the
replacement Home Equity Loan plus interest (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, at the
Seller's expense, 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 otherwise subject the Trust
to tax and would not jeopardize the status of the REMIC (other than the
Non-REMIC Accounts) as a REMIC (a "REMIC Opinion") addressed to the Trustee. The
Seller shall also deliver an Officer's Certificate to the Trustee concurrently
with the delivery of a Qualified Replacement Mortgage stating that such Home
Equity Loan meets the requirements of a Qualified Replacement Mortgage and that
all other conditions to the substitution thereof have been satisfied. 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 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 the Seller's expense, furnish the Trustee either
a REMIC Opinion or an opinion of counsel rendered by independent counsel that
the effects described in a REMIC Opinion may occur as a result of any such
repurchase or substitution. The obligation of the Seller to so substitute or
repurchase any Home Equity Loan as to which a representation of warranty is
untrue in any material respect and has not been remedied constitutes the sole
remedy available to the Owners and the Trustee.
"Loan Purchase Price" means 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 all accrued and unpaid interest on such Home Equity
Loan at the Coupon Rate to but not including the Monthly Remittance Date in the
Remittance Period of such purchase together with (without duplication) the
aggregate amount of (i) all unreimbursed Delinquency Advances and Servicing
Advances theretofore made with respect to such Home Equity Loan, (ii) all
Delinquency 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 such reimbursement is not made from the Mortgagor or from
Liquidation Proceeds from the respective Home Equity Loan.
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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 for the benefit of the
Owners all right, title and interest of the Seller in and to each Initial Home
Equity Loan and all its right, title and interest in and to principal and
interest due on each such Initial 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 Initial Home Equity Loan on or prior to the Cut-Off Date (whether or not
received 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 BankBoston, N.A. (the
"Custodian") on behalf of 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, endorsed in blank or to the order of the
Trustee, (B) (I) the original title insurance commitment or a
copy thereof certified as a true copy by the closing agent or
the Seller, or if available, the original title insurance
policy or a copy certified by the issuer of the title
insurance policy or (II) the attorney's opinion of title, (C)
originals or copies of all intervening assignments certified
as true copies by the closing agent or the Seller, showing a
complete chain of title from origination to the Trustee, if
any, including warehousing assignments, if recorded, (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 a
copy (if such original Mortgage has not been returned to
Seller from the applicable recording office) of the Mortgage
certified as a true copy by the closing agent or the Seller or
(2) a copy of the Mortgage certified by the public recording
office in those instances where the original recorded Mortgage
has been lost or retained by the recording office;
(ii) cause, within 60 days following the Closing
Date with respect to the Initial Home Equity Loans, or
Subsequent Transfer Date with respect to Subsequent Home
Equity Loans, assignments of the Mortgages to "The Chase
Manhattan Bank, as Trustee of IMC Home Equity Loan Trust
1997-3 under the Pooling and Servicing Agreement dated as of
June 1, 1997" 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 has
not yet been received from the recording office until such
information is received; provided, further, that the Seller
shall not be required to record an assignment of a Mortgage
(except upon the occurrence of certain triggers specified in
the Pooling and Servicing Agreement) if the Seller furnishes
to the Trustee and the Rating Agencies, on or before the
Closing Date with respect to the Initial Home Equity Loans or
on each Subsequent Transfer Date with respect to each
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 Trustee 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 (other than unrecorded warehouse assignments), to
the Custodian on behalf of the Trustee within 15 days of
receipt thereof by the Seller (but in any event, with respect
to any Mortgage as to which original 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
each Subsequent Transfer Date with respect to the Subsequent
Home Equity Loans); and
<PAGE>
(iv) furnish to the Trustee and the Rating Agencies,
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 Rating Agencies.
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The Trustee will agree, for the benefit of the Owners, to cause the
Custodian 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 the Closing Date or Subsequent Transfer Date) to ascertain
that all required documents (or certified copies of documents) have been
executed and received.
If the Custodian on behalf of 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 Custodian on behalf of the
Trustee will be required to promptly notify the Depositor, the Seller and the
Owners. 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 Custodian on behalf of the Trustee.
If, however, within 90 days after such 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,
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 a Qualified Replacement Mortgage 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 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 Custodian on behalf of the Trustee
has agreed to make a review during the 12th month after the Closing Date
indicating the current status of the exceptions previously indicated on the Pool
Certification (the "Final Certification"). After delivery of the Final
Certification, the Custodian, on behalf of the Trustee and the Servicer shall
monitor no less frequently than monthly 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, the terms of the respective Home
Equity Loans, and the servicing standards set forth in FannieMae's Servicing
Guide (the "FannieMae Guide"); provided, however, that to the extent such
standards, such obligations or the FannieMae Guide is amended by FannieMae 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 in accordance with the servicing
standards set forth in the Pooling and Servicing Agreement.
The Servicer may retain from the interest portion of each monthly
payment, the Servicing Fee. 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, prepayment
penalties, 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 make reasonable efforts to collect all
payments called for under the terms and provisions of the Home Equity Loans,
and, to the extent such procedures are consistent with the Pooling and Servicing
Agreement and the terms and provisions of any applicable insurance policy, to
follow collection procedures for all Home Equity Loans at least as rigorous as
those described in the FannieMae 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 as additional servicing compensation. In
the event the Servicer consents to the deferment of the due dates for payments
due on a Note, the Servicer will nonetheless be required to make payment of any
required Delinquency Advances with respect to the interest payments so extended
to the same extent as if the interest portion of such installment were due,
owing and delinquent and had not been deferred.
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,
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or (ii) invested in Eligible Investments (as defined in the Pooling and
Servicing Agreement). Any investment of funds in the Principal and Interest
Account must mature or be withdrawable at par on or prior to the immediately
succeeding Monthly Remittance Date. Any investment earnings on funds held in the
Principal and Interest Account are for the account of, and any losses therein
are also for the account of, and must be promptly replenished by, the Servicer.
The Servicer is required to deposit to the Principal and Interest
Account, within one business day following receipt, all principal and interest
due on the Home Equity Loans 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) 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 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 during the related
Remittance Period, (ii) principal (including Prepayments) collected and interest
due on the Home Equity Loans on or prior to the Cut-Off Date, (iii)
reimbursements for Delinquency Advances, and (iv) 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
Principal and Interest Account in the following order and only for the following
purposes:
(i) on each Monthly Remittance Date, to pay itself the Servicing
Fee;
(ii) to withdraw investment earnings on amounts on deposit in the
Principal and Interest Account;
(iii) to withdraw amounts that have been deposited to the
Principal and Interest Account in error;
(iv) to reimburse itself for unrecovered Delinquency Advances and
for any excess interest collected from a Mortgagor; 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 repurchase or substitution, as
the case may be.
On each Monthly Remittance Date, the Servicer shall be required to
remit to the Trustee for deposit to the Certificate Account out of the
Servicer's own funds any Delinquent payment of interest with respect to each
Delinquent Home Equity Loan, which payment was not received on or prior to the
related Monthly Remittance Date and was not theretofore advanced by the
Servicer. Such amounts of the Servicer's own funds so deposited are "Delinquency
Advances." The Servicer may reimburse itself on any Business Day for any
Delinquency Advances paid from the Servicer's own funds, from collections on any
Home Equity Loan that are not required to be distributed on the Payment Date
occurring during the month in which such reimbursement is made (such amount to
be replaced on future dates to the extent necessary) or from the Certificate
Account out of the Monthly Excess Cashflow Amount.
Notwithstanding the foregoing, in the event that the Servicer
determines in its reasonable business judgment in accordance with the servicing
standards of the Pooling and Servicing Agreement that any proposed Delinquency
Advance if made would not be recoverable, the Servicer shall not be required to
make such Delinquency Advances with respect to such Home Equity Loan. To the
extent that the Servicer previously has made Delinquency Advances with respect
to a Home Equity Loan that the Servicer subsequently determines to be
nonrecoverable, the Servicer shall be entitled to reimbursement for such
aggregate unreimbursed Delinquency Advances as provided above. The Servicer
shall give written notice of such determination as to why such amount is or
would be nonrecoverable to the Trustee.
The Servicer will be required to pay all "out of pocket" costs and
expenses incurred in the performance of its servicing obligations, including,
but not limited to, (i) expenditures in connection with a foreclosed Home Equity
Loan prior to the liquidation thereof, including, without limitation,
expenditures for real estate property taxes, hazard
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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, except to the extent that the
Servicer in its reasonable business judgment determines that any such proposed
amount would not be recoverable. Such costs and expenses will constitute
"Servicing Advances". The Servicer may recover a Servicing Advance 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 from
certain amounts on deposit in the Certificate Account as provided 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 Coupon Rate will be due on the
outstanding Loan Balance of each Home Equity Loan as of the beginning of each
Remittance Period. If a prepayment in full of a Home Equity Loan or a Prepayment
of at least six times a Mortgagor's Monthly Payment occurs during any calendar
month, any difference between the interest collected from the Mortgagor in
connection with such payoff and the full month's interest at the Coupon Rate
that would be due on the related due date for such Home Equity Loan (such
difference, the "Compensating Interest") (but not in excess of the aggregate
Servicing Fee for the related Remittance Period), will be required to be
deposited to the Principal and Interest Account (or if such difference is an
excess, the Servicer shall retain such excess) on the next succeeding Monthly
Remittance Date by the Servicer and shall be included in the Monthly Remittance
Amount to be made available to the Trustee on the next succeeding Monthly
Remittance Date.
The Servicer will have the right and the option, but not the
obligation, to purchase for its own account any Home Equity Loan which becomes
delinquent as to three consecutive monthly installments or any Home Equity Loan
as to which enforcement proceedings have been brought by the Servicer; provided,
however, that the Servicer may not purchase any such Home Equity Loan unless the
Servicer has delivered to the Trustee, at the Servicer's expense, an opinion of
counsel delivered to 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 the REMIC (other than the
Non-REMIC Accounts) as a REMIC. The purchase price for any such Home Equity Loan
is equal to the Loan Purchase Price thereof, which purchase price shall be
deposited in the Principal and Interest Account.
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.
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: (a) the provisions of the related Note and Mortgage have been
complied with; (b) the loan-to-value ratio and debt-to-income ratio after any
release do not exceed the loan-to-value ratio and debt-to-income ratio,
respectively, of such Note on the Cut-Off Date provided that the loan-to-value
ratio shall be permitted to be increased by an amount not to exceed 5%; and (c)
the lien priority of the related Mortgage is not affected.
The Servicer shall not agree to any modification, waiver or amendment
of any provision of any Home Equity Loan unless, in the Servicer's good faith
judgment, such modification, waiver or amendment would minimize the loss that
might otherwise be experienced with respect to such Home Equity Loan and only in
the event of a payment default with respect to such Home Equity Loan or in the
event that a payment default with respect to such Home Equity Loan is reasonably
foreseeable by the Servicer; provided, however, that no such modification,
waiver or amendment shall extend the maturity date of such Home Equity Loan
beyond the Remittance Period related to the Final Scheduled Payment Date of the
latest Class of Offered Certificates remaining in the Trust. Notwithstanding
anything set forth in the Pooling and Servicing Agreement to the contrary, the
Servicer shall be permitted to modify, waive or amend any provision of a Home
Equity Loan if required by statute or a court of competent jurisdiction to do
so.
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The Servicer shall provide written notice to the Trustee prior to the
execution of any modification, waiver or amendment of any provision of any Home
Equity Loan and shall deliver to the Custodian, on behalf of the Trustee for
deposit in the related File, an original counterpart of the agreement relating
to such modification, waiver or amendment, promptly following the execution
thereof.
As noted under "The Seller and Servicer -- General" herein, 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 that (x) is in compliance with the laws of
each state necessary to enable it to perform its obligations under such
Sub-Servicing Agreement, (y) has experience servicing home equity loans that are
similar to the Home Equity Loans and (z) has equity of not less than $5,000,000
(as determined in accordance with generally accepted accounting principles).
No Sub-Servicing arrangements discharge the Servicer from its servicing
obligations. 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 the Trustee if it is required to succeed the
Servicer under the Pooling and Servicing Agreement) has agreed to indemnify and
hold the Trustee 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 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 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 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 and/or Owner in respect of such claim. The
Trustee shall 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 a final nonappealable adjudication determines that the
claim relates directly to the failure of the Servicer to perform its duties in
compliance with the Pooling and Servicing Agreement. The indemnification
provisions shall survive the termination of the Pooling and Servicing Agreement
and the payment of the outstanding Certificates.
The Servicer will be required to deliver to the Trustee and the Rating
Agencies on or before April 30 of each year, commencing in 1998: (1) 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) a letter or letters of a firm of
independent, nationally recognized certified public accountants reasonably
acceptable to the Trustee stating that such firm has examined the Servicer's
overall servicing operations in accordance with the requirements of the Uniform
Single Attestation Program for Mortgage Bankers, and stating such firm's
conclusions relating thereto.
Removal and Resignation of Servicer
The Trustee, at the direction of a majority of the Owners, will have
the right, pursuant to the Pooling and Servicing Agreement, to remove the
Servicer upon the occurrence of certain events (collectively, the "Servicer
Termination Events") including, without limitation: (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 (including certain performance tests related to the
delinquency rate and cumulative losses of the Home Equity Loan Pool); (c) the
failure to cure material breaches of the Servicer's representations in the
Pooling and Servicing Agreement; or (d) certain mergers or other combinations of
the Servicer with another entity.
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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, and reasonably
acceptable, to the Trustee.
Upon removal or resignation of the Servicer, the Trustee may (A)
solicit bids for a successor servicer as described in the Pooling and Servicing
Agreement and (B) until such time as a successor servicer is appointed pursuant
to the terms of the Pooling and Servicing Agreement, shall serve in the capacity
of Backup 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 FHLMC or FannieMae, having equity of not less than
$5,000,000, and acceptable to a majority of the Owners of the Offered
Certificates 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 Backup Servicer or a successor servicer shall have assumed the Servicer's
responsibilities and obligations in accordance with the Pooling and Servicing
Agreement.
The Trustee
The Chase Manhattan Bank, a New York banking corporation, having its
principal corporate trust office at 450 West 33rd Street, New York, New York
10001, will be named as Trustee under the Pooling and Servicing Agreement.
Reporting Requirements
On each Payment Date the Trustee will be required to report in writing
(based on information provided to the Trustee by the Servicer) to each Owner and
the Rating Agencies:
i) the amount of the distribution with respect each Class of
Certificates (based on a Certificate in the original principal amount
of $1,000);
ii) the amount of such distributions allocable to principal on
the Home Equity Loans, separately identifying the aggregate amount of
any prepayments in full or Prepayments or other recoveries of principal
included therein and any Pre-Funded Amounts distributed as a prepayment
(based on a Certificate in the original principal amount of $1,000) and
any Extra Principal Distribution Amount;
iii) the amount of such distribution allocable to interest on
the Home Equity Loans (based on a Certificate in the original principal
amount of $1,000);
iv) the Interest Carry-Forward Amount for each Class;
v) the principal amount of each Class of Offered Certificate
(based on a Certificate in the original principal amount of $1,000)
which will be Outstanding after giving effect to any payment of
principal on such Payment Date;
vi) the aggregate Loan Balance of all Home Equity Loans after
giving effect to any payment of principal on such Payment Date;
vii) 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;
viii) the total of any Substitution Amounts or Loan Purchase
Price amounts included in such distribution;
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ix) the weighted average Coupon Rate of the Home Equity Loans;
x) whether a Trigger Event is in effect;
xi) the Senior Enhancement Percentage;
xii) the Overcollateralization Amount;
xiii) the amount of any Applied Realized Loss Amount, Realized
Loss Amortizations Amount and Unpaid Realized Loss Amount for each
Class as of the close of such Payment Date; and
xiv) for the initial Payment Date the total remaining
Pre-Funded Amount in the Pre-Funding Account.
Certain obligations of the Trustee to provide information to the Owners
are conditioned upon such information being received from the Servicer.
In addition, on the Business Day preceding each Payment Date the
Trustee will be required to distribute to each Owner and the Rating Agencies,
together with the information described above, the following information
prepared by the Servicer and furnished to the Trustee for such purpose:
(a) the number and aggregate principal balances of Home Equity
Loans (i) 30-59 days delinquent, (ii) 60-89 days delinquent, (iii) 90
or more days delinquent, as of the close of business on the last day of
the calendar month immediately preceding the Payment Date, (iv) the
numbers and aggregate Loan Balances of all Home Equity Loans as of such
Payment Date and (v) the percentage that each of the amounts
represented by clauses (i), (ii) and (iii) represent as a percentage of
the respective amounts in clause (iv);
(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 day of the calendar month immediately preceding such Payment
Date;
(c) the number of Mortgagors and the Loan Balances of (i) the
related Mortgages involved in bankruptcy proceedings as of the close of
business on the last day of the calendar month immediately preceding
such Payment Date and (ii) Home Equity Loans that are "balloon" loans;
(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 day of the calendar month immediately
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 day of the calendar month immediately preceding
the Payment Date;
(f) the amount of cumulative Realized Losses, the current
period Realized Losses (each as defined in the Pooling and Servicing
Agreement) and any other loss percentages as required by the Pooling
and Servicing Agreement; and
(g) the aggregate Loan Balances of 60+ Day Delinquent Loans.
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
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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 Seller or (ii) the Owners of a majority of the Percentage Interests
represented by the Offered Certificates or, if there are no Offered Certificates
then Outstanding, by a majority of the Percentage Interests represented by the
Class R Certificates, may appoint a successor trustee.
Governing Law
The Pooling and Servicing Agreement and each Certificate will be
construed in accordance with and governed by the laws of the State of New York
applicable to agreements made and to be performed therein.
Amendments
The Trustee, the Depositor, the Seller and the Servicer 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, (iii) curing any ambiguity, (iv) correcting, modifying or supplementing
any provisions therein which are inconsistent with any other provisions therein,
or (v) for any other purpose, provided that in the case of clause (v), such
amendment shall not adversely affect in any material respect any Owner. Any such
amendment shall be deemed not to adversely affect in any material respect any
Owner if there is delivered to the Trustee written notification from each Rating
Agency that such amendment will not cause such Rating Agency to reduce its then
current rating assigned to any Class of the Offered Certificates.
Notwithstanding anything to the contrary, no such amendment shall (a) change in
any manner the amount of, or delay the timing of, payments which are required to
be distributed to any Owner without the consent of the Owner of such Certificate
or (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.
Termination of the Trust
The Pooling and Servicing Agreement will provide that the Trust will
terminate upon the payment to the Owners of all Certificates from amounts of all
amounts required to be paid to such Owners 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, (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 (as defined in the Pooling and Servicing
Agreement) 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 to furnish to the Trustee an opinion of counsel
experienced in federal income tax matters acceptable to 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 may on any Monthly Remittance Date when the aggregate outstanding
Loan Balances of the Home Equity Loans is 10% or less 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, and
thereby effect early retirement of the Certificates. The proceeds from any such
termination may not be sufficient to distribute the full amount to which each
Class of Certificates is entitled if the purchase price is based in part on the
appraised value of any REO property underlying the Home Equity Loans and such
appraisal value is less than principal balance of the related Home Equity Loans.
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
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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 Owners of a majority in
Percentage Interests represented by the Offered Certificates then Outstanding
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.
FEDERAL INCOME TAX CONSEQUENCES
The following section discusses certain of the material anticipated
federal income tax consequences of the purchase, ownership and disposition of
the Offered Certificates. Such section must be considered only in connection
with "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 Election
Pursuant to the Pooling and Servicing Agreement, the Trustee will elect
to treat the Trust (other than the Non-REMIC Accounts) as a REMIC for federal
income tax purposes. The REMIC will issue the Offered Certificates which will be
designated as regular interests in the REMIC and the Class R Certificates will
be designated as the residual interest in the REMIC. See "Formation of the Trust
and Trust Property" herein.
Qualification as a REMIC requires ongoing compliance with certain
conditions. Arter & Hadden, special tax counsel, is of the opinion that, for
federal income tax purposes, assuming (i) the REMIC election is made and (ii)
compliance with the Pooling and Servicing Agreement, the REMIC 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 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 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 prepayment assumption for each Class of the Offered Certificates
for calculating original issue discount is 100% of the related Prepayment
Assumption. See "Prepayment and Yield Considerations -- Prepayment and Yield
Scenarios for Offered Certificates" herein.
As a result of the qualification 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 "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 Offered 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,
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subject to other applicable federal and state law. However, any such
governmental or church plan which is qualified under section 401(a) of the Code
and exempt from taxation under section 501(a) of the Code is subject to the
prohibited transaction rules set forth in section 503 of the Code.
Investments by Plans are subject to ERISA's general fiduciary
requirements, including the requirement of investment prudence and
diversification and the requirement that a Plan's investments be made in
accordance with the documents governing the Plan.
Section 406 of ERISA prohibits parties in interest with respect to a
Plan from engaging in certain transactions ("prohibited transactions") involving
a Plan and its assets unless a statutory or administrative exemption applies to
the transaction. Section 4975 of the Code imposes certain excise taxes (or, in
some cases, a civil penalty may be assessed pursuant to section 502(i) of ERISA)
on parties in interest which engage in non-exempt prohibited transactions.
The United States Department of Labor ("DOL") has issued a final
regulation (29 C.F.R. Section 2510.3-101) containing rules for determining what
constitutes the assets of a Plan. This regulation provides that, as a general
rule, the underlying assets and properties of corporations, partnerships, trusts
and certain other entities in which a Plan makes an "equity investment" will be
deemed for purposes of ERISA to be assets of the Plan unless certain exceptions
apply.
Under the terms of the regulation, the Trust may be deemed to hold plan
assets by reason of a Plan's investment in a Certificate; such plan assets would
include an undivided interest in the Home Equity Loans and any other assets held
by the Trust. In such an event, persons providing services with respect to the
assets of the Trust, may be parties in interest, subject to the fiduciary
responsibility provisions of Title I of ERISA, including the prohibited
transaction provisions of Section 406 of ERISA (and of Section 4975 of the
Code), with respect to transactions involving such assets unless such
transactions are subject to a statutory or administrative exemption.
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
75% 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.
The DOL has issued to each of the Underwriters an individual prohibited
transaction exemption from certain of the prohibited transaction rules of ERISA
(the "Exemption"), with respect to the initial purchase, the holding and the
subsequent resale by Plans of certificates in pass-through 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 home
equity loans such as the Home Equity 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 Standard & Poor's Ratings
Services, Moody's, Duff & Phelps Credit Rating Co. ("D&P") or Fitch;
(4) the Trustee is not an affiliate of any other member of the
Restricted Group (as defined below);
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(5) the sum of all payments made to and retained by the
Underwriters 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 Trustee and the Servicer
represents not more than reasonable compensation for such person's
services under the Pooling and Servicing 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.
Moreover, the Exemption provides relief from certain
self-dealing/conflict of interest prohibited transactions only if, 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; (ii) the Plan's investment in certificates of any class does
not exceed twenty-five percent of all of the certificates of that class
outstanding at the time of the acquisition; and (iii) 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 Depositor, the Underwriters, the Trustee, the Servicer, any obligor with
respect to Home Equity 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 exemptions do not apply to the initial purchase, the holding or the
subsequent resale of the Mezzanine Certificates and Class B Certificates because
such Certificates are subordinate to certain other Classes of Certificates.
Accordingly, Plans may not purchase the Mezzanine Certificates or Class B
Certificates, except that any insurance company may purchase such Certificates
with assets of its general account if the exemptive relief granted by the DOL
for transactions involving insurance company general accounts in Prohibited
Transaction Exemption 95-60, 60 Fed. Reg. 35925 (July 12, 1995) ("PTCE 95-60")
is available with respect to such investment. Any insurance company proposing to
purchase such Certificates for its general account should consider whether such
relief would be available. Pursuant to PTCE 95-60 certain representations or
opinions must be made to qualify. Such representations as described in PTCE
95-60 shall be deemed to have been made to the Trustee by the transferee's
acceptance of the Mezzanine Certificates or Class B Certificates. In the event
that such representations are violated, the transferee must provide the opinions
provided for under PTCE 95-60 or any attempted transfers or acquisitions shall
be void and of no effect.
In addition, as of the date hereof, there is no single Home Equity 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.
Before purchasing a Class A Certificate based on the Exemption, however, a
fiduciary of a Plan should itself confirm (1) that such Certificate constitutes
a "certificate" for purposes of the Exemption and (2) that the specific
conditions and other requirements set forth in the Exemption would be satisfied.
Prospective Plan investors should consult with their legal advisors
concerning the impact of ERISA and the Code, the applicability of 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.
In addition to the matters described above, purchasers of an Offered
Certificate that are insurance companies should consult with their counsel with
respect to the recent United States Supreme Court case interpreting the
fiduciary responsibility rules of ERISA, John Hancock Mutual Life Insurance Co.
v. Harris Trust and Savings Bank 114 S.Ct. 517 (1993). In John Hancock, the
Supreme Court ruled that assets held in an insurance company's general account
may be deemed to be "plan assets" for ERISA purposes under certain
circumstances. Prospective purchasers using insurance company general account
assets should determine whether the decision affects their ability to make
purchases of the Offered Certificates.
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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 Moody's and "AAA" by Fitch. It
is a condition of issuance that the Class M-1, Class M-2 and Class B
Certificates receive ratings of "Aa2," "A2" and "Baa3," respectively, from
Moody's and "AA+," "A+" and "BBB," respectively, from Fitch. Explanations of the
significance of such ratings may be obtained from Moody's, 99 Church Street, New
York, New York 10007 and Fitch, One State Street Plaza, 33rd Floor, New York,
New York 10004. Such ratings will be the views only of such rating agencies.
There is no assurance that such ratings will continue for any period of time or
that such ratings will not be revised or withdrawn. Any such revision or
withdrawal of such ratings may 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.
The ratings assigned by Fitch to pass-through certificates address the
likelihood of the receipt by the Owners of all distributions to which such
Owners are entitled. Fitch's ratings address the structural and legal aspects
associated with the Certificates, including the nature of the underlying loans
and the credit quality of the credit support provider. Fitch's ratings on home
equity pass-through Certificates do not represent any assessment of the
likelihood or rate of principal prepayments. The ratings do not address the
possibility that Owners might suffer a lower than anticipated yield.
The ratings of Moody's on home equity pass-through certificates address
the likelihood of the receipt by the Owners of all distributions to which such
Owners are entitled. Moody's rating opinions address the structural and legal
issues and tax-related aspects associated with the Certificates, including the
nature of the underlying home equity loans and the credit quality of the credit
support provider, if any. Moody's ratings on pass-through certificates do not
represent any assessment of the likelihood that principal prepayments may differ
from those originally anticipated.
The ratings of Moody's and Fitch do not address the possibility that,
as a result of principal prepayments, certificateholders may receive a lower
than anticipated yield.
The ratings of the Certificates should be evaluated independently from
similar ratings on other types of securities. 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.
The Depositor has not requested a rating of the Certificates offered
hereby by any rating agency other than Moody's and Fitch and the Depositor has
not provided information relating to the Certificates offered hereby or the Home
Equity Loans to any rating agency other than Moody's and Fitch. However, there
can be no assurance as to whether any other rating agency will rate the
Certificates offered hereby or, if another rating agency rates such
Certificates, what rating would be assigned to such Certificates by such rating
agency. Any such unsolicited rating assigned by another rating agency to the
Certificates offered hereby may be lower than the rating assigned to such
Certificates by either or both of Moody's and Fitch.
LEGAL INVESTMENT CONSIDERATIONS
The Offered Certificates will not constitute "mortgage related
securities" for purposes of SMMEA. Accordingly, many institutions with legal
authority to invest in comparably rated securities based on first home equity
loans may not be legally authorized to invest in the Offered Certificates.
UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting
Agreement relating to the Offered 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 of the Offered Certificates set forth
opposite its name below:
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Class A-1 Certificates
Underwriters Principal Amount
------------ ----------------
Bear, Stearns & Co. Inc. $ 61,636,000
PaineWebber Incorporated 61,636,000
Nomura Securities International, Inc. 30,818,000
----------
Total $ 154,090,000
Class A-2 Certificates
Underwriters Principal Amount
------------ ----------------
Bear, Stearns & Co. Inc. $ 49,100,000
PaineWebber Incorporated 49,100,000
Nomura Securities International, Inc. 24,550,000
----------
Total $ 122,750,000
Class A-3 Certificates
Underwriters Principal Amount
------------ ----------------
Bear, Stearns & Co. Inc. $ 43,336,000
PaineWebber Incorporated 43,336,000
Nomura Securities International, Inc. 21,668,000
----------
Total $ 108,340,000
Class A-4 Certificates
Underwriters Principal Amount
------------ ----------------
Bear, Stearns & Co. Inc. $ 43,324,000
PaineWebber Incorporated 43,324,000
Nomura Securities International, Inc. 21,662,000
----------
Total $ 108,310,000
Class A-5 Certificates
Underwriters Principal Amount
------------ ----------------
Bear, Stearns & Co. Inc. $ 32,500,000
PaineWebber Incorporated 32,500,000
Nomura Securities International, Inc. 16,250,000
----------
Total $ 81,250,000
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Class A-6 Certificates
Underwriters Principal Amount
------------ ----------------
Bear, Stearns & Co. Inc. $ 14,904,000
PaineWebber Incorporated 14,904,000
Nomura Securities International, Inc. 7,452,000
---------
Total $ 37,260,000
Class A-7 Certificates
Underwriters Principal Amount
------------ ----------------
Bear, Stearns & Co. Inc. $ 32,000,000
PaineWebber Incorporated 32,000,000
Nomura Securities International, Inc. 16,000,000
----------
Total $ 80,000,000
Class M-1 Certificates
Underwriters Principal Amount
------------ ----------------
Bear, Stearns & Co. Inc. $ 12,800,000
PaineWebber Incorporated 12,800,000
Nomura Securities International, Inc. 6,400,000
---------
Total $ 32,000,000
Class M-2 Certificates
Underwriters Principal Amount
------------ ----------------
Bear, Stearns & Co. Inc. $ 17,600,000
PaineWebber Incorporated 17,600,000
Nomura Securities International, Inc. 8,800,000
---------
Total $ 44,000,000
Class B Certificates
Underwriters Principal Amount
------------ ----------------
Bear, Stearns & Co. Inc. $ 12,800,000
PaineWebber Incorporated 12,800,000
Nomura Securities International, Inc. 6,400,000
---------
Total $32,000,000
The Seller has agreed to indemnify the Underwriters against certain
liabilities, including civil liabilities under the Securities Act, or to
contribute to payments which the Underwriters may be required to make in respect
thereof.
In the Underwriting Agreement, the Underwriters have agreed, subject to
the terms and conditions set forth therein, to purchase all of the Offered
Certificates offered hereby, if any are purchased. The Depositor has been
advised by the Underwriters that they propose initially to offer the Offered
Certificates to the public at the respective offering
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prices set forth on the cover page hereof and to certain dealers at such price
less a concession not in excess of the respective amounts set forth in the table
below (expressed as a percentage of the relative Certificate Principal Balance).
The Underwriters may allow and such dealers may reallow a discount not in excess
of the respective amounts set forth in the table below to certain other dealers.
Selling Reallowance
Class Concession Discount
----- ---------- --------
A-1 .......................... 0.075% 0.050%
A-2 .......................... 0.105% 0.075%
A-3 .......................... 0.120% 0.100%
A-4 .......................... 0.150% 0.100%
A-5 .......................... 0.180% 0.125%
A-6 .......................... 0.270% 0.150%
A-7 .......................... 0.240% 0.150%
M-1 .......................... 0.360% 0.250%
M-2 .......................... 0.420% 0.250%
B ............................ 0.510% 0.250%
After the initial public offering, such prices and discounts may be
changed.
The Underwriters may engage in over-allotment, stabilizing
transactions, syndicate covering transactions and penalty bids in accordance
with Regulation M under the Securities Exchange Act of 1934 (the "Exchange
Act"). Over-allotment involves syndicate sales in excess of the offering size,
which creates a syndicate short position. Stabilizing transactions permit bids
to purchase the underlying security so long as the stabilizing bids do not
exceed a specific maximum. Syndicate covering transactions involve purchases of
the Offered Certificates in the open market after the distribution has been
completed in order to cover syndicate short positions. Penalty bids permit the
Underwriters to reclaim a selling concession from a syndicate member when the
Offered Certificates originally sold by such syndicate member are purchased in a
syndicate covering transaction to cover syndicate short positions. Such
stabilizing transactions, syndicate covering transactions and penalty bids may
cause the price of the Offered Certificates to be higher than it would otherwise
be in the absence of such transactions. These transactions, if commenced, may be
discontinued at any time.
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.
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. Certain legal matters relating to insolvency issues and certain federal
income tax matters concerning the Certificates will be passed upon for the
Seller and 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 Stroock & Stroock & Lavan LLP, New York, New York.
<PAGE>
APPENDIX A
INDEX TO LOCATION OF PRINCIPAL DEFINED TERMS
Page
Accrual Period ....................................... S-5
Aggregate Certificate Principal Balance .............. S-1
Applied Realized Loss Amount ......................... S-12
Appraised Values ..................................... S-25
Backup Servicer ...................................... S-21
Balloon Loans ........................................ S-20
Beneficial Owners .................................... S-14
Book-Entry Certificates .............................. S-39
Capitalized Interest Account ......................... S-14
Cede ................................................. S-15
Certificate Account .................................. S-36
Certificate Principal Balance ........................ S-1
Class ................................................ S-1
Class A Certificates ................................. S-1
Class A Principal Distribution Amount ................ S-8
Class A-1 Certificates ............................... S-1
Class A-2 Certificates ............................... S-1
Class A-3 Certificates ............................... S-1
Class A-4 Certificates ............................... S-1
Class A-5 Certificates ............................... S-1
Class A-6 Certificates ............................... S-1
Class A-7 Certificates ............................... S-1
Class A-7 Lockout Distribution Amount ................ S-7
Class A-7 Lockout Percentage ......................... S-7
Class A-7 Lockout Pro Rata Distribution Amount ....... S-7
Class B Applied Realized Loss Amount ................. S-44
Class B Certificate Principal Balance ................ S-44
Class B Certificates ................................. S-1
Class B Principal Distribution Amount ................ S-9
Class B Realized Loss Amortization Amount ............ S-44
Class Distribution Amount ............................ S-4
Class M-1 Realized Loss Amortization Amount .......... S-44
Class M-1 Applied Realized Loss Amount ............... S-44
Class M-1 Certificate Principal Balance .............. S-44
Class M-1 Certificates ............................... S-1
Class M-1 Principal Distribution Amount .............. S-8
Class M-2 Applied Realized Loss Amount ............... S-44
Class M-2 Certificate Principal Balance .............. S-44
Class M-2 Certificates ............................... S-1
Class M-2 Principal Distribution Amount .............. S-9
Class M-2 Realized Loss Amortization Amount .......... S-44
Class R Certificates ................................. S-2
Closing Date ......................................... S-2
Code ................................................. S-16
Combined Loan-to-Value Ratios ........................ S-27
Compensating Interest ................................ S-49
Coupon Rate .......................................... S-3
CPR .................................................. S-31
Current Interest ..................................... S-5
Custodian ............................................ S-46
Cut-Off Date ......................................... S-2
D&P .................................................. S-55
Daily Collections .................................... S-48
Date-of-Payment Loans ................................ S-30
Definitive Certificate ............................... S-39
Delinquency Advances ................................. S-48
Depositor ............................................ S-2
DOL .................................................. S-55
DTC .................................................. S-14
DTC Participants ..................................... S-40
ERISA ................................................ S-54
Exchange Act ......................................... S-60
Exemption ............................................ S-55
Expense Fee Rate .................................... S-37
Extra Principal Distribution Amount .................. S-9
FannieMae ............................................ S-21
<PAGE>
FHLMC ................................................ S-21
Final Determination .................................. S-54
Financial Intermediary ............................... S-39
Fitch ................................................ S-15
FNMA Guide ........................................... S-47
Funding Period ....................................... S-14
Home Equity Loans .................................... S-2
Initial Home Equity Loans ............................ S-3
Interest Amount Available ........................... S-4
Interest Carry Forward Amount ........................ S-5
Interest Remittance Amount ........................... S-5
Loan Purchase Price .................................. S-45
Maximum Collateral Amount ............................ S-15
Mezzanine Certificates ............................... S-1
Monthly Remittance Date .............................. S-8
Moody's .............................................. S-15
Mortgagor ............................................ S-30
Net Liquidation Proceeds ............................. S-48
Non-REMIC Accounts ................................... S-15
Notes ................................................ S-25
Offered Certificates ................................. S-1
Original Aggregate Loan Balance ...................... S-25
Overcollateralization Amount ......................... S-9
Overcollateralization Deficiency ..................... S-10
Overcollateralization Release Amount ................. S-10
Participants ......................................... S-39
Payment Date ......................................... S-4
Percentage Interest .................................. S-37
Plans ................................................ S-54
Pooling and Servicing Agreement ...................... S-2
Preference Amount .................................... S-10
Prepayment Assumption ................................ S-31
Prepayments .......................................... S-17
Preservation Expenses ................................ S-49
Pre-Funded Amount .................................... S-14
Pre-Funding Account .................................. S-2
Principal and Interest Account ....................... S-47
Principal Distribution Amount ........................ S-7
Principal Remittance Amount .......................... S-8
Properties ........................................... S-2
Qualified Replacement Mortgage ....................... S-45
Rating Agencies ...................................... S-15
REMIC ................................................ S-15
REMIC Opinion ........................................ S-45
Realized Loss ........................................ S-11
Record Date .......................................... S-4
Register ............................................. S-37
Registrar ............................................ S-37
Remittance Period .................................... S-8
Restricted Group ..................................... S-56
Riegle Act ........................................... S-19
Rules ................................................ S-40
Seller ............................................... S-2
Senior Enhancement Percentage ........................ S-9
Senior Specified Enhancement Percentage .............. S-9
Servicer ............................................. S-2
Servicer Termination Events .......................... S-50
Servicing Advance .................................... S-49
Servicing Fee ........................................ S-10
SMMEA ................................................ S-16
Stepdown Date ........................................ S-8
Subordinate Certificates ............................. S-1
Subsequent Cut-Off Date .............................. S-18
Subsequent Home Equity Loans ......................... S-2
Subsequent Transfer Agreement ........................ S-18
Subsequent Transfer Date ............................. S-14
A-1
<PAGE>
Substitution Amount .................................. S-45
Sub-Servicers ........................................ S-20
Sub-Servicing Agreements.............................. S-20
Targeted Overcollateralization Amount ................ S-10
Trigger Event ........................................ S-8
Trust ................................................ S-1
Trust Estate ......................................... S-36
Trustee .............................................. S-2
Trustee Fee .......................................... S-2
Underwriters ......................................... S-57
Unpaid Realized Loss Amount .......................... S-44
Weighted average life ................................ S-31
A-2
<PAGE>
PROSPECTUS
Home Equity Loan Pass Through Certificates
(Issuable in Series)
IMC Securities, Inc.
(Depositor)
This Prospectus relates to Home Equity Loan Pass Through Certificates to be
issued from time to time in one or more series (and one or more classes within a
series), certain classes of which may be offered on terms determined at the time
of sale and described in this Prospectus and the related Prospectus Supplement.
Each series of Certificates will be issued by a separate trust (each, a "Trust")
and will evidence either a beneficial ownership interest in, or the debt
obligation of, such Trust. The assets of a Trust will include one or more of the
following: (i) single family residential mortgage loans, including mortgage
loans secured by junior liens on the related mortgaged properties, (ii) mortgage
backed securities and (iii) investment income, reserve funds, cash accounts,
insurance policies (including financial guaranty insurance policies and surety
bonds), guaranties, letters of credit or similar types of credit support or
enhancement as more particularly described in the related Prospectus Supplement.
One or more classes of Certificates of a series may be (i) entitled to
receive distributions allocable to principal, principal prepayments, interest or
any combination thereof prior to one or more other classes of Certificates of
such series or after the occurrence of certain events or (ii) subordinated in
the right to receive such distributions to one or more senior classes of
Certificates of such series, in each case as specified in the related Prospectus
Supplement. Interest on each class of Certificates entitled to distributions
allocable to interest may accrue at a fixed rate or at a rate that is subject to
change from time to time as specified in the related Prospectus Supplement. The
Depositor or its affiliates may retain or hold for sale from time to time one or
more classes of a series of Certificates.
Distributions on the Certificates will be made at the intervals and on the
dates specified in the related Prospectus Supplement from the assets of the
related Trust and any other assets pledged for the benefit of the Certificates.
An affiliate of the Depositor may make or obtain for the benefit of the
Certificates limited representations and warranties with respect to mortgage
assets assigned to the related Trust. Neither the Depositor nor any affiliates
will have any other obligation with respect to the Certificates.
The yield on Certificates will be affected by the rate of payment of
principal (including prepayments) of mortgage assets in the related Trust. Each
series of Certificates will be subject to early termination under the
circumstances described herein and in the related Prospectus Supplement.
If specified in a Prospectus Supplement, an election may be made to treat
the Trust for the related series or specified portions thereof as a "real estate
mortgage investment conduit" ("REMIC") for federal income tax purposes. See
"Federal Income Tax Consequences" herein and in the related Prospectus
Supplement.
It is a condition to the issuance of the Certificates that the Certificates
be rated in not less than the fourth highest rating category by a nationally
recognized rating organization.
See "Risk Factors" beginning on page 6 herein and in the related Prospectus
Supplement for a discussion of significant matters affecting investments in the
Certificates.
See "ERISA Considerations" herein and in the related Prospectus Supplement
for a discussion of restrictions on the acquisition of Certificates by "plan
fiduciaries."
An investor should carefully review the information in the related
Prospectus Supplement concerning the risks associated with the different types
and classes of Certificates.
THE ASSETS OF A TRUST ARE THE SOLE SOURCE OF PAYMENTS ON THE RELATED
CERTIFICATES. THE CERTIFICATES DO NOT REPRESENT AN INTEREST IN OR OBLIGATION OF
THE DEPOSITOR, ANY SERVICER, ANY MASTER SERVICER, ANY ORIGINATOR, ANY TRUSTEE OR
ANY OF THEIR AFFILIATES, EXCEPT AS SET FORTH HEREIN AND IN THE RELATED
PROSPECTUS SUPPLEMENT. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE
ASSETS WILL BE GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY OR BY THE DEPOSITOR, ANY SERVICER, ANY MASTER SERVICER, ANY
ORIGINATOR, ANY TRUSTEE OR ANY OF THEIR AFFILIATES, EXCEPT AS SET FORTH IN THE
RELATED PROSPECTUS SUPPLEMENT.
- --------------------------------------------------------------------------------
THESE CERTIFICATES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS OR ANY RELATED
PROSPECTUS SUPPLEMENT. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
- --------------------------------------------------------------------------------
Offers of the Certificates may be made through one or more different
methods, including offerings through underwriters, as more fully described
herein and in the related Prospectus Supplement. See "Plan of Distribution"
herein and "Underwriting" 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 June 6, 1997.
<PAGE>
AVAILABLE INFORMATION
The representative has filed a Registration Statement under the Securities
Act of 1933, as amended (the "1933 Act"), with the Securities and Exchange
Commission (the "Commission") with respect to the Certificates. The Registration
Statement and amendments thereof and to the exhibits thereto, as well as such
reports and other information, are available for inspection without charge at
the public reference facilities maintained by the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549; 7 World Trade Center, 13th Floor, New
York, New York 10048; and Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511. Copies of the Registration Statement and
amendments thereof and exhibits thereto may be obtained from the Public
Reference Section of the Commission, 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates and electronically through the Commission's
Electronic Data Gathering, Analysis and Retrieval system at the Commission's Web
site (http:\\www.sec.gov).
No person has been authorized to give any information or to make any
representation other than those contained in this Prospectus and any Prospectus
Supplement with respect hereto and, if given or made, such information or
representations must not be relied upon. This Prospectus and any Prospectus
Supplement with respect hereto do not constitute an offer to sell or a
solicitation of an offer to buy any securities other than the Certificates
offered hereby and thereby nor an offer of the 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.
REPORTS TO OWNERS
Periodic and annual reports concerning any Certificates and the related
Trust will be provided to the persons in whose names the Certificates are
registered (the "Owners"). See "Administration-Reports" herein. If specified in
the related Prospectus Supplement, a Series of Certificates may be issuable in
book-entry form. In such event, the related Certificates will be registered in
the name of a Clearing Agency (as defined herein) and, therefore, the Clearing
Agency will be the Owner for purposes hereof. All reports will be provided to
the Clearing Agency, which in turn will provide such reports to its Clearing
Agency Participants (as defined herein). Such Clearing Agency Participants will
then forward such reports to the beneficial owners of Certificates. See
"Description of the Certificates-Book-Entry Registration" herein. The Depositor
will file or cause to be filed with the Commission such periodic reports with
respect to each Trust as are required under the Exchange Act and the rules and
regulations of the Commission thereunder. It is the Depositor's intent to
suspend filing such reports as soon as such reports are no longer statutorily
required.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
All documents filed with respect to each respective Trust pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934
subsequent to the date of this Prospectus and prior to the termination of the
offering of the securities of such Trust offered hereby shall be deemed to be
incorporated by reference into this Prospectus when delivered with respect to
such Trust. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
Any person receiving a copy of this Prospectus may obtain, without charge,
upon written or oral request, a copy of any of the documents incorporated by
reference herein, except for the exhibits to such documents (other than the
documents expressly incorporated therein by reference). Requests should be
directed to IMC Securities, Inc., 3450 Buschwood Park Drive, Tampa, Florida
33618 (telephone number (813) 932-2211).
<PAGE>
TABLE OF CONTENTS
Page
SUMMARY OF PROSPECTUS..................................................... 1
RISK FACTORS.............................................................. 6
DESCRIPTION OF THE CERTIFICATES........................................... 9
General.............................................................. 9
Classes of Certificates.............................................. 10
Distributions of Principal and Interest.............................. 11
Book Entry Registration.............................................. 12
List of Owners of Certificates....................................... 13
THE TRUSTS................................................................ 13
Mortgage Loans....................................................... 14
Mortgage-Backed Securities........................................... 15
Other Mortgage Securities............................................ 16
CREDIT ENHANCEMENT........................................................ 16
SERVICING OF MORTGAGE LOANS............................................... 21
Payments on Mortgage Loans........................................... 21
Advances............................................................. 22
Collection and Other Servicing Procedures............................ 22
Primary Mortgage Insurance........................................... 23
Standard Hazard Insurance............................................ 24
Title Insurance Policies............................................. 24
Claims Under Primary Mortgage Insurance Policies
and Standard Hazard Insurance Policies; Other
Realization Upon Defaulted Loan.................................. 24
Servicing Compensation and Payment of Expenses....................... 25
Master Servicer...................................................... 25
ADMINISTRATION............................................................ 26
Assignment of Mortgage Assets........................................ 26
Evidence as to Compliance............................................ 28
The Trustee.......................................................... 28
Administration of the Certificate Account............................ 28
Reports.............................................................. 29
Forward Commitments; Pre-Funding..................................... 30
Servicer Events of Default........................................... 30
Rights Upon Servicer Event of Default................................ 30
Amendment............................................................ 31
Termination.......................................................... 31
USE OF PROCEEDS........................................................... 32
THE DEPOSITOR............................................................. 32
CERTAIN LEGAL ASPECTS OF THE MORTGAGE
ASSETS............................................................... 32
General.............................................................. 32
Foreclosure.......................................................... 33
Soldiers' and Sailors' Civil Relief Act.............................. 38
LEGAL INVESTMENT MATTERS.................................................. 38
ERISA CONSIDERATIONS...................................................... 39
FEDERAL INCOME TAX CONSEQUENCES........................................... 40
Federal Income Tax Consequences For REMIC
Certificates..................................................... 41
Taxation of Regular Certificates..................................... 42
Taxation of Residual Certificates.................................... 47
Treatment of Certain Items of REMIC Income and
Expense.......................................................... 49
Tax-Related Restrictions on Transfer of Residual
Certificates..................................................... 51
Sale or Exchange of a Residual Certificate........................... 53
Taxes That May Be Imposed on the REMIC Pool.......................... 53
Liquidation of the REMIC Pool........................................ 54
Administrative Matters............................................... 54
Limitations on Deduction of Certain Expenses......................... 55
Taxation of Certain Foreign Investors................................ 55
Backup Withholding................................................... 56
Reporting Requirements............................................... 56
Federal Income Tax Consequences for Certificates as
to Which No REMIC Election Is Made............................... 57
Standard Certificates................................................ 57
Premium and Discount................................................. 58
Stripped Certificates................................................ 60
Reporting Requirements and Backup Withholding........................ 62
Taxation of Certain Foreign Investors................................ 63
Taxation of Securities Classified as Partnership
Interests........................................................ 63
PLAN OF DISTRIBUTION...................................................... 63
RATINGS................................................................... 64
LEGAL MATTERS............................................................. 64
FINANCIAL INFORMATION..................................................... 64
INDEX TO LOCATION OF PRINCIPAL DEFINED
TERMS................................................................A-1
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.
<PAGE>
THIS PAGE INTENTIONALLY LEFT BLANK
<PAGE>
SUMMARY OF PROSPECTUS
The following summary is qualified in its entirety by reference to the
detailed information appearing elsewhere in this Prospectus and by reference to
the Prospectus Supplement relating to a particular series of Certificates and to
the related Agreement which will be prepared in connection with each series of
Certificates. Unless otherwise specified, capitalized terms used and not defined
in this Summary of Prospectus have the meanings given to them in this Prospectus
and in the related Prospectus Supplement. An index indicating where certain
capitalized terms used herein are defined appears on Appendix A hereto.
Securities............................ Home Equity Loan Pass Through
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......................... IMC Securities, Inc. (the "Depositor")
is a Delaware corporation. The
Depositor's principal executive offices
are located at 3450 Buschwood Park
Drive, Tampa, Florida 33618; telephone
number (813) 932-2211. 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
included in the related Trust. The
Servicer may be an affiliate of the
Depositor and may be the seller of
Mortgage Assets to the Depositor (each,
a "Seller").
The Master Servicer................... A "Master Servicer" may be specified in
the related Prospectus Supplement for
the related series of Certificates.
The Trustee........................... The trustee (the "Trustee") for each
series of Certificates will be
specified in the related Prospectus
Supplement.
Trust Assets.......................... The assets of a Trust will be
mortgage-related assets (the "Mortgage
Assets") consisting of one or more of
the following types of assets:
A. The Mortgage Loans................ "Mortgage Loans" may include: (i)
conventional (i.e., not insured or
guaranteed by any governmental agency)
Mortgage Loans secured by one-to-four
family residential properties; (ii)
Mortgage Loans secured by security
interests in shares issued by private,
non-profit, cooperative housing
corporations ("Cooperatives") and in
the related proprietary leases or
occupancy agreements granting exclusive
rights to occupy specific dwelling
units in such Cooperatives' buildings;
and, (iii) Mortgage Loans secured by
junior liens on the related mortgaged
properties, including home improvement
retail installment contracts. See "The
Trusts - Mortgage Loans" herein.
B. 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
1
<PAGE>
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.
C. Other Mortgage Assets............. Trust assets may also include
reinvestment income, reserve funds,
cash accounts, insurance policies
(including financial guaranty insurance
policies and surety bonds), guaranties,
letters of credit or similar types of
credit support or enhancement as
described in the related Prospectus
Supplement.
The related Prospectus Supplement for a
series of Certificates will describe
the Mortgage Assets to be included in
the Trust for such series.
The Certificates...................... The Certificates of any series may be
issued in one or more classes, as
specified in the Prospectus Supplement.
One or more classes of Certificates of
each series (i) may be entitled to
receive distributions allocable only to
principal, only to interest or to any
combination thereof; (ii) may be
entitled to receive distributions only
of prepayments of principal throughout
the lives of the Certificates or during
specified periods; (iii) may be
subordinated in the right to receive
distributions of scheduled payments of
principal, prepayments of principal,
interest or any combination thereof to
one or more other classes of
Certificates of such series throughout
the lives of the Certificates or during
specified periods; (iv) may be entitled
to receive such distributions only
after the occurrence of events
specified in the Prospectus Supplement;
(v) may be entitled to receive
distributions in accordance with a
schedule or formula or on the basis of
collections from designated portions of
the assets in the related Trust; (vi)
as to Certificates entitled to
distributions allocable to interest,
may be entitled to receive interest at
a fixed rate or a rate that is subject
to change from time to time; (vii) may
accrue interest, with such accrued
interest added to the principal or
notional amount of the Certificates,
and no payments being made thereon
until certain other classes of the
series have been paid in full; and
(viii) as to Certificates entitled to
distributions allocable to interest,
may be entitled to distributions
allocable to interest only after the
occurrence of events specified in the
Prospectus Supplement 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 Payment
Date; and (iii) whether all
distributions will be made pro rata to
Owners of Certificates of the class
entitled thereto.
2
<PAGE>
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. The
maximum amount deposited in the Pre-
Funding Account to acquire Mortgage
Loans for transfer to a Trust will not
exceed 40% of the aggregate principal
amount of the Certificates offered
pursuant to the related Prospectus
Supplement. Each Pre-Funding Agreement
will set a specified period during
which any such transfers must occur,
which period will not exceed 90 days
from the date the Trust is established.
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.
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 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 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
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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, financial
guaranty insurance policies, 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 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.
Federal Income Tax
Consequences....................... Federal income tax consequences will
depend on, among other factors, whether
one or more elections are made to treat
a Trust or specified portions thereof
as a "real estate mortgage investment
conduit" ("REMIC") under the Internal
Revenue Code of 1986, as amended (the
"Code"), or, if no REMIC election is
made, whether the Certificates are
considered to be Standard Certificates,
Stripped Certificates or Partnership
Interests. The related Prospectus
Supplement for each series of
Certificates will specify whether a
REMIC election will be made. See
"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
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<PAGE>
prohibited or otherwise impermissible
under ERISA or the Code. Certain
classes of Certificates may not be
transferred unless the Trustee and the
Depositor are furnished with a letter
of representation or an opinion of
counsel to the effect that such
transfer will not result in a violation
of the prohibited transaction
provisions of ERISA and the Code and
will not subject the Trustee, the
Depositor or the Servicer to additional
obligations. See "Description of the
Certificates - General" herein and
"ERISA Considerations" herein and in
the related Prospectus Supplement.
Legal Investment Matters.............. Certificates that constitute "mortgage
related securities" under the Secondary
Mortgage Market Enhancement Act of 1984
("SMMEA") will be so described in the
related Prospectus Supplement.
Certificates that are not so qualified
may not be legal investments for
certain types of institutional
investors, subject, in any case, to any
other regulations which may govern
investments by such institutional
investors. See "Legal Investment
Matters" herein and in the related
Prospectus Supplement.
Use of Proceeds....................... Substantially all the net proceeds from
the sale of a series of Certificates
will be applied to the simultaneous
purchase of the Mortgage Assets
included in the related Trust (or to
reimburse the amounts previously used
to effect such purchase), the costs of
carrying the Mortgage Assets until sale
of the Certificates and to pay other
expenses. See "Use of Proceeds" herein.
Rating................................ It is a condition to the issuance of
each class of Certificates that each
class of the Certificates of such
Series be rated by one or more of
Moody's Investors Service, Inc.
("Moody's"), Standard & Poor's Ratings
Services ("Standard & Poor's"), Duff &
Phelps Credit Rating Co. ("DCR") and
Fitch Investors Service, Inc. ("Fitch"
and each of Fitch, Moody's, DCR and
Standard & Poor's, a "Rating Agency")
in one of their four highest rating
categories; provided, however, that one
or more classes of Subordinated
Certificates and Residual Certificates
need not be so 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. No
person is obligated to maintain any
rating on any Certificate, and,
accordingly, there can be no assurance
that the ratings assigned to any class
of Certificates upon initial issuance
thereof will not be lowered or
withdrawn by a Rating Agency at any
time thereafter. If a rating of any
class of Certificates of a Series is
revised or withdrawn, the liquidity of
such class of Certificates may be
adversely affected. In general, the
ratings address credit risk and do not
represent any assessment of the
likelihood or rate of principal
prepayments. See "Risk Factors" herein
and "Ratings" in the related Prospectus
Supplement.
Risk Factors.......................... Investment in the Certificates will be
subject to one or more risk factors,
including declines in the value of
Mortgaged Properties, prepayment of
Mortgage Loans, higher risks of
defaults on particular types of
Mortgage Loans, limitations on security
for the Mortgage Loans, limitations on
credit enhancement and various other
factors. See "Risk Factors" herein and
in the related Prospectus Supplement.
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RISK FACTORS
Prospective investors should consider, among other things, the
following risk factors in connection with the purchase of the Certificates:
Declining Real Estate Market; Geographic Concentration. 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; Optional Termination. The prepayment
experience on Mortgage Loans 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. In addition, investors in the Certificates should be
aware that the Servicer, the Seller, or, if specified in the related Prospectus
Supplement, the Owners of a Class of Certificates or a credit enhancer may at
their respective options effect early retirement of a series of Certificates
through the purchase of Mortgage Assets from the related Trust. See
"Administration - Termination" herein.
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.
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
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<PAGE>
Prospectus Supplement, a deficiency may have a disproportionately greater effect
on the Certificates of classes having lower priority in payment. In addition,
due to the priority of payments and the allocation of losses, defaults
experienced on the assets comprising a Trust may have a disproportionate effect
on a specified class or classes within such series.
Limitations, Reduction and Substitution of Credit Enhancement. Credit
Enhancement may be provided in one or more of the forms described in the related
Prospectus Supplement, including, but not limited to, prioritization as to
payments of one or more classes of such series, a Mortgage Pool Insurance
Policy, a Financial Guaranty 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 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. Moreover, the calculation of original issue discount on REMIC
Certificates (as defined herein) is subject to uncertainties because of the lack
of guidance from the Internal Revenue Service under applicable statutory
provisions. See "Federal Income Tax Consequences - Federal Income Tax
Consequences for REMIC Certificates," "- Taxation of Regular Certificates -
Variable Rate Regular Certificates," "Federal Income Tax Consequences - Federal
Income Tax Consequences for Certificates as to Which No REMIC Election Is Made -
Standard Certificates," and "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.
The Status of the Mortgage Assets in the Event of Bankruptcy of the
Seller. The Seller and the Depositor intend that the transfers of the Mortgage
Assets from the Seller to the Depositor, and in turn to the applicable Trust,
constitute sales rather than pledges to secure indebtedness for insolvency
purposes. If, however, the Seller were to become a debtor under the federal
bankruptcy code, it is possible that a creditor, trustee-in-bankruptcy or
receiver of the Seller may argue that the sale thereof by the 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
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<PAGE>
senior mortgagees. A rise in interest rates over a period of time, the general
condition of a Mortgaged Property and other factors may also have the effect of
reducing the value of the Mortgaged Property from the value at the time the
junior lien Mortgage Loan was originated and, as a result, may reduce the
likelihood that, in the event of a default by the borrower, liquidation or other
proceeds will be sufficient to satisfy the junior lien Mortgage Loan after
satisfaction of any senior liens and the payment of any liquidation expenses.
Liquidation expenses with respect to defaulted Mortgage Loans do not
vary directly with the outstanding principal balance of the Mortgage Loans at
the time of default. Therefore, assuming that a Servicer took the same steps in
realizing upon defaulted Mortgage Loans having small remaining principal
balances as in the case of defaulted Mortgage Loans having larger principal
balances, the amount realized after expenses of liquidation would be smaller as
a percentage of the outstanding principal balance of the smaller Mortgage Loans.
To the extent the average outstanding principal balances of the Mortgage Loans
in a Trust are relatively small, realizations net of liquidation expenses may
also be relatively small as a percentage of the principal amount of the Mortgage
Loans.
Limitations on Interest Payments and Foreclosures. Generally, under the
terms of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended (the
"Relief Act"), or similar state legislation, a Mortgagor who enters military
service after the origination of the related Mortgage Loan (including a
Mortgagor who is a member of the National Guard or is in reserve status at the
time of the origination of the Mortgage Loan and is later called to active duty)
may not be charged interest (including fees and charges) above an annual rate of
6% during the period of such Mortgagor's active duty status, unless a court
orders otherwise upon application of the lender. It is possible that such action
could have an effect, for an indeterminate period of time, on the ability of the
related Servicer to collect full amounts of interest on certain of the Mortgage
Loans. In addition, the Relief Act imposes limitations that would impair the
ability of the related Servicer to foreclose on an affected Mortgage Loan during
the Mortgagor's period of active duty status. Thus, in the event that such a
Mortgage Loan goes into default, there may be delays and losses occasioned by
the inability to realize upon the Mortgaged Property in a timely fashion.
Limited Nature of Ratings. It is a condition to the issuance of the
Certificates that each class of Certificates be rated in one of the four highest
rating categories by one or more of Moody's, Standard & Poor's or Fitch. See
"Summary of Prospectus - Ratings" herein. A security rating is not a
recommendation to buy, sell or hold securities and may be subject to revision or
withdrawal at any time. No person is obligated to maintain the rating on any
Certificate, and, accordingly, there can be no assurance that the ratings
assigned to any class of Certificates on the date on which such Certificates are
initially issued will not be lowered or withdrawn by a Rating Agency at any time
thereafter. In the event any rating is revised or withdrawn, the liquidity of
the related Certificates may be adversely affected. Issuance of any of the
Certificates in book-entry form may reduce the liquidity of such Certificates in
the secondary trading market because investors may be unwilling to purchase
Certificates for which they cannot obtain physical certificates. 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.
Applicable Legal and Regulatory Risks. 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 may entitle the borrower to a refund of amounts previously
paid. See "Certain Legal Aspects of the Mortgage Assets" herein.
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<PAGE>
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 IMC Securities, Inc., 3450 Buschwood Park Drive, Tampa,
Florida 33618. 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 will not be
insured or guaranteed by any governmental entity and, to the extent that
delinquent payments on or losses in respect of defaulted Mortgage Assets, are
not advanced or paid from any applicable Credit Enhancement, such delinquencies
may result in delays in the distribution of payments on, or losses allocated to
one or more classes of Certificates of such series.
General
The Certificates of each series will be issued either in book entry
form or in fully registered form. The minimum original denomination of each
class of Certificates will be specified in the related Prospectus Supplement.
The original "Certificate Principal Balance" of each Certificate will equal the
aggregate distributions or payments allocable to principal to which such
Certificate is entitled and distributions allocable to interest on each
Certificate that is not entitled to distributions allocable to principal will be
calculated based on the "Notional Principal Balance" of such Certificate. The
Notional Principal Balance of a Certificate will not evidence an interest in or
entitlement to distributions allocable to principal but will be used solely for
convenience in expressing the calculation of interest and for certain other
purposes.
Except as described below under "Book Entry Registration" with respect
to Book Entry Certificates, the Certificates of each series will be transferable
and exchangeable on a "Certificate Register" to be maintained at the corporate
trust office or 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.
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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 "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.
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 Payment Date will be added to the aggregate Certificate Principal
Balance of such class of Certificates on that Payment 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 Payment Dates, to the extent of
funds available on such Payment Date. "Companion Certificates" are Certificates
which receive payments of all or a portion of any funds available on a given
Payment Date which are in excess of amounts required to be applied to payments
on Scheduled Amortization Certificates on such Payment 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
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expected to be more sensitive to the actual rate of prepayments on the Mortgage
Assets in the related Trust than will the Scheduled Amortization Certificates of
such series.
One or more series of Certificates may constitute series of "Special
Allocation Certificates", which may include Senior Certificates, Subordinated
Certificates, Priority Certificates and Non-Priority Certificates. As specified
in the related Prospectus Supplement for a series of Special Allocation
Certificates, the timing and/or priority of payments of principal and/or
interest may favor one or more classes of Certificates over one or more other
classes of Certificates. Such timing and/or priority may be modified or
reordered upon the occurrence of one or more specified events. Losses on Trust
assets for such series may be disproportionately borne by one or more classes of
such series, and the proceeds and distributions from such assets may be applied
to the payment in full of one or more classes within such series before the
balance, if any, of such proceeds are applied to one or more other classes
within such series. For example, Special Allocation Certificates in a series may
be comprised of one or more classes of Senior Certificates having a priority in
right to distributions of principal and interest over one or more classes of
Subordinated Certificates, as a form of Credit Enhancement. See "Credit
Enhancement - Subordination" herein. Typically, the Subordinated Certificates
will carry a rating by the rating agencies lower than that of the Senior
Certificates. In addition, one or more classes of Certificates ("Priority
Certificates") may be entitled to a priority of distributions of principal or
interest from assets in the Trust over another class of Certificates
("Non-Priority Certificates"), but only after the exhaustion of other Credit
Enhancement applicable to such series. The Priority Certificates and
Non-Priority Certificates nonetheless may be within the same rating category.
Distributions of Principal and Interest
General. Distributions of principal and interest will be made to the
extent of funds available therefor, on the dates specified in the Prospectus
Supplement (each, a "Payment 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
Payment 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.
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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 Payment 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 Payment 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 Payment 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 Payment Date will be calculated and the manner in which such amount will be
allocated among the classes of Certificates entitled to distributions of
principal.
One or more classes of Certificates may be entitled to receive all or a
disproportionate percentage of the payments of principal which are received on
the related Mortgage Assets in advance of their scheduled due dates and are not
accompanied by amounts representing scheduled interest due after the month of
such payments ("Principal Prepayments"). Any such allocation may have the effect
of accelerating the amortization of such Certificates relative to the interests
evidenced by the other Certificates.
Unscheduled Distributions. The Certificates of a series may be subject
to receipt of distributions before the next scheduled Payment 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 Payment 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 Payment
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 Payment 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 Payment 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
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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, submit redemption requests and receive the reports
provided herein.
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 related Prospectus Supplement, to
certain exclusions, such as a portion of the mortgage interest rate being
retained by the Seller and not sold to the Trust) received on and after the
related Cut-Off Date; (ii) all payments (subject, if specified in the related
Prospectus Supplement, to certain exclusions, such as the retention by the
Seller of payments due and accrued before the related Cut-Off Date but collected
after such Cut-Off Date) 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 all property acquired
by foreclosure or deed in lieu of foreclosure with respect to any such Mortgage
Loan; (v) certain rights of the Trustee, the Depositor and the Servicer under
any insurance policies, hazard insurance or surety bonds required to be
maintained in respect of the related Mortgage Assets; and (vi) if so specified
in the Prospectus Supplement, one or more forms of Credit Enhancement.
The Certificates of each series will be entitled to payment only from
the assets of the related Trust and any other assets pledged therefor and will
not be entitled to payments in respect of the assets of any other trust
established by the Depositor.
Mortgage Assets may be acquired by the Depositor from affiliated or
unaffiliated originators. The following is a brief description of the Mortgage
Assets expected to be included in the Trusts. If specific information 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
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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. 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 home improvement retail
installment contracts. The Mortgaged Properties securing the Mortgage Loans may
include investment properties and vacation and second homes. Each Mortgage Loan
will be selected by the Depositor for inclusion in the Trust from among those
acquired by the Depositor or originated or acquired by one or more affiliated or
unaffiliated originators, including newly originated loans.
The Mortgage Loans will be "conventional" mortgage loans, that is they
will not be insured or guaranteed by any governmental agency, the principal and
interest on the Mortgage Loans included in the Trust for a series of
Certificates will be payable either on the first day of each month or on
different scheduled days throughout each month, and the interest will be
calculated either on a simple-interest or accrual method as described in the
related Prospectus Supplement. When a full principal amount is paid on a
Mortgage Loan during a month, the mortgagor is generally charged interest only
on the days of the month actually elapsed up to the date of such prepayment, at
a daily interest rate that is applied to the principal amount of the Mortgage
Loan so prepaid.
The payment terms of the Mortgage Loans to be included in a Trust for a
series will be described in the related Prospectus Supplement and may include
any of the following features or combinations thereof or other features
described in the related Prospectus Supplement:
(a) Interest may be payable at a fixed rate, a rate adjustable
from time to time in relation to an index, a rate that is fixed for a
period of time or under certain circumstances and followed by an
adjustable rate, a rate that otherwise varies from time to time, or a
rate that is convertible from an adjustable rate to a fixed rate.
Changes to an adjustable rate may be subject to periodic limitations,
maximum rates, minimum rates or a combination of such limitations.
Accrued interest may be deferred and added to the principal of a
Mortgage Loan for such periods and under such circumstances as may be
specified in the related Prospectus Supplement. Mortgage Loans may
provide for the payment of interest at a rate lower than the specified
mortgage rate for a period of time or for the life of the Mortgage Loan
with the amount of any difference contributed from funds supplied by
the seller of the Mortgaged Property or another source.
(b) Principal may be payable on a level debt service basis to
fully amortize the Mortgage Loan over its term, may be calculated on
the basis of an amortization schedule that is longer than the original
term to maturity or on an interest rate that is different from the
interest rate on the Mortgage Loan or may not be amortized during all
or a portion of the original term. Payment of all or a substantial
portion of the principal may be due on maturity. Principal may include
interest that has been deferred and added to the principal balance of
the Mortgage Loan.
(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
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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.
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.
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
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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.
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, single-family 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.
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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.
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 Payment 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 Payment 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 Payment Date, on each Payment Date for specified
periods, or on each Payment 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
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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.
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.
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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 - Standard Hazard Insurance", the hazard policies concerning the
Mortgage Loans typically exclude from coverage physical damage resulting from a
number of causes and even when the damage is covered, may afford recoveries
which are significantly less than the full replacement cost of such losses. Even
if special hazard insurance is applicable as specified in the Prospectus
Supplement, no coverage in respect of special hazard losses will cover all
risks, and the amount of any such coverage will be limited. See "Special Hazard
Insurance" below. As a result, certain hazard risks will not be insured against
and will therefore be borne by Owners of the Certificates, unless otherwise
covered by another form of Credit Enhancement, as specified in the Prospectus
Supplement.
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 - 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
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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.
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
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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 Servicer or the Seller to advance delinquent installments in
respect of the Mortgage Loans. See "Servicing of Mortgage Loans - Advances"
herein.
SERVICING OF MORTGAGE LOANS
With respect to each series of Certificates, the related Mortgage Loans
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 Depositor will require that the Servicer have adequate servicing
experience, where appropriate, and financial stability, generally including a
net worth requirement of no less than $10,000,000 (to be specified in the
Agreement) as well as satisfaction of certain other criteria. The Servicer is
required to be a FNMA-approved servicer of conventional mortgage loans.
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, 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. Each Servicer will also be
obligated to make advances in respect of delinquent installments on Mortgage
Loans 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 pursuant
to the terms of the Agreement for the entire term of such Mortgage Loan 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
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therein in excess of the amount so insured or secured, so long as such Servicer
meets certain requirements established by the rating agencies requested to rate
the Certificates.
Each Servicer is required to deposit into its Custodial Account on a
daily basis all amounts in respect of each Mortgage Loan received by such
Servicer, with interest adjusted to a rate (the "Remittance Rate") equal to the
related Mortgage Rate less the Servicer's servicing fee rate. On the day of each
month specified in the related Prospectus Supplement (the "Remittance Date"),
each Servicer of the Mortgage Loans will remit to the Trustee all 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, the 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. Any Servicer funds thus advanced will be reimbursable to such Servicer out
of recoveries on the Mortgage Loans 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. 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 pursuant to guidelines
established in the related Agreement.
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 Payment 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.
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.
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Standard Hazard Insurance
The Servicer will be required to cause to be maintained for each
Mortgage Loan a standard hazard insurance policy. The coverage of such policy is
required to be in an amount not less than the maximum insurable value of the
improvements securing such Mortgage Loan from time to time or the principal
balance owing on such Mortgage Loan from time to time, whichever is less. In all
events, such coverage shall be in an amount sufficient to ensure avoidance of
the applicability of the co-insurance provisions under the terms and conditions
of the applicable policy. The ability of each Servicer to assure that hazard
insurance proceeds are appropriately applied may be dependent on its being named
as an additional insured under any standard hazard insurance policy and under
any flood insurance policy referred to below, or upon the extent to which
information in this regard is furnished to such Servicer by Mortgagors. Each
Agreement may provide that the related Servicer may satisfy its obligation to
cause hazard insurance policies to be maintained by maintaining a blanket policy
insuring against hazard losses on the Mortgage Loans serviced by such Servicer.
In general, the standard form of fire and extended coverage policy
covers physical damage to or destruction of the improvements on the property by
fire, lightning, explosion, smoke, wind-storm and hail, riot, strike and civil
commotion, subject to the conditions and exclusions particularized in each
policy. Although the policies relating to the Mortgage Loans will be
underwritten by different insurers and, therefore, will not contain identical
terms and conditions, the basic terms thereof are dictated by state law. Such
policies typically do not cover any physical damage resulting from the
following: war, revolution, governmental actions, floods and other water-related
causes, earth movement (including earthquakes, landslides and mud flow), nuclear
reactions, wet or dry rot, vermin, rodents, insects or domestic animals, theft
and, in certain cases, vandalism. The foregoing list is merely indicative of
certain kinds of uninsured risks and is not intended to be all-inclusive. If the
property securing a Mortgage Loan is located in a federally designated flood
area, flood insurance will be required to be maintained in such amounts as would
be required by FNMA in connection with its mortgage loan purchase program. The
Depositor may also purchase special hazard insurance against certain of the
uninsured risks described above. See "Credit Enhancement - Special Hazard
Insurance".
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.
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
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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.
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 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.
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-
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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.
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. Material terms of a specific Agreement
will be further described in the related Prospectus Supplement.
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
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damage and is in good repair or, with respect to a junior lien Mortgage Loan,
that such Mortgage is a valid junior lien Mortgage, as the case may be and
specifying the percentage of the Mortgage Loan Pool comprised of junior lien
Mortgage Loans; (v) at the date of initial issuance of the Certificates, no
Mortgage Loan is 31 or more days delinquent (with such exceptions as may be
specified in the related Prospectus Supplement) and there are no delinquent tax
or assessment liens against the property covered by the related Mortgage; (vi)
at the date of initial issuance of the Certificates, the portion of each
Mortgage Loan, if any, which in the circumstances set forth below under
"Servicing of Mortgage Loans - 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 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. The Trustee will review
the documents delivered to it with respect to the Mortgage Loans included in the
related Trust. If any document is not delivered or is found to be defective in
any material respect and the Depositor or the related Seller, if so required
cannot deliver such document or cure such defect within the period specified in
the related Prospectus Supplement after notice thereof (which the Trustee will
undertake to give within the period specified in the related Prospectus
Supplement), and if any other party obligated to deliver such document or cure
such defect has not done so and has not substituted or repurchased the affected
Mortgage Loan or Contract then the Depositor will cause the Seller, not later
than the first date designated for the deposit of payments into the Certificate
Account (a "Deposit Date") which is more than a specified number of days after
such period, (a) if so provided in the Prospectus Supplement to remove the
affected Mortgage Loan from the Trust and substitute one or more other Mortgage
Loans therefor or (b) repurchase the Mortgage Loan 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.
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") 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 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 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
as described above, whether or not the Depositor obtains such an agreement from
the Seller which sold such Mortgage Loans.
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In the case of Certificates representing debt obligations of a Trust
all assets of the Trust will be pledged to the Indenture Trustee.
If a REMIC election is to be made with respect to all or a portion of a
Trust, there may be federal income tax limitations on the right to substitute
Mortgage Loans.
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, 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
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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 - 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 property acquired
in respect thereof repurchased by the Depositor, the Seller or
otherwise as described above or under "Termination" below;
(viii) all amounts, if any, required to be deposited in the
Certificate Account from any Credit Enhancement for the related series;
and
(ix) all other amounts required to be deposited in the
Certificate Account pursuant to the related Agreement.
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
Payment 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;
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(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 which were delinquent as to a total of two installments of
principal and interest; and
(viii) the aggregate Principal Balances of Mortgage Loans
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 (in the case of Book Entry Certificates, the
above described statement and such annual information will be sent to the
Clearing Agency, which will provide such reports to the Clearing Agency
Participants in accordance with its procedures).
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. The maximum amount deposited in the Pre-Funding
Account to acquire Mortgage Loans for transfer to a Trust will not exceed 40% of
the aggregate principal amount of the Certificates offered pursuant to the
related Prospectus Supplement. Each Pre-Funding Agreement will set a specified
period during which any such transfers must occur, which period will not exceed
90 days from the date the Trust is established. 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.
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
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appointment of a successor Servicer. Pending the appointment of a successor
Servicer, the Trustee or the Master Servicer, if any, shall act as Servicer.
The Owners of Certificates will not have any right under the Agreement
to institute any proceeding with respect to the Agreement, unless they
previously have given to the Trustee written notice of default and unless the
Owners of the percentage of the Certificates specified in the Prospectus
Supplement have made written request to the Trustee to institute such proceeding
in its own name as Trustee thereunder and have offered to the Trustee reasonable
indemnity and the Trustee for a specified number of days has neglected or
refused to institute any such proceedings. However, the Trustee is under no
obligation to exercise any of the trusts or powers vested in it by the Agreement
or to make any investigation of matters arising thereunder or to institute,
conduct or defend any litigation thereunder or in relation thereto at the
request, order or direction of any of the Owners, unless such Owners have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby.
Amendment
An Agreement generally may be amended by the Depositor, the Servicer
and the Trustee, without the consent of the Owners of the Certificates, to cure
any ambiguity, to correct or supplement any provision therein which may be
defective or inconsistent with any other provision therein, to take any action
necessary to maintain REMIC status of any Trust as to which a REMIC election has
been made, to add any other provisions with respect to matters or questions
arising under the Agreement which are not materially inconsistent with the
provisions of the Agreement or for any other purpose, provided that with respect
to amendments for any other purpose (A) the Depositor shall deliver an opinion
of counsel satisfactory to the Trustee, that such amendment will not adversely
affect in any material respect the interests of any Owners of Certificates of
that series and (B) such amendment will not result in a withdrawal or reduction
of the rating of any rated Certificate. Notwithstanding the foregoing, no such
amendment may (i) reduce in any manner the amount of, or delay the timing of,
collections of payments received on the related Mortgage Assets or distributions
which are required to be made on any Certificate without the consent of the
Owner of such Certificate, (ii) adversely affect in any material respect the
interests of the Owners of any class of Certificates in any manner other than as
described in (i), without the consent of the Owners of Certificates of such
class evidencing not less than a majority of the interests of such class or
(iii) reduce the aforesaid percentage of Certificates of any class required to
consent to any such amendment, without the consent of the Owners of all
Certificates of such class then outstanding. Any other amendment provisions
inconsistent with the foregoing shall be specified in the related Prospectus
Supplement.
Termination
The obligations of the Depositor, the Servicer, and the Trustee created
by the Agreement will terminate upon the payment as required by the Agreement of
all amounts held by the Servicer or in the Certificate Account and required to
be paid to them pursuant to the Agreement after the later of (i) the maturity or
other liquidation of the last Mortgage Asset subject thereto or the disposition
of all property acquired upon foreclosure of any such Mortgage Loan 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.
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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. 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. The Depositor will not receive any fees or other commissions
in connection with its acquisition of Mortgage Assets or its sale of such
Mortgage Assets to the Trust.
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 is situated. The summaries
are qualified by reference to the applicable federal and state laws governing
the Mortgage Loans.
General
Mortgages. The Mortgage Loans will be secured either by deeds of trust
or mortgages. A mortgage creates a lien upon the real property encumbered by the
mortgage. It is not prior to liens for real estate taxes and assessments.
Priority between mortgages depends on their terms and generally on the order of
filing with a state or county office. There are two parties to a mortgage: the
mortgagor, who is the borrower and homeowner or the land trustee (as described
below), and the mortgagee, who is the lender. Under the mortgage instrument, the
mortgagor delivers to the mortgagee a note or bond and the mortgage. Although a
deed of trust is similar to a mortgage, a deed of trust formally has three
parties, the borrower-homeowner called the trustor (similar to a mortgager), a
lender (similar to a mortgagee) called the beneficiary, and a third-party
grantee called the trustee. Under a deed of trust, the borrower grants the
property, irrevocably until the debt is paid, in trust and generally with a
power of sale, to the trustee to secure payment of the obligation. The trustee's
authority under a deed of 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
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agreements. In addition, the blanket mortgage on a cooperative may provide
financing in the form of a mortgage that does not fully amortize with a
significant portion of principal being due in one lump sum at final maturity.
The inability of the cooperative to refinance this mortgage and its consequent
inability to make such final payment could lead to foreclosure by the mortgagee
providing the financing. A foreclosure in either event by the holder of the
blanket mortgage could eliminate or significantly diminish the value of any
collateral held by the lender who financed the purchase by an individual
tenant-stockholder of cooperative shares or in the case of a Trust including
Cooperative Loans, the collateral securing the Cooperative Loans.
The cooperative is owned by tenant-stockholders who, through ownership
of stock shares or membership certificates in the corporation, receive
proprietary leases or occupancy agreements which confer exclusive rights to
occupy specific units. Generally, a tenant-stockholder of a cooperative must
make a monthly payment to the cooperative representing such tenant-stockholder's
pro rata share of the cooperative's payments for its blanket mortgage, real
property taxes, maintenance expenses and other capital or ordinary expenses. An
ownership interest in a cooperative and accompanying occupancy rights is
financed through a cooperative share loan evidenced by a promissory note and
secured by a security interest in the occupancy agreement or proprietary lease
and in the related cooperative shares. The lender takes possession of the share
certificate and a counterpart of the proprietary lease or occupancy agreement
and a financing statement covering the proprietary lease or occupancy agreement
and the cooperative shares is filed in the appropriate state and local offices
to perfect the lenders interest in its collateral. Subject to the limitations
discussed below, upon default of the tenant-stockholder, the lender may sue for
judgment on the promissory note, dispose of the collateral at a public or
private sale or otherwise proceed against the collateral or tenant-stockholder
as an individual as provided in the security agreement covering the assignment
of the proprietary lease or occupancy agreement and the pledge of cooperative
shares.
Foreclosure
Mortgages. Foreclosure of a deed of trust is generally accomplished by
a non-judicial trustee's sale under a specific provision in the deed of trust
that authorizes the trustee to sell the property to a third party upon any
default by the borrower under the terms of the note or deed of trust. In some
states, the trustee must record a notice of default and send a copy to the
borrower-trustor or and any person who has recorded a request for a copy of a
notice of default and notice of sale. In addition, the trustee must provide
notice in some states to any other individual having an interest in the real
property, including any junior lienholders. The borrower, or any other person
having a junior encumbrance on the real estate, may, during a reinstatement
period, cure the default by paying the entire amount in arrears plus the costs
and expenses incurred in enforcing the obligation. Generally, state law controls
the amount of foreclosure expenses and costs, including attorney's fees' which
may be recovered by a lender. If the deed of trust is not reinstated, a notice
of sale must be posted in a public place and, in most states, published for a
specific period of time in one or more newspapers. In addition, some state laws
require that a copy of the notice of sale be posted on the property and sent to
all parties having an interest in the real property.
Foreclosure of a mortgage is generally accomplished by judicial action.
The action is initiated by the service of legal pleadings upon all parties
having an interest in the real property. Delays in completion of the 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
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lender will commonly obtain the services of a real estate broker and pay the
broker's commission in connection with the sale of the property. Depending upon
market conditions, the ultimate proceeds of the sale of the property may not
equal the lender's investment in the property. Any loss may be reduced by the
receipt of any mortgage insurance proceeds.
When the junior mortgagee or beneficiary under a junior deed of trust
cures the default and state law allows it to reinstate or redeem by paying the
full amount of the senior mortgage or deed of trust, then in those states the
amount paid so to cure or redeem generally becomes a part of the indebtedness
secured by the junior mortgage or deed of trust. See "Junior Liens; Rights of
Senior Mortgagors or Beneficiaries" below.
A sale conducted in accordance with the terms of the power of sale
contained in a mortgage or deed of trust is generally presumed to be conducted
regularly and fairly, and a conveyance of the real property by the trustee
confers, in most states, legal title to the real property to the purchaser, free
of all junior mortgages or deeds of trust and free of all other liens and claims
subordinate to the mortgage or deed of trust under which the sale is made (with
the exception of certain governmental liens). The purchaser's title is, however,
subject to all senior liens, encumbrances and mortgages and may be subject to
mechanic's and materialman's liens in some states. Thus, if the mortgage or deed
of trust being foreclosed is a junior mortgage or deed of trust, the sheriff or
trustee will convey title to the purchaser of the real property, subject to any
existing first mortgage or deed of trust and any other prior liens and claims.
The foreclosure of a junior mortgage or deed of trust, generally, will have an
effect on the first mortgage or deed of trust, if the senior mortgage or deed of
trust grants to the senior mortgagee or beneficiary the right to accelerate its
indebtedness under a "due-on-sale" clause or "due on further encumbrance" clause
contained in the senior mortgage or deed of trust. See "Anti-Deficiency
Legislation and Other Limitations on Lenders" below.
The proceeds received by the sheriff or trustee from the sale are
applied pursuant to the terms of the deed of trust, which may require
application first to the costs, fees and expenses of sale and then in
satisfaction of the indebtedness secured by the mortgage or deed of trust under
which the sale was conducted. In some states, any surplus money remaining may be
available to satisfy claims of the holders of junior mortgages or deeds of trust
and other junior liens and claims in order of their priority, whether or not the
mortgagor or trustee is in default, while in some states, any surplus money
remaining may be payable directly to the mortgagor or trustor. Any balance
remaining is generally payable to the mortgagor or trustor. Following the sale,
in some states the mortgagee or beneficiary following a foreclosure of a
mortgage or deed of trust may not obtain a deficiency judgment against the
mortgagor or trustor. A junior lienholder whose rights in the property are
terminated by the foreclosure by a senior lienholder will not share in the
proceeds from the subsequent disposition of the property.
Cooperative Loans. The cooperative shares owned by the
tenant-stockholder and pledged to the lender are, in almost all cases, subject
to restrictions on transfer as set forth in the cooperative's Certificate of
Incorporation and Bylaws, as well as the proprietary lease or occupancy
agreement, and may be canceled by the cooperative for failure by the
tenant-stockholder to pay rent or other obligations or charges owned by such
tenant-stockholder, including mechanics' liens against the cooperative apartment
building incurred by such tenant-stockholder. The 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
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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 may be secured by mortgages or deeds of trust providing for
junior (i.e., second, third, etc.) liens on the related Mortgaged Properties
which are junior to the other mortgages or deeds of trust held by other lenders
or institutional investors. The rights of the beneficiary under a junior deed of
trust or as mortgagee under a junior mortgage are subordinate to those of the
mortgagee or beneficiary under the senior mortgage or deed of trust, including
the prior rights of the senior mortgagee or beneficiary to receive hazard
insurance and condemnation proceeds and to cause the property securing the
Mortgage Loans to be sold upon default of the mortgagor or trustor. As discussed
more fully below, a junior mortgagee or beneficiary in some states may satisfy a
defaulted senior loan in full and in some states may cure such default and bring
the senior loan current, in either event adding the amounts expended to the
balance due on the junior loan. In most states, absent a provision in the senior
mortgage or deed of trust, no notice of default is required to be given to a
junior mortgagee or beneficiary.
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
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agreeing to reimburse the mortgagee or beneficiary for any sums expended by the
mortgagee or beneficiary on behalf of the trustor. All sums so expended by the
mortgagee or beneficiary generally become part of the indebtedness secured by
the mortgage or deed of trust.
Right of Redemption. In some states, after sale pursuant to a deed of
trust or foreclosure of a mortgage, the borrower and foreclosed junior lienors
are given a statutory period in which to redeem the property following
foreclosure. In some states, redemption may occur only upon payment of the
entire principal balance of the loan, accrued interest and expenses of
foreclosure. In other states, redemption may be authorized if the former
borrower pays only a portion of the sums due. The effect of a statutory right of
redemption is to diminish the ability of the lender to sell the foreclosed
property. The rights of redemption would defeat the title of any purchaser from
the lender subsequent to foreclosure or sale under a deed of trust.
Consequently, the practical effect of the redemption right is to force the
lender to retain the property and pay the expenses of ownership until the
redemption period has run.
Anti-Deficiency Legislation and Other Limitations on Lenders. Certain
states have imposed statutory prohibitions that limit the remedies of a
beneficiary under a deed of trust or a mortgagee under a mortgage. In some
states, statutes limit the right of the beneficiary or mortgagee to obtain a
deficiency judgment against the borrower following foreclosure or sale under a
deed of trust. A deficiency judgment would be a personal judgment against the
former borrower equal in most cases to the difference between the net amount
realized upon the public sale of the real property and the amount due to the
lender. Other statutes require the beneficiary or mortgagee to exhaust the
security afforded under a deed of trust or mortgage by foreclosure in an attempt
to satisfy the full debt before bringing a personal action against the borrower.
Finally, other statutory provisions limit any deficiency judgment against the
former borrower following a judicial sale to the excess of the outstanding debt
over the fair market value of the property at the time of the public sale. The
purpose of these statutes is generally to prevent a beneficiary or a mortgagee
from obtaining a large deficiency judgment against the former borrower as a
result of low or no bids at the judicial sale.
In addition to laws limiting or prohibiting deficiency judgments,
numerous other statutory provisions, including the federal bankruptcy laws and
state laws affording relief to debtors, may interfere with or affect the ability
of the secured mortgage lender to realize upon collateral and/or enforce a
deficiency judgment. For example, with respect to federal bankruptcy law, a
court with federal bankruptcy jurisdiction may permit a debtor through his or
her Chapter 11 or Chapter 13 rehabilitative plan to cure a monetary default in
respect of a mortgage loan on a debtor's residence by paying arrearages within a
reasonable time period and reinstating the original mortgage loan payment
schedule even though the lender accelerated the mortgage loan and final judgment
of foreclosure had been entered in state court (provided no sale of the
residence had yet occurred) prior to the filing of the debtor's petition. 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.
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Generally, Article 9 of the UCC governs foreclosure on cooperative
shares and the related proprietary lease or occupancy agreement. Some courts
have interpreted section 9-504 of the UCC to prohibit a deficiency award unless
the creditor establishes that the sale of the collateral (which, in the case of
a Cooperative Loan, would be the shares of the cooperative and the related
proprietary lease or occupancy agreement) was conducted in a commercially
reasonable manner.
Enforceability of Certain Provisions. Certain of the Mortgage Loans
will contain due-on-sale clauses. These clauses permit the lender to accelerate
the maturity of a loan if the borrower sells, transfers, or conveys the
property. The enforceability of these clauses was the subject of legislation or
litigation in many states, and in some cases the enforceability of these clauses
was limited or denied. However, the Garn-St. Germain Depository Institutions Act
of 1982 (the "Garn-St. Germain Act") preempts state constitutional, statutory
and case law prohibiting the enforcement of due-on-sale clauses and permits
lenders to enforce these clauses in accordance with their terms, subject to
certain limited exceptions. The Garn-St. Germain Act does "encourage" lenders to
permit assumption of loans at the original rate of interest or at some other
rate less than the average of the original rate and the market rate.
The Garn-St. Germain Act also sets forth nine specific instances in
which a mortgage lender covered by the Garn-St. Germain Act (including federal
savings and loan associations and federal savings banks) may not exercise a
due-on-sale clause, notwithstanding the fact that a transfer of the property may
have occurred. These include intra-family transfers, certain transfers by
operation of law, leases of fewer than three years and the creation of a junior
encumbrance. Regulations promulgated under the Garn-St. Germain Act by the
Federal Home Loan Bank Board as succeeded by the Office of Thrift Supervision
(the "OTS"), also prohibit the imposition of a prepayment penalty upon the
acceleration of a loan pursuant to a due-on-sale clause. Any inability of the
Depositor to enforce due-on-sale clauses may affect the average life of the
Mortgage Loans and the number of Mortgage Loans that may be outstanding until
maturity.
Upon foreclosure, courts have imposed general equitable principles.
These equitable principles are generally designed to relieve the borrower from
the legal effect of his defaults under the loan documents. Examples of judicial
remedies that have been fashioned include requirements that the lender undertake
affirmative and expensive actions to determine the causes for the borrower's
default and the likelihood that the borrower will be able to reinstate the loan.
In some cases, courts have substituted their judgment for the lender's judgment
and have required that lenders reinstate loans or recast payment schedules in
order to accommodate borrowers who are suffering from temporary financial
disability. In other cases, courts have limited the right of the lender to
foreclose if the default under the mortgage instrument is not monetary, such as
the borrower falling to adequately maintain 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.
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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 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.
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
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of the Federal Reserve System, the FDIC, the OTS, the NCUA or other federal or
state agencies with similar authority should review any applicable rules,
guidelines and regulations prior to purchasing the certificates. The Federal
Financial Institutions Examination Council, for example, has issued a
Supervisory Policy Statement on Securities Activities effective February 10,
1992 (the "Policy Statement"). The Policy Statement has been adopted by the
Comptroller of the Currency, the Federal Reserve Board, the FDIC and the OTS
with respect to the depository institutions that they regulate. The Policy
Statement prohibits depository institutions from investing in certain "high-risk
mortgage securities" except under limited circumstances, and sets forth certain
investment practices deemed to be unsuitable for regulated institutions. The
NCUA issued final regulations effective December 2, 1991 that restrict and in
some instances prohibit the investment by federal credit unions in certain types
of mortgage related securities.
The foregoing does not take into consideration the applicability of
statutes, rules, regulations, orders, guidelines or agreements generally
governing investments made by a particular investor, including, but not limited
to "prudent investor" provisions, percentage-of-assets limits and provisions
which may restrict or prohibit investment in securities which are not "interest
bearing" or "income paying," or in securities which are issued in book-entry
form.
Investors should consult their own legal advisors in determining
whether and to what extent the Certificates constitute legal investments for
such investors.
ERISA CONSIDERATIONS
ERISA imposes requirements on employee benefit plans (and on certain
other retirement plans and arrangements, including individual retirement
accounts and annuities, Keogh plans and collective investment funds and separate
accounts in which such plans, accounts or arrangements are invested)
(collectively, "Plans") subject to ERISA and on persons who are fiduciaries with
respect to such Plans. Among other things, ERISA requires that the assets of
Plans be held in trust and that the trustee, or other duly authorized fiduciary,
have exclusive authority and discretion to manage and control the assets of such
Plans. ERISA also imposes certain duties on persons who are fiduciaries of
Plans. Under ERISA, any person who exercises any authority or control respecting
the management or disposition of the assets of a Plan is considered to be a
fiduciary of such Plan (subject to certain exceptions not here relevant). In
addition to the imposition of general fiduciary standards of investment prudence
and diversification, ERISA prohibits a broad range of transactions involving
Plan assets and persons ("Parties in Interest") having certain specified
relationships to a Plan and imposes additional prohibitions where Parties in
Interest are fiduciaries with respect to such Plan.
The United States Department of Labor (the "DOL") has issued
regulations concerning the definition of what constitutes the assets of a Plan.
(DOL Reg Section 2510.3-101). Under this regulation, the underlying assets and
properties of corporations, partnerships and certain other entities in which a
Plan makes an "equity" investment could be deemed for purposes of ERISA to be
assets of the investing Plan in certain circumstances. In such case, the
fiduciary making such an investment for the Plan could be deemed to have
delegated his or her asset management responsibility, and the underlying assets
and properties could be subject to ERISA reporting and 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
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consisting of mortgage loans secured by first or second mortgages or deeds of
trust on single-family residential property, and the acquisition and holding of
certain mortgage pool pass-through certificates representing an interest in such
mortgage pools by PTE.
PTE 83-1 sets forth three general conditions which must be satisfied
for any transaction to be eligible for exemption: (i) the maintenance of a
system of insurance or other protection for the pooled mortgage loans and
property securing such loans, and for indemnifying Owners against reductions in
pass-through payments due to property damage or defaults in loan payments in an
amount not less than the greater of one percent of the aggregate principal
balance of all covered pooled mortgage loans or the principal balance of the
largest covered pooled mortgage loan, (ii) the existence of a pool trustee who
is not an affiliate of the sponsor, and (iii) a limitation on the amount of the
payments retained by the pool sponsor, together with other funds inuring to its
benefit, to not more than adequate consideration for selling the mortgage loans
plus reasonable compensation for services provided by the pool sponsor.
Although the Trustee for any series of Certificates will be
unaffiliated with the Depositor, there can be no assurance that the system of
insurance or subordination will meet the general or specific conditions referred
to above. In addition, the nature of a Trust's assets or the characteristics of
one or more classes of the related series of Certificates may not be included
within the scope of PTE 83-1 or any other class exemption under ERISA. The
Prospectus Supplement will provide additional information with respect to the
application of ERISA and the Code to the related Certificates.
Several underwriters of mortgage-backed securities have applied for and
obtained ERISA prohibited transactions exemptions which are in some respects
broader than PTE 83-1. Such exemptions can only apply to mortgage-backed
securities which, among other conditions, are sold in an offering with respect
to which such underwriter serves as the sole or a managing underwriter, or as a
selling or placement agent. Several other underwriters have applied for similar
exemptions. If such an exemption might be applicable to a series of
Certificates, the related Prospectus Supplement will refer to such possibility.
Each Plan fiduciary who is responsible for making the investment
decisions whether to purchase or commit to purchase and to hold Certificates
must make its own determination as to whether the general and the specific
conditions of PTE 83-1 have been satisfied or as to the availability of any
other prohibited transaction exemptions Each Plan fiduciary should also
determine whether, under the general fiduciary standards of investment prudence
and diversification, an investment in the Certificates is appropriate for the
Plan, taking into account the overall investment policy of the Plan and the
composition of the Plan's investment portfolio.
Any Plan proposing to invest in Certificates should consult with its
counsel to confirm that such investment will not result in a prohibited trans
action and will satisfy the other requirements of ERISA and the Code.
FEDERAL INCOME TAX CONSEQUENCES
The following is based upon the opinion of Arter & Hadden, special
counsel to the Depositor with respect to the material federal income tax
consequences of the purchase, ownership and disposition of Certificates. The
discussion below does not purport to address all federal income tax consequences
that may be applicable to particular categories of investors, some of which may
be subject to special rules. The authorities on which this discussion is based
are subject to change or differing interpretations, and any such change or
interpretation could apply retroactively. This discussion reflects the
applicable provisions of the Code including recent amendments under the Omnibus
Budget Reconciliation Act of 1993 ("OBRA"), as well as final regulations
concerning REMICs (the "REMIC Regulations") promulgated on December 23, 1992,
and final regulations under Sections 1271 through 1273 and 1275 of the Code
concerning debt instruments promulgated on January 27, 1994 (the "OID
Regulations"). The Depositor intends to rely on the OID Regulations for all
Certificates offered pursuant to this Prospectus; however, investors should be
aware that the OID Regulations do not adequately address certain issues relevant
to prepayable securities, such as the Certificates. Investors should consult
their own tax advisors in determining the federal, state, local and any other
tax consequences to them of the purchase, ownership and disposition of
Certificates. The
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Prospectus Supplement for each series of Certificates will discuss any special
tax consideration applicable to any class of Certificates of such series, and
the discussion below is qualified by any such discussion in the related
Prospectus Supplement.
For purposes of this opinion, where the applicable Prospectus
Supplement provides for a fixed retained yield with respect to the Mortgage
Assets underlying a series of Certificates, references to the Mortgage Assets
will be deemed to refer to that portion of the Mortgage Assets held by the Trust
which does not include the fixed retained yield.
Federal Income Tax Consequences For REMIC Certificates
General. With respect to a particular series of Certificates, an
election may be made to treat the Trust or one or more trusts or segregated
pools of assets therein as one or more REMICs within the meaning of Code Section
860D. A Trust or a portion or portions thereof as to which one or more REMIC
elections will be made will be referred to as a "REMIC Pool." For purposes of
this discussion, Certificates of a series as to which one or more REMIC
elections are made are referred to as "REMIC Certificates" and will consist of
one or more classes of "Regular Certificates" and one class of "Residual
Certificates" in the case of each REMIC Pool. Qualification as a REMIC requires
ongoing compliance with certain conditions. With respect to each series of REMIC
Certificates, Arter & Hadden, special counsel to the Depositor, has advised the
Depositor that in their opinion, assuming (i) the making of an appropriate
election, (ii) compliance with the Agreement and (iii) compliance with any
changes in the law, including any amendments to the Code or applicable Treasury
regulations thereunder, each REMIC Pool will qualify as a REMIC and that if a
Trust qualifies as a REMIC, the tax consequences to the Owners will be as
described below. In such case, the Regular Certificates will be considered to be
"regular interests" in the REMIC Pool and generally will be treated for federal
income tax purposes as if they were newly originated debt instruments, and the
Residual Certificates will be considered to be "residual interests" in the REMIC
Pool. The Prospectus Supplement for each series of Certificates will indicate
whether one or more REMIC elections with respect to the related Trust will be
made, in which event references to "REMIC" or "REMIC Pool" herein shall be
deemed to refer to each such REMIC Pool.
Status of REMIC Certificates. REMIC Certificates held by a mutual
savings bank or a domestic building and loan association (a "Thrift
Institution") will constitute "qualifying real property loans" within the
meaning of Code Section 593(d)(1) in the same proportion that the assets of the
REMIC Pool would be so treated. REMIC Certificates held by a domestic building
and loan association will constitute "a regular or residual interest in a REMIC"
within the meaning of Code Section 7701(a) (19)(C) (xi) in the same proportion
that the assets of the REMIC Pool would be treated as "loans secured by an
interest in real property" within the meaning of Code Section 7701(a)(19)(C)(v)
or as other assets described in Code Section 7701(a)(19)(C). REMIC Certificates
held by a real estate investment trust (a "REIT") will constitute "real estate
assets" within the meaning of Code Section 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
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indebtedness" within the meaning of Code Section 582(c)(i). REMIC Certificates
representing interests in obligations secured by manufactured housing treated as
single family residences under Code Section 25(e)(10) will be considered
interests in "qualified mortgages" as defined in Code Section 860E(a)(3).
Qualification as a REMIC. In order for the REMIC Pool to qualify as a
REMIC, there must be ongoing compliance on the part of the REMIC Pool with the
requirements set forth in the Code. The REMIC Pool must fulfill an asset test,
which requires that no more than a de minimis amount of the assets of the REMIC
Pool, as of the close of the third calendar month beginning after the Delivery
Date (which for purposes of this discussion is the date of issuance of the REMIC
Certificates) and at all times thereafter, may consist of assets other than
"qualified mortgages" and "permitted investments." The REMIC Regulations provide
a "safe harbor" pursuant to which the de minimis requirement will be met if at
all times the aggregate adjusted basis of any nonqualified assets (i.e., assets
other than qualified mortgages and permitted investments) is less than 1% of the
aggregate adjusted basis of all the REMIC Pool's assets.
If a REMIC Pool fails to comply with one or more of the requirements of
the Code for REMIC status during any taxable year, the REMIC Pool will not be
treated as a REMIC for such year and thereafter. In this event, the
classification of the REMIC Pool for federal income tax purposes is uncertain.
The REMIC Pool might be entitled to treatment as a grantor trust under the rules
described in "Federal Income Tax Consequences for Certificates as to Which No
REMIC Election Is Made." In that case, no entity-level tax would be imposed on
the REMIC Pool. Alternatively, the Regular Certificates may continue to be
treated as debt instruments for federal income tax purposes; but the REMIC Pool
could be treated as a taxable mortgage pool (a "TMP"). If the REMIC Pool is
treated as a TMP, any residual income of the REMIC Pool (income from the
Mortgage Assets less interest and original issue discount expense allocable to
the Regular Certificates and any administrative expenses of the REMIC Pool)
would be subject to corporate income tax at the REMIC Pool level. On the other
hand, an entity with multiple classes of ownership interests may be treated as a
separate association taxable as a corporation under Treasury regulations, and
the Regular Certificates may be treated as equity interests therein. The Code,
however, authorizes the Treasury Department to issue regulations that address
situations where failure to meet one or more of the requirements for REMIC
status occurs inadvertently and in good faith, and disqualification of the REMIC
Pool would occur absent regulatory relief. Investors should be aware, however,
that the Conference Committee Report to the Tax Reform Act of 1986 (the "1986
Act") indicates that the relief may be accompanied by sanctions, such as the
imposition of a corporate tax on all or a portion of the REMIC Pool's income for
the period of time in which the requirements for REMIC status are not satisfied.
Taxation of Regular Certificates
General. Payments received by holders of Regular Certificates generally
should be accorded the same tax treatment under the Code as payments received on
ordinary taxable corporate debt instruments. In general, interest, 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
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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 Payment 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 Payment 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 Payment
Date on a Regular Certificate is longer than the interval between subsequent
Payment Dates (and interest paid on the first Payment Date is less than would
have been earned if the stated interest rate were applied to outstanding
principal during each day in such interval), the stated interest distributions
on such Regular Certificate technically do not constitute qualified stated
interest. In such case a special rule, applying solely for the purpose of
determining whether original issue discount is de minimis, provides that the
interest shortfall for the long first period (i.e., the interest that would have
been earned if interest had been paid on the first Payment 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
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free from doubt, the Depositor intends to treat the monthly period ending on the
day before each Payment 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 Payment Date on
the Regular Certificate. For a Regular Certificate, original issue discount is
to be calculated initially based on a schedule of maturity dates that takes into
account the level of prepayments and an anticipated reinvestment rate that are
most likely to occur, which is expected to be based on the Prepayment
Assumption. The original issue discount accruing in a full accrual period would
be the excess, if any, of (i) the sum of (a) the present value of all of the
remaining distributions to be made on the Regular Certificate as of the end of
that accrual period that are included in the Regular Certificate's stated
redemption price at maturity and (b) the distributions made on the Regular
Certificate during the accrual period that are included in the Regular
Certificate's stated redemption price at maturity over (ii) the adjusted issue
price of the Regular Certificate at the beginning of the accrual period. The
present value of the remaining distributions referred to in the preceding
sentence is calculated based on (i) the yield to maturity of the Regular
Certificate at the issue date, (ii) events (including actual prepayments) that
have occurred prior to the end of the accrual period and (iii) the Prepayment
Assumption. For these purposes, the adjusted issue price of a Regular
Certificate at the beginning of any accrual period equals the issue price of the
Regular Certificate, increased by the aggregate amount of original issue
discount with respect to the Regular Certificate that accrued in all prior
accrual periods and reduced by the amount of distributions included in the
Regular Certificate's stated redemption price at maturity that were made on the
Regular Certificate in such prior period. The original issue discount accruing
during any accrual period (as determined in this paragraph) will then be divided
by the number of days in the period to determine the daily portion of original
issue discount for each day in the period.
Under the method described above, the daily portions of original issue
discount required to be included in income by a Regular Certificateholder
generally will increase to take into account prepayments on the Regular
Certificates as a result of prepayments on the Mortgage Assets or that exceed
the Prepayment Assumption, and generally will decrease (but not below zero for
any period) if the prepayments are slower than the Prepayment Assumption. In the
event of a change in circumstances that does not result in a substantially
contemporaneous pro rata prepayment, the yield and maturity of the Regular
Certificates are redetermined by treating the Regular Certificates as reissued
on the date of the change for an amount equal to the adjusted issue price of the
Regular Certificates. To the extent specified in the applicable Prospectus
Supplement, an increase in prepayments on the Mortgage Assets with respect to a
series of Regular Certificates can result in both a change in the priority of
principal payments with respect to certain classes of Regular Certificates and
either an increase or decrease in the daily portions of original issue discount
with respect to such Regular Certificates.
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.
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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, a 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 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.
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Market Discount. A purchaser of a Regular Certificate also may be
subject to the market discount rules of Code Sections 1276 through 1278. Under
these sections and the principles applied by the OID Regulations in the context
of original issue discount, "market discount" is the amount by which a
subsequent purchaser's initial basis in the Regular Certificate (i) is exceeded
by the stated redemption price at maturity of the Regular Certificate or (ii) in
the case of a Regular Certificate having original issue discount, is exceed by
the sum of the issue price of such Regular Certificate plus any original issue
discount that would have previously accrued thereon if held by an original
Regular Certificateholder (who purchased the Regular Certificate at its issue
price), in either case less any prior distributions included in the stated
redemption price at maturity of such Regular Certificate. Such purchaser
generally will be required to recognize accrued market discount as ordinary
income as distributions includible in the stated redemption price at maturity of
such Regular Certificate are received in an amount not exceeding any such
distribution. That recognition rule would apply regardless of whether the
purchaser is a cash-basis or accrual-basis taxpayer. Such market discount would
accrue in a manner to be provided in Treasury regulations and should take into
account the Prepayment Assumption. The Conference Committee Report to the 1986
Act provides that until such regulations are issued, such market discount would
accrue either (i) on the basis of a constant interest rate or (ii) in the ratio
of stated interest allocable to the relevant period to the sum of the interest
for such period plus the remaining interest as of the end of such period, or in
the case of a Regular Certificate issued with original issue discount, in the
ratio of original issue discount accrued for the relevant period to the sum of
the original issue discount accrued for such period plus the remaining original
issue discount as of the end of such period. Such purchaser also generally will
be required to treat a portion of any gain on a sale or exchange of the Regular
Certificate as ordinary income to the extent of the market discount accrued to
the date of disposition under one of the foregoing methods, less any accrued
market discount previously reported as ordinary income as partial distributions
in reduction of the stated redemption price at maturity were received. Such
purchaser will be required to defer deduction of a portion of the excess of the
interest paid or accrued on indebtedness incurred to purchase or carry a Regular
Certificate over the interest distributable thereon. The deferred portion of
such interest expense in any taxable year generally will not exceed the accrued
market discount on the Regular Certificate for such year. Any such deferred
interest expense is, in general, allowed as a deduction not later than the year
in 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
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(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.
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
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report their pro rata share of taxable income or net loss of the REMIC Pool will
continue until there are no Certificates of any class of the related series
outstanding.
The taxable income recognized by a Residual Certificateholder in any
taxable year will be affected by, among other factors, the relationship between
the timing of recognition of interest and original issue discount or market
discount income or amortization of premium with respect to the Mortgage Assets,
on the one hand, and the timing of deductions for interest (including original
issue discount) on the Regular Certificates, on the other hand. Because of the
way REMIC taxable income is calculated, a Residual Certificateholder may
recognize "phantom" income (i.e., income recognized for tax purposes in excess
of income as determined under financial accounting or economic principles) which
will be matched in later years by a corresponding tax loss or reduction in
taxable income, but which could lower the yield to Residual Certificateholders
due to the lower present value of such future loss or reduction. For example, if
an interest in the Mortgage Assets is acquired by the REMIC Pool at a discount,
and one or more of such Mortgage Assets is prepaid, the Residual
Certificateholder may recognize taxable income without being entitled to receive
a corresponding amount of cash because (i) the prepayment may be used in whole
or in part to make distributions in reduction of principal on the Regular
Certificates and (ii) the discount income on the Mortgage Loan which is
includible in the REMIC's taxable income may exceed the discount deduction
allowed to the REMIC upon such distributions on the Regular Certificates. When
there is more than one class of Regular Certificates that distribute principal
sequentially, this mismatching of income and deductions is particularly likely
to occur in the early years following issuance of the Regular Certificates when
distributions in reduction of principal are being made in respect of earlier
maturing classes of Certificates to the extent that such classes are not issued
with substantial discount. If taxable income attributable to such a mismatching
is realized in general, losses would be allowed in later years as distributions
on the later classes of Regular Certificates are made. Taxable income may also
be greater in earlier years than in later years as a result of the fact that
interest expense deductions, expressed as a percentage of the outstanding
principal amount of such a series of Regular Certificates, may increase over
time as distributions in reduction of principal are made on the lower yielding
classes of Regular Certificates, where interest income with respect to any given
Mortgage Loan will remain constant over time as a percentage of the outstanding
principal amount of that loan. Consequently, Residual Certificateholders must
have sufficient other sources of cash to pay any federal, state or local income
taxes due as a result of such mismatching or unrelated deductions against which
to offset such income. Prospective investors should be aware, however, that a
portion of such income may be ineligible for offset by such investor's unrelated
deductions. See the discussion of "excess inclusions" below under "Limitations
on Offset or Exemption of REMIC Income; Excess Inclusions." The timing of such
mismatching of income and deductions described in this paragraph, if present
with respect to a series of Certificates, may have a significant adverse effect
upon the Residual Certificateholders after-tax rate of return. In addition, a
Residual Certificateholder's taxable income during certain periods may exceed
the income reflected by such Certificateholder for such periods in accordance
with generally accepted accounting principles. Investors should consult their
own advisors concerning the proper tax and accounting treatment of their
investment in Residual Certificates.
Basis and Losses. The amount of any net loss of the REMIC Pool that may
be taken into account by the Residual Certificateholder is limited to the
adjusted basis of the Residual Certificate as of the close of the quarter (or
time of disposition of the Residual Certificate if earlier), determined without
taking into account the net loss for the quarter. The initial adjusted basis of
a purchaser of a Residual Certificate is the amount paid for such Residual
Certificate. Such adjusted basis will be increased by the amount of taxable
income of the REMIC Pool reportable by the Residual Certificateholder and
decreased by the amount of loss of the REMIC Pool reportable by the Residual
Certificateholder. A cash distribution from the REMIC Pool also will reduce such
adjusted basis (but not below zero). Any loss that is disallowed on account of
this limitation may be carried over indefinitely with respect to the Residual
Certificateholder as to whom such loss was disallowed and may be used by such
Residual Certificateholder only to offset any income generated by the same REMIC
Pool. Residual Certificateholders should consult their tax advisors about other
limitations on the deductibility of net losses that may apply to them.
A Residual Certificateholder will not be permitted to amortize directly
the cost of its Residual Certificate as an offset to its share of the taxable
income of the related REMIC Pool. However, such taxable income will not include
cash received by the REMIC Pool that represents a recovery of the REMIC Pool's
basis in its assets. Such recovery of basis by the REMIC Pool will have the
effect of amortization of the issue price of the Residual
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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 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.
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Premium. Generally, if the basis of the REMIC Pool in the Mortgage
Assets exceeds the unpaid principal balances thereof, the REMIC Pool will be
considered to have acquired such Mortgage Assets at a premium equal to the
amount of such excess. As stated above,the REMIC Pool's basis in the Mortgage
Assets is the fair market value of the Mortgage Assets, based on the aggregate
of the issue prices of the regular and residual interests in the REMIC Pool
immediately after the transfer thereof to the REMIC Pool. In a manner analogous
to the discussion above under "Taxation of Regular Certificates - Premium," a
person that holds a Mortgage Loan as a capital asset under Code Section 1221 may
elect under Code Section 171 to amortize premium on Mortgage Assets originated
after September 27, 1985 under a constant yield method. Amortizable bond premium
will be treated as an offset to interest income on the Mortgage Assets, rather
than as a separate deduction item. Because substantially all the mortgagors with
respect to the Mortgage Assets are expected to be individuals, Code Section 171
will not be available. Premium on Mortgage Assets may be deductible in
accordance with a reasonable method regularly employed by the holder thereof.
The allocation of such premium pro rata among principal payments should be
considered a reasonable method; however, the Internal Revenue Service may argue
that such premium should be allocated in a different manner, such as allocating
such premium entirely to the final payment of principal.
Limitations on Offset or Exemption of REMIC Income; Excess Inclusions.
A portion of the income allocable to a Residual Certificate (referred to in the
Code as an "excess inclusion") for any calendar quarter, with an exception
discussed below for certain thrift institutions, will be subject to federal
income tax in all events. Thus, for example, an excess inclusion (i) cannot,
except as described below, be offset by any unrelated losses or loss carryovers
of a Residual Certificateholder, (ii) will be treated as "unrelated business
taxable income" within the meaning of Code Section 512 if the Residual
Certificateholder is a pension fund or any other organization that is subject to
tax only on its unrelated business taxable income and (iii) is not eligible for
any reduction in the rate of withholding tax in the case of a Residual
Certificateholder that is a foreign investor, as further discussed in "Taxation
of Certain Foreign Investors - Residual Certificates" below. Except as discussed
below with respect 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
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Residual Certificates in the aggregate are considered not to have "significant
value." The Treasury Department has not yet provided regulations in this respect
and the REMIC Regulations did not adopt this rule. However, the exception from
the excess inclusion rules applicable to thrift institutions does not apply if
the Residual Certificates do not have significant value. Under the REMIC
Regulations, the Residual Certificates will have significant value if: (i) the
aggregate of the issue prices of the Residual Certificates is at least two
percent of the aggregate issue prices of all Regular Certificates and Residual
Certificates in the REMIC and (ii) the anticipated weighted average life of the
Residual Certificates is at least 20 percent of the REMIC's anticipated weighted
average life based on the prepayment and reinvestment assumptions used in
pricing the transaction and any recognized or permitted clean up calls or any
required qualified liquidation. Although not entirely clear, the REMIC
Regulations indicate that the significant value determination is made only on
the Startup Day. The anticipated weighted average life of a Residual Certificate
with a principal balance and a market rate of interest is computed by
multiplying the amount of each expected principal payment by the number of years
(or portions thereof) from the Startup Day, adding these sums and dividing by
the total principal expected to be paid on such Residual Certificate based on
the relevant prepayment assumption and expected reinvestment income. The
anticipated weighted average life of a Residual Certificate with either no
specified principal balance or a principal balance and rights to interest
payments disproportionate to such principal balance, would be computed under the
formula described above but would include all payments expected on the Residual
Certificate instead of only the principal payments. The anticipated weighted
average life of a REMIC is a weighted average of the anticipated weighted
average lives of all classes of interest in the REMIC.
Under Treasury regulations to be promulgated, a portion of the
dividends paid by a REIT which owns a Residual Certificate are to be designated
as excess inclusions in an amount corresponding to the Residual Certificate's
allocable share of the excess inclusions. Similar rules apply in the case of
regulated investment companies, common trust funds and cooperatives. Thus,
investors in such entities which own a Residual Certificate will be subject to
the limitations on excess inclusions described above. The REMIC Regulations do
not provide guidance on this issue.
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
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that the social security number is that of the transferee, provided that during
the period such person is the record holder of the Residual Certificate, the
Pass-Through Entity does not have actual knowledge that such affidavit is false.
For these purposes, (i) "Disqualified Organization" means the United
States, any state or political subdivision thereof, any foreign government, any
international organization, any agency or instrumentality of any of the
foregoing (provided, that such term does not include an instrumentality if all
its activities are subject to tax and a majority of its board of directors is
not selected by any such governmental entity), any cooperative organization
furnishing electric energy or providing telephone service to persons in rural
areas as described in Code Section 1381(a)(2)(C), and any organization (other
than a farmers' cooperative described in Code Section 521) that is exempt from
taxation under the Code unless such organization is subject to the tax on
unrelated business income imposed by Code Section 511 and (ii) "Pass-Through
Entity" means any regulated investment company, real estate investment trust,
common trust fund, partnership, trust or estate and certain corporations
operating on a cooperative basis. Except as may be provided in Treasury
regulations yet to be issued, any person holding an interest in a Pass-
Through Entity as a nominee for another will, with respect to such interest,
be treated as a Pass-Through Entity.
The Agreement with respect to a series of Certificates will provide
that neither legal title nor beneficial interest in a Residual Certificate may
be transferred or registered unless (i) the proposed transferee provides to the
Depositor and the Trustee an affidavit to the effect that such transferee is not
a Disqualified Organization, is not purchasing such Residual Certificates on
behalf of a Disqualified Organization (i.e., as a broker, nominee or middleman
thereof) and is not an entity that holds REMIC residual securities as nominee to
facilitate the clearance and settlement of such securities through electronic
book-entry changes in accounts of participating organizations and (ii) the
transferor provides a statement in writing to the Depositor and the Trustee that
it has no actual knowledge that such affidavit is false. Moreover, the Agreement
will provide that any attempted or purported transfer in violation of these
transfer restrictions will be null and void and will vest no rights in any
purported transferee. Each Residual Certificate with respect to a series will
have a legend referring to such restrictions on 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
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generated by the residual interest and that the transferee intends to pay taxes
associated with holding of residual interest as they become due. The Agreement
will require the transferee of a Residual Certificate to state as part of the
affidavit described above under the heading "Disqualified Organizations" that
such transferee (i) has historically paid its debts as they come due, (ii)
intends to continue to pay its debts as they come due in the future, (iii)
understands that, as the holder of a Noneconomic Residual Interest, it may incur
tax liabilities in excess of any cash flows generated by the Residual
Certificate, and (iv) intends to pay any and all taxes associated with holding
the Residual Certificate as they become due. The transferor must have no reason
to believe that such statement is untrue.
Foreign Investors. The REMIC Regulations provide that the transfer of a
Residual Certificate that has "tax avoidance potential" to a "foreign person"
will be disregarded for all federal tax purposes. This rule appears intended to
apply to a transferee who is not a "U.S. Person" (as defined below), unless such
transferee's income is effectively connected with the conduct of a trade or
business within the United States. A Residual Certificate is deemed to have tax
avoidance potential unless, at the time of the transfer, the transferor
reasonably expects that, for each excess inclusion, (i) the REMIC Pool will
distribute to the transferee residual interest holder an amount that will equal
at least 30% of the excess inclusions and (ii) that each such amount will be
distributed at or after the time at which the excess inclusion accrues and not
later than the close of the calendar year following the calendar year of
accrual. If the non-U.S. Person transfers the Residual Certificate back to a
U.S. Person, the transfer will be disregarded and the foreign transferor will
continue to be treated as the owner unless arrangements are made so that the
transfer does not have the effect of allowing the transferor to avoid tax on
accrued excess inclusions.
The Prospectus Supplement relating to a series of Certificates may
provide that a Residual Certificate may not be purchased by or transferred to
any person that is not a U.S. Person or may describe the circumstances and
restrictions pursuant to which such a transfer may be made. The term "U.S.
Person" means a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under the laws of the
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 Payment 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
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Residual Certificateholders, but rather will be taxed directly to the REMIC Pool
at a 100% rate. Prohibited transactions generally include (i) the disposition of
a qualified mortgage other than for (a) substitution within two years of the
Startup Day for a defective (including a defaulted) obligation (or repurchase in
lieu of substitution of a defective (including a defaulted) obligation at any
time) or for any qualified mortgage within three months of the Startup Day, (b)
foreclosure, default or imminent default of a qualified mortgage, (c) bankruptcy
or insolvency of the REMIC Pool or (d) a qualified (complete) liquidation, (ii)
the receipt of income from assets that are not the type of mortgages or
investments that the REMIC Pool is permitted to hold, (iii) the receipt of
compensation for services or (iv) the receipt of gain from disposition of cash
flow investments other than pursuant to a qualified liquidation. Notwithstanding
(i) and (iv), it is not a prohibited transaction to sell REMIC Pool property to
prevent a default on Regular Certificates as a result of a default on qualified
mortgages or to facilitate a clean-up call (generally, an optional termination
to save administrative costs when no more than a small percentage of the
Certificates is outstanding). The REMIC Regulations indicate that the
modification of a Mortgage Loan generally will not be treated as a disposition
if it is occasioned by a default or reasonably foreseeable default, an
assumption of the Mortgage Loan, the waiver of a due-on-sale or encumbrance
clause or the conversion of an interest rate by a mortgagor pursuant to the
terms of a convertible adjustable rate Mortgage Loan. The REMIC Regulations also
provide that the modification of mortgage loans underlying Mortgage-Backed
Securities will not be treated as a modification of the Mortgage-Backed
Securities, provided that the trust including the was not created to avoid
prohibited transaction rules.
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
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the Code or applicable Treasury regulations do not permit the Depositor to act
as tax matters person in its capacity as agent of the Residual
Certificateholders, the Residual Certificateholder chosen by the Residual
Certificateholders or such other person specified pursuant to Treasury
regulations will be required to act as tax matters person.
Treasury regulations provide that a holder of a Residual Certificate is
not required to treat items on its return consistently with their treatment on
the REMIC Pool's return if a holder owns 100% of the Residual Certificates for
the entire calendar year. Otherwise, each holder of a Residual Certificate is
required to treat items on its return consistently with their treatment on the
REMIC Pool's return, unless the holder of a Residual Certificate either files a
statement identifying the inconsistency or establishes that the inconsistency
resulted from incorrect information received from the REMIC Pool. The Service
may assess a deficiency resulting from a failure to comply with the consistency
requirement without instituting an administrative proceeding at the REMIC Pool
level.
Limitations on Deduction of Certain Expenses
An investor who is an individual, estate or trust will be subject to
limitation with respect to certain itemized deductions described in Code Section
67, to the extent that such itemized deductions, in the aggregate, do not exceed
2% of the investor's adjusted gross income. In addition, Code Section 68
provides that itemized deductions otherwise allowable for a taxable year of an
individual taxpayer will be reduced by the lesser of (i) 3% of the 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
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a trade or business within the United States by such Non-U.S. Person. In the
latter case, such Non-U.S. Person will be subject to United States federal
income tax at regular rates. Investors who are Non-U.S. Persons should consult
their own tax advisors regarding the specific tax consequences to them of owning
a Regular Certificate. The term "Non-U.S. Person" means any person who is not a
U.S. Person.
Residual Certificates. The Conference Committee Report to the 1986 Act
indicates that amounts paid to Residual Certificateholders who are Non-U.S.
Persons are treated as interest for purposes of the 30% (or lower treaty rate)
United States withholding tax. Treasury regulations provide that amounts
distributed to Residual Certificateholders qualify as "portfolio interest,"
subject to the conditions described in "Regular Certificates" above, but only to
the extent that (i) the Mortgage Assets were issued after July 18, 1984 and (ii)
the Trust fund or segregated pool of assets therein (as to which a separate
REMIC election will be made), to which the Residual Certificate relates,
consists of obligations issued in "registered form" within the meaning of Code
Section 163(f)(1). Generally, Mortgage Assets will not be, but regular interests
in another REMIC Pool will be, considered obligations issued in registered form.
Furthermore, a Residual Certificateholder will not be entitled to any exemption
from the 30% withholding tax (or lower treaty rate) to the extent of that
portion of REMIC taxable income that constitutes an "excess inclusion." See
"Taxation of Residual Certificates - Limitations on Offset or Exemption of REMIC
Income; Excess Inclusions." If the amounts paid to Residual Certificateholders
who are Non-U.S. Persons are effectively connected with the conduct of a trade
or business within the United States by such Non-U.S. Persons, 30% (or lower
treaty rate) withholding will not apply. Instead, the amounts paid to such
Non-U.S. Persons will be subject to United States federal income tax at regular
rates. If 30% (or lower treaty rate) withholding is applicable, such amounts
generally will be taken into account for purposes of withholding only when paid
or otherwise distributed (or when the Residual Certificate is disposed of) under
rules similar to withholding upon disposition of debt instruments that have
original issue discount. See "Tax-Related Restrictions on Transfer of Residual
Certificates - Foreign Investors" above concerning the disregard of certain
transfers having "tax avoidance potential." Investors who are Non-U.S. Persons
should consult their own tax advisors regarding the specific tax consequences to
them of owning Residual Certificates.
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
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Publication 938 with respect to a particular series of Regular Certificates.
Holders through nominees must request such information from the nominee.
Treasury regulations provide that information necessary to compute the accrual
of any market discount on the Regular Certificates must be furnished for
calendar years beginning after 1990.
The Internal Revenue Service's Form 1066 has an accompanying Schedule
Q, Quarterly Notice to Residual Interest Holders of REMIC Taxable Income or Net
Loss Allocation. Treasury regulations require that Schedule Q be furnished by
the REMIC Pool to each Residual Certificateholder by the end of the month
following the close of each calendar quarter (41 days after the end of a quarter
under proposed Treasury regulations) in which the REMIC Pool is in existence.
Treasury regulations require that, in addition to the foregoing
requirements, information must be furnished quarterly to Residual
Certificateholders, furnished annually, if applicable, to holders of Regular
Certificates, and filed annually with the Internal Revenue Service concerning
Code Section 67 expenses (see "Limitations on Deduction of Certain Expenses"
above) allocable to such holders. Furthermore, under such regulations,
information must be furnished quarterly to Residual Certificateholders,
furnished annually to holders of Regular Certificates, and filed annually with
the Internal Revenue Service concerning the percentage of the REMIC Pool's
assets meeting the qualified asset tests described above under "Federal Income
Tax Consequences for REMIC Certificates," above."
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,
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where there is fixed retained yield with respect to the Mortgage Assets
underlying a series of Certificates or where the servicing fees are in excess of
reasonable servicing compensation, the transaction will be subject to the
application of the "stripped bond" and "stripped coupon" rules of the Code, as
described below under "Stripped Certificates" and "Premium and Discount -
Recharacterization of Servicing Fees," respectively.
Tax Status. Subject to the discussion below, Arter & Hadden, special
counsel to the Depositor, is of the opinion that:
1. A Standard Certificate owned by a "domestic building and
loan association" within the meaning of Code Section 7701(a)(19) will
be considered to represent "loans . . . secured by an interest in real
property" within the meaning of Code Section 7701(a)(19)(C)(v),
provided that the real property securing the Mortgage Assets
represented by that Certificate is of the type described in such
section.
2. A Standard Certificate owned by a financial institution
described in Code Section 593(a) will be considered to represent
"qualifying real property loans" within the meaning of Code Section
592(d)(1), provided that the real property securing the Mortgage Assets
represented by that Certificate is of the type described in such
section.
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."
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Original Issue Discount. The Internal Revenue Service has stated in
published rulings that, in circumstances similar to those described herein, the
original issue discount rules will be applicable to a Certificateholder's
interest in those Mortgage Assets as to which the conditions for the application
of those sections are met. Rules regarding periodic inclusion of original issue
discount income are applicable to mortgages of corporations originated after May
27, 1969, mortgages of noncorporate mortgagors (other than individuals)
originated after July l, 1982, and mortgages of individuals originated after
March 2, 1984. Such original issue discount could arise by the charging of
points by the originator of the mortgages in an amount greater than a statutory
de minimis exception, to the extent that the points are not currently deductible
under applicable Code provisions or are not for services provided by the lender.
It is generally not anticipated that adjustable rate Mortgage Assets will be
treated as issued with original issue discount. However, the application of the
OID Regulations to adjustable rate mortgage loans with incentive interest rates
or annual or lifetime interest rate caps may result in original issue discount.
Original issue discount must generally be reported as ordinary gross
income as it accrues under a constant yield method that takes into account the
compounding of interest, in advance of the cash attributable to such income.
However, Code Section 1272 provide for a reduction in the amount of original
issue discount includible in the income of a holder of an obligation that
acquires the obligation after its initial issuance at a price greater than the
sum of the original issue price and the previously accrued original issue
discount, less prior payments of principal. Accordingly, if such Mortgage Assets
acquired by a Certificateholder are purchased at a price equal to the then
unpaid principal amount of such Mortgage Assets, no original issue discount
attributable to the difference between 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.
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In the alternative, the amount, if any, by which the servicing fees
paid to the servicers are deemed to exceed reasonable compensation for servicing
could be treated as deferred payments of purchase price by the
Certificateholders to purchase an undivided interest in the Mortgage Assets. In
such event, the present value of such additional payments might be included in
the Certificateholder's basis in such undivided interests for purposes of
determining whether the Certificate was acquired at a discount, at par, or at a
premium. Under this alternative, Certificateholders may also be entitled to a
deduction for unstated interest with respect to each deferred payment. The
Internal Revenue Service may take the position that the specific statutory
provisions of Code Section 1286 described above override the alternative
described in this paragraph. Certificateholders are advised to consult their tax
advisors as to the proper treatment of the amounts paid to the servicers as set
forth herein as servicing compensation or under either of the alternatives set
forth above.
Sale or Exchange of Certificates. Upon sale or exchange of a
Certificate, a Certificateholder will recognize gain or loss equal to the
difference between the amount realized on the sale and its aggregate adjusted
basis in the Mortgage Assets and other assets represented by the Certificate. In
general, the aggregate adjusted basis will equal the Certificateholder's cost
for the Certificate, increased by the amount of any income previously reported
with respect to the Certificate and decreased by the amount of any losses
previously reported with respect to the Certificate and the amount of any
distributions received thereon. Except as provided above with respect to market
discount on any Mortgage Assets, and except for certain financial institutions
subject to the provisions of Code Section 582(c), any such gain or loss would be
capital gain or loss if the Certificate was held as a capital asset.
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
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E, Part 1 of subchapter J of the Code and not as an association taxable as a
corporation, and (ii) each Stripped Certificate should be treated as a single
installment obligation for purposes of calculating original issue discount and
gain or loss on disposition. This treatment is based on the interrelationship of
Code Section 1286 and the regulations thereunder, Code Sections 1272 through
1275, and the OID Regulations. While under Code Section 1286 computations with
respect to Stripped Certificates arguably should be made in one of the ways
described below, the OID Regulations state, in general, that all debt
instruments issued in connection with the same transaction must be treated as a
single debt instrument. The Trustee will make and report all computations
described below using this aggregate approach, unless substantial legal
authority requires otherwise.
Furthermore, the regulations under Code Section 1286 support the
treatment of a Stripped Certificate as a single debt instrument issued on the
date it is originated for purposes of calculating any original issue discount.
The preamble to such regulations state that such regulations are premised on the
assumption that an aggregation approach is appropriate in determining whether
original issue discount on a stripped bond or stripped coupon is de minimis. In
addition, under these regulations, a Stripped Certificate that represents a
right to payments of both interest and principal may be viewed either as issued
with original issue discount or market discount (as described below), at a de
minimis original issue discount, or presumably, at a premium. The preamble to
such regulations also provide that such regulations are premised on the
assumption that generally the interest component of such a Stripped Certificate
would be treated as stated interest under the original issue discount rules.
Further, the regulations provide that the purchaser of such a Stripped
Certificate may be required to account for any discount as market discount
rather than original issue discount if either (i) the initial discount with
respect to the Strip 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.
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If the Mortgage Assets prepay at a rate either faster or slower than
that under the Prepayment Assumption, a Stripped Certificateholder's recognition
of original issue discount will be either accelerated or decelerated and the
amount of such original issue discount will be either increased or decreased
depending on the relative interests in principal and interest on each Mortgage
Loan represented by such Stripped Certificateholder's Stripped Certificate.
While the matter is not free from doubt, the holder of a Stripped Certificate
should be entitled in the year that it becomes certain (assuming no further
prepayments) that the holder will not recover a portion of its adjusted basis in
such Stripped Certificate to recognize an ordinary loss equal to such portion of
unrecoverable basis.
As an alternative to the method described above, the fact that some of
or all the interest payments with respect to the Stripped Certificates will not
be made if the Mortgage Assets are prepaid could lead to the interpretation that
such interest payments are "contingent" within the meaning of the proposed
regulations issued under Code Section 1274 that address the treatment of
contingent payments. If the rules of those proposed regulations apply, treatment
of a Stripped Certificate under such rules depends on whether the aggregate
amount of principal payments, if any, to be made on the Stripped Certificate is
less than or greater than its issue price. If the aggregate principal payments
are greater than or equal to the issue price, the principal payments would be
treated as a separate installment obligation issued at a price equal to the
purchase price for the Stripped Certificate. In such case, original issue
discount would be calculated and accrued under the method described above
without consideration of the interest payments with respect to the Stripped
Certificate. Such payments of interest would be includible in the Stripped
Certificateholder's gross income in the taxable year in which the amounts become
fixed. 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
62
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federal income tax returns. Such information will include the amount of original
issue discount accrued on Certificates held by persons other than
Certificateholders exempted from the reporting requirements. The amounts
required to be reported by the Trustee may not be equal to the proper amount of
original issue discount required to be reported as taxable income by a
Certificateholder, other than an original Certificateholder. The Trustee will
also file such original issue discount information with the Internal Revenue
Service. If a Certificateholder fails to supply an accurate taxpayer
identification number or if the Secretary of the Treasury determines that a
Certificateholder has not reported all interest and dividend income required to
be shown on his federal income tax return, 31% backup withholding may be
required in respect of any reportable payments, as described above under " -
Backup Withholding."
Taxation of Certain Foreign Investors
To the extent that a Certificate evidences ownership in Mortgage Assets
that are issued on or before July 18, 1984, interest or original issue discount
paid by the person required to withhold tax under Code Section 1441 or 1442,
which apply to nonresident aliens, foreign corporations, or other Non-U.S.
Persons generally will be subject to 30% United States withholding tax, or such
lower rate as may be provided for interest by an applicable tax treaty. Accrued
original issue discount or market discount recognized by the Certificateholder
on the sale or exchange of such a Certificate also will be subject to federal
income tax at the same rate.
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.
63
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In connection with the sale of the Certificates, Underwriters may
receive compensation from the Depositor or from purchasers of the Certificates
in the form of discounts, concessions or commissions. Underwriters and dealers
participating in the distribution of the Certificates may be deemed to be
underwriters in connection with such Certificates, and any discounts or
commissions received by them from the Depositor and any profit on the resale of
Certificates by them may be deemed to be underwriting discounts and commissions
under the Securities Act of 1933, as amended. The Prospectus Supplement will
describe any such compensation paid by the Depositor.
It is anticipated that the underwriting agreement pertaining to the
sale of any series of Certificates will provide that the obligations of the
Underwriters will be subject to certain conditions precedent, that the
Underwriters will be obligated to purchase all such Certificates if any are
purchased and that the Depositor will indemnify the Underwriters against certain
civil liabilities, including liabilities under the Securities Act of 1933, as
amended.
RATINGS
Each class of Certificates of a Series will be rated at their initial
issuance in one of the four highest categories by at least one Rating Agency.
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. No person is obligated to maintain the rating on any
Certificate, and, accordingly, there can be no assurance that the ratings
assigned to a Certificate upon initial issuance will not be lowered or withdrawn
by a Rating Agency at any time thereafter. In general, ratings address credit
risk and do not represent any assessment of the likelihood or rate of principal
prepayments.
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.
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]
64
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APPENDIX A
INDEX TO LOCATION OF PRINCIPAL DEFINED TERMS
Page
1986 Act.................................................................42
1996 Act.................................................................50
Agreement.................................................................1
AMTI.....................................................................50
Applicable Accounting Standards..........................................28
Balloon Loans.............................................................6
Beneficial Owners.........................................................4
BIF......................................................................28
Book Entry Certificates...................................................4
Certificate Account......................................................11
Certificate Interest Rate................................................10
Certificate Principal Balance.............................................9
Certificate Register......................................................9
Certificate Registrar.....................................................9
Certificateholder........................................................57
Certificates..............................................................1
Clearing Agency...........................................................4
Clearing Agency Participants..............................................4
Code......................................................................4
Companion Certificates...................................................10
Compound Interest Certificates...........................................10
Cooperative Loans........................................................14
Cooperatives..............................................................1
Credit Enhancement........................................................4
Credit Enhancer...........................................................8
Custodial Account........................................................21
Cut-Off Date.............................................................10
Defective Mortgage Loan..................................................27
Delivery Date.............................................................9
Deposit Date.............................................................27
Depositor.................................................................1
Disqualified Organization................................................52
Distribution Date........................................................11
DOL......................................................................39
Eligible Investments.....................................................28
ERISA.....................................................................4
Events of Default........................................................30
FDIC.....................................................................21
FHLMC.....................................................................2
Financial Guaranty Insurance Policy......................................16
Financial Guaranty Insurer...............................................16
Fitch.....................................................................5
FNMA......................................................................2
Garn-St. Germain Act.....................................................37
GNMA......................................................................2
Insurance Paying Agent...................................................17
Insurance Proceeds.......................................................21
Insured Payment..........................................................17
Interest Accrual Period..................................................11
Liquidation Proceeds.....................................................21
Loan-to-Value Ratio......................................................15
Master Servicer...........................................................1
MBS.......................................................................1
MBS Agreement............................................................15
MBS Issuer...............................................................15
MBS Servicer.............................................................15
MBS Trustee..............................................................15
Monthly Advance..........................................................22
Moody's...................................................................5
Mortgage Assets...........................................................1
Mortgage Loans............................................................1
Mortgage Notes...........................................................14
Mortgage Pool Insurance Policy...........................................18
Mortgage Rates...........................................................15
Mortgage-Backed Securities................................................1
Mortgaged Properties.....................................................14
Mortgages................................................................14
Mortgagors...............................................................21
NCUA.....................................................................21
Non-Priority Certificates................................................11
Non-U.S. Person..........................................................56
Noneconomic Residual Interest............................................52
Nonrecoverable Advance...................................................22
Notional Principal Balance...............................................11
OBRA.....................................................................40
OID Regulations..........................................................40
Original Value...........................................................15
OTS......................................................................37
Owners...................................................................11
Partnership Interests....................................................63
Pass-Through Entity......................................................52
Pass-Through Rate.........................................................3
Plans....................................................................39
Policy Statement.........................................................39
Pool Insurer.............................................................18
Pre-Funding Account.......................................................3
Pre-Funding Agreement.....................................................3
Prepayment Assumption....................................................43
Principal Balance........................................................15
Principal Prepayments....................................................12
Priority Certificates....................................................11
Proposed Premium Regulations.............................................47
PTE 83-1.................................................................39
Rating Agency.............................................................5
Record Date..............................................................11
Regular Certificateholder................................................42
Regular Certificates.....................................................41
REIT.....................................................................41
Relief Act................................................................8
REMIC.....................................................................4
REMIC Certificates.......................................................41
REMIC Pool...............................................................41
REMIC Regulations........................................................40
Remittance Date..........................................................22
Remittance Rate..........................................................22
Reserve Fund.............................................................20
Residual Certificateholders..............................................47
Residual Certificates....................................................41
Retail Class Certificate.................................................42
SAIF.....................................................................28
Scheduled Amortization Certificates......................................10
Seller....................................................................1
Senior Certificates......................................................17
Servicer..................................................................1
SMMEA.....................................................................5
Special Allocation Certificates..........................................11
Special Hazard Insurance Policy..........................................19
Special Hazard Insurer...................................................19
Standard & Poor's.........................................................5
Standard Certificate.....................................................57
Stripped Certificateholder...............................................60
Stripped Certificates....................................................60
Subordinated Certificates................................................17
Thrift Institution.......................................................41
TMP......................................................................42
Trust.....................................................................1
Trustee...................................................................1
U.S. Person..............................................................53
UCC......................................................................35
Underwriters.............................................................63
A-1
<PAGE>
No dealer, salesperson or other person has been authorized to
give any information or to make any representation not contained in
this Prospectus Supplement or the Prospectus and, if given or made,
such information or representation must not be relied upon as having
been authorized by the Depositor or by the Underwriters. This
Prospectus Supplement and the Prospectus do not constitute an offer to
sell, or a solicitation of an offer to buy any of the securities
offered hereby in any jurisdiction to any person to whom it is unlawful
to make such offer in such jurisdiction. Neither the delivery of this
Prospectus Supplement or the Prospectus nor any sale made hereunder
shall, under any circumstances, create any implication that information
herein is correct as of any time subsequent to the date hereof or that
there has been no change in the affairs of the Depositor since such
date.
TABLE OF CONTENTS
Page
PROSPECTUS SUPPLEMENT
Summary of Terms .................................... S-1
Risk Factors ........................................ S-17
The Seller and Servicer ............................. S-20
The Depositor ....................................... S-24
Use of Proceeds ..................................... S-24
The Home Equity Loan Pool ........................... S-24
Prepayment and Yield Considerations ................. S-30
Formation of the Trust and Trust Property ........... S-35
Additional Information .............................. S-36
Description of the Offered Certificates ............. S-36
Credit Enhancement .................................. S-41
The Pooling and Servicing Agreement ................. S-45
Federal Income Tax Consequences ..................... S-54
ERISA Considerations ................................ S-54
Ratings ............................................. S-57
Legal Investment Considerations ..................... S-57
Underwriting ........................................ S-57
Certain Legal Matters ............................... S-60
Index to Location of Principal Defined Terms ........ A-1
PROSPECTUS
Summary of Prospectus ............................... 1
Risk Factors ........................................ 6
Description of the Certificates ..................... 9
The Trusts ......................................... 13
Credit Enhancement .................................. 16
Servicing of Mortgage Loans ......................... 21
Administration ...................................... 26
Use of Proceeds ..................................... 32
The Depositor ....................................... 32
Certain Legal Aspects of the Mortgage Assets ........ 32
Legal Investment Matters ............................ 38
ERISA Considerations ................................ 39
Federal Income Tax Consequences ..................... 40
Plan of Distribution ................................ 63
Ratings ............................................. 64
Legal Matters ....................................... 64
Financial Information ............................... 64
Index to Location of Principal Defined Terms ........ A-1
$800,000,000
IMC HOME EQUITY
LOAN TRUST 1997-3
[LOGO]
INDUSTRY MORTGAGE COMPANY, L.P.
Seller and Servicer
IMC SECURITIES, INC.
Depositor
--------------------------------
PROSPECTUS SUPPLEMENT
---------------------------------
Bear, Stearns & Co. Inc.
PaineWebber Incorporated
Nomura Securities
International, Inc.
June 6, 1997
