Prospectus Supplement
(To Prospectus dated May 29, 1998)
$600,000,000
IMC Home Equity Loan Owner Trust 1998-7
$529,000,000 6.38% Home Equity Loan Asset Backed Notes, Series 1998-7A
$71,000,000 6.52% Home Equity Loan Asset Backed Notes, Series 1998-7B
IMC Mortgage Company IMC Securities, Inc. Ocwen Federal Bank FSB
Seller Depositor Servicer
[IMC LOGO] The Trust will issue two series of Notes. The Notes identified
above are being offered by this prospectus supplement and the
accompanying prospectus.
The Notes
o The Notes represent non-recourse obligations of the Trust.
o Payments on each series of Notes will be secured principally by the
proceeds of the related pool of home equity loans.
o Interest will accrue on the outstanding principal balance of each series of
Notes at the rates specified above.
o Payments will be made monthly beginning in January 1999.
Credit Enhancement
o The note insurance policy, issued by Financial Security Assurance Inc.,
guarantees certain payments on the Notes at the times and to the extent
described herein.
[FSA LOGO]
o Excess interest received on each pool of home equity loans will be applied
as a payment of principal on the related series of Notes to establish and
maintain the required level of overcollateralization for such series.
o The Trust is also issuing a residual interest that is subordinated to the
Notes. Subordination of the residual interest provides credit enhancement
for the Notes.
- --------------------------------------------------------------------------------
Consider carefully the risk factors beginning on page S-6 of this prospectus
supplement and on page 7 of the prospectus.
The Notes represent non-recourse obligations of the Trust only and will not
represent interests in or obligations of any other entity.
This prospectus supplement may be used to offer and sell the Notes only if
accompanied by the prospectus.
- --------------------------------------------------------------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved the Notes or determined that this prospectus supplement
or the prospectus is accurate or complete. Any representation to the contrary is
a criminal offense.
The Underwriter listed below will offer the Notes subject to prior sale, when,
as, and if accepted by the Underwriter and subject to the Underwriter's right to
reject orders in whole or in part. We have been advised by the Underwriter that
it proposes to offer the Series 1998-7A Notes to the public at an offering price
of 99.99659% and to offer the Series 1998-7B Notes to the public at an offering
price of 99.99067%. These prices do not include the Underwriter's discount of
0.25%, which applies to approximately $140 million of the Notes. We expect to
receive proceeds of approximately $600,600,000, which includes accrued interest
from December 1, 1998, before deducting our issuance expenses, estimated to be
approximately $475,000. The Underwriter will not list the Notes on any national
securities exchange or any automated quotation system of any registered
securities association such as NASDAQ. See "Underwriting" herein.
We expect to deliver the Notes to the Underwriter on or about the closing date
of December 10, 1998, in book entry form through The Depository Trust Company,
Cedel Bank, S.A. and the Euroclear System.
PaineWebber Incorporated
-----------------
The date of this prospectus supplement is December 2, 1998
<PAGE>
Important Notice about Information Presented in
this Prospectus Supplement and the Accompanying Prospectus
We provide information to you about the Notes in two separate documents
that progressively provide more detail:
o the accompanying prospectus, which provides general
information, some of which may not apply to the Notes, and
o this prospectus supplement, which describes the specific
terms of your Notes.
If the description of any matter varies between this prospectus
supplement and the prospectus, you should rely on the information in this
prospectus supplement.
This prospectus supplement begins with a summary of terms to give you
an initial overview. The summary does not contain all the information that you
need to consider in making your investment decision.
We include cross-references in this prospectus supplement and the
accompanying prospectus to captions in these documents where you can find
further related information. The following Table of Contents and the Table of
Contents included in the accompanying prospectus provide page references for the
captions.
You can find a listing of the pages where capitalized terms used in
this prospectus supplement and the accompanying prospectus are first defined
under the caption "Index to Location of Principal Defined Terms" beginning on
page A-1 of this prospectus supplement and on page A-1 of the accompanying
prospectus.
All statistical data with respect to the Home Equity Loans are
approximate and are based on the actual principal balances of the Home Equity
Loans as of the close of business on November 16, 1998, except where otherwise
noted.
This prospectus supplement includes some "forward looking" statements
that contain projections of various financial items. You should carefully review
"Risk Factors" and "Prepayment and Yield Considerations" in this prospectus
supplement. These sections discuss the risks that may cause actual yields and
distributions on the Notes to differ significantly from the projections in the
forward looking statements.
TABLE OF CONTENTS
Page
----
SUMMARY OF TERMS.............................................................S-1
RISK FACTORS.................................................................S-6
THE SELLER..................................................................S-10
General...............................................................S-10
Credit and Underwriting Guidelines....................................S-10
Recent Developments...................................................S-11
THE SERVICER................................................................S-12
General...............................................................S-12
Servicing.............................................................S-13
Delinquency, Loan Loss and Foreclosure
Information......................................................S-13
THE TRUST...................................................................S-15
THE DEPOSITOR...............................................................S-16
USE OF PROCEEDS.............................................................S-16
THE HOME EQUITY LOAN POOL...................................................S-16
General...............................................................S-16
Loan Pool I...........................................................S-17
Loan Pool II..........................................................S-25
PREPAYMENT AND YIELD CONSIDERATIONS.........................................S-31
General...............................................................S-31
Prepayment and Yield Scenarios for the Notes .........................S-32
Payment Lag Feature of Notes..........................................S-38
ADDITIONAL INFORMATION......................................................S-38
DESCRIPTION OF THE NOTES....................................................S-38
General...............................................................S-38
Payment Dates.........................................................S-38
Payments..............................................................S-39
Certain Definitions...................................................S-40
Book Entry Registration of the Notes..................................S-41
Assignment of Rights..................................................S-44
THE NOTE INSURER............................................................S-44
General...............................................................S-44
Reinsurance...........................................................S-44
Ratings...............................................................S-44
Capitalization........................................................S-45
Incorporation of Certain Information by Reference.....................S-45
Page
----
Insurance Regulation..................................................S-46
CREDIT ENHANCEMENT..........................................................S-46
Note Insurance Policy.................................................S-46
Note Insurance Policy Does Not Apply to
Prepayment Risk..................................................S-48
Reserve Account.......................................................S-48
Overcollateralization Provisions......................................S-48
ADMINISTRATION..............................................................S-49
Formation of the Trust and Trust Property.............................S-50
Covenant of the Seller to Take Certain Actions with
Respect to the Home Equity Loans in Certain
Situations.......................................................S-50
Assignment of Home Equity Loans.......................................S-50
Servicing and Sub-Servicing...........................................S-52
Removal and Resignation of Servicer...................................S-55
Auction Sale -- Redemption of the Notes...............................S-55
The Indenture Trustee.................................................S-56
The Indentures........................................................S-56
Voting................................................................S-57
Reporting Requirements................................................S-57
Removal of Indenture Trustee for Cause................................S-58
Governing Law.........................................................S-58
FEDERAL INCOME TAX CONSEQUENCES.............................................S-59
STATE TAX CONSEQUENCES......................................................S-59
ERISA CONSIDERATIONS........................................................S-59
RATINGS.....................................................................S-60
LEGAL INVESTMENT CONSIDERATIONS.............................................S-61
UNDERWRITING................................................................S-61
EXPERTS.....................................................................S-62
CERTAIN LEGAL MATTERS.......................................................S-62
GLOBAL CLEARANCE, SETTLEMENT AND TAX
DOCUMENTATION PROCEDURES...............................................I-1
INDEX TO LOCATION OF PRINCIPAL
DEFINED TERMS..........................................................A-1
<PAGE>
SUMMARY OF TERMS
This summary provides an overview. It does not contain all of the information
that you need to consider in making your investment decision. To understand all
of the terms of the Notes and the characteristics of the Home Equity Loans, read
carefully the entire prospectus supplement and the accompanying prospectus.
Securities Offered
On the closing date, the Trust will issue two series of Notes. Each series of
Notes will be secured principally by the related pool of home equity loans.
The Notes represent non-recourse obligations of the Trust and are not the
obligation of any other entity.
You will receive payments of interest and principal on your Notes as provided in
this prospectus supplement.
The Notes will be issued in book-entry form, in denominations of $25,000 and in
integral multiples of $1,000 in excess of $25,000. You will not receive a
definitive certificate representing your Notes except in the limited
circumstances described in this prospectus supplement and the accompanying
prospectus.
See "Global Clearance, Settlement and Tax Documentation Procedures" in Annex I
attached to this prospectus supplement, "Description of the Notes -- Book Entry
Registration of the Notes" in this prospectus supplement and "Description of the
Securities -- Book Entry Registration" in the accompanying prospectus for more
detail.
The Depositor, the Seller, the Trust and the Trustees
o The Depositor, IMC Securities Inc., is forming IMC Home Equity Loan Owner
Trust 1998-7 to own two pools of adjustable and fixed rate home equity
loans (the "Home Equity Loans").
o The Seller, IMC Mortgage Company, originated or acquired the Home Equity
Loans in accordance with its credit and underwriting guidelines.
o The Owner Trustee is Wilmington Trust Company and its corporate trust
office is located in Wilmington, Delaware.
o The Indenture Trustee is The Chase Manhattan Bank and its corporate trust
office is located in New York, New York.
See "The Seller -- General" and " -- Credit and Underwriting Guidelines," "The
Trust," "The Depositor" and "Administration -- The Indenture Trustee" in this
prospectus supplement for more detail.
The Servicer
Ocwen Federal Bank FSB. The servicing function is being transferred from IMC
Mortgage Company to Ocwen Federal Bank FSB. The transfer will be completed on or
before December 31, 1998.
The Servicer will retain a fee equal to 0.50% per annum. The servicing fee will
be payable monthly at one-twelfth the annual rate based on the outstanding
principal balance of the Home Equity Loans as of the first day of each
remittance period. Each month the Servicer will advance to the Trust out of its
own funds an amount equal to all delinquent payments of interest on the Home
Equity Loans not previously advanced, but only to the extent it determines, in
its reasonable business judgment, that such advance will be recoverable from
future payments on the related Home Equity Loan.
See "The Servicer" in this prospectus supplement for more detail.
Property of the Trust
Payments on the Notes will be made only from proceeds of the assets of the Trust
and a financial guaranty insurance policy issued by Financial Security Assurance
Inc. The Trust's assets include:
o the Home Equity Loans;
o all payments of principal and interest on the Home Equity Loans other than
payments of principal and interest due on the Home Equity Loans on or
before December 1, 1998, as we further describe in this prospectus
supplement; and
S-1
<PAGE>
o certain other property including a reserve account designed to provide for
crosscollateralization of the two series of Notes.
See "Administration -- Formation of the Trust and Trust Property" and "Credit
Enhancement -- Reserve Account" in this prospectus supplement for more detail.
Payment Dates
You will be entitled to receive payments of principal and interest on your Notes
on the 20th day of each calendar month or, if the 20th is not a business day,
the next business day, beginning January 20, 1999 (each, a "Payment Date").
Interest Payments
The interest rate for each series of Notes is fixed. On each Payment Date, if
you are the owner of Notes, you will be entitled to receive payments of interest
on your Notes equal to:
o interest accrued at the interest rate specified for your series of Notes
during the related calendar month on the outstanding principal balance of
your Notes; and
o any interest that was due on a prior Payment Date but not paid (as well as,
to the extent permitted by applicable law, interest on such shortfall at
the Note Rate).
The interest rate on the Series 1998-7A Notes is 6.38% per annum and the
interest rate on the Series 1998-7B Notes is 6.52% per annum.
Interest on the Notes will be calculated on the basis of a 360-day year
consisting of twelve 30-day months.
On any Payment Date after the date on which an auction of a pool of Home Equity
Loans may first be held, the interest rate on the related series of Notes will
be increased by 0.50% per annum if the auction does not result in a sale of the
Home Equity Loans.
See "Description of the Notes" and "Administration -- Auction Sale -- Redemption
of the Notes" in this prospectus supplement for more detail.
Principal Payments
On each Payment Date, you may be entitled to receive payments of principal on
the Notes. The amount that you will be entitled to receive is described in this
prospectus supplement under the caption "Description of the Notes -- Payments".
Generally, the principal amount that you will be entitled to receive consists
of:
o all amounts collected by the servicer during the related remittance
period that relate to principal on the related pool of Home Equity
Loans; and
o certain amounts of excess interest collected or advanced by the
servicer during the related remittance period that are not needed to
pay interest on the Notes.
See "Description of the Notes -- Payments" in this prospectus supplement for
more detail.
Credit Enhancement
The Notes benefit from three forms of credit enhancement -- excess interest,
overcollateralization and the note insurance policy.
Excess Interest. The weighted average interest rate on a pool of Home Equity
Loans generally is expected to be higher than the interest rate and related fees
on the Notes related to such pool.
Overcollateralization. Interest collected on each pool of Home Equity Loans in
excess of the amount needed to pay interest on the related Notes and certain
expenses of the Trust will be applied to reduce the principal balance of the
related Notes. This feature is known as overcollateralization (i.e., the
outstanding principal balance of the Home Equity Loans exceeds the outstanding
principal balance of the Notes). Generally, once overcollateralization reaches a
target level, the acceleration mechanism stops.
The target level of overcollateralization may increase or decrease over time. If
the target level increases, amortization of the Notes will accelerate until the
actual overcollateralization reaches the new target level. If the target level
decreases, amortization of the Notes will decelerate until overcollateralization
reaches the new target level.
S-2
<PAGE>
See "Prepayment and Yield Considerations" and "Credit Enhancement --
Overcollateralization Provisions" in this prospectus supplement and "Credit
Enhancement" in the accompanying prospectus for more detail.
Financial Guaranty Insurance Policy. Certain payments on the Notes will be
insured by Financial Security Assurance Inc. (the "Note Insurer"). In return for
an insurance premium, the Note Insurer will issue a note insurance policy that
unconditionally guarantees certain payments for the benefit of the owners of the
Notes.
Before each payment date, the Indenture Trustee will determine whether funds
available to make the required payments of principal and interest on the Notes
are sufficient. If a deficiency exists that is covered by the note insurance
policy, then the Indenture Trustee will make a claim under the note insurance
policy.
See "Credit Enhancement -- Note Insurance Policy" in this prospectus supplement
for more detail.
The effect of the note insurance policy is to guaranty the timely payment of
interest and the ultimate payment of principal on the Notes. The note insurance
policy cannot be canceled for any reason.
Unless it defaults on its obligations under the note insurance policy or becomes
bankrupt or insolvent, the Note Insurer can exercise certain rights of the
owners of the Notes, without obtaining their consent. In addition, owners of the
Notes must generally obtain the Note Insurer's written consent before exercising
certain rights.
When the Note Insurer makes an insured payment on a Note, the Indenture Trustee,
as attorney-in-fact for the owners of the Notes, will assign to the Note Insurer
the rights of the owner with respect to the Note (but only to the extent of the
insured payment).
See "Credit Enhancement -- Note Insurance Policy" in this prospectus supplement
for more detail.
Other Securities
The Trust is also issuing an interest in the assets of the Trust, called the
residual interest, that is subordinated to the Notes and represents the residual
interest in the Trust.
The residual interest is not being offered by this prospectus supplement and the
accompanying prospectus.
Final Payment Dates
The final scheduled Payment Date for the Series 1998-7A Notes is November 20,
2029. The final scheduled Payment Date for the Series 1998-7B Notes is November
20, 2029. The actual final Payment Date for each series of Notes is expected to
occur much earlier.
See "Prepayment and Yield Considerations" in this prospectus supplement for more
detail.
Information About the Home Equity Loans
At November 16, 1998, there were 8,294 Home Equity Loans designated for
inclusion in the Trust secured by mortgages on residential properties including
investment properties, which may be detached, attached, one-to-four family
dwellings, condominium units, townhouse or manufactured housing.
Loan Pool I
Fixed Rate Home Equity Loans
Number of Loans 6,578
Aggregate Loan Balance $404,932,309
Average Loan Balance $61,559
Range of Loan Balances $5,839 to $339,278
Range of Coupon Rates 6.00% to 18.65%
Weighted Average Coupon Rate 10.67%
Weighted Average Original
Loan-to-Value Ratio 72.64%
Weighted Average Combined Original
Loan-to-Value Ratio 76.60%
Weighted Average Stated
Remaining Term 259 Months
Range of Stated Remaining
Terms 24 to 360 Months
Second Lien Mortgage Loans 7.16%
Balloon Mortgage Loans 31.70%
Properties*
Single-family detached dwellings 86.98%
Single-family attached dwellings 1.12%
Condominiums 1.58%
Two- to Four- Family 7.91%
Manufactured Housing 1.59%
Townhouse 0.78%
Mixed Use 0.03%
Adjustable Rate Home Equity Loans
Number of Loans 1,344
Aggregate Loan Balance $116,483,156
Average Loan Balance $86,669
S-3
<PAGE>
Range of Loan Balances $12,467 to $322,463
Coupon Rates
Current Weighted Average
Coupon Rate 10.26%
Range of Current Coupon
Rates 6.89% to 15.74%
Weighted Average Maximum
Lifetime Coupon Rate 16.85%
Range of Maximum Lifetime
Coupon Rates 9.38% to 32.25%
Weighted Average Lifetime
Minimum Coupon Rate 9.94%
Range of Minimum Lifetime
Coupon Rates 2.75% to 15.74%
Weighted Average Original
Loan-to-Value Ratio 77.36%
Weighted Average Stated
Remaining Term 356 Months
Range of Stated Remaining Term 172 to 360 Months
Second Lien Mortgage Loans 0.06%
Properties*
Single-family detached dwelling 85.16%
Single-family attached dwelling 1.46%
Condominiums 3.14%
Two- to Four- Family 7.97%
Manufactured Housing 1.15%
Townhouse 1.12%
Loan Pool II
Fixed Rate Home Equity Loans
Number of Loans 318
Aggregate Loan Balance $55,313,507
Average Loan Balance $173,942
Range of Loan Balances $11,196 to $501,861
Range of Coupon Rates 6.63% to 14.25%
Weighted Average Coupon Rate 10.39%
Weighted Average Original
Loan-to-Value Ratio 69.02%
Weighted Average Combined Original
Loan-to-Value Ratio 78.91%
Weighted Average Stated
Remaining Term 254 Months
Range of Stated Remaining
Terms 103 to 360 Months
Second Lien Mortgage Loans 15.82%
Balloon Mortgage Loans 42.72%
Properties*
Single-family detached dwellings 96.00%
Single-family attached dwellings 0.56%
Condominiums 0.56%
Two- to Four- Family 2.89%
Adjustable Rate Home Equity Loans
Number of Loans 54
Aggregate Loan Balance $15,215,109
Average Loan Balance $281,761
Range of Loan Balances $33,112 to $499,541
Coupon Rates
Current Weighted Average
Coupon Rate 10.11%
Range of Current Coupon
Rates 7.78% to 13.88%
Weighted Average Maximum
Lifetime Coupon Rate 16.59%
Range of Maximum Lifetime
Coupon Rates 14.30% to 20.38%
Weighted Average Lifetime
Minimum Coupon Rate 9.51%
Range of Minimum Lifetime
Coupon Rates 5.25% to 13.88%
Weighted Average Original
Loan-to-Value Ratio 75.20%
Weighted Average Stated
Remaining Term 356 Months
Range of Stated Remaining Term 346 to 360 Months
Second Lien Mortgage Loans None
Properties*
Single-family detached dwelling 89.02%
Condominiums 1.54%
Two- to Four- Family 7.81%
Townhouse 1.63%
*May not total 100% because of rounding.
See "The Home Equity Loan Pool" in this prospectus supplement for more detail.
Auction Sale -- Redemption of Notes
The Indenture Trustee will conduct an auction of the Home Equity Loans for a
pool on the first remittance date on which the aggregate principal balance of
the Home Equity Loans in that pool has declined to less than 10% of the
aggregate principal balance of the Home Equity Loans in that pool as of December
1, 1998.
o In the event that a buyer agrees to purchase all of the Home Equity Loans
in the pool being auctioned at a price at least equal to the auction
redemption price, the Indenture Trustee will sell the Home Equity Loans and
will use the proceeds of the sale to redeem the Notes related to the pool
of Home Equity Loans sold.
o If an auction does not lead to a sale of the Home Equity Loans, the
Indenture Trustee will hold a new auction every January, April, July and
October.
o In addition, the Servicer and the Note Insurer will have the right to
purchase all the Home Equity Loans in both pools and terminate the Trust
when the aggregate principal balance of the Home Equity Loans in both pools
has declined to less than 5% of the combined aggregate principal balance of
the Home Equity Loans in both pools as of December 1, 1998.
o Any auction sale or repurchase will result in the early retirement of the
related Notes.
See "Administration -- Auction Sale -- Redemption of the Notes" in this
Prospectus Supplement for more detail.
S-4
<PAGE>
Ratings
The Notes will not be issued unless they are rated "Aaa" by Moody's Investors
Services Inc. and "AAA" by Standard & Poor's Rating Services, a division of the
McGraw-Hill Companies, Inc. A security rating is not a recommendation to buy,
sell or hold securities, and may be revised or withdrawn at any time by the
assigning rating agency.
See "Ratings" in this prospectus supplement and the accompanying prospectus for
more detail.
Tax Status
Special federal income tax counsel is of the opinion that under existing law,
the Notes will be characterized as debt for federal income tax purposes and not
as representing an ownership interest in the assets of the Trust or an equity
interest in the Trust. By your acceptance of a Note, you will be deemed to have
agreed to treat the Note as indebtedness. In addition, special federal income
tax counsel is of the opinion that the Trust will be treated as a partnership in
which the holders of the residual interest are partners and not as an
association (or publicly traded partnership) taxable as a corporation or a
taxable mortgage pool.
You should consult your tax advisors and review "Federal Income Tax
Consequences" in this prospectus supplement and in the accompanying prospectus
for more detail.
Legal Investment
You should consult with your lawyer to see if you are permitted to buy the Notes
since the legal investment rules vary depending on what kind of entity you are
and who regulates you. The Notes will not constitute "mortgage related
securities" for purposes of the Secondary Mortgage Market Enhancement Act of
1984.
See "Legal Investment Considerations" in this prospectus supplement and "Legal
Investment Matters" in the accompanying prospectus for more detail.
ERISA
Subject to important considerations discussed under "ERISA Considerations" in
this prospectus supplement and the accompanying prospectus, it is expected that
the Notes will be eligible for purchase by employee benefit plans. You should
carefully review with your lawyer whether the purchase or holding of the Notes
could give rise to a prohibited transaction.
See "ERISA Considerations" in this prospectus supplement and in the accompanying
prospectus for more detail.
S-5
<PAGE>
RISK FACTORS
Before deciding whether to purchase the Notes, you should consider the following
risk factors (as well as the factors discussed under "Risk Factors" in the
prospectus). If any of the following risks are realized, your investment could
be materially and adversely affected.
Sensitivity The rate and timing of payments of principal on the Home
to Prepayments Equity Loans (i.e., the prepayment experience), among
other factors, will affect the rate of principal
payments and the yield to maturity of the Notes. Because
the prepayment experience will depend on future events
and a variety of factors, the prepayment experience is
uncertain and, in all likelihood, will not conform to
any projected rates of prepayment. In a declining
interest rate environment, home equity loans are more
likely to experience prepayments than if prevailing
interest rates remain constant or rise above the
interest rates on the home equity loans. Conversely, in
an increasing interest rate environment, prepayments on
home equity loans are likely to decrease.
The borrowers can prepay the Home Equity Loans, in whole
or in part, at any time. However, approximately 61.57%
and 57.27% of the Home Equity Loans (by principal
balance) in Loan Pool I and Loan Pool II, respectively,
require the borrower to pay a fee in connection with
certain prepayments. Also, many of the Home Equity Loans
have due-on-sale provisions which, if enforced by the
servicer, will result in prepayment of the Home Equity
Loans.
See "Prepayment and Yield Considerations" in this
prospectus supplement and "Certain Legal Aspects of the
Mortgage Assets -- Enforceability of Certain Provisions"
in the accompanying prospectus for more detail.
22.34% and 21.57% of the Home Equity Loans (by principal
balance) in Loan Pool I and Loan Pool II, respectively,
are adjustable rate home equity loans. Adjustable rate
home equity loans, like fixed rate home equity loans,
are more likely to experience principal prepayments in a
low interest rate environment. For example, if
prevailing interest rates were to fall, borrowers with
adjustable rate home equity loans may be willing to
refinance the home equity loans with a fixed rate loan
to "lock in" a lower interest rate. Since the adjustable
rate Home Equity Loans also have periodic rate caps, and
maximum and minimum interest rates, these caps can also
affect the likelihood of prepayments resulting from
refinancings. In addition, the delinquency and loss
experience on adjustable rate home equity loans may
differ from that on fixed rate home equity loans because
the amount of the monthly payments on adjustable rate
home equity loans are subject to adjustment on each
payment change date.
The average life of the Notes, and, if purchased at
other than par, the yields realized by owners of the
Notes will be sensitive to levels of payment (including
any payments of principal received before the scheduled
due date) on the Home Equity Loans. In general, the
yield on the Notes if 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 Notes if 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" in this
prospectus supplement for more detail.
S-6
<PAGE>
Second Liens 5.58% and 12.41% of the aggregate principal balance of
the Home Equity Loans in Loan Pool I and Loan Pool II,
respectively, are secured by second liens subordinate to
the rights of the mortgagee under the related first
mortgage. The Trust will have no source of funds to
satisfy the first mortgage or make payments due to the
first mortgagee and, accordingly, its ability to realize
on its second lien may be limited.
See "Administration -- Servicing and Sub-Servicing" in
this prospectus supplement and "Risk Factors -- Junior
Lien Mortgage Loans" in the accompanying prospectus for
more detail.
Balloon Loans 24.62% and 33.50% of the aggregate principal balances of
the Home Equity Loans in Loan Pool I and Loan Pool II,
respectively, are "balloon loans" that provide for the
payment of the unamortized principal balance in a single
payment at maturity.
See "Risk Factors -- Risk of Higher Default Rates for
Mortgage Loans with Balloon Payments" in the
accompanying prospectus for more detail.
Other Legal Federal and state laws, public policy and general
Considerations principles of equity relating to the protection of
consumers, unfair and deceptive practices and debt
collection practices:
o regulate interest rates and other charges on home
equity loans
o require certain disclosures to borrowers
o require licensing of the Seller and other originators
o regulate generally the origination, servicing and
collection process for the Home Equity Loans
Depending on the specific facts and circumstances
involved, violations may limit the ability of the Trust
to collect on the Home Equity Loans, may entitle the
borrower to a refund of amounts previously paid and
could result in liability for damages and administrative
enforcement. The Seller has represented that all
applicable federal and state laws were complied with in
connection with the origination of the Home Equity
Loans. If there is a material and adverse breach of such
representation, the Seller will be obligated to
repurchase any affected Home Equity Loan or to
substitute a new mortgage loan.
See "Certain Legal Aspects of the Mortgage Assets" in
the accompanying prospectus for more detail.
Risk Associated with If the protection created by overcollateralization is
the Note Insurer insufficient and the Note Insurer is unable to meet its
obligations under the note insurance policy, then you
could experience a loss of some or all of your
investment. In addition, any reduction in a rating of
the claims-paying ability of the Note Insurer may result
in a reduction of the rating of the Notes.
Non-Conforming The Seller originated or purchased all the Home Equity
Underwriting Loans in accordance with its mortgage loan program for
Standards non-conforming credits. A non-conforming credit means a
home equity loan which may be ineligible for purchase by
Fannie Mae or Freddie Mac due to credit characteristics
that may not meet Fannie Mae or Freddie Mac guidelines.
Mortgage loans originated under the Seller's mortgage
loan program are likely to experience rates of
delinquency, bankruptcy and loss that are higher
(perhaps
S-7
<PAGE>
significantly) than mortgage loans originated under
Fannie Mae or Freddie Mac guidelines.
Ability to Repurchase If the Seller fails to cure a breach of its loan
or Replace Defective representations and warranties with respect to any loan
Loans in a timely manner, then the Seller is required to
repurchase or replace such defective loan. The Seller
may not be capable of repurchasing or replacing any
defective loans for financial or other reasons. The
Seller's inability to repurchase or replace defective
loans would likely cause the loans to experience higher
rates of delinquencies, defaults and losses.
Liquidity of the The Seller requires substantial capital to fund its
Seller operations and has operated and may operate in the
future, on a negative operating cash flow basis.
Currently, the Seller funds substantially all of its
operations, including its loan production, from
borrowings under its lending arrangements with certain
third parties (including an affiliate of the
Underwriter). As its existing lending arrangements
mature, the Seller may not access the financing
necessary for its operations. Recently, lenders have
been less willing to extend credit on home equity loans.
In addition, lenders who are willing to extend credit on
home equity loans are doing so on terms that are less
favorable than have recently been available.
The inability of the Seller to arrange for new or
alternative methods of financing on favorable terms may
curtail its loan production activities, which may
adversely affect its financial condition and, in turn,
its ability to repurchase or replace any defective
loans.
See "The Seller -- Recent Developments" in this
prospectus supplement for more detail.
Risks Associated with The Seller is aware of the issues associated with the
Year 2000 Compliance programming code in existing computer systems as the
year 2000 approaches. The "year 2000 problem" is
pervasive and complex; virtually every computer
operation will be affected in some way by the rollover
of the two-digit year value to 00. The issue is whether
the computer systems will properly recognize
data-sensitive information when the year changes to
2000. Systems that do not properly recognize such
information could generate erroneous date or cause a
system to fail.
It is a condition of closing that the Servicer and the
Indenture Trustee each certify that they are committed
either to (i) implement modifications to their
respective existing systems to the extent required to
cause them to be year 2000 ready or (ii) acquire
computer systems that are year 2000 ready in each case
prior to January 1, 2000. In the event that computer
problems arise out of a failure of such efforts to be
completed on time, or in the event that the computer
systems of the Servicer and the Indenture Trustee are
not fully year 2000 ready, the resulting disruptions in
the collection or distribution of receipts on the loans
could materially and adversely affect your investment.
Limited Resale The Underwriter intends to make a market for resale in
the Notes but has no obligation to do so. There is no
assurance that such a market will develop or, if it
develops, that it will continue. Consequently, you may
not be able to sell your Notes readily or at prices that
will enable you to realize your desired yield. The
market values of the Notes are likely to fluctuate;
these fluctuations may be significant and could result
in significant losses to you.
The secondary markets for mortgage backed securities
have experienced periods of illiquidity and can be
expected to do so in the future. Illiquidity can have a
severely adverse effect on the prices of securities that
are especially sensitive to
S-8
<PAGE>
prepayment, credit, or interest rate risk, or that have
been structured to meet the investment requirements of
limited categories of investors.
Insolvency of Seller We believe that the transfer of the Home Equity Loans by
could cause payment the Seller to the Depositor and by the Depositor to the
delays Trust each constitute a sale and, accordingly, that the
Home Equity Loans will not be a part of the assets of
the Seller or the Depositor in the event of the
insolvency of the Seller and will not be available to
the creditors of the Seller. Nevertheless, in the event
of an insolvency, a bankruptcy trustee or a creditor of
the Seller may argue that the transaction between the
Seller and the Depositor was a pledge of such Home
Equity Loans in connection with a borrowing by the
Seller rather than a true sale. Such an attempt, even if
unsuccessful, could result in delays in distributions on
the Notes.
We will deliver an opinion of our counsel, Arter &
Hadden LLP, with respect to the true sale of the Home
Equity Loans from the Seller to the Depositor and from
the Depositor to the Trust, in form and substance
satisfactory to the rating agencies and the Note
Insurer.
Application of Relief The Soldiers' and Sailors' Civil Relief Act of 1940, as
Act could lower amended, generally prohibits lenders from charging
interest rates on the interest at rates exceeding an annual rate of 6% during
Notes the period of a borrower's active duty status. The
interest rate on a borrower's mortgage note will be
lowered to the extent of any reduction resulting from
the application of the Relief Act. There is no "catch
up" feature for any such shortfall. Relief Act
shortfalls are not covered by the note insurance policy.
Servicing transfer The Home Equity Loans are currently being serviced by
could cause higher the Seller. On or before December 31, 1998, the
delinquencies servicing function will be transferred to Ocwen Federal
Bank FSB. Servicing transfers can result in an increase
in delinquencies on the transferred loans.
S-9
<PAGE>
THE SELLER
General
IMC Mortgage Company (the "Seller") is a Florida corporation. The principal
executive offices of the Seller are located at 5901 East Fowler Avenue, Tampa,
Florida 33617-2362 and its telephone number is (813) 984-8801.
The Seller has been in the mortgage lending business since its formation in
1993 and the Seller and certain other subsidiaries of the Seller are engaged in
originating, purchasing and servicing home equity loans secured by first and
second mortgages and deeds of trust on Properties located in 50 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, without
recourse, but subject to the terms of the Sale and Servicing Agreement dated as
of December 1, 1998 (the "Sale and Servicing Agreement"), among the Trust, the
Depositor, the Seller, the Servicer and The Chase Manhattan Bank (the "Indenture
Trustee"), in consideration of the net proceeds from the sale of the Notes,
which are being offered hereby and the Residual Interest.
The Notes will not represent an interest in or obligation of, nor are the
Home Equity Loans guaranteed by the Depositor, the Seller, the Servicer 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 Fannie Mae ("Fannie Mae") or the Federal Home Loan
Mortgage Corporation ("Freddie Mac") 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.
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 or adjustable rate loans
which fully amortize 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 maturity 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 $500,000. Under
current policy the Seller generally does not acquire or originate home equity
S-10
<PAGE>
loans where the combined Loan-to-Value Ratio exceeds 90%. The collateral
securing loans acquired or originated by the Seller is generally one- to
four-family residences, including condominiums and townhomes. The Seller accepts
manufactured housing 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 Fannie Mae/Freddie Mac forms and conform
to current Fannie Mae/Freddie Mac 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.
Recent Developments
On October 16, 1998, the Seller entered into standstill and forbearance
agreements (the "Standstill Agreements") with its major warehouse lenders (which
includes an affiliate of the Underwriter) and with a lender under its revolving
credit bank facility. Under those agreements, the lenders agreed to standstill
and keep their respective facilities in place for a period of 45 days, which
period would be extended for an additional 45 days if the Seller entered into a
letter of intent for a transaction involving a change in control of the Seller.
On November 30, 1998, the Seller announced that it had entered into
non-binding letter of intent (the "Letter of Intent") with Greenwich Street
Capital Partners II, L.P. ("Greenwich"). Under the proposed transaction, if
consummated, Greenwich will invest additional equity in the Seller and arrange
for credit facilities to permit the Seller to repay in full its existing bank
loans and credit facilities, and Greenwich would obtain newly issued stock equal
to 95% of the total outstanding equity interests of the Seller on a diluted
basis leaving the existing common shareholders with 5% of the outstanding
equity. No payment would be made to the Seller's common shareholders in the
proposed transaction; except that the Letter of Intent provides for warrants to
be issued to the Seller's common shareholders on terms not yet negotiated. Under
the Letter of Intent, the Seller may continue to seek other buyers.
S-11
<PAGE>
The proposed transaction is subject to a number of conditions including the
negotiation and signing of a mutually agreeable definitive agreement, and that
the Seller continue to operate in the ordinary course of its business. There is
no assurance that a definitive agreement will be executed or that the proposed
transactions will be consummated, and the Letter of Intent may be terminated by
either Greenwich or the Seller at any time.
The Seller believes that the Letter of Intent satisfies the conditions
stated in the Standstill Agreements and that the standstill period with its
warehouse and revolving credit lenders will now extend to mid-January, 1999. If
the proposed transaction with Greenwich (or an alternative transaction with a
third party) is not consummated by that date, those lenders would no longer be
subject to their Standstill Agreements and would be free to take action under
their loan agreements.
Also, on October 16, 1998, the Seller entered into a loan agreement (the
"Greenwich Loan Agreement") with Greenwich and certain of its affiliates that
provided the Seller a $33 million standby revolving credit facility for a period
of up to 90 days. In consideration for providing the facility, Greenwich
received a $3.3 million commitment fee and exchangeable preferred stock
representing the equivalent of 40% of the Seller's common stock. The Greenwich
facility provides that under certain circumstances, upon the Seller entering
into a definitive agreement which effectuates a change of control of the Seller,
Greenwich may elect to receive (a) repayment of the facility, plus accrued
interest at 10% per annum, and a take-out premium or (b) additional preferred
stock.
Because the Seller has not yet entered into a definitive agreement
involving a change of control, Greenwich may assert that it is entitled either
to increase its equity interests in the Seller by 20% (from 40% to 60%) or to
require a larger take-out premium (of up to 200% of the average outstanding
balance under the Greenwich Loan Agreement) if the Seller does not consummate
the proposed transaction with Greenwich as described in the Letter of Intent. If
Greenwich and the Seller do consummate the proposed transaction, that
transaction will supersede any rights Greenwich might have under the Greenwich
Loan Agreement to obtain equity in the Seller.
THE SERVICER
General
The Home Equity Loans are currently being serviced by the Seller. On or
before December 31, 1998, the servicing function will be transferred to the
Servicer.
The information set forth in the following two paragraphs and under
" -- Delinquency, Loan Loss and Foreclosure Information" has been provided by
Ocwen Federal Bank FSB. None of the Depositor, the Seller, the Indenture
Trustee, the Note Insurer, the Underwriter or any of their respective affiliates
have made or will make any representation as to the accuracy or completeness of
such information.
Ocwen Federal Bank FSB, a federally-chartered savings bank, with its home
office in Fort Lee, New Jersey and its servicing operations and corporate
offices in West Palm Beach, Florida, will serve as the servicer for the Home
Equity Loans (in such capacity, the "Servicer"). The Servicer is a wholly-owned
subsidiary of Ocwen Financial Corporation, a public financial services holding
company. As of September 30, 1998, the Servicer had approximately $2.61 billion
in assets, approximately $2.34 billion in liabilities and approximately $269.4
million in equity. As of September 30, 1998, the Servicer's tangible and
leveraged capital ratio was approximately 10.11% and its risk-based capital
ratio was approximately 18.00%. For the four quarters ended September 30, 1998,
the Servicer's income from continuing operations was approximately $84.5
million.
The major business of the Servicer has been the resolution of nonperforming
single-family, multi-family and commercial mortgage loan portfolios acquired
from the Resolution Trust Corporation, from the United States Department of
Housing and Urban Development ("HUD") through HUD's auction of defaulted FHA
Loans and from private investors.
S-12
<PAGE>
Servicing
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.
The Servicer may not assign its obligations under the Sale and Servicing
Agreement, in whole or in part, unless it shall have first obtained consent from
the Note Insurer and confirmation in writing from the Rating Agencies that such
assignment shall not result in a downgrade or withdrawal of the ratings assigned
to the Notes by each respective Rating Agency; provided, however, that any
assignee must meet the eligibility requirements for a successor servicer set
forth in the Sale and Servicing Agreement.
The Servicer may, with the prior written consent of the Note Insurer, 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 at
such time as the Servicer resigns or is removed. See "Administration --
Servicing and Sub-Servicing" herein.
The Note Insurer or the Indenture Trustee (with the prior written consent
of the Note Insurer) (or, in certain circumstances, the Owners, with the consent
of the Note Insurer), may remove the Servicer, and the Servicer may resign, only
in accordance with the terms of the Sale and Servicing Agreement. No removal or
resignation shall become effective until the Indenture 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 Indenture Trustee and remitted
directly to the Indenture Trustee or the successor servicer.
Upon removal or resignation of the Servicer, the Indenture Trustee (x) may
solicit bids for a successor servicer as described in the Sale and Servicing
Agreement and (y) until such time as a successor servicer is appointed pursuant
to the terms of the Sale and Servicing Agreement, shall serve in the capacity of
Backup Servicer (the "Backup Servicer") subject to the right of the Indenture
Trustee to assign such duties to a party acceptable to the Note Insurer, the
Rating Agencies and the Owners of a majority of the Residual Interests (the
"Majority Residualholders"). If the Indenture Trustee is unable to obtain a
qualifying bid and is prevented by law from acting as servicer, the Indenture
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 Fannie Mae or Freddie Mac for first and second home equity
loans having equity of not less than $15,000,000 as determined in accordance
with generally accepted accounting principles, and which is acceptable to the
Note Insurer (which, in its sole discretion can waive such requirements) and
shall assume all or any part of the responsibilities, duties or liabilities of
the Servicer.
Delinquency, Loan Loss and Foreclosure Information
The following table sets forth, for the Servicer's subprime loans servicing
portfolio serviced by the Servicer as of December 31, 1997 and as of September
30, 1998, certain information relating to the delinquency experience (including
loans in foreclosure included in the Servicer's servicing portfolio (which
portfolio does not include mortgage loans that are subserviced by others)) at
the end of the indicated periods. The indicated periods of delinquency are based
on the number of days past due on a contractual basis. No mortgage loan is
considered delinquent for these purposes until it is one month past due on a
contractual basis. The information contained in the monthly remittance reports
which will be sent to investors will be compiled using the same methodology as
that used to compile the information contained in the table below.
S-13
<PAGE>
Delinquency and Default Experience of the Servicer's Subprime Servicing
Portfolio of Home Equity Loans
As of December 31, 1997
--------------------------------------------------------
Dollar Percent by Percent by
Number of Amount Number of Dollar
Loans (in thousands) Loans Amount
------ -------------- ------ -------
Total Portfolio 21,827 $2,318,261 100.00% 100.00%
Period of
Delinquency (1)
30 - 59 days 437 $41,429 2.00% 1.79%
60 - 89 days 171 $17,803 0.78% 0.77%
90 + days 302 $36,878 1.38% 1.59%
Total Delinquent
Loans(1) 910 $96,110 4.17% 4.15%
Loans in
Foreclosure (2) 281 $34,663 1.29% 1.50%
As of September 30, 1998
--------------------------------------------------------
Dollar Percent by Percent by
Number of Amount (in Number of Dollar
Loans thousands) Loans Amount
------ ---------- ------ -------
Total Portfolio 63,740 $5,359,177 100.00% 100.00%
Period of
Delinquency (1)
30 - 59 days 3,065 $225,999 4.81% 4.22%
60 - 89 days 1,355 $100,865 2.13% 1.88%
90 + days 3,845 $317,270 6.03% 5.92%
Total Delinquent
Loans(1) 8,265 $644,134 12.97% 12.02%
Loans in
Foreclosure (2) 1,673 $166,388 2.62% 3.10%
- -----------------
(1) Includes 3,384 loans totalling $248,395,408 for September 30, 1998
which were delinquent at the time of transfer to the Servicer.
(2) Loans in foreclosure are also included under the heading "Total
Delinquent Loans."
<TABLE>
<CAPTION>
Real Estate Owned
As of December 31, 1997 As of September 30, 1998
---------------------------------- ---------------------------------
By Number of By Dollar Amount By Number of By Dollar Amount
Loans (in thousands) Loans (in thousands)
------ -------------- ------ --------------
<S> <C> <C> <C> <C>
Total Portfolio 21,827 $2,318,621 63,740 $5,359,177
Foreclosed Loans (1) 66 $7,387 615 $47,596
Foreclosed Ratio (2) 0.30% 0.32% 0.96% 0.89%
</TABLE>
- -----------------
(1) For the purposes of these tables, "Foreclosed Loans" means the
principal balance of mortgage loans secured by mortgaged
properties the title to which has been acquired by the Servicer.
(2) The "Foreclosure Ratio" is equal to the aggregate principal
balance or number of Foreclosed Loans divided by the aggregate
principal balance, or number, as applicable, of mortgage loans in
the total portfolio at the end of the indicated period.
S-14
<PAGE>
<TABLE>
<CAPTION>
Loan Gain/(Loss) Experience
(Dollars in Thousands)
As of December 31, 1997 As of September 30, 1998
----------------------- ------------------------
<S> <C> <C>
Total Portfolio (1) $2,318,261 $5,359,177
Net Gains/(Losses) (2,3) ($1,209) ($10,776)
Net Gains/(Losses) as a Percentage of Total Portfolio (0.052%) (0.201%)
</TABLE>
- -----------------
(1) "Total Portfolio" on the date stated above is the principal
balance of the mortgage loans outstanding on the last day of each
respective quarter.
(2) "Net Gains/(Losses)" are actual gains or losses incurred on
liquidated properties and shortfall payoffs for each respective
period. Gains or losses on liquidated properties are calculated as
net sales proceeds less book value (exclusive of loan purchase
premium or discount). Shortfall payoffs are calculated as the
difference between principal payoff amount and unpaid principal at
the time of payoff.
(3) Includes $1,294,883 as of September 30, 1998 of losses
attributable to loans which were delinquent at the time of
transfer to the Servicer.
It is unlikely that the delinquency experience of the Home Equity Loans
comprising the Loan Pools will correspond to the delinquency experience of the
Servicer's mortgage portfolio set forth in the foregoing tables. There can be no
assurance that the Home Equity Loans comprising the Loan Pools will perform
consistently with the delinquency or foreclosure experience described herein. It
should be noted that if the residential real estate market should experience an
overall decline in property values, the actual rates of delinquencies and
foreclosures could be higher than those previously experienced by the Servicer.
In addition, adverse economic conditions may affect the timely payment by
Mortgagors of scheduled payments of principal and interest on the Home Equity
Loans and, accordingly, the actual rates of delinquencies and foreclosures with
respect to the Loan Pools.
The Servicer is in the process of completing its compliance goals in
connection with the year 2000 issue. The year 2000 issue is the result of prior
computer programs being written using two digits, rather than four digits, to
define the applicable year. Any of the Servicer's computer programs that have
time-sensitive software may recognize a date using "00" as the year 1900 rather
than the year 2000. Any such occurrence could result in major computer system
failure or miscalculations. The Servicer is presently engaged in various
procedures to ensure that their computer systems and software will be year 2000
compliant. However, in the event that the Servicer, or any of its suppliers,
customers, brokers or agents do not successfully and timely achieve year 2000
compliance, the performance of obligations of the Servicer under the Sale and
Servicing Agreement could be materially adversely affected.
THE TRUST
IMC Home Equity Loan Owner Trust 1998-7 (the "Trust") is a Delaware
business trust established by the Depositor pursuant to the Trust Agreement.
After its formation, the Trust will not engage in any activity other than (i)
acquiring, holding and managing the Home Equity Loans and the other assets of
the Trust Estate and the proceeds therefrom, (ii) issuing the Notes pursuant to
the two Indentures, each dated December 1, 1998, between the Trust and the
Indenture Trustee (each, an "Indenture") and a class of securities (the
"Residual Interest") which represents the residual interest in the Trust
pursuant to the Trust Agreement dated as of December 1, 1998, between the
Depositor and the Owner Trustee (the "Trust Agreement"), (iii) making payments
on the Notes and the Residual Interest and (iv) engaging in other activities
that are necessary, suitable or convenient to accomplish the foregoing or are
incidental thereto or in connection therewith. The Residual Interest represents
the residual interest in the assets of the Trust Estate. The Notes and the
Residual Interests will be delivered by the Trust to the Depositor as
consideration for the Home Equity Loans sold to it and the Depositor will in
turn deliver the Residual Interests and the proceeds of the Notes to the Seller
as consideration for the Home Equity Loans sold to it, all pursuant to the Sale
and Servicing Agreement. The Trust does not have, nor is it expected in the
future to have, any significant assets, other than the assets included in the
Trust Estate.
S-15
<PAGE>
THE DEPOSITOR
IMC Securities, Inc. (the "Depositor") was incorporated in the State of
Delaware in November 1994. The Depositor is a subsidiary of the Seller. The
Depositor maintains its principal offices at 5901 East Fowler Drive, Tampa,
Florida 33617-2362. None of the Depositor, the Seller or the Servicer or any of
their affiliates (other than the Trust to the extent of the Trust Estate) will
insure or guarantee payments on the Notes.
USE OF PROCEEDS
The Seller will sell the Home Equity Loans to the Depositor and the
Depositor will sell the Home Equity Loans to the Trust concurrently with
delivery of the Notes. Net proceeds from the sale of the Notes will be applied
by the Depositor to the purchase of the Home Equity Loans from the Seller. The
Seller in turn will use a portion of the net proceeds from the sale of the Home
Equity Loans to pay off extensions of credit provided by, among others, an
affiliate of the Underwriter with respect to certain Home Equity Loans. Such net
proceeds will (together with the Residual Interest 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. In addition, the Seller will
use a significant portion of the proceeds to purchase Home Equity Loans having
an unpaid principal balance of approximately $460 million from an affiliate of
the Underwriter. The Seller sold such Home Equity Loans to the Underwriter's
affiliate in a prior transaction.
THE HOME EQUITY LOAN POOL
General
The statistical information presented in this Prospectus Supplement
concerning the Home Equity Loans is based on the Home Equity Loans as of
November 16, 1998 (the "Statistical Calculation Date"). Each Home Equity Loan
has been assigned to one of two pools (each, a "Loan Pool") of Home Equity
Loans. As of December 10, 1998 (the "Closing Date"), the Depositor intends that
all Home Equity Loans in one of the Loan Pools ("Loan Pool I") will conform to
Fannie Mae or Freddie Mac standards for maximum loan balance. The Home Equity
Loans in Loan Pool I aggregated $521,415,465 as of the Statistical Calculation
Date. As of the Closing Date, the Depositor intends that the Home Equity Loans
in the other Loan Pool ("Loan Pool II") do not conform to Fannie Mae or Freddie
Mac standards for maximum loan balance. The Home Equity Loans in Loan Pool II
aggregated $70,528,616 as of the Statistical Calculation Date. Some amortization
of the pool will occur prior to the Closing Date. Moreover, certain loans
included in the pool of Home Equity Loans as of the Statistical Calculation Date
may prepay in full, or may be determined not to meet the eligibility
requirements for the final pool, and may not be included in the final pool. As a
result of the foregoing, the statistical distribution of characteristics for the
Home Equity Loan pool as of the Closing Date will vary from the statistical
distribution of such characteristics for the Home Equity Loans as of the
Statistical Calculation Date as presented in this Prospectus Supplement,
although such variance will not be material. The Depositor expects that the
actual principal balance of the Home Equity Loans in Loan Pool I on the Closing
Date will be at least $529,000,000 and the actual principal balance of the Home
Equity Loans in Loan Pool II on the Closing Date will be at least $71,000,000.
This subsection describes generally certain characteristics of the two
Loan Pools of the Home Equity Loans as of the Statistical Calculation Date.
Unless otherwise noted, all statistical percentages in this Prospectus
Supplement are measured by the aggregate principal balance of the Home Equity
Loans as of the Statistical Calculation Date. The column entitled "% of
Aggregate Loan Balance" in the following tables may not sum to 100% due to
rounding.
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 include both second and
vacation homes).
The combined 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 Fannie Mae or Freddie Mac 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.
S-16
<PAGE>
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
other 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.
Loan Pool I
Loan Pool I consists of 7,922 Home Equity Loans with an aggregate Loan
Balance as of the Statistical Calculation Date of $521,415,465. 6,578 of the
Home Equity Loans in Loan Pool I are fixed rate loans, which have an aggregate
Loan Balance as of the Statistical Calculation Date of $404,932,309. 1,344 of
the Home Equity Loans in Loan Pool I with an aggregate Loan Balance as of the
Statistical Calculation Date of $116,483,156 are adjustable rate loans that
adjust based upon the London interbank offered rate for six-month United States
dollar deposits (the "LIBOR Loans"). 6 of the Home Equity Loans in Loan Pool I
are adjustable rate loans that adjust based on the weekly average yield on
United States Treasury securities adjusted to a constant maturity of one year
(the "CMT Loans").
S-17
<PAGE>
Geographic Distribution of Properties
The geographic distribution of the Home Equity Loans in Loan Pool I by
state, as of the Statistical Calculation Date, was as follows:
Number of Aggregate % of Aggregate
State Home Equity Loans Loan Balance Loan Balance
- ----- ----------------- ------------ --------------
Alabama 2 $ 125,899 0.02%
Arizona 118 9,410,769 1.80
Arkansas 52 3,089,099 0.59
California 160 15,909,565 3.05
Colorado 117 10,200,195 1.96
Connecticut 109 9,743,892 1.87
Delaware 21 1,291,479 0.25
District of Columbia 3 110,332 0.02
Florida 842 52,991,191 10.16
Georgia 320 19,279,997 3.70
Hawaii 17 2,988,114 0.57
Idaho 36 2,428,578 0.47
Illinois 516 39,951,581 7.66
Indiana 426 21,248,708 4.08
Iowa 25 1,155,758 0.22
Kansas 31 1,638,757 0.31
Kentucky 107 5,370,221 1.03
Louisiana 74 3,577,791 0.69
Maine 15 869,060 0.17
Maryland 175 11,742,969 2.25
Massachusetts 134 10,634,363 2.04
Michigan 600 36,449,630 6.99
Minnesota 81 6,210,986 1.19
Mississippi 96 4,465,975 0.86
Missouri 112 5,849,562 1.12
Montana 3 192,360 0.04
Nebraska 31 1,627,949 0.31
Nevada 58 5,008,695 0.96
New Hampshire 13 1,022,,962 0.20
New Jersey 258 23,746,591 4.55
New Mexico 101 7,269,801 1.39
New York 520 36,449,093 6.99
North Carolina 502 30,241,543 5.80
North Dakota 3 127,020 0.02
Ohio 562 32,946,623 6.32
Oklahoma 26 1,173,186 0.23
Oregon 52 4,195,349 0.80
Pennsylvania 380 22,847,644 4.38
Rhode Island 61 4,672,212 0.90
South Carolina 219 12,346,825 2.37
South Dakota 12 570,542 0.11
Tennessee 365 21,584,817 4.14
Texas 95 6,378,318 1.22
Utah 72 6,426,055 1.23
Vermont 5 211,512 0.04
Virginia 191 12,107,252 2.32
Washington 52 4,775,618 0.92
West Virginia 35 1,665,472 0.32
Wisconsin 112 6,770,685 1.30
Wyoming 5 322,873 0.06
----- ------------ ------
Total 7,922 $521,415,465 100.00%
===== ============ ======
S-18
<PAGE>
Original Combined Loan-to-Value Ratios
The original Combined Loan-to-Value Ratios as of the origination dates
of the Home Equity Loans in Loan Pool I as of the Statistical Calculation Date
were distributed as follows:
Range of Number of Aggregate % of Aggregate
Original CLTV's Home Equity Loans Loan Balance Loan Balance
- --------------- ----------------- ------------ --------------
5.01 to 10.00% 1 $ 9,954 0.00%
10.01 to 15.00 5 96,675 0.02
15.01 to 20.00 18 365,336 0.07
20.01 to 25.00 33 987,047 0.19
25.01 to 30.00 44 1,527,162 0.29
30.01 to 35.00 69 2,427,949 0.47
35.01 to 40.00 98 3,710,988 0.71
40.01 to 45.00 100 4,580,976 0.88
45.01 to 50.00 151 6,544,604 1.26
50.01 to 55.00 165 7,585,850 1.45
55.01 to 60.00 265 13,734,403 2.63
60.01 to 65.00 520 29,562,299 5.67
65.01 to 70.00 772 45,069,993 8.64
70.01 to 75.00 1,162 74,484,682 14.29
75.01 to 80.00 2,413 177,048,996 33.96
80.01 to 85.00 1,127 85,217,642 16.34
85.01 to 90.00 706 59,545,910 11.42
90.01 to 95.00 57 3,084,221 0.59
95.01 to 100.00 216 5,830,776 1.12
----- ------------ ------
Total 7,922 $521,415,465 100.00%
===== ============ ======
Coupon Rates
The interest rate borne by the Notes (the "Coupon Rate") relating to
the Home Equity Loans in Loan Pool I as of the Statistical Calculation Date were
distributed as follows:
Range of Number of Aggregate % of Aggregate
Coupon Rates Home Equity Loans Loan Balance Loan Balance
- ------------ ----------------- ------------ --------------
5.001 to 6.000% 1 $ 156,958 0.03%
6.001 to 7.000 10 1,425,173 0.27
7.001 to 8.000 120 11,216,892 2.15
8.001 to 9.000 604 53,445,736 10.25
9.001 to 10.000 1,706 133,132,815 25.53
10.001 to 11.000 2,485 164,987,071 31.64
11.001 to 12.000 1,555 93,314,206 17.90
12.001 to 13.000 907 42,193,930 8.09
13.001 to 14.000 399 16,629,757 3.19
14.001 to 15.000 95 3,550,840 0.68
15.001 to 16.000 29 1,014,074 0.19
16.001 to 17.000 6 154,336 0.03
17.001 to 18.000 3 110,698 0.02
18.001 to 19.000 2 82,978 0.02
----- ------------ ------
Total 7,922 $521,415,465 100.00%
===== ============ ======
S-19
<PAGE>
Statistical Calculation Date Loan Balances
The distribution of the outstanding principal amounts of the Home
Equity Loans in Loan Pool I as of the Statistical Calculation Date was as
follows:
Statistical Calculation Date Number of Aggregate % of Aggregate
Loan Balances Home Equity Loans Loan Balance Loan Balance
- ---------------------------- ----------------- ------------ --------------
0.01 to $ 25,000.00 969 $ 17,738,669 3.40%
25,000.01 to 50,000.00 2,449 92,647,700 17.77
50,000.01 to 75,000.00 2,055 126,183,933 24.20
75,000.01 to 100,000.00 1,080 93,624,434 17.96
100,000.01 to 125,000.00 595 66,239,079 12.70
125,000.01 to 150,000.00 373 50,687,282 9.72
150,000.01 to 175,000.00 172 27,770,234 5.33
175,000.01 to 200,000.00 127 23,792,750 4.56
200,000.01 to 250,000.00 92 19,830,000 3.80
250,000.01 to 300,000.00 7 1,901,386 0.36
300,000.01 to 350,000.00 3 999,998 0.19
----- ------------ ------
Total 7,922 $521,415,465 100.00%
===== ============ =======
Types of Mortgaged Properties
The Properties securing the Home Equity Loans in Loan Pool I as of the
Statistical Calculation Date were of the property types as follows:
Number of Aggregate % of Aggregate
Property Types Home Equity Loans Loan Balance Loan Balance
- -------------- ----------------- ------------ --------------
Single Family Detached 6,906 $451,418,712 86.58%
Two- to Four-Family 529 41,336,812 7.93
Condominium 165 10,046,360 1.93
Manufactured Housing 138 7,782,608 1.49
Single Family Attached 123 6,232,356 1.20
Townhouse 59 4,459,132 0.86
Mixed Use 2 139,485 0.03
----- ------------ ------
Total 7,922 $521,415,465 100.00%
===== ============ ======
Distribution of Months Since Origination
The distribution of the number of months since the date of origination
of the Home Equity Loans in Loan Pool I as of the Statistical Calculation Date
was as follows:
Number of Months Number of Aggregate % of Aggregate
Since Origination Home Equity Loans Loan Balance Loan Balance
- ----------------- ----------------- ------------ --------------
Up to 1 2,036 $131,218,555 25.17%
2 - 12 5,822 385,204,443 73.88
13 - 24 61 4,702,030 0.90
25 or more 3 290,438 0.06
----- ------------ ------
Total 7,922 $521,415,465 100.00%
===== ============ ======
S-20
<PAGE>
Distribution of Remaining Term to Maturity
The distribution of the number of months remaining to maturity of the
Home Equity Loans in Loan Pool I as of the Statistical Calculation Date was as
follows:
Months Remaining Number of Aggregate % of Aggregate
to Maturity Home Equity Loans Loan Balance Loan Balance
- ---------------- ----------------- ------------ --------------
Up to 120 242 $ 6,541,335 1.25%
121 to 180 3,240 183,679,757 35.23
181 to 240 685 35,252,961 6.76
241 to 300 186 12,147,180 2.33
301 to 360 3,569 283,794,232 54.43
----- ----------- -----
Total 7,922 $521,415,465 100.00%
===== ============ ======
Occupancy Status(1)
The occupancy status of the Properties securing the Home Equity Loans
in Loan Pool I as of the Statistical Calculation Date was as follows:
Number of Aggregate % of Aggregate
Occupancy Status Home Equity Loans Loan Balance Loan Balance
- ---------------- ----------------- ------------ --------------
Owner Occupied 7,355 $491,632,840 94.29%
Investor Owned 542 28,258,243 5.42
Vacation/Second Home 25 1,524,382 0.29
----- ------------ ------
Total 7,922 $521,415,465 100.00%
===== ============ ======
- ----------
(1) Based on representations by the Mortgagors at the time of origination.
Distribution by Lien Position
The lien position of the Home Equity Loans in Loan Pool I as of the
Statistical Calculation Date was as follows:
Number of Aggregate % of Aggregate
Lien Position Home Equity Loans Loan Balance Loan Balance
- ------------- ----------------- ------------ --------------
First Lien 6,902 $492,343,811 94.42%
Second Lien 1,020 29,071,654 5.58
----- ---------- ------
Total 7,922 $521,415,465 100.00%
===== ============ ======
S-21
<PAGE>
Distribution of Maximum Coupon Rates for the
Adjustable Rate Home Equity Loans in Loan Pool I
The maximum Coupon Rates borne by the note or other instrument of
indebtedness (each, a "Mortgage Note") relating to the Adjustable Rate Home
Equity Loans in Loan Pool I as of the Statistical Calculation Date were as
follows:
Range of Maximum Number of Aggregate % of Aggregate
Coupon Rates Home Equity Loans Loan Balance Loan Balance
- ---------------- ----------------- ------------ --------------
9.001 to 10.000% 1 $ 71,358 0.06%
10.001 to 11.000 1 141,433 0.12
13.001 to 14.000 5 659,697 0.57
14.001 to 15.000 58 6,486,939 5.57
15.001 to 16.000 246 23,665,840 20.32
16.001 to 17.000 449 40,865,904 35.08
17.001 to 18.000 338 27,173,700 23.33
18.001 to 19.000 153 12,156,357 10.44
19.001 to 20.000 59 3,546,840 3.04
20.001 to 21.000 25 1,224,801 1.05
21.001 to 22.000 5 276,263 0.24
22.001 to 23.000 2 144,561 0.12
26.001 to 27.000 1 31,186 0.03
30.001 to 35.000 1 38,275 0.03
----- ------------ ------
Total 1,344 $116,483,156 100.00%
===== ============ ======
Distribution of Minimum Coupon Rates for the
Adjustable Rate Home Equity Loans in Loan Pool I
The minimum Coupon Rates borne by the Mortgage Notes relating to the
adjustable rate Home Equity Loans in Loan Pool I as of the Statistical
Calculation Date were as follows:
Range of Minimum Number of Aggregate % of Aggregate
Coupon Rates Home Equity Loans Loan Balance Loan Balance
- ---------------- ----------------- ------------ --------------
2.001 to 3.000% 1 $ 27,883 0.02%
3.001 to 4.000 1 193,246 0.17
4.001 to 5.000 4 362,422 0.31
5.001 to 6.000 27 2,628,286 2.26
6.001 to 7.000 48 3,788,868 3.25
7.001 to 8.000 42 3,968,243 3.41
8.001 to 9.000 149 15,287,985 13.12
9.001 to 10.000 370 35,219,721 30.24
10.001 to 11.000 390 32,556,205 27.95
11.001 to 12.000 187 14,835,610 12.74
12.001 to 13.000 84 5,364,637 4.61
13.001 to 14.000 28 1,502,998 1.29
14.001 to 15.000 9 534,536 0.46
15.001 to 16.000 4 212,515 0.18
----- ------------ ------
Total 1,344 $116,483,156 100.00%
===== ============ ======
S-22
<PAGE>
Distribution of Margins for the LIBOR Loans in Loan Pool I
The margins borne by the Mortgage Notes relating to the LIBOR Loans in
Loan Pool I as of the Statistical Calculation Date were as follows:
Number of Aggregate % of Aggregate
Range of Margins Home Equity Loans Loan Balance Loan Balance
- ---------------- ----------------- ------------ --------------
2.001 to 3.000% 1 $ 112,610 0.10%
3.001 to 4.000 3 419,469 0.36
4.001 to 5.000 60 6,022,190 5.19
5.001 to 6.000 332 29,765,098 25.67
6.001 to 7.000 463 42,177,850 36.38
7.001 to 8.000 301 23,983,356 20.68
8.001 to 9.000 102 7,549,922 6.51
9.001 to 10.000 50 3,803,513 3.28
10.001 to 11.000 18 1,609,376 1.39
11.001 to 12.000 7 479,314 0.41
12.001 to 13.000 1 23,393 0.02
----- ------------ ------
Subtotal 1,338 $115,946,091 100.00%
===== ============ ======
Distribution of Margins for the CMT Loans in Loan Pool I
The margins borne by the Mortgage Notes relating to the CMT Loans in
Loan Pool I as of the Statistical Calculation Date were as follows:
Number of Aggregate % of Aggregate
Range of Margins Home Equity Loans Loan Balance Loan Balance
- ---------------- ----------------- ------------ --------------
2.001 to 3.000% 1 $ 27,883 5.19%
5.001 to 6.000 1 146,642 27.30
6.001 to 7.000 1 107,869 20.08
8.001 to 9.000 3 254,671 47.42
- ------- -----
Subtotal 6 $537,064 100.00%
= ======== ======
S-23
<PAGE>
Distribution of Next Coupon Rate Change for the LIBOR Loans in Loan Pool I
The month of the next Coupon Rate change for each of the Mortgage Notes
relating to the LIBOR Loans in Loan Pool I as of the Statistical Calculation
Date was as follows:
Month of Next Number of Aggregate % of Aggregate
Coupon Rate Change Home Equity Loans Loan Balance Loan Balance
- ------------------ ----------------- ------------ --------------
December 1998 3 $ 318,666 0.27%
January 1999 16 1,738,669 1.50
February 1999 46 4,605,282 3.97
March 1999 37 3,665,264 3.16
April 1999 12 1,422,215 1.23
May 1999 18 1,894,896 1.63
June 1999 12 1,288,807 1.11
July 1999 8 607,011 0.52
August 1999 12 934,885 0.81
September 1999 13 1,169,089 1.01
October 1999 9 926,749 0.80
November 1999 12 1,143,702 0.99
December 1999 21 1,292,273 1.11
January 2000 31 2,561,208 2.21
February 2000 15 1,038,327 0.90
March 2000 16 1,279,509 1.10
April 2000 31 2,579,124 2.22
May 2000 86 7,509,064 6.48
June 2000 91 7,455,348 6.43
July 2000 136 11,873,964 10.24
August 2000 274 23,075,227 19.90
September 2000 276 23,812,116 20.54
October 2000 61 5,898,528 5.09
November 2000 1 69,000 0.06
December 2000 1 50,841 0.04
March 2001 1 76,716 0.07
April 2001 1 106,790 0.09
May 2001 1 39,886 0.03
June 2001 5 429,152 0.37
July 2001 5 367,134 0.32
August 2001 38 2,688,354 2.32
September 2001 37 2,968,915 2.56
October 2001 6 482,480 0.42
January 2003 3 293,290 0.25
May 2003 2 253,519 0.22
August 2003 1 30,088 0.03
----- ------------ ------
Subtotal 1,338 $115,946,091 100.00%
===== ============ ======
S-24
<PAGE>
Distribution of Next Coupon Rate Change for the CMT Loans in Loan Pool I
The month of the next Coupon Rate change for each of the Mortgage Notes
relating to the CMT Loans in Loan Pool I as of the Statistical Calculation Date
was as follows:
Month of Next Number of Aggregate % of Aggregate
Coupon Rate Change Home Equity Loans Loan Balance Loan Balance
- ------------------ ----------------- ------------ --------------
May 1999 2 $174,525 32.50%
August 1999 1 107,869 20.08
August 2000 2 153,183 28.52
September 2000 1 101,487 18.90
- -------- ------
Subtotal 6 $537,064 100.00%
= ======== ======
Loan Pool II
Loan Pool II consists of 372 Home Equity Loans with an aggregate Loan
Balance as of the Statistical Calculation Date of $70,528,616. 318 of the Home
Equity Loans in Loan Pool II are fixed rate loans, which have an aggregate Loan
Balance as of the Statistical Calculation Date of $55,313,507. 54 of the Home
Equity Loans in Loan Pool II with an aggregate Loan Balance as of the
Statistical Calculation Date of $15,215,109 are LIBOR Loans.
S-25
<PAGE>
Geographic Distribution of Properties
The geographic distribution of the Home Equity Loans in Loan Pool II by
state, as of the Statistical Calculation Date, was as follows:
Number of Aggregate % of Aggregate
State Home Equity Loans Loan Balance Loan Balance
- ----- ----------------- ------------ --------------
Arizona 11 $ 1,963,488 2.78%
Arkansas 1 244,137 0.35
California 46 9,526,469 13.51
Colorado 11 2,695,090 3.82
Connecticut 20 4,248,967 6.02
District of Columbia 1 227,645 0.32
Florida 34 6,885,631 9.76
Georgia 15 3,078,627 4.37
Hawaii 1 423,362 0.60
Idaho 1 230,750 0.33
Illinois 20 3,971,779 5.63
Indiana 1 51,000 0.07
Kentucky 1 237,673 0.34
Louisiana 2 530,309 0.75
Maine 1 410,555 0.58
Maryland 21 3,164,963 4.49
Massachusetts 18 2,405,205 3.41
Michigan 12 2,992,589 4.24
Minnesota 2 429,420 0.61
Mississippi 1 36,606 0.05
Missouri 2 353,602 0.50
Nebraska 1 239,705 0.34
Nevada 4 620,939 0.88
New Jersey 37 6,862,710 9.73
New Mexico 4 1,241,476 1.76
New York 47 5,625,404 7.98
North Carolina 5 1,406,423 1.99
Ohio 7 1,756,461 2.49
Oklahoma 1 254,523 0.36
Oregon 3 719,861 1.02
Pennsylvania 8 944,373 1.34
Rhode Island 2 88,460 0.13
South Carolina 5 922,055 1.31
Tennessee 7 2,094,219 2.97
Texas 1 299,566 0.42
Utah 4 862,591 1.22
Virginia 5 675,165 0.96
Washington 6 1,298,212 1.84
Wisconsin 3 508,603 0.72
--- ----------- ------
Total 372 $70,528,616 100.00%
=== =========== ======
S-26
<PAGE>
Original Combined Loan-to-Value Ratios
The original Combined Loan-to-Value Ratios as of the origination dates
of the Home Equity Loans in Loan Pool II as of the Statistical Calculation Date
were distributed as follows:
Range of Number of Aggregate % of Aggregate
Original CLTV's Home Equity Loans Loan Balance Loan Balance
- --------------- ----------------- ------------ --------------
15.01 to 20.00% 1 $ 299,743 0.42%
30.01 to 35.00 1 244,699 0.35
35.01 to 40.00 2 619,437 0.88
40.01 to 45.00 3 456,565 0.65
45.01 to 50.00 1 64,825 0.09
50.01 to 55.00 5 1,261,917 1.79
55.01 to 60.00 3 504,462 0.72
60.01 to 65.00 13 2,159,293 3.06
65.01 to 70.00 33 6,003,064 8.51
70.01 to 75.00 47 11,807,697 16.74
75.01 to 80.00 110 24,279,533 34.43
80.01 to 85.00 67 11,056,582 15.68
85.01 to 90.00 46 9,422,700 13.36
90.01 to 95.00 10 860,486 1.22
95.01 to 100.00 30 1,487,614 2.11
--- ----------- ------
Total 372 $70,528,616 100.00%
=== =========== ======
Coupon Rates
The Coupon Rates borne by the Notes relating to the Home Equity Loans
in Loan Pool II as of the Statistical Calculation Date were distributed as
follows:
Range of Number of Aggregate % of Aggregate
Coupon Rates Home Equity Loans Loan Balance Loan Balance
- ------------ ----------------- ------------ --------------
6.001 to 7.000% 6 $ 1,724,788 2.45%
7.001 to 8.000 7 1,975,323 2.80
8.001 to 9.000 38 10,730,848 15.21
9.001 to 10.000 69 16,871,354 23.92
10.001 to 11.000 114 21,629,436 30.67
11.001 to 12.000 61 8,888,527 12.60
12.001 to 13.000 53 5,442,983 7.72
13.001 to 14.000 23 3,228,201 4.58
14.001 to 15.000 1 37,155 0.05
--- ----------- ------
Total 372 $70,528,616 100.00%
=== =========== ======
S-27
<PAGE>
Statistical Calculation Date Loan Balances
The distribution of the outstanding principal amounts of the Home
Equity Loans in Loan Pool II as of the Statistical Calculation Date was as
follows:
Statistical Calculation Date Number of Aggregate % of Aggregate
Loan Balances Home Equity Loans Loan Balance Loan Balance
- ---------------------------- ----------------- ------------ --------------
0.01 to $ 25,000.00 6 $ 110,539 0.16%
25,000.01 to 50,000.00 72 2,900,120 4.11
50,000.01 to 75,000.00 49 2,983,310 4.23
75,000.01 to 100,000.00 19 1,675,608 2.38
100,000.01 to 125,000.00 7 739,900 1.05
125,000.01 to 150,000.00 5 674,645 0.96
150,000.01 to 200,000.00 4 635,897 0.90
200,000.01 to 250,000.00 68 16,288,874 23.10
250,000.01 to 300,000.00 77 21,063,943 29.87
300,000.01 to 350,000.00 36 11,589,040 16.43
350,000.01 to 400,000.00 19 7,323,659 10.38
400,000.01 to 450,000.00 5 2,115,865 3.00
450,000.01 to 500,000.00 4 1,925,355 2.73
500,000.01 to 550,000.00 1 501,861 0.71
--- ----------- ------
Total 372 $70,528,616 100.00%
=== =========== ======
Types of Mortgaged Properties
The Properties securing the Home Equity Loans in Loan Pool II as of the
Statistical Calculation Date were of the property types as follows:
Number of Aggregate % of Aggregate
Property Types Home Equity Loans Loan Balance Loan Balance
- -------------- ----------------- ------------ --------------
Single Family Detached 341 $66,645,961 94.49%
Two- to Four-Family 13 1,532,922 2.17
Multi-Family 13 1,252,572 1.78
Single Family Attached 2 308,052 0.44
Condominium 2 541,382 0.77
Townhouse 1 247,727 0.35
--- ----------- ------
Total 372 $70,528,616 100.00%
=== =========== ======
Distribution of Months Since Origination
The distribution of the number of months since the date of origination
of the Home Equity Loans in Loan Pool II as of the Statistical Calculation Date
was as follows:
Number of Months Number of Aggregate % of Aggregate
Since Origination Home Equity Loans Loan Balance Loan Balance
- ----------------- ----------------- ------------ --------------
Up to 1 61 $12,161,737 17.24%
2 to 12 301 55,842,923 79.18
13 to 24 10 2,523,955 3.58
--- ----------- ------
Total 372 $70,528,616 100.00%
=== =========== ======
S-28
<PAGE>
Distribution of Remaining Term to Maturity
The distribution of the number of months remaining to maturity of the
Home Equity Loans in Loan Pool II as of the Statistical Calculation Date was as
follows:
Months Remaining Number of Aggregate % of Aggregate
to Maturity Home Equity Loans Loan Balance Loan Balance
- ---------------- ----------------- ------------ --------------
Up to 120 5 $ 255,088 0.36%
121 to 180 191 28,505,171 40.42
181 to 240 37 3,054,988 4.33
241 to 300 4 802,676 1.14
301 to 360 135 37,910,693 53.75
--- ----------- ------
Total 372 $70,528,616 100.00%
=== =========== ======
Occupancy Status(1)
The occupancy status of the Properties securing the Home Equity Loans
in Loan Pool II as of the Statistical Calculation Date was as follows:
Number of Aggregate % of Aggregate
Occupancy Status Home Equity Loans Loan Balance Loan Balance
- ---------------- ----------------- ------------ --------------
Owner Occupied 365 $69,600,767 98.68%
Investor Owned 6 578,021 0.82
Vacation/Second Home 1 349,828 0.50
--- ----------- ------
Total 372 $70,528,616 100.00%
=== =========== ======
- ----------
(1) Based on representations by the Mortgagors at the time of origination.
Distribution by Lien Position
The lien position of the Home Equity Loans in Loan Pool II as of the
Statistical Calculation Date was as follows:
Number of Aggregate % of Aggregate
Lien Position Home Equity Loans Loan Balance Loan Balance
- ------------- ----------------- ------------ --------------
First Lien 222 $61,776,595 87.59%
Second Lien 150 8,752,021 12.41
--- ----------- ------
Total 372 $70,528,616 100.00%
=== =========== ======
S-29
<PAGE>
Distribution of Maximum Coupon Rates for the
Adjustable Rate Home Equity Loans
The maximum Coupon Rates borne by the Mortgage Note relating to the
adjustable rate Home Equity Loans in Loan Pool II as of the Statistical
Calculation Date were as follows:
Range of Maximum Number of Aggregate % of Aggregate
Coupon Rates Home Equity Loans Loan Balance Loan Balance
- ---------------- ----------------- ------------ --------------
14.001 to 15.000% 7 $ 2,125,572 13.97%
15.001 to 16.000 12 3,315,577 21.79
16.001 to 17.000 16 4,885,883 32.11
17.001 to 18.000 14 3,680,487 24.19
18.001 to 19.000 2 516,717 3.40
19.001 to 20.000 1 349,828 2.30
20.001 to 21.000 2 341,045 2.24
-- ----------- ----
Total 54 $15,215,109 100.00%
== =========== ======
Distribution of Minimum Coupon Rates for the
Adjustable Rate Home Equity Loans
The minimum Coupon Rates borne by the Mortgage Notes relating to the
adjustable rate Home Equity Loans in Loan Pool II as of the Statistical
Calculation Date were as follows:
Range of Minimum Number of Aggregate % of Aggregate
Coupon Rates Home Equity Loans Loan Balance Loan Balance
- ---------------- ----------------- ------------ --------------
5.001 to 6.000% 2 $ 738,306 4.85%
6.001 to 7.000 3 920,369 6.05
7.001 to 8.000 3 942,280 6.19
8.001 to 9.000 13 3,558,498 23.39
9.001 to 10.000 11 3,320,404 21.82
10.001 to 11.000 13 3,430,678 22.55
11.001 to 12.000 5 1,321,652 8.69
12.001 to 13.000 1 349,828 2.30
13.001 to 14.000 3 633,093 4.16
-- ----------- ------
Total 54 $15,215,109 100.00%
== =========== ======
Distribution of Margins for the
Adjustable Rate Home Equity Loans
The margins borne by the Mortgage Notes relating to the adjustable rate
Home Equity Loans in Loan Pool II as of the Statistical Calculation Date were as
follows:
Number of Aggregate % of Aggregate
Range of Margins Home Equity Loans Loan Balance Loan Balance
- ---------------- ----------------- ------------ --------------
4.001 to 5.000% 1 $ 229,076 1.51%
5.001 to 6.000 14 4,417,267 29.03
6.001 to 7.000 17 5,014,614 32.96
7.001 to 8.000 13 3,186,042 20.94
8.001 to 9.000 6 1,618,853 10.64
9.001 to 10.000 2 469,632 3.09
11.001 to 12.000 1 279,625 1.84
-- ----------- ------
Total 54 $15,215,109 100.00%
== =========== ======
S-30
<PAGE>
Distribution of Next Coupon Rate Change for the
Adjustable Rate Home Equity Loans
The month of the next Coupon Rate change for each of the Mortgage Notes
relating to the adjustable rate Home Equity Loans in Loan Pool II as of the
Statistical Calculation Date was as follows:
Month of Next Number of Aggregate % of Aggregate
Coupon Rate Change Home Equity Loans Loan Balance Loan Balance
- ------------------ ----------------- ------------ --------------
January 1999 1 $ 243,752 1.60%
February 1999 2 540,415 3.55
March 1999 1 368,087 2.42
April 1999 1 246,425 1.62
May 1999 4 1,320,251 8.68
September 1999 1 301,664 1.98
December 1999 1 254,322 1.67
January 2000 4 649,518 4.27
February 2000 2 600,430 3.95
April 2000 1 292,048 1.92
May 2000 4 811,550 5.33
June 2000 1 314,179 2.06
July 2000 4 989,326 6.50
August 2000 11 3,647,108 23.97
September 2000 9 2,683,641 17.64
October 2000 3 813,468 5.35
April 2001 1 358,916 2.36
July 2001 1 266,778 1.75
August 2001 1 279,625 1.84
September 2001 1 233,608 1.54
-- ----------- ----
Subtotal 54 $15,215,109 100.00%
== =========== ======
Interest Payments on the Home Equity Loans
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 substantially all of 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.
PREPAYMENT AND YIELD CONSIDERATIONS
General
The weighted average life of, and, if purchased at other than par, the
yield to maturity on, each series of Notes will relate to the rate of payment of
principal of the Home Equity Loans in the related Loan Pool, including, for this
purpose, any payments of principal (other than early scheduled payments made by
the Mortgagor) received before the scheduled due date ("Prepayments"),
liquidations due to defaults, casualties and condemnations, and repurchases of
Home Equity Loans by the Seller. The Home Equity Loans may be prepaid by the
related Mortgagors, in whole or in part, at any time. However, approximately
61.57% and 57.27% of the Home Equity Loans as of the Statistical Calculation
Date (by Loan Balance) in Loan Pool I and Loan Pool II, respectively, require
the payment of a fee in connection with certain Prepayments. 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
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,
S-31
<PAGE>
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.
As is the case with fixed rate home equity loans, adjustable rate home
equity loans may be subject to a greater rate of Prepayments in a declining
interest rate environment. For example, if prevailing interest rates fall
appreciably, adjustable rate home equity loans are likely to be subject to a
higher prepayment rate than if prevailing interest rates remain constant because
the availability of fixed rate mortgage loans at competitive interest rates may
encourage mortgagors to refinance their adjustable rate home equity loans to
"lock in" a lower fixed interest rate.
In addition to the foregoing factors affecting the weighted average
life of each series of Notes, the overcollateralization provisions of the
transaction result in an additional reduction of the related Note Principal
Balance relative to the amortization of the related Home Equity Loans in early
months of the transaction. This creates overcollateralization which results from
the excess of the aggregate remaining Loan Balance of the Home Equity Loans in a
Loan Pool over the remaining Note Principal Balance related to such Loan Pool.
Prepayment and Yield Scenarios for the Notes
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 Closing Date and those considerations discussed below under
"Payment Lag Feature of the Notes"), the yield to maturity on a Note will be
affected by the rate of the payment of principal of the Home Equity Loans in the
related Loan Pool. If the actual rate of payments on the Home Equity Loans in a
Loan Pool is slower than the rate anticipated by an investor who purchases Notes
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 in a Loan Pool is faster than the rate anticipated by an investor who
purchases the related series of Notes at a premium, the actual yield to such
investor will be lower than such investor's anticipated yield.
The final scheduled Payment Date for the Series 1998-7A Notes is
November 20, 2029 and the final scheduled Payment Date for the Series 1998-7B
Notes is November 20, 2029. These dates are the Payment Date in the twelfth
month after the date on which the initial Note Principal Balance of a series of
Notes as of the Closing Date would be reduced to zero, assuming that no
Prepayments are received on the related Home Equity Loans, that scheduled
monthly payments of principal and interest on the related Home Equity Loans are
timely received, that the overcollateralization mechanics of the transaction are
not used to make accelerated payments of principal to the Owners of the related
series of Notes, and that the Auction Sale with respect to the related Loan Pool
is not completed and that the Servicer and the Note Insurer fail to exercise
their respective right to purchase the Home Equity Loans on or after the Clean
Up Call Date. The weighted average life of each series of Notes is likely to be
shorter than would be the case if payments actually made on the Home Equity
Loans conformed to the foregoing assumptions, and the actual final Payment Date
with respect to each series of Notes could occur significantly earlier than the
related final scheduled Payment Date because (i) Prepayments are likely to
occur, (ii) the Indenture Trustee is required to hold an auction on a Loan Pool
on the related Auction Redemption Date (as defined hereafter) and every January,
April, July and October thereafter until such Home Equity Loans are sold and
(iii) the Servicer or the Note Insurer may cause a redemption of the Notes on or
after the Clean Up Call Date (as defined hereafter).
"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 a
series of Notes will be influenced by the rate at which principal of the Home
Equity Loans in the related Loan Pool 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 models for the Home Equity Loans used in this
Prospectus Supplement are the prepayment assumption (the "Prepayment
Assumption") for the Fixed Rate Home Equity Loans and the constant prepayment
rate (the "CPR") for the Adjustable Rate Home Equity Loans. Each such model
represents an assumed rate of prepayment each month relative to the then
S-32
<PAGE>
outstanding principal balance of a pool of home equity loans for the life of
such home equity loans. For the Fixed Rate Home Equity Loans, a 100% Prepayment
Assumption assumes a CPR of 4% per annum and an additional 1.909% (precisely
21/11ths) per annum in each month thereafter until the twelfth month. Beginning
in the twelfth month and in each month thereafter during the life of such Fixed
Rate Home Equity Loans, 100% Prepayment Assumption assumes a CPR of 25% 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. For the Adjustable Rate Home
Equity Loans a specified CPR percentage is used for each month during the life
of such Adjustable Rate Home Equity Loans. Neither the Prepayment Assumption nor
the CPR purports 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
statistics of which it is aware provide a reliable basis for Owners of the Notes
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 Note Principal Balance outstanding and weighted average
life of the Notes set forth in the tables. In addition, since the actual Home
Equity Loans have characteristics which differ from those assumed in preparing
the tables set forth below, the payments of principal on the Notes 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 having the approximate characteristics as
set forth in the "Representative Loan Pools" table below, (ii) the Closing Date
for the Notes occurs on December 10, 1998, (iii) payments on the Notes are made
on the 20th day of each month regardless of the day on which the Payment Date
actually occurs, commencing in January 1999 in accordance with the priorities
described herein, (iv) the Gross Coupon Rate is reduced by the Servicing Fee and
the Trust Fees and Expenses, (v) the prepayment rates of the Home Equity Loans
occurs at the percentages of the Prepayment Assumption set forth in the tables,
(vi) prepayments include 30 days' interest thereon, (vii) no reinvestment income
from any Trust account is available for payment to the Owners of the Notes,
(viii) 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), (ix) the overcollateralization levels are set as specified
in the Sale and Servicing Agreement and all collateral performance tests are
met, (x) no Auction Sale is exercised (except in the case of the "Weighted
Average Life to Auction Sale" set forth below, which assumes that an Auction
Sale occurs with respect to each Loan Pool on the related Auction Redemption
Date), (xi) the level of six-month LIBOR remains constant at approximately
5.128%, (xii) the level of 1 year CMT remains constant at approximately 4.390%,
(xiii) the Coupon Rate for each Adjustable Rate Home Equity Loan is adjusted on
its next rate change date (and on subsequent rate change dates, if necessary) to
equal the sum of (a) the applicable index and (b) the respective gross margin
(subject to applicable interest rate caps and floors), and (xiv) all Home Equity
Loans accrue interest based on a 360-day year assumed to consist of twelve
30-day months. All of the adjustable rate loan pools in the "Representative Loan
Pools" below are LIBOR Loans except for Pool Number 2 in the table entitled
"Loan Pool I - Adjustable Rate Loans" which is a CMT Loan pool.
Prepayment Scenarios
<TABLE>
<CAPTION>
S-1 S-2 S-3 S-4 S-5 S-6
----------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Loan Pool I - Fixed Rate (1) 0% 50% 75% 100% 125% 150%
Loan Pool I - Adjustable Rate (2) 0% 20% 25% 30% 35% 40%
Loan Pool II - Fixed Rate (1) 0% 75% 100% 120% 150% 175%
Loan Pool II - Adjustable Rate (2) 0% 25% 30% 35% 40% 45%
</TABLE>
(1) As a percentage of the Prepayment Assumption
(2) CPR
S-33
<PAGE>
REPRESENTATIVE LOAN POOLS
Loan Pool I
Fixed Rate Loans
<TABLE>
<CAPTION>
Remaining
Loan Gross Amortization Remaining
Pool Number Balance Coupon Rate Term Age Maturity
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1 $62,785,206.16 10.7680% 170 3 170
2 33,505,997.47 10.8122 359 1 179
3 35,302,010.17 10.9110 357 2 178
4 61,369,746.37 10.6808 354 5 176
5 35,700,154.95 10.5195 237 3 237
6 50,868,113.56 10.7004 355 1 355
7 65,729,900.62 10.5270 353 2 353
8 65,561,345.37 10.5436 350 4 350
</TABLE>
Loan Pool I
Adjustable Rate Loans
<TABLE>
<CAPTION>
Remaining
Loan Gross Amortization Remaining
Pool Number Balance Coupon Rate Term Age Maturity Margin
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1 $ 291,309.41 9.6500% 354 6 354 6.5052%
2 544,876.35 9.3145 348 3 348 7.1969
3 23,802,316.32 10.4773 351 8 351 6.6825
4 11,039,553.05 10.3510 356 4 356 6.4453
5 15,616,494.64 10.2902 357 3 357 6.4112
6 24,673,131.49 10.1699 358 2 358 6.8757
7 19,796,581.01 10.2621 359 1 359 7.0111
8 7,180,011.58 10.3656 358 2 358 7.8264
9 585,288.97 9.5074 336 7 336 6.6945
10 14,647,962.52 10.0040 355 4 355 6.4322
<CAPTION>
Initial
Initial Reset Periodic Periodic.
Pool Number Reset Freq. Cap Cap Life Cap Life Floor
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1 6 6 1.1595% 1.1595% 15.9690% 9.6500%
2 15 12 2.0000 1.9481 15.9895 7.7171
3 16 6 2.7504 1.2234 17.1428 10.2112
4 20 6 2.7400 1.2851 16.9266 10.1055
5 21 6 2.6352 1.2051 16.8148 9.7987
6 22 6 2.4144 1.0977 16.8333 9.9813
7 23 6 2.4987 1.0969 16.8249 9.8262
8 34 6 2.7292 1.0239 17.0692 10.1968
9 53 6 2.7116 1.2103 16.1655 9.5074
10 5 6 1.2848 1.1291 16.4112 9.6098
</TABLE>
S-34
<PAGE>
Loan Pool II
Fixed Rate Loans
<TABLE>
<CAPTION>
Loan Gross Remaining Remaining
Pool Number Balance Coupon Rate Amortization Term Age Maturity
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1 $5,166,664.22 11.6404% 173 4 173
2 2,901,811.42 11.1030 359 1 179
3 5,561,106.20 10.4699 357 2 178
4 9,125,999.14 10.2689 352 5 174
5 6,196,900.26 10.1457 350 9 171
6 3,075,406.05 10.5587 237 3 237
7 8,461,169.90 10.0693 354 1 354
8 7,918,757.56 9.6087 355 3 355
9 7,275,385.01 10.6621 351 8 351
</TABLE>
Loan Pool II
Adjustable Rate Loans
<TABLE>
<CAPTION>
Remaining
Loan Gross Amortization Remaining
Pool Number Balance Coupon Rate Term Age Maturity Margin
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1 $2,112,003.07 10.2937% 349 9 349 6.9864%
2 2,129,191.70 9.8675 355 5 355 6.8147
3 2,098,147.31 10.0649 357 3 357 6.3054
4 2,848,442.33 10.1851 358 2 358 7.0194
5 2,245,376.26 10.9807 359 1 359 7.1865
6 1,146,538.34 9.8389 356 4 356 8.7170
7 1,159,954.11 8.6948 355 5 355 5.3718
8 1,577,147.12 10.1098 355 5 355 6.2774
<CAPTION>
Initial Reset Initial Periodic
Pool Number Reset Freq. Periodic Cap Cap Life Cap Life Floor
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1 15 6 2.9989% 1.3052% 16.6445% 9.5641%
2 19 6 3.2846 1.0078 15.8753 9.7518
3 21 6 2.3675 1.0776 16.5354 9.4519
4 22 6 2.5917 1.1306 17.1851 9.6862
5 23 6 2.6529 1.0000 17.6026 10.3749
6 32 6 3.0000 1.1576 16.8389 9.7125
7 3 6 1.1351 1.1351 14.6456 8.3754
8 6 6 1.2683 1.1196 16.2449 8.2974
</TABLE>
S-35
<PAGE>
The following table sets forth the percentages of the initial principal
amount of the Series 1998-7A Notes that would be outstanding after each of the
dates shown, based on the prepayment scenarios in the table entitled "Prepayment
Scenarios" above.
PERCENTAGE OF INITIAL NOTE PRINCIPAL BALANCE OF THE SERIES 1998-7A NOTES (1)
Scenarios S-1 S-2 S-3 S-4 S-5 S-6
--------- --- --- --- --- --- ---
Payment Date
- ------------
Closing 100 100 100 100 100 100
12/20/1999 96 85 80 75 71 66
12/20/2000 95 71 62 54 46 38
12/20/2001 94 60 48 39 31 24
12/20/2002 92 50 38 28 21 15
12/20/2003 91 43 30 21 14 9*
12/20/2004 90 36 24 15 9* 5*
12/20/2005 88 31 19 11 6* 3*
12/20/2006 86 26 15 8* 4* 2*
12/20/2007 84 22 12 6* 2* 1*
12/20/2008 82 18 9* 4* 1* 0
12/20/2009 79 15 7* 3* 1* 0
12/20/2010 76 13 5* 2* 0 0
12/20/2011 73 11 4* 1* 0 0
12/20/2012 70 9* 3* 1* 0 0
12/20/2013 47 5* 1* 0 0 0
12/20/2014 45 4* 1* 0 0 0
12/20/2015 43 3* 1* 0 0 0
12/20/2016 41 2* 0 0 0 0
12/20/2017 38 2* 0 0 0 0
12/20/2018 36 1* 0 0 0 0
12/20/2019 33 1* 0 0 0 0
12/20/2020 31 1* 0 0 0 0
12/20/2021 28 0 0 0 0 0
12/20/2022 25 0 0 0 0 0
12/20/2023 21 0 0 0 0 0
12/20/2024 18 0 0 0 0 0
12/20/2025 13 0 0 0 0 0
12/20/2026 8* 0 0 0 0 0
12/20/2027 3* 0 0 0 0 0
12/20/2028 0 0 0 0 0 0
Weighted
Average
Life to Maturity
(Years)(2) 16.86 5.65 4.15 3.23 2.62 2.18
Weighted
Average Life to
Auction Sale
(Years)(2) 16.78 5.39 3.87 2.99 2.42 2.03
- ----------
(1) The percentages in the above table have been rounded to the nearest whole
number.
(2) The weighted average life of the Series 1998-7A Notes 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 by the initial Note Principal
Balance of the Series 1998-7A Notes and rounding to one decimal place.
* Indicates that the cash flows are contingent on the Auction Sale not
occurring and the Servicer and the Note Insurer not exercising a clean
up call on or after the Clean Up Call Date. Otherwise, the percentage
would equal zero.
S-36
<PAGE>
The following table sets forth the percentages of the initial principal
amount of the Series 1998-7B Notes that would be outstanding after each of the
dates shown, based on the prepayment scenarios in the table entitled "Prepayment
Scenarios" above.
PERCENTAGE OF INITIAL NOTE PRINCIPAL BALANCE OF THE SERIES 1998-7B NOTES (1)
Scenarios S-1 S-2 S-3 S-4 S-5 S-6
--------- --- --- --- --- --- ---
Payment Date
- ------------
Closing 100 100 100 100 100 100
12/20/1999 97 80 75 71 65 60
12/20/2000 95 62 53 46 38 31
12/20/2001 94 48 39 32 24 18
12/20/2002 93 38 28 22 14 10
12/20/2003 92 30 21 15 9* 5*
12/20/2004 91 24 15 10 5* 3*
12/20/2005 89 19 11 7* 3* 1*
12/20/2006 88 15 8* 5* 2* 0
12/20/2007 86 12 6* 3* 1* 0
12/20/2008 84 9* 4* 2* 0 0
12/20/2009 82 7* 3* 1* 0 0
12/20/2010 79 6* 2* 1* 0 0
12/20/2011 77 4* 1* 0 0 0
12/20/2012 74 3* 1* 0 0 0
12/20/2013 44 1* 0 0 0 0
12/20/2014 42 1* 0 0 0 0
12/20/2015 41 0 0 0 0 0
12/20/2016 39 0 0 0 0 0
12/20/2017 36 0 0 0 0 0
12/20/2018 34 0 0 0 0 0
12/20/2019 32 0 0 0 0 0
12/20/2020 30 0 0 0 0 0
12/20/2021 27 0 0 0 0 0
12/20/2022 24 0 0 0 0 0
12/20/2023 21 0 0 0 0 0
12/20/2024 17 0 0 0 0 0
12/20/2025 13 0 0 0 0 0
12/20/2026 8* 0 0 0 0 0
12/20/2027 3* 0 0 0 0 0
12/20/2028 0 0 0 0 0 0
Weighted
Average
Life to Maturity
(Years)(2) 16.86 4.15 3.22 2.68 2.15 1.83
Weighted
Average Life to
Auction Sale
(Years)(2) 16.78 3.88 2.97 2.48 1.99 1.70
- ----------
(1) The percentages in the above table have been rounded to the nearest whole
number.
(2) The weighted average life of the 1998-7B Notes 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 by the initial Note Principal Balance of
the Series 1998-7B Notes and rounding to one decimal place.
* Indicates that the cash flows are contingent on the Auction Sale not
occurring and the Servicer and the Note Insurer not exercising a clean
up call on or after the Clean Up Call Date. Otherwise, the percentage
would equal zero.
S-37
<PAGE>
Payment Lag Feature of Notes
Pursuant to the Sale 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 Indenture Trustee on or prior to the related Monthly Remittance Date while
the Indenture Trustee will not be required to distribute any such amounts to the
Owners of the Notes until the next succeeding Payment Date. As a result, the
monthly distributions to the Owners of the Notes generally reflect Mortgagor
payments during the prior Remittance Period, and the first Payment Date will not
occur until January 20, 1999. Thus, the effective yield to the Owners of the
Notes will be below that otherwise produced by the related Note Rate because the
distribution to the Owners of the Notes in respect of any given month will not
be made until on or about the 20th day of the following month.
ADDITIONAL INFORMATION
The description in this Prospectus Supplement of the Home Equity Loans
and the Properties is based upon the Loan Pools as constituted at the close of
business on the Statistical Calculation Date. Prior to the issuance of the
Notes, Home Equity Loans may be removed from a Loan Pool as a result of
incomplete documentation or non-compliance with representations and warranties
set forth in the Sale and Servicing Agreement, if the Seller deems such removal
necessary or appropriate. The Depositor expects that the actual principal
balance of the Home Equity Loans in Loan Pool I on the Closing Date will be at
least $529,000,000 and the actual principal balance of the Home Equity Loans in
Loan Pool II on the Closing Date will be at least $71,000,000.
A current report on Form 8-K will be available to purchasers of the
Notes and will be filed, and incorporated by reference to the Registration
Statement together with the Indentures, the Trust Agreement and the Sale and
Servicing Agreement, with the Securities and Exchange Commission within fifteen
days after the initial issuance of the Notes. In the event Home Equity Loans are
removed from or added to a Loan Pool as set forth in the preceding paragraph,
such removal or addition will be noted in a current report on Form 8-K. A
description of both pools of Home Equity Loans, as of the Closing Date including
such additional Home Equity Loans, will be filed in a current report on Form 8-K
within fifteen days after the initial issuance of the Notes.
DESCRIPTION OF THE NOTES
General
The Trust will issue two series of Notes pursuant to the Indentures
(the "Series 1998-7A Notes" and the "Series 1998-7B Notes"). The Trust will also
issue the Residual Interest pursuant to the Trust Agreement, which represents
the residual interest in the property of the Trust. The summaries of certain
provisions of the Indentures, the Sale and Servicing Agreement and the Trust
Agreement (collectively, the "Agreements") set forth below, under the caption
"Administration" herein, while complete in material respects, do not purport to
be exhaustive. For more details regarding the terms of the Agreements,
prospective investors in the Notes are advised to review the Agreements, a copy
of each of which the Depositor will provide (without exhibits) without charge
upon written request addressed to the Depositor.
Each series of Notes will be secured by the Trust Estate created by the
related Indenture. The Notes represent non-recourse obligations of the Trust and
proceeds of the assets in the related Trust Estate will be the primary source of
payments on the related series of Notes. The Notes will not represent an
interest in or obligation of the Depositor, the Servicer, the Note Insurer, the
Owner Trustee, the Indenture Trustee, the Underwriter, any of their respective
affiliates or any other entity.
Payment Dates
On each Payment Date, the Owners of record on the related Record Date
of each series of Notes will be entitled to receive, from amounts then on
deposit in a trust account established and maintained by the Indenture Trustee
for each series of Notes in accordance with the Sale and Servicing Agreement
(the "Note Accounts") and until the related Note Principal Balance is reduced to
zero, the related aggregate payment amount as of such Payment Date as described
below. The "Record Date" with respect to any Payment Date is the last day of the
calendar month immediately preceding the calendar month in which such Payment
Date occurs, whether or not such day is a Business Day. Payments will be made in
immediately available funds to Owners of Notes 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 Indenture 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 Indenture 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" and
"Description of the Notes -- Book Entry Registration of the Notes" herein and
"Description of the Securities -- Book Entry Securities" in the Prospectus.
S-38
<PAGE>
Each Indenture will provide that an Owner, upon receiving the final
payment on such Owner's Notes, will be required to send such Note to the
Indenture Trustee. Each Indenture additionally will provide that, in any event,
any Note as to which the final payment thereon has been made shall be deemed
canceled for all purposes of the Indenture and the Note Insurance Policy.
Each Owner of record of the Notes will be entitled to receive such
Owner's Percentage Interest in the amounts due on such Payment Date. The
"Percentage Interest" as of any date of determination will be equal to the
percentage obtained by dividing the principal balance of such Note as of the
Closing Date by the Note Principal Balance of the related series as of the close
of business on December 1, 1998 (the "Cut-Off Date").
Payments
Upon receipt, the Indenture Trustee will be required to deposit into
each Note Account, (i) any related Insured Payments, (ii) the net proceeds of
any liquidation of the assets of the Trust Estate for the related Loan Pool and
(iii) all remittances made to the Indenture Trustee by the Servicer for the
related Loan Pool.
On each Payment Date and for each series of Notes, the Indenture
Trustee is required to make the following payments and transfers from monies
then on deposit in the related Note Account (or the Reserve Account) as
specified below in the following order of priority of each such transfer and
payment:
(i)(A) to the Indenture Trustee, the related Indenture Trustee Fee and
the Indenture Trustee Reimbursable Expenses; (B) to the Owner Trustee, the
related Owner Trustee Fee; and (C) provided that no Note Insurer Default has
occurred and is continuing, to the Note Insurer, the related Premium Amount;
(ii) to the Owners of the related series of Notes, the related Current
Interest;
(iii) to the Owners of the related series of Notes, the related
Principal Remittance Amount (less the Overcollateralization Reduction Amount for
the related series of Notes) in reduction of the related Note Principal Balance
until such Note Principal Balance is reduced to zero;
(iv) to the Owners of the related series of Notes, the related Excess
Spread in an amount not to exceed the portion of the Overcollateralization
Deficit related to such series of Notes in reduction of the Note Principal
Balance of such series of Notes, until such Note Principal Balance is reduced to
zero;
(v) to the Owners of the other series of Notes, the related Excess
Spread remaining after making payments of the amount required in clauses (i) -
(iv), in an amount not to exceed the sum of (x) the portion of the
Overcollateralization Deficit for such other series of Notes remaining after
taking into account the payment of the amount required by clause (iv) above and
(y) any shortfall in the amount available to pay Current Interest for such other
series of Notes (after taking into account payment of the amount required by
clauses (i) - (iv) for such other series of Notes on such Payment Date and from
amounts on deposit in the Reserve Account) until such portion of the
Overcollateralization Deficit and such Current Interest shortfall for the other
series of Notes are reduced to zero; provided, that such Excess Spread shall be
applied first, with respect to such Current Interest shortfall, and, second to
such portion of the Overcollateralization Deficit;
(vi) to the Note Insurer, to the extent money is not available in the
Reserve Account, the related Excess Spread remaining after making the payments
required in clauses (i) - (v) to reimburse the Note Insurer for any unreimbursed
payments of Insured Payments and any other amounts owing to the Note Insurer
under the Insurance Agreement, including any unpaid Premium Amount (together
with interest thereon at the late payment rate specified in the Insurance
Agreement);
(vii) to the Owners of the related series of Notes, the related Excess
Spread remaining after making the payments required in clauses (i) - (vi), any
Overcollateralization Deficiency Amount (calculated after taking into account
the payment of the amounts required by clauses (i) - (vi)) as a reduction of the
Note Principal Balance of such series of Notes until such Note Principal Balance
is reduced to zero;
(viii) to the Owners of the other series of Notes, the related Excess
Spread remaining after making the payments required in clauses (i) - (vii) and
to the extent money is not available in the Reserve Account, any
Overcollateralization Deficiency Amount (calculated after taking into account
the payment of the amounts required by clauses (i) - (vii)) as a reduction of
the Note Principal Balance of the other series of Notes until such Note
Principal Balance is reduced to zero; provided that the amount of Excess Spread
and any amounts from the Reserve Account distributed to the other series of
Notes in clauses (iv), (v), (vii) and this clause (viii) cannot exceed the
amount of any Realized Losses on the Loan Pool related to such other series of
Notes;
(ix) to the Reserve Account, the related Excess Spread remaining after
making the payments required in clauses (i) - (viii) and to the extent money is
not available in the Reserve Account, an amount equal to the difference between
(x) the Specified Overcollateralization Amount for the other series of Notes and
(y) the Overcollateralization
S-39
<PAGE>
Amount for the other series of Notes (after taking into account the payment of
the amount required by clauses (i) - (viii) above for such other series of
Notes);
(x) to the Indenture Trustee, the related Excess Spread remaining after
making the payments required in clauses (i) - (ix), as reimbursement of the
expenses of the Indenture Trustee not reimbursed pursuant to clause (i) above
and incurred in connection with its duties and obligations under the Indentures;
and,
(xi) to the Certificate Distribution Account, the related Excess Spread
remaining after making the payment required by clauses (i) - (x), for payment to
the holders of the Residual Interest as provided in the Trust Agreement.
Notwithstanding the foregoing, on the first 14 Payment Dates after the
Closing Date, in the event that certain collateral performance tests set out in
the Sale and Servicing Agreement are met, a specified (and varying) portion of
the Excess Spread for a series of Notes may be paid directly to the Owners of
the Residual Interest, in which case such portion will be unavailable for
payment in clauses (vii) - (x) of the above waterfall.
The Indenture Trustee or Paying Agent (as defined in the Indenture)
shall (i) receive as attorney-in-fact of each Owner of Notes any Insured Payment
from the Note Insurer and deposit such amounts into the related Note Account and
(ii) disburse the same to each Owner of Notes. The Sale and Servicing Agreement
will provide that to the extent the Note Insurer makes Insured Payments, either
directly or indirectly (as by paying through the Indenture Trustee), to the
Owners of such Notes, the Note Insurer will be subrogated to the rights of such
Owners of Notes with respect to such Insured Payments and shall receive
reimbursement for such Insured Payment as provided in the Sale and Servicing
Agreement, but only from the sources and in the manner provided in the Sale and
Servicing Agreement, such subrogation and reimbursement to have no effect on the
Note Insurer's obligations under the Note Insurance Policy.
Each Owner of a Note will be required promptly to notify the Indenture
Trustee in writing upon the receipt of a court order relating to a Preference
Amount and will be required to enclose a copy of such order with such notice to
the Indenture Trustee.
Certain Definitions
In addition to the definitions set forth below, certain defined terms
used in " -- Payments" above are set out in "Credit Enhancement --
Overcollateralization Provisions" herein.
"Accrual Period" means the calendar month immediately preceding the
month in which a Payment Date occurs.
A "Business Day" is any day other than a Saturday or Sunday or a day on
which banking institutions in the states of New York and Florida, the city in
which the corporate trust office of the Indenture Trustee is located or the
cities in which the Servicer and the Note Insurer are located are authorized or
obligated by law or executive order to be closed.
"Current Interest" means, for a series of Notes and with respect to any
Payment Date the sum of (i) the aggregate amount of interest accrued during the
related Accrual Period at the related Note Rate on the related Note Principal
Balance, (ii) any related Interest Carry Forward Amount and (iii) the Preference
Amount as it relates to interest previously paid on such Note prior to such
Payment Date (in accordance with the Note Insurance Policy); provided, however,
that Current Interest will be reduced by the amount of any Civil Relief Interest
Shortfalls (as defined in the Sale and Servicing Agreement).
"Excess Spread" as to each Payment Date and Loan Pool is the amount on
deposit in the related Note Account after making the payments described in
clauses (i) - (iii) of the above payment waterfall from such Loan Pool.
The "Interest Carry Forward Amount" for any series of Notes and Payment
Date is the sum of (x) the amount, if any, by which (i) the related Current
Interest as of the immediately preceding Payment Date exceeded (ii) the amount
of the actual payments of interest made on such immediately preceding Payment
Date plus (y) 30 days' interest on the amount in clause (x) above calculated at
the related Note Rate.
A "Monthly Remittance Date" is any date on which funds on deposit in
the Principal and Interest Account are remitted to the related Note 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 January 1999.
The "Preference Amount" is any amount previously distributed to an
Owner on a Note that is recoverable and sought to be recovered as a voidable
preference by a trustee in bankruptcy pursuant to the United States Bankruptcy
Code (Title 11 of the United States Code), as amended from time to time, in
accordance with a final nonappealable order of a court having competent
jurisdiction.
The "Premium Amount" for each series of Notes is the amount payable to
the Note Insurer as premium for the Note Insurance Policy.
S-40
<PAGE>
The "Principal Remittance Amount" for a Loan Pool and as of any Monthly
Remittance Date is, the sum, without duplication, of (i) the principal actually
collected by the Servicer with respect to the Home Equity Loans in such Loan
Pool during the related Remittance Period, (ii) the Loan Balance of each such
Home Equity Loan in such Loan Pool that was purchased from the Trust on or prior
to such Monthly Remittance Date, to the extent such Loan Balance was actually
received by the Servicer, (iii) any Substitution Amounts relating to principal
delivered by the Seller in connection with a substitution of a Home Equity Loan
in such Loan Pool, to the extent such Substitution Amounts were actually
received by the Servicer on or prior to such Monthly Remittance Date, (iv) the
principal portion of all Net Liquidation Proceeds actually collected by the
Servicer with respect to such Home Equity Loans in such Loan Pool during the
related Remittance Period (to the extent such Net Liquidation Proceeds related
to principal), and (v) the amount of related investment losses on the Principal
and Interest Account required to be deposited therein.
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.
"Total Available Funds" as to each Payment Date and Loan Pool is the
sum of (x) the amount on deposit in the related Note Account on such Payment
Date net of the related Excess Spread on such Payment Date (disregarding the
amount of any related Insured Payment to be made on such Payment Date), (y) any
amounts of Excess Spread to be applied to the related series of Notes on such
Payment Date and (z) any amounts to be applied to such series of Notes from the
Reserve Account.
"Trust Fees and Expenses" are the Premium Amount, the Owner Trustee
Fee, the Indenture Trustee Fee and any Trustee Reimbursable Expenses for each
series of Notes.
Book Entry Registration of the Notes
Each series of Notes will originally be issued as book entry notes (the
"Book Entry Notes"). Persons acquiring beneficial ownership interests in such
Book Entry Notes ("Beneficial Owners") may elect to hold their Book Entry Notes
directly through The Depository Trust Company ("DTC") in the United States, or
Cedel Bank, S.A. ("Cedel") or the Euroclear System ("Euroclear") (in Europe) if
they are participants of such system ("Participants"), or indirectly through
organizations which are Participants. The Book Entry Notes will be issued in one
or more Notes which in the aggregate equal the principal balance of such Notes
and will initially be registered in the name of Cede & Co. ("Cede"), the nominee
of DTC. Cedel and Euroclear will hold omnibus positions on behalf of their
Participants through customers' securities accounts in Cedel's and Euroclear's
names on the books of their respective depositaries which in turn will hold such
positions in customers' securities accounts in the depositaries' names on the
books of DTC. Citibank, N.A. ("Citibank") will act as depositary for Cedel and
The Chase Manhattan Bank ("Chase" and together with Citibank, the "European
Depositories") will act as depositary for Euroclear (in such capacities,
individually the "Relevant Depositary" and collectively the "European
Depositaries"). Investors may hold such beneficial interests in the Book Entry
Notes 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 Note
(a "Definitive Note"). Unless and until Definitive Notes are issued, it is
anticipated that the only "Owner" of such Book Entry Notes will be Cede & Co.,
as nominee of DTC. Beneficial Owners will not be Owners as that term is used in
the Agreements. Beneficial Owners are only permitted to exercise their rights
indirectly through Participants and DTC.
The Beneficial Owner's ownership of a Book Entry Note 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 Note will be recorded on the records
of DTC (or of a participating firm that acts as agent for the Financial
Intermediary, whose interest will in turn be recorded on the records of DTC, if
the Beneficial Owner's Financial Intermediary is not a DTC Participant and on
the records of Cedel and Euroclear, as appropriate).
Beneficial Owners will receive all distributions of principal of, and
interest on, the Book Entry Notes from the Indenture Trustee through DTC and DTC
Participants. While such Notes 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
Notes and is required to receive and transmit distributions of principal of, and
interest on, such Notes. Participants and indirect participants with whom
Beneficial Owners have accounts with respect to Book Entry Notes 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 notes, 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 Notes, except under
the limited circumstances described below. Unless and until Definitive Notes are
issued, Beneficial Owners who are not Participants may transfer ownership of
Notes only through Participants and indirect
S-41
<PAGE>
participants by instructing such Participants and indirect participants to
transfer such Notes, by book entry transfer, through DTC for the account of the
purchasers of such Notes, which account is maintained with their respective
Participants. Under the Rules and in accordance with DTC's normal procedures,
transfers of ownership of such Notes will be executed through DTC and the
accounts of the respective Participants at DTC will be debited and credited.
Similarly, the Participants and indirect participants will make debits or
credits, as the case may be, on their records on behalf of the selling and
purchasing Beneficial Owners.
Because of time zone differences, credits of securities received in
Cedel or Euroclear as a result of a transaction with a Participant will be made
during subsequent securities settlement processing and dated the business day
following the DTC settlement date. Such credits or any transactions in such
securities settled during such processing will be reported to the relevant
Euroclear or Cedel Participants on such business day. Cash received in Cedel or
Euroclear as a result of sales of securities by or through a Cedel Participant
(as defined below) or Euroclear Participant (as defined below) to a DTC
Participant will be received with value on the DTC settlement date but will be
available in the relevant Cedel or Euroclear cash account only as of the
business day following settlements in DTC. For information with respect to tax
documentation procedures relating to the Notes, see "Federal Income Tax
Considerations -- Debt Certificates" in the Prospectus and "Global Clearance,
Settlement and Tax Documentation Procedures -- Certain U.S. Federal Income Tax
Documentation Requirements" in Annex I hereto.
Transfers between Participants will occur in accordance with DTC rules.
Transfers between Cedel Participants and Euroclear Participants will occur in
accordance with their respective rules and operating procedures.
Cross-market transfers between persons holding directly or indirectly
through DTC, on the one hand, and directly or indirectly through Cedel
Participants or Euroclear Participants, on the other, will be effected in DTC in
accordance with DTC rules on behalf of the relevant European international
clearing system by the Relevant Depositary; however, such cross market
transactions will require delivery of instructions to the relevant European
international clearing system by the counterparty in such system in accordance
with its rules and procedures and within its established deadlines (European
time). The relevant European international clearing system will, if the
transaction meets its settlement requirements, deliver instructions to the
Relevant Depositary to take action to effect final settlement on its behalf by
delivering or receiving securities in DTC, and making or receiving payment in
accordance with normal procedures for same day funds settlement applicable to
DTC. Cedel Participants and Euroclear Participants may not deliver instructions
directly to the European Depositaries.
DTC, which is a New York-chartered limited purpose trust company,
performs services for its Participants ("DTC Participants"), some of which
(and/or their representatives) own DTC. In accordance with its normal
procedures, DTC is expected to record the positions held by each DTC Participant
in the Book Entry Notes, whether held for its own account or as a nominee for
another person. In general, beneficial ownership of Book Entry Notes will be
subject to the rules, regulations and procedures governing DTC and DTC
Participants as in effect from time to time.
Cedel Bank, S.A. was incorporated in 1970 as a limited company under
Luxembourg law. Cedel is owned by banks, securities dealers and financial
institutions, and currently has about 100 shareholders, including United States
financial institutions or their subsidiaries. No single entity may own more than
five percent of Cedel's stock.
Cedel is registered as a bank in Luxembourg, and as such is subject to
regulation by the Institut Monetaire Luxembourgeois, "IML," the Luxembourg
Monetary Authority, which supervises Luxembourg banks.
Cedel holds securities for its participant organizations ("Cedel
Participants") and facilitates the clearance and settlement of securities
transactions between Cedel Participants through electronic book entry changes in
accounts of Cedel Participants, thereby eliminating the need for physical
movement of certificates. Transactions may be settled in Cedel in any of 28
currencies, including United States dollars. Cedel provides to its Cedel
Participants, among other things, services for safekeeping, administration,
clearance and settlement of internationally traded securities and securities
lending and borrowing. Cedel interfaces with domestic markets in several
countries. As a professional depository, Cedel is subject to regulation by the
Luxembourg Monetary Institute. Cedel Participants are recognized financial
institutions around the world, including underwriters, securities brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations. Indirect access to Cedel is also available to others, such as
banks, brokers, dealers and trust companies that clear through or maintain a
custodial relationship with a Cedel Participant, either directly or indirectly.
Euroclear was created in 1968 to hold securities for participants of
Euroclear ("Euroclear Participants") and to clear and settle transactions
between Euroclear Participants through simultaneous electronic book entry
delivery against payment, thereby eliminating the need for physical movement of
certificates and any risk from lack of simultaneous transfers of securities and
cash. Transactions may now be settled in any of 32 currencies, including United
States dollars. Euroclear includes various other services, including securities
lending and borrowing and interfaces with domestic markets in several countries
generally similar to the arrangements for cross-market transfers with DTC
described above. Euroclear is operated by the Brussels, Belgium office of Morgan
Guaranty Trust Company of New York (the "Euroclear Operator"), under contract
with Euroclear Clearance Systems S.C., a Belgian cooperative corporation (the
"Cooperative"). All operations are conducted by the Euroclear Operator, and all
Euroclear Securities
S-42
<PAGE>
clearance accounts and Euroclear cash accounts are accounts with the Euroclear
Operator, not the Cooperative. The Cooperative establishes policy for Euroclear
on behalf of Euroclear Participants. Euroclear Participants include banks
(including central banks), securities brokers and dealers and other professional
financial intermediaries. Indirect access to Euroclear is also available to
other firms that clear through or maintain a custodial relationship with a
Euroclear Participant, either directly or indirectly.
The Euroclear Operator is the Belgian branch of a New York banking
corporation which is a member bank of the Federal Reserve System. As such, it is
regulated and examined by the Board of Governors of the Federal Reserve System
and the New York State Banking Department, as well as the Belgian Banking
Commission.
Securities clearance accounts and cash accounts with the Euroclear
Operator are governed by the Terms and Conditions Governing Use of Euroclear and
the related Operating Procedures of the Euroclear System and applicable Belgian
law (collectively, the "Terms and Conditions"). The Terms and Conditions govern
transfers of securities and cash within Euroclear, withdrawals of securities and
cash from Euroclear, and receipts of payments with respect to securities in
Euroclear. All securities in Euroclear are held on a fungible basis without
attribution of specific certificates to specific securities clearance accounts.
The Euroclear Operator acts under the Terms and Conditions only on behalf of
Euroclear Participants, and has no record of or relationship with persons
holding through Euroclear Participants.
Payments on the Book Entry Notes will be made on each Payment Date by
the Indenture 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 Notes 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 Notes that it
represents.
Under a book entry format, Beneficial Owners of the Book Entry Notes
may experience some delay in their receipt of payments, since such payments will
be forwarded by the Indenture Trustee to Cede. Distributions with respect to
Book Entry Notes held through Cedel or Euroclear will be credited to the cash
accounts of Cedel Participants or Euroclear Participants in accordance with the
relevant system's rules and procedures, to the extent received by the Relevant
Depositary. Such distributions will be subject to tax reporting in accordance
with relevant United States tax laws and regulations. Because DTC can only act
on behalf of Financial Intermediaries, the ability of a Beneficial Owner to
pledge Book Entry Notes to persons or entities that do not participate in the
Depository system, or otherwise take actions in respect of such Book Entry
Notes, may be limited due to the lack of physical certificates for such Book
Entry Notes. In addition, issuance of the Book Entry Notes in book entry form
may reduce the liquidity of such Notes in the secondary market since certain
potential investors may be unwilling to purchase Notes for which they cannot
obtain physical certificates.
Monthly and annual reports on the Trust provided by the Indenture
Trustee 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 Notes of such Beneficial Owners are credited.
DTC has advised the Indenture Trustee that, unless and until Definitive
Notes are issued, DTC will take any action permitted to be taken by the holders
of the Book Entry Notes under the Indenture only at the direction of one or more
Financial Intermediaries to whose DTC accounts the Book Entry Notes are
credited, to the extent that such actions are taken on behalf of Financial
Intermediaries whose holdings include such Book Entry Notes. Cedel or the
Euroclear Operator, as the case may be, will take any action permitted to be
taken by an Owner under the Indenture on behalf of a Cedel Participant or
Euroclear Participant only in accordance with its relevant rules and procedures
and subject to the ability of the Relevant Depositary to effect such actions on
its behalf through DTC. DTC may take actions, at the direction of the related
Participants, with respect to some Notes which conflict with actions taken with
respect to other Notes.
Definitive Notes will be issued to Beneficial Owners of the Book Entry
Notes, or their nominees, rather than to DTC, only if (a) DTC or the Depositor
advises the Indenture 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 Notes and the Depositor or the
Indenture 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 Notes, advises the Indenture 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 Indenture Trustee will be required to notify all
Beneficial Owners of the occurrence of such event and the availability through
DTC of Definitive Notes. Upon surrender by DTC of the global certificate or
certificates representing the Book Entry Notes and instructions for
re-registration, the Indenture Trustee will issue Definitive Notes, and
thereafter the Indenture Trustee will recognize the holders of such Definitive
Notes as Owners under the Indenture.
S-43
<PAGE>
Although DTC has agreed to the foregoing procedures in order to
facilitate transfers of Notes among Participants of DTC, Cedel and Euroclear,
they are under no obligation to perform or continue to perform such procedures
and such procedures may be discontinued at any time.
Assignment of Rights
An Owner may pledge, encumber, hypothecate or assign all or any part of
its right to receive distributions under any Notes, but such pledge,
encumbrance, hypothecation or assignment shall not constitute a transfer of an
ownership interest sufficient to render the transferee an Owner of such Notes
without compliance with the provisions of the Indenture described above.
THE NOTE INSURER
The information set forth in this section has been provided by
Financial Security Assurance Inc. (hereinafter in this section, "Financial
Security" or the "Note Insurer"). No representation is made by the Underwriter,
the Seller, the Servicer, the Depositor or any of their affiliates as to the
accuracy or completeness of such information or any information related to the
Note Insurer incorporated by reference herein.
General
Financial Security is a monoline insurance company incorporated in 1984
under the laws of the State of New York. Financial Security is licensed to
engage in the financial guaranty insurance business in all 50 states, the
District of Columbia and Puerto Rico.
Financial Security and its subsidiaries are engaged in the business of
writing financial guaranty insurance, principally in respect of securities
offered in domestic and foreign markets. In general, financial guaranty
insurance consists of the issuance of a guaranty of scheduled payments of an
issuer's securities -- thereby enhancing the credit rating of those securities
- -- in consideration for the payment of a premium to the insurer. Financial
Security and its subsidiaries principally insure asset-backed, collateralized
and municipal securities. Asset-backed securities are generally supported by
residential mortgage loans, consumer or trade receivables, securities or other
assets having an ascertainable cash flow or market value. Collateralized
securities include public utility first mortgage bonds and sale/leaseback
obligation bonds. Municipal securities consist largely of general obligation
bonds, special revenue bonds and other special obligations of state and local
governments. Financial Security insures both newly issued securities sold in the
primary market and outstanding securities sold in the secondary market that
satisfy Financial Security's underwriting criteria.
Financial Security is a wholly owned subsidiary of Financial Security
Assurance Holdings Ltd. ("Holdings"), a New York Stock Exchange listed company.
Major shareholders of Holdings include Fund American Enterprises Holdings, Inc.,
MediaOne Capital Corporation, The Tokio Marine and Fire Insurance Co., Ltd. and
EXEL Limited. No shareholder of Holdings is obligated to pay any debt of
Financial Security or any claim under any insurance policy issued by Financial
Security or to make any additional contribution to the capital of Financial
Security.
The principal executive offices of Financial Security are located at
350 Park Avenue, New York, New York 10022, and its telephone number at that
location is (212) 826-0100.
Reinsurance
Pursuant to an intercompany agreement, liabilities on financial
guaranty insurance written or reinsured from third parties by Financial Security
or its domestic or Bermuda operating insurance company subsidiaries are
generally reinsured among such companies on an agreed-upon percentage
substantially proportional to their respective capital, surplus and reserves,
subject to applicable statutory risk limitations. In addition, Financial
Security reinsures a portion of its liabilities under certain of its financial
guaranty insurance policies with other reinsurers under various treaties and on
a transaction-by-transaction basis. Such reinsurance is utilized by Financial
Security as a risk management device and to comply with statutory and rating
agency requirements; it does not alter or limit Financial Security's obligations
under any financial guaranty insurance policy.
Ratings
Financial Security's insurance financial strength is rated "Aaa" by
Moody's; Financial Security's insurer financial strength is rated "AAA" by
Standard & Poor's and Standard & Poor's (Australia) Pty. Ltd.; and Financial
Security's claims paying ability is rated "AAA" by Fitch IBCA, Inc. and Japan
Rating and Investment Information, Inc. Such ratings reflect only the views of
the respective rating agencies, are not recommendations to buy, sell or hold
securities and are subject to revision or withdrawal at any time by such rating
agencies. See "Ratings" herein.
S-44
<PAGE>
Capitalization
The following table sets forth the capitalization of Financial Security
and its wholly owned subsidiaries on the basis of generally accepted accounting
principles as of September 30, 1998, as well as such capitalization as adjusted
to give effect to certain transactions entered into during November 1998:
<TABLE>
<CAPTION>
September 30, 1998
------------------
(Unaudited)
(In Thousands)
Actual As Adjusted(1)
------ --------------
<S> <C> <C>
Deferred Premium Revenue $480,089 $480,089
(net of prepaid reinsurance premiums)
Surplus Notes 50,000 130,000
Minority Interests - - - - 20,000
Shareholder's Equity:
Common Stock 15,000 15,000
Additional Paid-In Capital 614,787 684,787
Accumulated Other Comprehensive Income
(net of deferred income taxes) 41,923 41,923
Accumulated Earnings 326,145 326,145
Total Shareholder's Equity 997,855 1,067,855
---------- ----------
Total Deferred Premium Revenue,
Surplus Notes, Minority Interests
and Shareholder's Equity $1,527,944 $1,697,944
========== ==========
</TABLE>
- -----------
(1) Adjusted to give effect to the November 1998 (a) purchase by Holdings of $80
million of surplus notes from the Note Insurer in connection with the formation
of a new indirect Bermuda subsidiary of the Note Insurer, initially capitalized
with $100 million, including a $20 million minority interest owned by EXEL
Limited, and (b) contribution by Holdings to the capital of the Note Insurer of
approximately $70 million, representing a portion of the proceeds from the sale
by Holdings of $100 million of 6.950% Senior Quarterly Income Debt Securities
due 2098.
For further information concerning Financial Security, see the
Consolidated Financial Statements of Financial Security Assurance Inc. and
Subsidiaries, and the notes thereto, incorporated by reference herein. Financial
Security's financial statements are included as exhibits to the Annual Reports
on Form 10-K and Quarterly Reports on Form 10-Q filed with the Securities and
Exchange Commission by Holdings and may be reviewed at the EDGAR website
maintained by the Securities and Exchange Commission and at Holdings's website,
http://www.FSA.com. Copies of the statutory quarterly and annual statements
filed with the State of New York Insurance Department by Financial Security are
available upon request to the State of New York Insurance Department. Copies of
the statutory quarterly and annual statements filed with the State of New York
Insurance Department by Financial Security are available upon request to the
State of New York Insurance Department.
Incorporation of Certain Information by Reference
The financial statements of Financial Security and subsidiaries
included in, or as exhibits to, the following documents, which have been filed
with the Securities and Exchange Commission by Holdings, are hereby incorporated
by reference in the Registration Statement (as defined in the accompanying
Prospectus) of which this Prospectus Supplement and the Prospectus form a part:
(a) Annual Report on Form 10-K for the year ended December 31, 1997;
and
(b) Quarterly Reports on Form 10-Q for the quarter ended September 30,
1998.
All financial statements of Financial Security and subsidiaries
included in documents filed by Holdings pursuant to Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended subsequent to the date
of this Prospectus Supplement and prior to the termination of the offering of
the Notes shall be deemed to be incorporated by reference into this Prospectus
Supplement and to be a part hereof from the respective dates of filing such
documents.
The Depositor will provide without charge to any person to whom this
Prospectus Supplement is delivered, upon oral or written request of such person,
a copy of any or all of the foregoing financial statements incorporated by
reference. Requests for such copies should be directed to the Secretary, IMC
Securities, Inc., 5901 East Fowler Avenue, Tampa, Florida 33617-2362.
S-45
<PAGE>
The Depositor on behalf of the Trust shall undertake that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the Trust's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act and each filing of the financial statements of Financial Security
included in or as an exhibit to the annual report of Holdings filed pursuant to
section 13(a) or section 15(d) of the Exchange Act that is incorporated by
reference in the Registration Statement (as defined in the accompanying
Prospectus) shall be deemed to be a new registration statement relating to the
Notes offered hereby, and the offering of such Notes at that time shall be
deemed to be the initial bona fide offering thereof.
Insurance Regulation
Financial Security is licensed and subject to regulation as a financial
guaranty insurance corporation under the laws of the State of New York, its
state of domicile. In addition, Financial Security and its insurance
subsidiaries are subject to regulation by insurance laws of the various other
jurisdictions in which they are licensed to do business. As a financial guaranty
insurance corporation licensed to do business in the State of New York,
Financial Security is subject to Article 69 of the New York Insurance Law which,
among other things, limits the business of each such insurer to financial
guaranty insurance and related lines, requires that each such insurer maintain a
minimum surplus to policyholders, establishes contingency, loss and unearned
premium reserve requirements for each such insurer, and limits the size of
individual transactions ("single risks") and the volume of transactions
("aggregate risks") that may be underwritten by each such insurer. Other
provisions of the New York Insurance Law, applicable to non-life insurance
companies such as Financial Security, regulate, among other things, permitted
investments, payment of dividends, transactions with affiliates, mergers,
consolidations, acquisitions or sales of assets and insurance of liability for
borrowings.
CREDIT ENHANCEMENT
Note Insurance Policy
The following summary of the terms of the financial guaranty insurance
policy (the "Note Insurance Policy") does not purport to be complete and is
qualified in its entirety by reference to the Note Insurance Policy. A form of
the Note Insurance Policy may be obtained, upon request, from the Depositor.
Simultaneously with the issuance of the Notes, the Note Insurer will
deliver the Note Insurance Policy to the Indenture Trustee for the benefit of
the Owners of the Notes. Under the Note Insurance Policy, the Note Insurer will
irrevocably and unconditionally guarantee payment on each Payment Date to the
Indenture Trustee for the benefit of the Owners of the Notes of the Insured
Payments for such Payment Date calculated in accordance with the original terms
of the Notes when issued and without regard to any amendment or modification of
the Notes, the Indentures or the Sale and Servicing Agreement except amendments
or modifications to which the Note Insurer has given its prior written consent.
An "Insured Payment" for a Payment Date is the excess, if any, of (i) the sum of
(a) the Current Interest for both series of Notes, (b) the Overcollateralization
Deficit and (c) the Preference Amount for both series of Notes (without
duplication) over (ii) the aggregate Total Available Funds (without regard to
any related Insured Payment to be made with respect to such Payment Date).
Insured Payments do not cover Realized Losses except to the extent that an
Overcollateralization Deficit exists; provided, however, that the Note Insurer
is permitted at its sole option, but not required, to pay any losses in
connection with the liquidation of a Home Equity Loan in accordance with the
Note Insurance Policy. Insured Payments do not cover the Servicer's failure to
make Delinquency Advances pursuant to the Sale and Servicing Agreement, except
to the extent that an Overcollateralization Deficit would otherwise result
therefrom. Nevertheless, the effect of the Note Insurance Policy is to guaranty
the timely payments of interest on, and the ultimate payment of the principal
amount of, the Notes.
Payment of claims under the Note Insurance Policy will be made by the
Note Insurer following Receipt by the Note Insurer of the appropriate notice for
payment on the later to occur of (a) 12:00 noon, New York City time, on the
second Business Day following Receipt of such notice for payment and (b) 12:00
noon, New York City time, on the relevant Payment Date.
If any payment of an amount guaranteed by the Note Insurer pursuant to
the Note Insurance Policy is avoided as a preference payment under applicable
bankruptcy, insolvency, receivership or similar law, the Note Insurer will pay
such amount out of the funds of the Note Insurer on the later of (a) the date
when due to be paid pursuant to the Order referred to below or (b) the first to
occur of (i) the fourth Business Day following Receipt by the Note Insurer from
the Indenture Trustee of (A) a certified copy of the order of the court or other
governmental body which exercised jurisdiction to the effect that an Owner is
required to return principal or interest distributed with respect to a Note
during the term of the Note Insurance Policy because such distributions were
avoidable preferences under applicable bankruptcy law (the "Order"), (B) a
certificate of the Owner(s) that the Order has been entered and is not subject
to any stay, and (C) an assignment duly executed and delivered by the Owner(s),
in such form as is reasonably required by the Note Insurer and provided to the
Owner(s) by the Note Insurer, irrevocably assigning to the Note Insurer all
rights and claims of the Owner(s) relating to or arising under the Notes against
the debtor which made such preference payment
S-46
<PAGE>
or otherwise with respect to such preference payment, or (ii) the date of
Receipt by the Note Insurer from the Indenture Trustee of the items referred to
in clauses (A), (B) and (C) above if, at least four Business Days prior to such
date of Receipt, the Note Insurer shall have Received written notice from the
Indenture Trustee that such items were to be delivered on such date and such
date was specified in such notice. Such payment shall be disbursed to the
receiver, conservator, debtor-in-possession or trustee in bankruptcy named in
the Order and not to the Trustee or any Owner directly (unless an Owner has
previously paid such amount to the receiver, conservator, debtor-in-possession
or trustee in bankruptcy named in the Order, in which case such payment shall be
disbursed to the Indenture Trustee for distribution to such Owner upon proof of
such payment reasonably satisfactory to the Note Insurer).
The terms "Receipt" and "Received," with respect to the Note Insurance
Policy, mean actual delivery to the Note Insurer and to its fiscal agent
appointed by the Note Insurer at its option, if any, prior to 12:00 p.m., New
York City time, on a Business Day; delivery either on a day that is not a
Business Day or after 12:00 p.m., New York City time, shall be deemed to be
Receipt on the next succeeding Business Day. If any notice or certificate given
under the Note Insurance Policy by the Indenture Trustee is not in proper form
or is not properly completed, executed or delivered, it shall be deemed not to
have been Received, and the Note Insurer or the fiscal agent shall promptly so
advise the Indenture Trustee and the Indenture Trustee may submit an amended
notice.
Under the Note Insurance Policy, "Business Day" means any day other
than (i) a Saturday or Sunday or (ii) a day on which banking institutions in the
City of New York, New York or the State of New York, are authorized or obligated
by law or executive order to be closed. The Note Insurer's obligations under the
Note Insurance Policy to make Insured Payments shall be discharged to the extent
funds are transferred to the Indenture Trustee as provided in the Note Insurance
Policy, whether or not such funds are properly applied by the Indenture Trustee.
The Note Insurer shall be subrogated to the rights of each Owner to
receive payments of principal and interest, as applicable, with respect to
distributions on the Notes to the extent of any payment by the Note Insurer
under the Note Insurance Policy. To the extent the Note Insurer makes Insured
Payments, either directly or indirectly (as by paying through the Indenture
Trustee), to the Owners, the Note Insurer will be subrogated to the rights of
the Owners, as applicable, with respect to such Insured Payment and shall be
deemed to the extent of the payments so made to be a registered Owner for
purposes of payment.
Claims under the Note Insurance Policy will rank equally with any other
unsecured debt and unsubordinated obligations of the Note Insurer except for
certain obligations in respect of tax and other payments to which preference is
or may become afforded by statute. Claims against the Note Insurer under the
Note Insurance Policy constitute pari passu claims against the general assets of
the Note Insurer. The terms of the Note Insurance Policy cannot be modified or
altered by any other agreement or instrument, or by the merger, consolidation or
dissolution of the Depositor. The Note Insurance Policy may not be cancelled or
revoked prior to payment in full of the Notes. The Note Insurance Policy is
governed by the laws of the State of New York. The Note Insurance Policy is not
covered by the Property/Casualty Insurance Security Fund specified in Article 76
of the New York Insurance Law.
To the fullest extent permitted by applicable law, the Note Insurer
agrees under the Note Insurance Policy not to assert, and waives, for the
benefit of each Owner, all of its rights (whether by counterclaim, setoff or
otherwise) and defense (including, without limitation, the defense of fraud),
whether acquired by subrogation, assignment or otherwise, to the extent that
such rights and defenses may be available to the Note Insurer to avoid payment
of its obligations under the Note Insurance Policy in accordance with the
express provisions of the Note Insurance Policy.
Pursuant to the terms of the Sale and Servicing Agreement and the
Indentures, unless a Note Insurer Default exists, the Note Insurer shall be
deemed to be the Owner for all purposes (other than with respect to payment on
the Notes), will be entitled to exercise all rights of the Owners thereunder,
without the consent of such Owners, and the Owners may exercise such rights only
with the prior written consent of the Note Insurer. In addition, the Note
Insurer will, as a third party beneficiary to the Sale and Servicing Agreement
have, among others, the following rights: (i) the right to give notices of
breach or to terminate the rights and obligations of the Servicer under the Sale
and Servicing Agreement in the event of a Servicer Termination Event (as defined
in the Sale and Servicing Agreement) and to institute proceedings against the
Servicer; (ii) the right to consent to or direct any waivers of defaults by the
Servicer; (iii) the right to remove the Indenture Trustee pursuant to the
Indenture; (iv) the right to direct the actions of the Indenture Trustee during
the continuation of a Servicer default; (v) the right to require the Seller to
repurchase Home Equity Loans for breach of representation and warranty or defect
in documentation; (vi) the right to direct all matters relating to a bankruptcy
or other insolvency proceeding involving the Seller; and (vii) the right to
direct the Indenture Trustee to investigate certain matters. The Note Insurer's
consent will be required prior to, among other things, (i) the removal of the
Indenture Trustee, (ii) the appointment of any successor Indenture Trustee or
Servicer or (iii) any amendment to the Sale and Servicing Agreement. "Note
Insurer Default" is defined under the Sale and Servicing Agreement as the
existence and continuance of (x) the failure by the Note Insurer to make a
required payment under the Note Insurance Policy or (y) the bankruptcy or
insolvency of the Note Insurer.
The Depositor, the Seller, the Servicer and the Note Insurer will enter
into an Insurance and Indemnity Agreement (the "Insurance Agreement") pursuant
to which the Seller will agree to reimburse, with interest, the Note Insurer for
amounts paid pursuant to claims under the Note Insurance Policy. The Seller will
further agree to pay the
S-47
<PAGE>
Note Insurer all reasonable charges and expenses which the Note Insurer may pay
or incur relative to any amounts paid under the Note Insurance Policy or
otherwise in connection with the transaction and to indemnify the Note Insurer
against certain liabilities. Except to the extent provided therein, amounts
owing under the Insurance Agreement will be payable solely from the Trust
Estate. An "event of default" by the Servicer under the Insurance Agreement will
constitute a Servicer Termination Event under the Sale and Servicing Agreement
and allow the Note Insurer, among other things, to direct the Indenture Trustee
to terminate the Servicer. See "Administration -- Removal and Resignation of the
Servicer" herein. An "event of default" under the Insurance Agreement includes
(i) the Seller's, the Depositor's or the Servicer's failure to pay when due any
amount owed under the Insurance Agreement or certain other documents, (ii) the
inaccuracy or incompleteness in any material respect of any representation or
warranty of the Seller, the Depositor or the Servicer in the Insurance
Agreement, the Sale and Servicing Agreement or certain other documents, (iii)
the Seller's, the Depositor's or the Servicer's failure to perform or to comply
with any covenant or agreement in the Insurance Agreement, the Sale and
Servicing Agreement and certain other documents, (iv) a finding or ruling by a
governmental authority or agency that the Insurance Agreement, the Sale and
Servicing Agreement or certain other documents are not binding on the Seller,
the Depositor or the Servicer, (v) the Seller's, the Depositor's or the
Servicer's failure to pay its debts in general or the occurrence of certain
events of insolvency or bankruptcy with respect to the Seller or the Servicer
and (vi) the occurrence of certain "performance test violations" designed to
measure the performance of the Home Equity Loans.
Note Insurance Policy Does Not Apply to Prepayment Risk
In general, the protection afforded by the Note Insurance Policy is
protection for credit risk and not for prepayment risk. A claim may not be made
under the Note Insurance Policy, in an attempt to guarantee or insure that any
particular rate of prepayment is experienced by the Trust Estate.
Reserve Account
Pursuant to the Sale and Servicing Agreement, the Indenture Trustee
shall establish and maintain a segregated trust account (the "Reserve Account")
for the benefit of the Owners of the Notes of both series and the Note Insurer.
The Indenture Trustee may deposit into the Reserve Account certain amounts of
Excess Spread from the Loan Pools on each Payment Date as described herein. The
Indenture Trustee shall continue to deposit such Excess Spread, if any, on each
Payment Date until the balance on deposit in such account is equal to the excess
of (x) the sum of the Specified Overcollateralization Amounts for both series of
Notes and (y) the sum of the Overcollateralization Amounts for both series of
Notes. Any withdrawal from the Reserve Account for a given step in the waterfall
will be made pro rata for each series of Notes based on the withdrawal required
for each series.
Overcollateralization Provisions
Overcollateralization Resulting from Cash Flow Structure. The Sale and
Servicing Agreement requires that, on each Payment Date, Excess Spread with
respect to a Loan Pool be applied on such Payment Date as an accelerated payment
of principal on the related Notes, but only to the limited extent hereafter
described.
The application of Excess Spread with respect to a Loan Pool has the
effect of accelerating the amortization of the related Notes relative to the
amortization of the Home Equity Loans in the related Loan Pool. To the extent
that any Excess Spread is not so used, the Sale and Servicing Agreement provides
that it will be used to make certain payments to the other series of Notes, to
fund the Reserve Account, to reimburse the Servicer with respect to any amounts
owing to it, and, thereafter, paid to the Owners of the Residual Interest.
Pursuant to the Sale and Servicing Agreement, a specified amount of
Excess Spread with respect to a Loan Pool will be applied as an accelerated
payment of principal on the related Notes until the related
Overcollateralization Amount has increased to the level required.
"Overcollateralization Amount" means, with respect to each of the Loan Pools and
Payment Date, the excess, if any, of (x) the aggregate Loan Balances of the Home
Equity Loans in such Loan Pool as of the close of business on the last day of
the preceding Remittance Period over (y) the related Note Principal Balance as
of such Payment Date (after taking into account the related Principal Remittance
Amount (available for payment on such Payment Date).
An "Overcollateralization Increase Amount" for a Payment Date and a
series of Notes is equal to the lesser of (x) the related Overcollateralization
Deficiency Amount as of such Payment Date and (y) the aggregate amount of Excess
Spread applicable to such series of Notes for such Payment Date. An
"Overcollateralization Deficiency Amount" for a Loan Pool and Payment Date is
the excess, if any, of (x) the related Specified Overcollateralization Amount
for such Payment Date over (y) the related Overcollateralization Amount for such
Payment Date. The required level of the Overcollateralization Amount with
respect to a Payment Date and a Loan Pool is the related "Specified
Overcollateralization Amount." The Sale and Servicing Agreement generally
provides that each Specified Overcollateralization Amount may, over time,
decrease, or increase, subject to certain floors, caps and triggers including
triggers that allow the related Specified Overcollateralization Amount to
decrease or "step down" based on the performance on the Home Equity Loans with
respect to certain tests specified in the Sale and Servicing Agreement based on
delinquency rates and cumulative losses. In addition, a specified amount of
Excess Spread for each Loan Pool
S-48
<PAGE>
will be applied to the payment in reduction of principal of each series of Notes
during the period that the related Home Equity Loans are unable to meet certain
tests specified in the Sale and Servicing Agreement based on delinquency rates
and cumulative losses.
In the event that the Specified Overcollateralization Amount for a Loan
Pool is permitted to decrease or "step down" on a Payment Date in the future,
the Sale and Servicing Agreement provides that a portion of the principal which
would otherwise be distributed to the Owners of the related Notes on such
Payment Date shall be distributed to the Owners of the Residual Interest over
the period specified in the Sale and Servicing Agreement. This has the effect of
decelerating the amortization of the related Notes relative to the amortization
of the Home Equity Loans in such Loan Pool and of reducing the related
Overcollateralization Amount. With respect to any Payment Date, the excess, if
any, of (x) the related Overcollateralization Amount on such Payment Date after
taking into account all distributions to be made on such Payment Date (except
for any distributions of related Overcollateralization Reduction Amounts as
described in this sentence) over (y) the related Specified Overcollateralization
Amount is the related "Excess Overcollateralization Amount" for such Payment
Date. If, on any Payment Date, the related Excess Overcollateralization Amount
is, or, after taking into account all other distributions to be made on such
Payment Date would be, greater than zero (i.e., the related
Overcollateralization Amount is or would be greater than the related Specified
Overcollateralization Amount), then any amounts relating to principal which
would otherwise be distributed to the Owners of the related series of Notes on
such Payment Date shall instead be distributed (to the extent available
therefor) in accordance with the priorities in the payment waterfall in an
amount equal to the lesser of (x) the related Excess Overcollateralization
Amount and (y) the amount available for distribution on account of principal
with respect to such series of Notes on such Payment Date; such amount being the
"Overcollateralization Reduction Amount" with respect to the related Loan Pool
and Payment Date.
The Sale and Servicing Agreement provides generally that, on any
Payment Date all amounts collected on account of principal (other than any such
amount applied to the payment of an Overcollateralization Reduction Amount)
during the prior Remittance Period will be distributed to the Owners of the
Notes on such Payment Date. If any Home Equity Loan became a Liquidated Loan
during such prior Remittance Period, the Net Liquidation Proceeds related
thereto and allocated to principal may be less than the principal balance of the
related Home Equity Loan; the amount of any such insufficiency is a "Realized
Loss." In addition, the Sale and Servicing Agreement provides that the principal
balance of any Home Equity Loan which becomes a Liquidated Loan shall
thenceforth equal zero. The Sale and Servicing Agreement does not contain any
requirement that the amount of any Realized Loss be distributed to the Owners of
the Notes on the Payment Date which immediately follows the event of loss; i.e.,
the Sale and Servicing Agreement does not require the current recovery of
losses. However, the occurrence of a Realized Loss will reduce the related
Overcollateralization Amount, which to the extent that such reduction causes
such Overcollateralization Amount to be less than the related Specified
Overcollateralization Amount applicable to the related Payment Date, will
require the payment of an Overcollateralization Increase Amount on such Payment
Date (or, if insufficient funds are available on such Payment Date, on
subsequent Payment Dates, until the related Overcollateralization Amount equals
the related Specified Overcollateralization Amount).
Overcollateralization and the Note Insurance Policy. The Sale and
Servicing Agreement defines an "Overcollateralization Deficit" with respect to
both Loan Pools and Payment Date to be the amount, if any, by which (x) the
aggregate Note Principal Balance of both series of Notes with respect to such
Payment Date, after taking into account all distributions to be made on such
Payment Date (without regard to any related Insured Payment or distribution of
Excess Spread to be made on such Payment Date), exceeds (y) the aggregate Loan
Balances of the Home Equity Loans for both Loan Pools as of the close of
business on the last day of the prior Remittance Period. The Sale and Servicing
Agreement requires the Indenture Trustee to make a claim for an Insured Payment
under the Note Insurance Policy not later than the second Business Day prior to
any Payment Date as to which the Indenture Trustee has determined that an
Overcollateralization Deficit will occur for the purpose of applying the
proceeds of such Insured Payment as a payment of principal to the Owners of the
Notes on such Payment Date for such Loan Pool. The Note Insurance Policy is thus
similar to the overcollateralization provisions described above insofar as the
Note Insurance Policy guarantees ultimate, rather than current, payment of the
amounts of any Realized Losses to the Owners of the Notes. Investors in the
Notes should realize that, under extreme loss or delinquency scenarios
applicable to the Pool of Home Equity Loans, they may temporarily receive no
distributions of principal when they would otherwise be entitled thereto under
the principal allocation provisions described herein. Nevertheless, the exposure
to risk of loss of principal of the Owners of the Notes depends in part on the
ability of the Note Insurer to satisfy its obligations under the Note Insurance
Policy. In that respect and to the extent that the Note Insurer satisfies such
obligations, the Owners of the Notes are insulated from shortfalls in available
funds that may arise.
ADMINISTRATION
In addition to the provisions of the Agreements summarized elsewhere in
the Prospectus and this Prospectus Supplement there is set forth below a summary
of certain other provisions of the Agreements.
S-49
<PAGE>
Formation of the Trust and Trust Property
The Trust will be created and established pursuant to the Trust
Agreement. The property of the Trust shall consist of (a) the two Loan Pools
together with the related Home Equity Loan documents and the Seller's interest
in any property which secures a Home Equity Loan (a "Property") and all payments
thereon and proceeds of the conversion, voluntary or involuntary, of the
foregoing, (b) such amounts as may be held by the Indenture Trustee in the Note
Accounts and any other accounts held by the Indenture Trustee for the Trust
together with investment earnings on such amounts and such amounts as may be
held by the Servicer in the Principal and Interest Account, if any, exclusive of
investment earnings thereon (except as otherwise provided) whether in the form
of cash, instruments, securities or other properties, (c) the Reserve Account
and (d) 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). With respect to each Loan Pool, such property
is the "Trust Estate".
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 Notes and the Residual Interest and making 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. As the Trust does not have any operating history
and will not engage in any business activity other than issuing the Notes and
the Residual Interest 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.
Covenant of the Seller to Take Certain Actions with Respect to the Home Equity
Loans in Certain Situations
Pursuant to the Sale and Servicing Agreement, upon the discovery by the
Depositor, the Seller, the Note Insurer, the Servicer, any Sub-Servicer, any
Owner, the Custodian or the Indenture Trustee that the representations and
warranties set forth therein between the Seller and the Depositor are untrue in
any material respect as of the Closing Date with the result that the interests
of the Owners or of the Note Insurer are materially and adversely affected, the
party discovering such breach is required to give prompt written notice to the
other parties.
Upon the earliest to occur of the Seller's discovery, its receipt of
notice of breach from any of the other parties or such time as a situation
resulting from an existing statement which is untrue materially and adversely
affects the interests of the Owners or the Note Insurer, 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 Sale 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 Servicer, which will deliver such amount to the
Indenture Trustee on behalf of the Trust as part of the Monthly Remittance
Amount 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. The Seller shall also deliver an
Officer's Certificate to the Indenture Trustee and the Note Insurer 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. 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
Indenture 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.
Assignment of Home Equity Loans
The Seller on the Closing Date will sell, transfer, assign, set over
and otherwise convey without recourse to the Depositor and the Depositor will
sell, transfer, assign, set over and otherwise convey without recourse to the
Trust all its respective right, title and interest in and to each Home Equity
Loan and all its respective right, title and interest in and to principal and
interest due on each such Home Equity Loan after the Cut-Off Date; provided,
however, that the
S-50
<PAGE>
Seller will reserve and retain all its right, title and interest in and to
principal (including Prepayments received on or before the Cut-Off Date) and
interest due on each Home Equity Loan on or prior to the Cut-Off Date (whether
or not received on or prior to the Cut-Off Date). The Trust will pledge each
Home Equity Loan to the Indenture Trustee for the benefit of the Owners of the
applicable series of Notes and the Note Insurer pursuant to the related
Indenture.
In connection with the transfer and assignment of the Home Equity Loans
on the Closing Date, the Seller will be required to:
(i) deliver without recourse to Bank One Trust Company, N.A.,
acting as the Custodian on behalf of the Indenture Trustee, on the
Closing Date with respect to each of the Home Equity Loans identified
in the Schedule of Home Equity Loans (A) the original Mortgage Note,
endorsed in blank or to the order of the Indenture Trustee, (B) (1) 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 (2) 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 Indenture 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 the Seller from the applicable recording office)
or a copy (if such original Mortgage has not been returned to the
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 30 days following the Closing Date,
assignments of the Mortgages to "The Chase Manhattan Bank, as Indenture
Trustee for the IMC Home Equity Loan Asset Backed Notes, Series 1998-
7" 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 Sale and Servicing Agreement) if the Seller furnishes to the
Indenture Trustee, the Note Insurer and the Rating Agencies, on or
before the Closing Date, at the Seller's expense, an opinion of counsel
with respect to the relevant jurisdiction that such recording is not
required to perfect the Indenture Trustee's interests in the Home
Equity Loans (in form satisfactory to the Indenture Trustee, the Note
Insurer and the Rating Agencies); and
(iii) deliver the title insurance policy, the original
Mortgages and such recorded assignments, together with originals or
duly certified copies of any and all prior assignments (other than
unrecorded warehouse assignments), to the Custodian on behalf of the
Indenture 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 Home Equity Loans).
The Indenture Trustee will agree, for the benefit of the Owners, to
cause the Custodian to review the documents described above with respect to each
of the Home Equity Loans (such documents, the "File") within 45 days after the
Closing Date (or the date of receipt of any documents delivered to the
Custodian, on behalf of the Indenture Trustee after the Closing Date) to
ascertain that all required documents (or certified copies of documents) have
been executed and received.
If the Custodian on behalf of the Indenture 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 Indenture Trustee will be required to promptly notify the
Depositor, the Seller, the Owners and the Note Insurer. The Seller will agree 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
Indenture 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 Servicer, which will deliver such amount to the
Indenture Trustee on behalf of the Owners of the Notes as part of the Monthly
Remittance Amount 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 Servicer,
which will deliver such amount to the Indenture Trustee along with the Monthly
Remittance Amount remitted by the Servicer on such Monthly Remittance Date.
In addition to the foregoing, the Custodian on behalf of the Indenture
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
S-51
<PAGE>
Pool Certification (the "Final Certification"). After delivery of the Final
Certification, the Custodian, on behalf of the Indenture 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 with
reasonable care using that degree of skill and attention that it exercises in
servicing other comparable home equity loans for itself and others and pursuant
to the Sale and Servicing Agreement and the terms of the respective Home Equity
Loans.
The Servicer may retain the Servicing Fee from the interest portion of
each monthly payment made on a Home Equity Loan. In addition, the Servicer will
be entitled to retain additional servicing compensation in the form of
prepayment charges, release fees and bad check charges, assumption fees, late
payment charges, prepayment penalties, or any other servicing-related fees, to
the extent actually collected from the Mortgagors, and Net Liquidation Proceeds
not required to be deposited in the Principal and Interest Account.
The Servicer is required to make reasonable efforts to collect all
payments called for under the terms and provisions of the Home Equity Loans.
Consistent with the servicing standard described above, 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 Indenture Trustee, at one or more depository institutions a principal and
interest account meeting the requirements specified in the Sale and Servicing
Agreement (the "Principal and Interest Account"). All funds in the Principal and
Interest Account are required to be held (i) uninvested, or (ii) invested in
Eligible Investments (as defined in the Sale 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
received after the Cut-Off Date, the proceeds of any liquidation of a Home
Equity Loan net of expenses and unreimbursed Servicing Advances and Delinquency
Advances ("Net Liquidation Proceeds"), any income from REO Properties (net of
Servicing Advances and Delinquency Advances) and Delinquency Advances but net of
(i) Net Liquidation Proceeds to the extent that such Net Liquidation Proceeds
exceed the sum of (a) the Loan Balance of the related Home Equity Loan
immediately prior to liquidation, (b) accrued and unpaid interest on such Home
Equity Loan (net of the Servicing Fee) to the date of such liquidation and (c)
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 past Servicing Advances
and Delinquency Advances, which the Servicer has determined are Nonrecoverable
Advances and (iv) reimbursement for amounts deposited in the Principal and
Interest Account representing payments of principal and/or interest on a
Mortgage 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 for the following purposes:
(i) on each Monthly Remittance Date, to pay itself the
Servicing Fee, other items of servicing compensation and investment
earnings on Eligible Investments to the extent permitted by the Sale
and Servicing Agreement;
(ii) to withdraw amounts that have been deposited to the
Principal and Interest Account in error;
(iii) to reimburse itself for unrecovered Delinquency Advances
and Servicing Advances to the extent permitted under the Sale and
Servicing Agreement;
(iv) to reimburse itself for certain amounts to the extent
permitted by the Sale and Servicing Agreement; and
(v) to clear and terminate the Principal and Interest Account
following the termination of the Trust.
S-52
<PAGE>
The Servicer will remit to the Indenture Trustee for deposit in the
Note Account the Daily Collections allocable to a Remittance Period and Loan
Purchase Prices and Substitution Amounts for repurchases or substitutions
occurring during such Remittance Period not later than the related Monthly
Remittance Date.
On each Monthly Remittance Date, the Servicer shall be required to
remit to the Indenture Trustee for deposit to the Note 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 late collections
or Liquidation Proceeds on the related Home Equity Loan or 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).
The Servicer will be required to pay all "out of pocket" costs and
expenses incurred in the performance of its servicing obligations, including,
but not limited to, (i) expenditures in connection with a foreclosed Home Equity
Loan prior to the liquidation thereof, including, without limitation,
expenditures for real estate property taxes, hazard insurance premiums, property
restoration or preservation ("Preservation Expenses"), (ii) the cost of any
enforcement or judicial proceedings, including foreclosures and (iii) the cost
of the management and liquidation of Property acquired in satisfaction of the
related Mortgage, except to the extent that the Servicer in its reasonable
business judgment determines that any such proposed amount if made would be a
Nonrecoverable Advance. 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 amounts on deposit
in the Principal and Interest Account as provided in the Sale 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.
Notwithstanding the foregoing, in the event that the Servicer
determines in its reasonable business judgment in accordance with the servicing
standards of the Sale and Servicing Agreement that any proposed Delinquency
Advance or Servicing Advance if made would be a Nonrecoverable Advance, the
Servicer shall not be required to make such Delinquency Advances or Servicing
Advances with respect to such Home Equity Loan. To the extent that the Servicer
previously has made Delinquency Advances or Servicing Advances with respect to a
Home Equity Loan that the Servicer subsequently determines to be a
Nonrecoverable Advance, the Servicer shall be entitled to reimbursement for such
aggregate unreimbursed Delinquency Advances or Servicing Advances from the
Principal and Interest Account. Any determination by the Servicer that it has
made a Nonrecoverable Advance or that any proposed advance, if made, would
constitute a Nonrecoverable Advance shall be evidenced by an officer's
certificate delivered to the Indenture Trustee and the Note Insurer.
A "Nonrecoverable Advance" with respect to any Home Equity Loan is any
Delinquency Advance or Servicing Advance (i) which was previously made or is
proposed to be made by the Servicer and (ii) which, in the good faith judgment
of the Servicer, will not, or, in the case of a proposed Delinquency Advance or
Servicing Advance, would not, when added to the unpaid principal balance of such
Home Equity Loan, be ultimately recoverable by the Servicer from Liquidation
Proceeds, proceeds of any insurance policies or future payments on the related
Home Equity Loan.
A full month's interest at the related 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 related 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 Indenture Trustee on such Monthly Remittance
Date. The Servicer shall not be entitled to reimbursement for amounts paid as
Compensating Interest.
In accordance with the terms of the Sale and Servicing Agreement, 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, that the Servicer must
obtain the prior consent of the Note Insurer to purchase any Home Equity Loan
that would cause the total amount of Home Equity Loans so purchased to exceed 3%
of the aggregate Loan Balance of the Home Equity Loans in a Loan Pool as of the
Cut-Off Date. 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.
S-53
<PAGE>
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 and such advance would not constitute a Nonrecoverable
Advance.
The Servicer will have the right under the Sale and Servicing Agreement
to accept applications of Mortgagors for consent to (i) partial releases of
Mortgages, (ii) alterations thereof and (iii) removal, demolition or division of
Properties. No application for approval may be considered by the Servicer
without the consent of the Note Insurer unless: (a) the provisions of the
related Mortgage Note and Mortgage have been complied with; (b) the combined
loan-to-value ratio and debt-to-income ratio after any release do not exceed the
combined loan-to-value ratio and debt-to-income ratio, respectively, of such
Mortgage Note on the Cut-Off Date provided that the combined loan-to-value ratio
shall be permitted to increase by an amount not to exceed 5% unless approved by
the Note Insurer; 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 imminent;
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 Payment Date. Notwithstanding anything set forth in the Sale 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.
The Servicer shall provide written notice to the Indenture Trustee and
the Note Insurer, 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 Indenture 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 Servicer -- General" herein with the consent of the
Note Insurer, the Servicer will be permitted under the Sale 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 $15,000,000 (as determined in accordance with generally
accepted accounting principles). The Servicer will appoint the Seller as interim
Sub-Servicer on the Closing Date for the purpose of facilitating all required
transfers of servicing from the Seller to the Servicer as required by law. It is
expected that the Seller shall be terminated as interim Sub-Servicer no later
than December 31, 1998.
No Sub-Servicing arrangements will discharge the Servicer from its
servicing obligations. Notwithstanding any Sub-Servicing Agreement, the Servicer
will not be relieved of its obligations under the Sale 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; provided,
however, that nothing contained in such Sub-Servicing Agreement shall be deemed
to limit or modify the Sale and Servicing Agreement.
The Servicer (except the Indenture Trustee if it is required to succeed
the Servicer under the Sale and Servicing Agreement) has agreed to indemnify and
hold the Trust, the Indenture Trustee, the Seller, the Depositor and the Note
Insurer 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 Trust, the Seller, the Depositor, the Indenture Trustee
and the Note Insurer 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 Sale and Servicing Agreement. The Servicer shall
immediately notify the Trust, the Indenture Trustee, the Seller, the Depositor
and the Note Insurer if a claim is made by a third party with respect to the
Sale 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 Indenture Trustee, the Seller,
the Depositor and the Note Insurer in respect of such claim. The indemnification
provisions shall survive the termination of the Sale and Servicing Agreement and
the payment of the outstanding Notes.
The Sale and Servicing Agreement will also provide that neither the
Servicer, nor any of its directors, officers, employees or agents, will be
liable to the Trust, the Seller, the Depositor, the Note Insurer or the Owners
of the Notes for any action taken or for refraining from the taking of any
action by the Servicer pursuant to the Sale and Servicing Agreement, or for
errors in judgment; provided, however, that neither the Servicer nor any such
person will be protected against any liability that would otherwise be imposed
by reason of willful misfeasance, bad faith or negligence in the performance of
its duties by the Servicer, or by reason of reckless disregard of obligations
and duties of the Servicer, thereunder.
S-54
<PAGE>
In addition, the Sale and Servicing Agreement will provide that, except
as described above, the Servicer will not be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its duties to
service the Home Equity Loans under the Sale and Servicing Agreement and which
in its opinion may involve it in any expense or liability.
The Servicer will be required to deliver to the Indenture Trustee, the
Note Insurer and the Rating Agencies on or before April 30 of each year,
commencing in 1999: (i) an officers' certificate stating, as to each signer
thereof, that (a) a review of the activities of the Servicer during such
preceding calendar year and of performance under the Sale and Servicing
Agreement has been made under such officers' supervision, and (b) to the best of
such officers' knowledge, based on such review, the Servicer has fulfilled all
its obligations under the Sale 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 (ii)
a letter or letters of a firm of independent, nationally recognized certified
public accountants reasonably acceptable to the Note Insurer 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 Note Insurer or the Indenture Trustee (with the prior written
consent of the Note Insurer) (or except as specified in the Sale and Servicing
Agreement, the Owners, with the consent of the Note Insurer) will have the
right, pursuant to the Sale 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 Sale and Servicing Agreement
(including certain performance tests related to the delinquency rate and
cumulative losses of the Loan Pools in the aggregate); (c) the failure to cure
material breaches of the Servicer's representations in the Sale and Servicing
Agreement; or (d) certain mergers or other combinations of the Servicer with
another entity.
The Servicer is not permitted to resign from the obligations and duties
imposed on it under the Sale 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. 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 Indenture Trustee and the Note Insurer.
Upon removal or resignation of the Servicer, the Indenture Trustee (A)
may solicit bids for a successor servicer as described in the Sale and Servicing
Agreement and (B) until such time as a successor servicer is appointed pursuant
to the terms of the Sale and Servicing Agreement, shall serve in the capacity of
Backup Servicer subject to the right of the Indenture Trustee to assign such
duties to a party acceptable to the Note Insurer, the Rating Agencies and the
Majority Residualholders.. The Indenture 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 Freddie Mac or Fannie Mae, having
equity of not less than $15,000,000, and acceptable to the Note Insurer (which,
in its sole discretion can waive such requirements) 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 Sale and Servicing
Agreement.
Auction Sale -- Redemption of the Notes
Auction Sale. The Sale and Servicing Agreement requires that on the
first Monthly Remittance Date on which the Loan Balance of the Home Equity Loans
in a Loan Pool has declined to less than 10% of the Loan Balance of the Home
Equity Loans in such Loan Pool as of the Cut-Off Date (the "Auction Redemption
Date"), the Indenture Trustee shall solicit bids for the purchase of all Home
Equity Loans remaining in such Loan Pool at a price equal to no less than the
related Redemption Price. In the event that satisfactory bids are received as
described in the Sale and Servicing Agreement (an "Auction Sale"), the net sale
proceeds will be distributed as described below. If satisfactory bids are not
received on the related Auction Redemption Date, the Indenture Trustee shall
decline to sell the Home Equity Loans on such date and shall hold a new auction
every January, April, July and October thereafter until such Home Equity Loans
are sold. Upon any successful auction, the Indenture Trustee shall use a portion
of the proceeds of the sale to redeem the related series of Notes and the
related Indenture shall be terminated. A series of Notes will be redeemed upon
payment of the related Redemption Price, and the payment of the amount set forth
in clause (i) of the definition of Redemption Price, to the Owners shall be in
lieu of the payment otherwise required to be made on such Payment Date in
respect of the related Notes. The "Redemption Price" for a series of Notes is
equal to the sum of (i) the then outstanding Note Principal Balance plus all
accrued and unpaid interest thereon, (ii) any portion of the Trust Fees and
Expenses with respect to the related Loan Pool due and unpaid on such date,
(iii) all amounts owed to the Note Insurer
S-55
<PAGE>
with respect to the Insurance Agreement (including any amount owed on the
unrelated Loan Pool), (iv) any amount required to be deposited in the Reserve
Account with respect to the series of Notes not being redeemed and (v) any
unreimbursed Delinquency Advances and Servicing Advances with respect to the
related Loan Pool (as defined in the Sale and Servicing Agreement). Any amounts
remaining after redeeming the related series of Notes, reimbursing the Indenture
Trustee, the Owner Trustee, the Note Insurer and the Servicer for any unpaid
fees and other amounts outstanding under the various operative agreements will
be distributed to the holders of the Residual Interest.
Step Up on Note Interest Rates. If an Auction Sale does not occur on
the Auction Redemption Date with respect to a Loan Pool, the Note Interest Rate
on the applicable Series of Notes will be increased by 0.50% per annum
thereafter.
Optional Termination By Servicer and Note Insurer. In addition, the
Servicer and the Note Insurer (in that order) will have the right to purchase
all the Home Equity Loans in both Loan Pools (at a price described in the Sale
and Servicing Agreement) on any Monthly Remittance Date commencing on the
Monthly Remittance Date on which the Loan Balance of the Home Equity Loans in
both Loan Pools has declined to less than 5% of the Loan Balance of the Home
Equity Loans in both Loan Pools as of the Cut-Off Date (the "Clean Up Call
Date").
The Indenture Trustee
The Chase Manhattan Bank will be the Indenture Trustee under the
Indentures. Each Indenture will provide that the Indenture Trustee is entitled
to certain fees and reimbursement of expenses.
Each Indenture also will provide that the Indenture Trustee may resign
at any time, upon notice to the Trust, the Note Insurer, the Servicer and each
Rating Agency, in which event the Trust (with the consent of the Note Insurer)
will be obligated to appoint a successor Indenture Trustee. The Trust or the
Note Insurer may remove the Indenture Trustee if the Indenture Trustee ceases to
be eligible to continue as such under the Indenture Trustee and appointment of a
successor Indenture Trustee will not become effective until acceptance of the
appointment by the successor Indenture Trustee. Each Indenture will provide that
the Indenture Trustee is under no obligation to exercise any of the rights or
powers vested in it by such Indenture at the request or direction of any of the
Owners, unless such Owners shall have offered to the Indenture Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction. The
Indenture Trustee may execute any of the rights or powers granted by the
Indentures or perform any duties thereunder either directly or by or through
agents or attorneys, and the Indenture Trustee is not responsible for any
misconduct or negligence on the part of any agent or attorney appointed and
supervised with due care by it thereunder. Pursuant to the Indenture, the
Indenture Trustee is not liable for any action it takes or omits to take in good
faith which it reasonably believes to be authorized by an authorized officer of
any person or within its rights or powers under such Indenture. The Indenture
Trustee and any director, officer, employee or agent of the Indenture Trustee
may rely and will be protected in acting or refraining from acting in good faith
in reliance on any certificate, notice or other document of any kind prima facie
properly executed and submitted by the authorized officer of any person
respecting any matters arising under the Indentures.
The Indentures
Pursuant to the Indentures, the Indenture Trustee shall, upon the
direction of the Note Insurer (unless a Note Insurer Default (as defined in the
Sale and Servicing Agreement) has occurred and is continuing), direct the time,
method and place of conducting any proceeding for any remedy available to the
Indenture Trustee (including acceleration of the Notes) or exercising any trust
or power conferred on the Indenture Trustee.
An "Event of Default" with respect to a series of Notes is defined in
the Indentures as follows: (a) a default by the Trust in the payment of any
Current Interest or Principal Remittance Amount on any Note when the same
becomes due and payable; (b) a default in the observance or performance of any
covenant or agreement of the Trust in the related Indenture, or any
representation or warranty of the Trust made in the related Indenture, the
Insurance Agreement, the Sale and Servicing Agreement or in any certificate or
other writing delivered pursuant thereto proving to have been incorrect in any
material respect as of the time made, and the continuation of any such default,
or the circumstance in respect of which any representation or warranty not
having been cured, as the case may be, for a period of thirty days after notice
is given to the Trust by the Indenture Trustee, or to the Trust and the
Indenture Trustee by the Owners of a majority of the Percentage Interest of the
Notes and, (c) certain events of bankruptcy, insolvency, receivership or
reorganization of the Trust.
In case an Event of Default should occur and be continuing, the
Indenture Trustee shall, but only upon receipt of the prior written consent of
the Note Insurer or, if a Note Insurer Default has occurred and is continuing,
the Owners of Notes representing not less than a majority of the Percentage
Interest of the related series of Notes, may declare all the Notes of such
series to be immediately due and payable. Such declaration may under certain
circumstances be rescinded by the Note Insurer, or if a Note Insurer Default
exists, the Owners of Notes representing a majority of the Percentage Interest
of the Notes of such series.
S-56
<PAGE>
If, following an Event of Default, a series of Notes has been declared
to be due and payable, the Indenture Trustee shall, at the direction of the Note
Insurer, but if a Note Insurer Default has occurred and is continuing, the
Indenture Trustee may, at the direction of the Owners of a majority Percentage
Interest of the applicable series of Notes, exercise certain rights and remedies
set forth in the related Indenture. In addition, upon an Event of Default, the
Indenture Trustee shall, with the consent of Owners of a Percentage Interest of
the related series of Notes, specified in the Indenture, sell all or part of the
assets included in the Trust Estate, in which event the Net Liquidation Proceeds
of such assets will be applied as follows: (i) to the payment of the fees of the
Indenture Trustee and the Owner Trustee which have not been previously paid;
(ii) to the Servicer for the Servicing Fee then due and unpaid and any
unreimbursed Delinquency Advances or Servicing Advances; (iii) to the Note
Insurer, any premium amount then due and unpaid; (iv) to the Owners of Notes of
the related series, the amount of interest then due and unpaid on the Notes, pro
rata; (v) to the Owners of Notes of the related series, the amount of principal
then due and unpaid on the Notes, pro rata; (vi) to the payment of amounts due
and owing to the Note Insurer, to the extent not previously reimbursed; and
(vii) to the Trust Paying Agent, any remaining amounts to be distributed, pro
rata, to the Owners of the Residual Interest.
No Owner of any Note shall have any right to institute any proceeding
with respect to an Indenture unless (i) such Owner has previously given written
notice to the Indenture Trustee of a continuing Event of Default; (ii) the
Owners of a majority of the Percentage Interest of the Notes of such series have
made written request to the Indenture Trustee to institute proceedings in
respect of such Event of Default in its own name as Indenture Trustee; (iii)
such Owner has offered the Indenture Trustee reasonable indemnity against the
costs, expenses and liabilities to be incurred in complying with such request;
(iv) the Indenture Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute such proceeding; and (v) no
direction inconsistent with such written request has been given to the Indenture
Trustee during such 60-day period by the Owners of a majority of the Percentage
Interest of the Notes of such series.
Voting
Unless otherwise specified in the related Indenture, with respect to
any provisions of the Indenture providing for the action, consent or approval of
the Owners evidencing specified "Voting Interests", each Owner will have a
Voting Interest equal to the Percentage Interest represented by such Owner's
Note. Any Note registered in the name of the Trust or any affiliate thereof will
be deemed not to be outstanding and the Percentage Interest evidenced thereby
shall not be taken into account in determining whether the requisite amount of
Voting Interests necessary to take any such action, or effect any such consent,
has been obtained.
Reporting Requirements
On each Payment Date, the Indenture Trustee will be required to report
in writing (based in part on information provided to the Indenture Trustee by
the Servicer) to each Owner, the Rating Agencies and the Note Insurer:
(i) the aggregate distribution with respect to each series of
Notes (based on a Note in the original principal amount of $1,000) for
such Payment Date;
(ii) the amount of such distributions allocable to principal
on the Home Equity Loans in the related Loan Pool, separately
identifying the aggregate amount of any Prepayments or other recoveries
of principal included therein (based on a Note in the original
principal amount of $1,000) and any related Overcollateralization
Increase Amount;
(iii) the amount of such distribution allocable to interest on
the Home Equity Loans in the related Loan Pool (based on a Note in the
original principal amount of $1,000);
(iv) if the interest paid to Owners is less than the Current
Interest, the Interest Carry Forward Amount on such Payment Date;
(v) the principal amount of the Notes (based on a Note 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 in
the related Loan Pool after giving effect to any payment of principal
on such Payment Date;
(vii) the amount of any Insured Payment included in the
amounts distributed to the Owners on such Payment Date;
(viii) 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;
S-57
<PAGE>
(ix) the weighted average Coupon Rate of the Home Equity Loans
in the related Loan Pool and in both Loan Pools combined;
(x) such other information as the Note Insurer may reasonably
request with respect to delinquent Home Equity Loans in the related
Loan Pool and in both Loan Pools combined;
(xi) the total of any Substitution Amounts or Loan Purchase
Price amounts included in such distribution; and
(xii) the amount on deposit in the Reserve Account immediately
prior to the related Payment Date; the amount deposited therein on such
Payment Date; the amount withdrawn therefrom on such Payment Date; and
the amount therein at the end of such Payment Date.
Certain obligations of the Indenture Trustee to provide information to
the Owners are conditioned upon such information being received from the
Servicer.
In addition, on each Payment Date the Indenture Trustee will be
required to distribute to each Owner, the Note Insurer and the Rating Agencies,
together with the information described above, the following information
prepared by the Servicer and furnished to the Indenture Trustee for such
purpose:
(a) the number and aggregate principal balances of Home Equity
Loans in the related Loan Pools and in both Loan Pools combined (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 in the related
Loan Pool and both Loan Pools combined 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 number and dollar amounts of all Home Equity Loans in
the related Loan Pool and in both Loan Pools combined 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 in the related Loan Pool
and in both Loan Pools combined that are balloon loans;
(d) the existence and status of any Properties in the related
Loan Pool and in both Loan Pools combined as to which title has been
taken in the name of, or on behalf of the Indenture Trustee, as of the
close of business of the last day of the calendar month immediately
preceding the Payment Date;
(e) the book value (based on the most recently available
valuation) of any real estate acquired through foreclosure or grant of
a deed in lieu of foreclosure in the related Loan Pool and in both Loan
Pools combined as of the close of business on the last day of the
calendar month immediately preceding the Payment Date; and
(f) the amount of cumulative Realized Losses, the current
period Realized Losses (each as defined in the Sale and Servicing
Agreement) and any other loss percentages as required by the Sale and
Servicing Agreement in the related Loan Pool and in both Loan Pools
combined.
Removal of Indenture Trustee for Cause
The Indenture 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 Indenture Trustee: (i)
failure to make distributions of available amounts; (ii) certain breaches of
covenants and representations by the Indenture Trustee; (iii) certain acts of
bankruptcy or insolvency on the part of the Indenture Trustee; and (iv) failure
to meet the standards of Indenture Trustee eligibility as set forth in the
Indenture.
If any such event occurs and is continuing, then and in every such case
(i) the Note Insurer or (ii) with the prior written consent of the Note Insurer
(which is required not to be unreasonably withheld), the Trust and the Owners of
a majority of the Percentage Interests represented by the Notes, may remove the
Indenture Trustee.
Governing Law
The Agreements and each Note 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.
S-58
<PAGE>
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 Notes. 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 Notes.
No election will be made to treat the Trust or the Trust Estate or any
portion thereof as a REMIC for federal income tax purposes.
Upon issuance of the Notes, Arter & Hadden LLP, special tax counsel,
will deliver its opinion that each series of Notes will be treated as newly
originated debt obligations and not as representing an ownership interest in the
Trust Estate or an equity interest in the Trust, the Depositor or the Seller. In
addition, for federal income tax purposes, the Trust will not be classified (i)
as an association taxable as a corporation, (ii) a taxable mortgage pool as
defined in Section 7701(i) of the Code or (iii) a "publicly traded partnership"
as defined in Treasury Regulations Section 1.7704-1. Each Owner of a Note, by
its acceptance of a Note, will agree to treat the Notes as indebtedness. It is
anticipated that the Notes will be issued without original issue discount for
federal income tax purposes. However, it is possible that the Internal Revenue
Service could treat a portion of the additional interest which would become
payable on the Notes after the Redemption Date as original issue discount.
Owners are urged to consult their tax advisor with respect to the tax
consequences of holding the Notes.
The prepayment assumption that is to be used in determining whether a
series of Notes are issued with original issue discount and the rate of accrual
of original issue discount is "Prepayment Scenario S-4" on page S-33 hereof. No
representation is made as to the actual rate at which the Home Equity Loans will
prepay. See "Certain Federal Income Tax Considerations - Debt Certificates" in
the Prospectus.
The Notes will not represent "real estate assets" for purposes of
Section 856(c)(5)(A) of the Code or "[l]oans . . . principally secured by an
interest in real property" within the meaning of Section 7701(a)(19)(C)(v) of
the Code. The Notes will also not be treated as "qualified mortgages" under
Section 860G(a)(3)(C) of the Code.
STATE TAX CONSEQUENCES
In addition to the federal income tax consequences described in
"Certain Federal Income Tax Consequences" herein, potential investors should
consider the state income tax consequences of the acquisition, ownership, and
disposition of the Notes. State income tax law may differ substantially from the
corresponding federal tax law, and this discussion does not purport to describe
any aspect of the income tax laws of any state. Therefore, potential investors
should consult their own tax advisors with respect to the various tax
consequences of investments in the Notes.
ERISA CONSIDERATIONS
The Employee Retirement Income Security Act of 1974 ("ERISA") and the
Code impose certain restrictions on (a) employee benefit plans (as defined in
Section 3(3) of ERISA) and plans described in Code section 4975(e)(1), including
individual retirement accounts (the "Plans") and (b) persons who have certain
specified relationships to such Plans or who constitute "disqualified persons"
under Code section 4975(e)(2) with respect to such Plans ("parties in
interest"). 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 Notes without regard to the ERISA considerations described
below, subject to other applicable federal and state law. However, any such
governmental or church plan which is qualified under section 401(a) of the Code
and exempt from taxation under section 501(a) of the Code is subject to the
prohibited transaction rules set forth in section 503 of the Code. Any Plan
fiduciary which proposes to cause a Plan to acquire any of the Notes should
consult with its counsel with respect to the potential consequences under ERISA,
and the Code, of the Plan's acquisition and ownership of the Notes. See "ERISA
Considerations" in the Prospectus. Investments by Plans are also 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.
S-59
<PAGE>
The United States Department of Labor ("DOL") has issued a final
regulation (29 C.F.R. Section 2510.3-101) concerning the definition of what
constitutes the assets of a Plan for purposes of ERISA and the prohibited
transaction provisions of the Code (the "Plan Asset Regulation"). The Plan Asset
Regulation describes the circumstances under which the assets of an entity in
which a Plan invests will be considered to be "plan assets" such that any person
who exercises control over such assets would be subject to ERISA's fiduciary
standards. Under the Plan Asset Regulation, generally when a Plan invests in
another entity, the Plan's assets do not include, solely by reason of such
investment, any of the underlying assets of the entity. However, the Plan Asset
Regulation provides that, if a Plan acquires an "equity interest" in any entity
that is neither a "publicly-offered security" (as defined therein) nor a
security issued by an investment company registered under the Investment Company
Act of 1940, the assets of the entity will be treated as assets of the Plan
investor unless certain exceptions apply. If the Notes were deemed to be equity
interests and no statutory, regulatory or administrative exemption applies, the
Trust could be considered to hold plan assets by reason of a Plan's investment
in the Notes. Such plan assets would include an undivided interest in any assets
held by the Trust. In such an event, the Servicer and other persons, in
providing services with respect to the Trust's assets, may be parties in
interest with respect to such Plans, subject to fiduciary responsibility
provisions of Title I of ERISA, including the general fiduciary duties of
Section 404 of ERISA, the prohibited transaction provisions of Section 406 of
ERISA, and to Section 4975 of the Code with respect to transactions involving
the Trust's assets. Under the Plan Asset Regulation, the term "equity interest"
is defined as any interest in an entity other than an instrument that is treated
as indebtedness under "applicable local law" and which has no "substantial
equity features." Although the Plan Asset Regulation is silent with respect to
the question of which law constitutes "applicable local law" for this purpose,
the DOL has stated that these determinations should be made under the state law
governing interpretation of the instrument in question. In the preamble to the
Plan Asset Regulation, the DOL declined to provide a precise definition of what
features are equity features or the circumstances under which such features
would be considered "substantial," noting that the question of whether a plan's
interest has substantial equity features is an inherently factual one, but that
in making a determination it would be appropriate to take into account whether
the equity features are such that a Plan's investment would be a practical
vehicle for the indirect provision of investment management services.
Without regard to whether the Notes are treated as an equity interest
under the Plan Asset Regulation, the acquisition or holding of the Notes by or
on behalf of a Plan could be considered to give rise to a prohibited transaction
if such acquisition or holding is deemed to be a prohibited loan to a party in
interest with respect to such Plan. Certain exemptions from the prohibited
transaction rules could be applicable to the purchase and holding of the Notes
by a Plan depending on the type and circumstances of the plan fiduciary making
the decision to acquire the Notes. Included among these exemptions are:
Prohibited Transaction Class Exemption ("PTCE") 90-1, regarding certain
transactions entered into by insurance company pooled separate accounts; PTCE
95-60, regarding certain transactions entered into by insurance company general
accounts; PTCE 96-23, regarding certain transactions effected by "in-house asset
managers"; PTCE 91-38, regarding certain transactions entered into by bank
collective investment funds; and PTCE 84-14, regarding certain transactions
effected by "qualified professional asset managers." Each investor using the
assets of a Plan that acquires the Notes, or to whom the Notes are transferred,
will be deemed to have represented that the acquisition and continued holding of
the Notes will be covered by a U.S. Department of Labor Class Exemption.
Any Plan fiduciary considering whether to purchase any Notes on behalf
of a Plan should consult with its counsel regarding the applicability of the
fiduciary responsibility and prohibited transaction provisions of ERISA and the
Code to such investment.
In addition to the matters described above, purchasers of an Notes that
are insurance companies should consult with their counsel with respect to the
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 Notes.
RATINGS
It is a condition of the issuance of each series of Notes that they
receive ratings of "Aaa" by Moody's Investors Services Inc. ("Moody's") and
"AAA" by Standard & Poor's Rating Services, a division of the McGraw-Hill
Companies, Inc. ("Standard & Poor's"). Moody's and Standard & Poor's are
referred to herein collectively as the "Rating Agencies." Explanations of the
significance of such ratings may be obtained from Moody's, 99 Church Street, New
York, New York 10007 and Standard Poor's, 25 Broadway, 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 Notes. A
security rating is not a recommendation to buy, sell or hold securities.
The ratings of Moody's and Standard & Poor's do not address the
possibility that, as a result of principal prepayments, Owners of the Notes may
receive a lower than anticipated yield.
S-60
<PAGE>
The ratings of the Notes 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 ratings assigned to the Notes will depend primarily on the
creditworthiness of the Note Insurer. Any reduction in a rating assigned to the
claims-paying ability of the Note Insurer below the ratings initially assigned
to the Notes may result in a reduction of one or both of the ratings assigned to
the Notes.
The Depositor has not requested a rating of the Notes offered hereby by
any rating agency other than Moody's and Standard & Poor's and the Depositor has
not provided information relating to the Notes offered hereby or the Home Equity
Loans to any rating agency other than Moody's and Standard & Poor's. However,
there can be no assurance as to whether any other rating agency will rate the
Notes offered hereby or, if another rating agency rates such Notes, what rating
would be assigned to such Notes by such rating agency. Any such unsolicited
rating assigned by another rating agency to the Notes offered hereby may be
lower than the rating assigned to such Notes by either or both of Moody's and
Standard & Poor's.
LEGAL INVESTMENT CONSIDERATIONS
Neither series of Notes will constitute "mortgage related securities"
for purposes of Secondary Mortgage Market Enhancement Act of 1984. Accordingly,
many institutions with legal authority to invest in comparably rated securities
based on qualifying first mortgage loans may not be legally authorized to invest
in the Notes.
UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting
Agreement relating to the Notes (the "Underwriting Agreement"), the Depositor
has agreed to cause the Trust to sell to PaineWebber Incorporated (the
"Underwriter") and the Underwriter has agreed to purchase each series of Notes.
The Depositor and the Seller have agreed to indemnify the Underwriter
against certain liabilities, including civil liabilities under the Securities
Act, or to contribute to payments which the Underwriter may be required to make
in respect thereof.
In the Underwriting Agreement, the Underwriter has agreed, subject to
the terms and conditions set forth therein, to purchase all of the Notes offered
hereby, if any are purchased. The Depositor has been advised by the Underwriter
that it proposes initially to offer the Series 1998-7A Notes to the public at an
offering price of 99.99659% and to offer the Series 1998-7B Notes to the public
at an offering price of 99.99067%. Such prices do not include the Underwriter's
discount of 0.25%, which applies to approximately $140 million of the Notes. In
addition, the Underwriter may offer the Notes to certain dealers at such prices
less a concession not in excess of 0.15% (expressed as a percentage of the
related Note Principal Balance). The Underwriter may allow and such dealers may
reallow a discount not in excess 0.105%.
Proceeds to the Depositor including accrued interest from December 1,
1998 are expected to be approximately $600,600,000, before deducting expenses
payable by the Depositor in connection with the Notes, estimated to be $475,000.
In connection with the purchase and sale of the Notes, the Underwriter may be
deemed to have received compensation from the Seller in the form of underwriting
discounts.
After the initial public offering, such prices and discounts may be
changed.
The Underwriter 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 Notes in the
open market after the distribution has been completed in order to cover
syndicate short positions. Penalty bids permit the Underwriter to reclaim a
selling concession from a syndicate member when the Notes 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 Notes to be higher than
it would otherwise be in the absence of such transactions. These transactions,
if commenced, may be discontinued at any time.
A portion of the proceeds from the issuance of the Notes will be used
by the Seller to pay off extensions of credit provided by an affiliate of the
Underwriter. In addition, the Seller will use a significant portion of the
proceeds of the issuance of the Notes to purchase Home Equity Loans having an
unpaid principal balance of approximately $460
S-61
<PAGE>
million from an affiliate of the Underwriter. The Seller sold such Home Equity
Loans to the Underwriter's affiliate in a prior transaction.
EXPERTS
The consolidated balance sheets of Financial Security Assurance Inc.
and Subsidiaries as of December 31, 1997 and 1996, and the related consolidated
statements of income, changes in shareholder's equity, and cash flows for each
of the three years in the period ended December 31, 1997, incorporated by
reference into this Prospectus Supplement, have been incorporated by reference
herein in reliance on the report of PricewaterhouseCoopers LLP, independent
accountants, given on the authority of that firm as experts in accounting and
auditing.
CERTAIN LEGAL MATTERS
Certain legal matters relating to the validity of the issuance of the
Notes will be passed upon for the Seller, the Depositor and the Trust by Arter &
Hadden LLP, Washington, D.C. Certain legal matters relating to insolvency issues
and certain federal income tax matters concerning the Notes will be passed upon
for the Seller, Depositor and the Trust by Arter & Hadden LLP. Certain legal
matters relating to the validity of the issuance of the Notes will be passed
upon for the Underwriter by Dewey Ballantine LLP, New York, New York.
S-62
<PAGE>
ANNEX I
GLOBAL CLEARANCE, SETTLEMENT AND TAX DOCUMENTATION PROCEDURES
Except in certain limited circumstances, the globally offered
$529,000,000 Home Equity Loan Asset Backed Notes, Series 1998-7A and the
$71,000,000 Home Equity Loan Asset Backed Notes, Series 1998-7B, (the "Global
Securities") will be available only in book entry form. Investors in the Global
Securities may hold such Global Securities through any of DTC, Cedel or
Euroclear. The Global Securities will be tradeable as home market instruments in
both the European and U.S. domestic markets. Initial settlement and all
secondary trades will settle in same-day funds.
Secondary market trading between investors through Cedel and Euroclear
will be conducted in the ordinary way in accordance with the normal rules and
operating procedures of Cedel and Euroclear and in accordance with conventional
eurobond practice (i.e., seven calendar day settlement).
Secondary market trading between investors through DTC will be
conducted according to DTC's rules and procedures applicable to U.S. corporate
debt obligations.
Secondary cross-market trading between Cedel or Euroclear and DTC
Participants holding Notes will be effected on a delivery-against-payment basis
through the respective Depositaries of Cedel and Euroclear (in such capacity)
and as DTC Participants.
Non-U.S. holders (as described below) of Global Securities will be
subject to U.S. withholding taxes unless such holders meet certain requirements
and deliver appropriate U.S. tax documents to the securities clearing
organizations or their participants.
Initial Settlement
All Global Securities will be held in book entry form by DTC in the
name of Cede & Co. as nominee of DTC. Investors' interests in the Global
Securities will be represented through financial institutions acting on their
behalf as direct and indirect Participants in DTC. As a result, Cedel and
Euroclear will hold positions on behalf of their participants through their
Relevant Depositary which in turn will hold such positions in their accounts as
DTC Participants.
Investors electing to hold their Global Securities through DTC will
follow DTC settlement practices. Investor securities custody accounts will be
credited with their holdings against payment in same-day funds on the settlement
date.
Investors electing to hold their Global Securities through Cedel or
Euroclear accounts will follow the settlement procedures applicable to
conventional eurobonds, except that there will be no temporary global security
and no "lockup" or restricted period. Global Securities will be credited to the
securities custody accounts on the settlement date against payment in same-day
funds.
Secondary Market Trading
Since the purchaser determines the place of delivery, it is important
to establish at the time of the trade where both the purchaser's and seller's
accounts are located to ensure that settlement can be made on the desired value
date.
Trading between DTC Participants. Secondary market trading between DTC
Participants will be settled using the procedures applicable to prior home
equity loan asset-backed securities issues in same-day funds.
Trading between Cedel and/or Euroclear Participants. Secondary market
trading between Cedel Participants or Euroclear Participants will be settled
using the procedures applicable to conventional eurobonds in same-day funds.
Trading between DTC, Seller and Cedel or Euroclear Participants. When
Global Securities are to be transferred from the account of a DTC Participant to
the account of a Cedel Participant or a Euroclear Participant, the purchaser
will send instructions to Cedel or Euroclear through a Cedel Participant or
Euroclear Participant at least one business day prior to settlement. Cedel or
Euroclear will instruct the Relevant Depositary, as the case may be, to receive
the Global Securities against payment. Payment will include interest accrued on
the Global Securities from and including the last coupon payment date to and
excluding the settlement date, on the basis of the actual number of days in such
accrual period and a year assumed to consist of 360 days. For transactions
settling on the 31st of the month, payment will include interest accrued to and
excluding the first day of the following month. Payment will then be made by the
Relevant Depositary to the DTC Participant's account against delivery of the
Global Securities. After settlement has been completed, the Global Securities
will be credited to the respective clearing system and by the clearing system,
in accordance with its usual procedures, to the Cedel Participant's or Euroclear
Participant's account. The securities
I-1
<PAGE>
credit will appear the next day (European time) and the cash debt will be
back-valued to, and the interest on the Global Securities will accrue from, the
value date (which would be the preceding day when settlement occurred in New
York). If settlement is not completed on the intended value date (i.e., the
trade fails), the Cedel or Euroclear cash debt will be valued instead as of the
actual settlement date.
Cedel Participants and Euroclear Participants will need to make
available to the respective clearing systems the funds necessary to process
same-day funds settlement. The most direct means of doing so is to preposition
funds for settlement, either from cash on hand or existing lines of credit, as
they would for any settlement occurring within Cedel or Euroclear. Under this
approach, they may take on credit exposure to Cedel or Euroclear until the
Global Securities are credited to their account one day later.
As an alternative, if Cedel or Euroclear has extended a line of credit
to them, Cedel Participants or Euroclear Participants can elect not to
preposition funds and allow that credit line to be drawn upon to finance
settlement. Under this procedure, Cedel Participants or Euroclear Participants
purchasing Global Securities would incur overdraft charges for one day, assuming
they cleared the overdraft when the Global Securities were credited to their
accounts. However, interest on the Global Securities would accrue from the value
date. Therefore, in many cases the investment income on the Global Securities
earned during that one-day period may substantially reduce or offset the amount
of such overdraft charges, although the result will depend on each Cedel
Participant's or Euroclear Participant's particular cost of funds.
Since the settlement is taking place during New York business hours,
DTC Participants can employ their usual procedures for crediting Global
Securities to the respective European Depositary for the benefit of Cedel
Participants or Euroclear Participants. The sale proceeds will be available to
the DTC seller on the settlement date. Thus, to the DTC Participants a
cross-market transaction will settle no differently than a trade between two DTC
Participants.
Trading between Cedel or Euroclear Seller and DTC Purchaser. Due to
time zone differences in their favor, Cedel Participants and Euroclear
Participants may employ their customary procedures for transactions in which
Global Securities are to be transferred by the respective clearing system,
through the respective Depositary, to a DTC Participant. The seller will send
instructions to Cedel or Euroclear through a Cedel Participant or Euroclear
Participant at least one business day prior to settlement. In these cases Cedel
or Euroclear will instruct the respective Depositary, as appropriate, to credit
the Global Securities to the DTC Participant's account against payment. Payment
will include interest accrued on the Global Securities from and including the
last coupon payment to and excluding the settlement date on the basis of the
actual number of days in such accrual period and a year assumed to consist to
360 days. For transactions settling on the 31st of the month, payment will
include interest accrued to and excluding the first day of the following month.
The payment will then be reflected in the account of Cedel Participant or
Euroclear Participant the following day, and receipt of the cash proceeds in the
Cedel Participant's or Euroclear Participant's account would be back-valued to
the value date (which would be the preceding day, when settlement occurred in
New York). Should the Cedel Participant or Euroclear Participant have a line of
credit with its respective clearing system and elect to be in debt in
anticipation of receipt of the sale proceeds in its account, the back-valuation
will extinguish any overdraft incurred over that one-day period. If settlement
is not completed on the intended value date (i.e., the trade fails), receipt of
the cash proceeds in the Cedel Participant's or Euroclear Participant's account
would instead be valued as of the actual settlement date.
Finally, day traders that use Cedel or Euroclear and that purchase
Global Securities from DTC Participants for delivery to Cedel Participants or
Euroclear Participants should note that these trades would automatically fail on
the sale side unless affirmative action is taken. At least three techniques
should be readily available to eliminate this potential problem:
(a) borrowing through Cedel or Euroclear for one day (until the
purchase side of the trade is reflected in their Cedel or Euroclear accounts) in
accordance with the clearing system's customary procedures;
(b) borrowing the Global Securities in the U.S. from a DTC Participant
no later than one day prior to settlement, which would give the Global
Securities sufficient time to be reflected in their Cedel or Euroclear account
in order to settle the sale side of the trade; or
(c) staggering the value dates for the buy and sell sides of the trade
so that the value date for the purchase from the DTC Participant is at least one
day prior to the value date for the sale to the Cedel Participant or Euroclear
Participant.
I-2
<PAGE>
Certain U.S. Federal Income Tax Documentation Requirements
A beneficial owner of Global Securities holding securities through
Cedel or Euroclear (or through DTC if the holder has an address outside the
U.S.) will be subject to the 30% U.S. withholding tax that generally applies to
payments of interest (including original issue discount) on registered debt
issued by U.S. Persons (as defined below), unless (i) each clearing system, bank
or other financial institution that holds customers' securities in the ordinary
course of its trade or business in the chain of intermediaries between such
beneficial owner and the U.S. entity required to withhold tax complies with
applicable certification requirements and (ii) such beneficial owner takes one
of the following steps to obtain an exemption or reduced tax rate:
Exemption for Non-U.S. Persons (Form W-8). Beneficial Owners of Global
Securities that are Non-U.S. Persons (as defined below) can obtain a complete
exemption from the withholding tax by filing a signed Form W-8 (Certificate of
Foreign Status). If the information shown on Form W-8 changes, a new Form W-8
must be filed within 30 days of such change.
Exemption for Non-U.S. Persons with effectively connected income (Form
4224). A Non-U.S. Person (as defined below), including a non-U.S. corporation or
bank with a U.S. branch, for which the interest income is effectively connected
with its conduct of a trade or business in the United States, can obtain an
exemption from the withholding tax by filing Form 4224 (Exemption from
Withholding of Tax on Income Effectively Connected with the Conduct of a Trade
or Business in the United States).
Exemption or reduced rate for Non-U.S. Persons resident in treaty
countries (Form 1001). Non-U.S. Persons residing in a country that has a tax
treaty with the United States can obtain an exemption or reduced tax rate
(depending on the treaty terms) by filing Form 1001 (Ownership, Exemption or
Reduced Rate Certificate). If the treaty provides only for a reduced rate,
withholding tax will be imposed at that rate unless the filer alternatively
files Form W-8. Form 1001 may be filed by Note Owners or their agent.
Exemption for U.S. Persons (Form W-9). U.S. Persons can obtain a
complete exemption from the withholding tax by filing Form W-9 (Payer's Request
for Taxpayer Identification Number and Certification).
U.S. Federal Income Tax Reporting Procedure. The Owner of a Global
Security or, in the case of a Form 1001 or a Form 4224 filer, his agent, files
by submitting the appropriate form to the person through whom it holds the
security (the clearing agency, in the case of persons holding directly on the
books of the clearing agency). Form W-8 and Form 1001 are effective for three
calendar years and Form 4224 is effective for one calendar year.
The term "U.S. Person" means (i) a citizen or resident of the United
States, (ii) a corporation, partnership or other entity organized in or under
the laws of the United States or any political subdivision thereof or (iii) an
estate the income of which is includible in gross income for United States tax
purposes, regardless of its source or a trust if a court within the United
States is able to exercise primary supervision of the administration of the
trust and one or more United States fiduciaries have the authority to control
all substantial decisions of the trust. The term "Non-U.S. Person" means any
person who is not a U.S. Person. This summary does not deal with all aspects of
U.S. Federal income tax withholding that may be relevant to foreign holders of
the Global Securities. Investors are advised to consult their own tax advisors
for specific tax advice concerning their holding and disposing of the Global
Securities.
I-3
<PAGE>
[THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
APPENDIX A
INDEX TO LOCATION OF PRINCIPAL DEFINED TERMS
Page
----
Accrual Period......................................................S-40
Agreements..........................................................S-38
Appraised Values....................................................S-16
Auction Redemption Date.............................................S-55
Backup Servicer.....................................................S-13
Beneficial Owners...................................................S-41
Book-Entry Notes....................................................S-41
Business Day........................................................S-40
Cede................................................................S-41
Cedel...............................................................S-41
Cedel Participants..................................................S-42
Citibank............................................................S-41
Clean Up Call Date..................................................S-56
Closing Date........................................................S-16
CMT Loans...........................................................S-17
Compensating Interest...............................................S-53
Cooperative.........................................................S-42
Coupon Rate.........................................................S-19
CPR.................................................................S-32
Current Interest....................................................S-40
Cut-Off Date........................................................S-39
Daily Collections...................................................S-52
Definitive Note.....................................................S-41
Delinquency Advances................................................S-53
Depositor...........................................................S-16
DOL.................................................................S-60
DTC.................................................................S-41
DTC Participants....................................................S-42
ERISA...............................................................S-59
Euroclear...........................................................S-41
Euroclear Operator..................................................S-42
Euroclear Participants..............................................S-42
European Depositories...............................................S-41
Event of Default....................................................S-56
Excess Overcollateralization Amount.................................S-49
Excess Spread.......................................................S-40
Exchange Act........................................................S-61
Fannie Mae..........................................................S-10
File................................................................S-51
Final Certification.................................................S-52
Financial Intermediary..............................................S-41
Freddie Mac.........................................................S-10
Greenwich...........................................................S-11
Greenwich Loan Agreement............................................S-12
Home Equity Loans....................................................S-1
HUD.................................................................S-12
Indenture...........................................................S-15
Indenture Trustee...................................................S-10
Insurance Agreement.................................................S-47
Insured Payment.....................................................S-46
Interest Carry Forward Amount.......................................S-40
Letter of Intent....................................................S-11
LIBOR Loans.........................................................S-17
Loan Pool...........................................................S-16
Loan Pool I.........................................................S-16
Loan Purchase Price.................................................S-50
Majority Residualholders............................................S-13
Monthly Remittance Date.............................................S-40
Moody's.............................................................S-60
Mortgagor...........................................................S-31
Net Liquidation Proceeds............................................S-52
Nonrecoverable Advance..............................................S-53
Note Accounts.......................................................S-38
Note Insurance Policy...............................................S-46
Note Insurer.........................................................S-3
Note Principal Balance..............................................S-40
Overcollateralization Amount........................................S-48
Overcollateralization Deficiency Amount.............................S-48
Overcollateralization Deficit.......................................S-49
Overcollateralization Increase Amount...............................S-48
Overcollateralization Reduction Amount..............................S-49
Participants........................................................S-41
Payment Date.........................................................S-2
Percentage Interest.................................................S-39
Plan Asset Regulation...............................................S-60
Plans...............................................................S-59
Preference Amount...................................................S-40
Premium Amount......................................................S-40
Prepayment Assumption...............................................S-32
Prepayments.........................................................S-31
Preservation Expenses...............................................S-53
Principal and Interest Account......................................S-52
Principal Remittance Amount.........................................S-41
Property............................................................S-50
Qualified Replacement Mortgage......................................S-50
Rating Agencies.....................................................S-60
Realized Loss.......................................................S-49
Record Date.........................................................S-38
Redemption Price....................................................S-55
Register............................................................S-38
Registrar...........................................................S-38
Remittance Period...................................................S-41
Reserve Account.....................................................S-48
Residual Interest...................................................S-15
Rules...............................................................S-41
Sale and Servicing Agreement........................................S-10
Seller..............................................................S-10
Series 1998-7A Notes................................................S-38
Series 1998-7B Notes................................................S-38
Servicer............................................................S-12
Servicer Termination Events.........................................S-55
Servicing Advances..................................................S-53
Servicing Fee.......................................................S-12
Specified Overcollateralization Amount..............................S-48
Standard & Poor's...................................................S-60
Standstill Agreements...............................................S-11
Statistical Calculation Date........................................S-16
Substitution Amount.................................................S-50
Sub-Servicers.......................................................S-13
Sub-Servicing Agreements............................................S-13
Terms and Conditions................................................S-43
Total Available Funds...............................................S-41
Trust................................................................S-1
Trust Agreement.....................................................S-15
Trust Estate........................................................S-50
Trust Fees and Expenses.............................................S-41
Underwriter.........................................................S-61
Underwriting Agreement..............................................S-61
Weighted average life...............................................S-32
174722.1d
A-1
<PAGE>
[THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
PROSPECTUS
Home Equity Loan Asset Backed Certificates
Home Equity Loan Asset Backed Notes
(Issuable in Series)
IMC Securities, Inc.
(Depositor)
This Prospectus relates to Home Equity Loan Asset Backed Certificates
(the "Certificates") and Home Equity Loan Asset Backed Notes (the "Notes" and
together with the Certificates, the "Securities") to be issued from time to time
in one or more series (each, a "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 Securities 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 Securities 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 Securities 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 Securities
of such Series, in each case as specified in the related Prospectus Supplement.
Interest on each class of Securities 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 Securities.
Distributions on the Securities 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 Securities. An
affiliate of the Depositor may make or obtain for the benefit of the Securities
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 Securities.
The yield on Securities will be affected by the rate of payment of
principal (including prepayments) of mortgage assets in the related Trust. Each
Series of Securities will be subject to early termination under the
circumstances described herein and in the related Prospectus Supplement.
If specified in a Prospectus Supplement for a Series of Certificates,
one or more elections may be made to treat the Trust for the related Series or
specified portions thereof as a "real estate mortgage investment conduit"
("REMIC") for federal income tax purposes. See "Federal Income Tax Consequences"
herein and in the related Prospectus Supplement.
It is a condition to the issuance of the Securities that the Securities
be rated in not less than the fourth highest rating category by a nationally
recognized rating organization.
See "Risk Factors" beginning on page 7 herein and in the related
Prospectus Supplement for a discussion of significant matters affecting
investments in the Securities.
See "ERISA Considerations" herein and in the related Prospectus
Supplement for a discussion of restrictions on the acquisition of Securities 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 Securities.
THE ASSETS OF A TRUST ARE THE SOLE SOURCE OF PAYMENTS ON THE RELATED
SECURITIES. THE SECURITIES DO NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
DEPOSITOR, ANY SERVICER, ANY MASTER SERVICER, ANY ORIGINATOR, ANY TRUSTEE, ANY
INDENTURE TRUSTEE, ANY OWNER TRUSTEE OR ANY OF THEIR AFFILIATES, EXCEPT AS SET
FORTH HEREIN AND IN THE RELATED PROSPECTUS SUPPLEMENT. NEITHER THE SECURITIES
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, ANY INDENTURE TRUSTEE, ANY OWNER
TRUSTEE OR ANY OF THEIR AFFILIATES, EXCEPT AS SET FORTH IN THE RELATED
PROSPECTUS SUPPLEMENT.
- --------------------------------------------------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS OR ANY RELATED PROSPECTUS SUPPLEMENT.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
- --------------------------------------------------------------------------------
Offers of the Securities 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 Securities nor can there by any
assurance that one will develop or if it does develop, that it will provide the
Owners of the Securities with liquidity or will continue for the life of the
Securities.
- --------------------------------------------------------------------------------
Retain this Prospectus for future reference. This Prospectus may not be
used to consummate sales of Securities unless accompanied by a Prospectus
Supplement.
The date of this Prospectus is May 29, 1998.
<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 Securities. 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 its
Public Reference Section 450 Fifth Street, N.W., Washington, D.C. 20549, and at
its Regional Offices located as follows: New York Regional Office, 7 World Trade
Center, 13th Floor, New York, New York 10048; and Chicago Regional Office,
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 accompanying
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 Securities
offered hereby and thereby nor an offer of the Securities to any person in any
state or other jurisdiction in which such offer would be unlawful. The delivery
of this Prospectus at any time does not imply that information herein is correct
as of any time subsequent to its date.
REPORTS TO OWNERS
Periodic and annual reports concerning any Securities and the related
Trust will be provided to the persons in whose names the Securities are
registered (the "Owners"). See "The Pooling and Servicing Agreement - Reports",
"The Indenture - Indenture Trustee's Annual Report" and "- Reports by Indenture
Trustee to Note Owners" herein. If specified in the related Prospectus
Supplement, a Series of Securities may be issuable in book-entry form. In such
event, the related Securities 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 Securities. See "Description of the
Securities - 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., 5901 East Fowler Avenue, Tampa,
Florida 33617-2362 (telephone number (813) 984-8801).
<PAGE>
The Prospectus Supplement or Current Report on Form 8-K relating to the
Securities of each Series to be offered hereunder will, among other things, set
forth with respect to such Securities, as appropriate: (i) a description of the
class or classes of Securities and the interest rate or method of determining
the rate or the amount of interest, if any, to be paid to each such class; (ii)
the aggregate principal amount and Payment Dates relating to such Series and, if
applicable, the initial and final scheduled Payment Dates for each class; (iii)
information as to the assets comprising the Trust, including the general
characteristics of the Trust Assets included therein and, if applicable, the
insurance policies, surety bonds, guarantees, letters of credit, reserve funds,
cash accounts, reinvestment income or other instruments or agreements included
in the Trust or otherwise, and the amount and source of any reserve account or
cash account; (iv) the circumstances, if any, under which the Trust may be
subject to early termination; (v) the methods used to calculate the amount of
principal to be distributed with respect to each class of Securities; (vi) the
order of application of distributions to each of the classes within such Series,
whether sequential, pro rata, or otherwise; (vii) additional information with
respect to the method of distribution of such Securities; (viii) whether one or
more REMIC elections will be made and designation of the regular interests and
residual interests; (ix) the aggregate original percentage ownership interest in
the Trust to be evidenced by each class of Securities; (x) information as to the
Trustee or Indenture Trustee; (xi) information as to the nature and extent of
subordination with respect to any class of Securities that is subordinate in
right of payment to any other class; and (xii) information as to the Master
Servicer, if any.
Until 90 days after the date of each Prospectus Supplement, all dealers
effecting transactions in the Securities covered by such Prospectus Supplement,
whether or not participating in the distribution thereof, may be required to
deliver such Prospectus Supplement and this Prospectus. This is in addition to
the obligations of dealers to deliver a Prospectus Supplement and the Prospectus
when acting as underwriters of the Securities covered by such Prospectus
Supplement and with respect to their unsold allotments or subscriptions.
TABLE OF CONTENTS
Page
----
SUMMARY OF PROSPECTUS..............................................1
RISK FACTORS.......................................................7
DESCRIPTION OF THE SECURITIES.....................................11
General......................................................11
Classes of Securities........................................12
Distributions of Principal and Interest......................13
Book Entry Registration......................................15
List of Owners of Securities.................................15
THE TRUSTS........................................................15
Mortgage Loans...............................................16
Mortgage-Backed Securities...................................18
Other Mortgage Securities....................................18
CREDIT ENHANCEMENT................................................18
SERVICING OF MORTGAGE LOANS.......................................23
Payments on Mortgage Loans...................................24
Advances.....................................................24
Collection and Other Servicing Procedures....................25
Primary Mortgage Insurance...................................26
Standard Hazard Insurance....................................26
Title Insurance Policies.....................................27
Claims Under Primary Mortgage Insurance Policies
and Standard Hazard Insurance Policies;
Other Realization Upon Defaulted Loan....................27
Servicing Compensation and Payment of Expenses...............28
Master Servicer..............................................28
THE POOLING AND SERVICING AGREEMENT...............................28
Assignment of Mortgage Assets................................28
Evidence as to Compliance....................................30
The Trustee..................................................30
Administration of the Security Account.......................31
Reports......................................................32
Forward Commitments; Pre-Funding.............................32
Servicer Events of Default...................................33
Rights Upon Servicer Event of Default........................33
Amendment....................................................33
Termination..................................................34
THE INDENTURE.....................................................34
General......................................................34
Modification of Indenture ...................................34
Note Events of Default.......................................35
Rights Upon Note Events of Default...........................35
List of Note Owners..........................................36
Annual Compliance Statement..................................36
Indenture Trustee's Annual Report............................36
Satisfaction and Discharge of Indenture......................37
Redemption of Notes..........................................37
Reports by Indenture Trustee to Note Owners..................37
Limitation on Suits..........................................37
The Sale and Servicing Agreement.............................37
USE OF PROCEEDS...................................................38
THE DEPOSITOR.....................................................38
CERTAIN LEGAL ASPECTS OF THE
MORTGAGE ASSETS..............................................38
General......................................................39
Foreclosure..................................................39
Enforceability of Certain Provisions.........................43
Soldiers' and Sailors' Civil Relief Act......................44
LEGAL INVESTMENT MATTERS..........................................45
ERISA CONSIDERATIONS..............................................45
FEDERAL INCOME TAX CONSEQUENCES...................................47
REMIC Securities.............................................47
Non-REMIC Securities.........................................63
Debt Certificates............................................69
Notes........................................................70
Certificates Classified as Partnership Interests.............71
FASIT Securities.............................................71
PLAN OF DISTRIBUTION..............................................71
RATINGS...........................................................72
LEGAL MATTERS.....................................................72
FINANCIAL INFORMATION.............................................72
INDEX TO LOCATION OF PRINCIPAL
DEFINED TERMS...............................................A-1
<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 Securities and to
the Pooling and Servicing Agreement or the Indenture and the Trust Agreement
which will be prepared in connection with each Series of Securities. 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 Asset Backed
Certificates (the "Certificates") and
Home Equity Loan Asset Backed Notes
(the "Notes" and together with the
Certificates, the "Securities"),
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. Each Security will
represent a beneficial ownership
interest in a trust (a "Trust") created
from time to time pursuant to a pooling
and servicing agreement (a "Pooling and
Servicing Agreement") or trust
agreement (a "Trust Agreement" and
together with a Pooling and Servicing
Agreement an "Agreement"). Securities
evidencing a debt obligation of a Trust
will be issued pursuant to a trust
indenture (each, an "Indenture").
The Depositor......................... IMC Securities, Inc. (the "Depositor")
is a Delaware corporation. The
Depositor's principal executive offices
are located at 5901 East Fowler Avenue,
Tampa, Florida 33617-2362; telephone
number (813) 984-8801. 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 Securities.
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 Securities.
Trustees.............................. The trustee (the "Trustee") for each
Series of Certificates will be
specified in the related Prospectus
Supplement. The owner trustee (the
"Owner Trustee") and the indenture
trustee (the "Indenture Trustee") for
each Series of Notes will be specified
in the related Prospectus Supplement.
Issuer of Notes....................... With respect to each Series of Notes,
the issuer (the "Issuer") will be the
Depositor or an owner trust established
by it for the purpose of issuing such
Series of Notes. Each such owner trust
will be created pursuant to a Trust
Agreement between the Depositor, acting
as depositor, and the Owner Trustee.
Each Series of Notes will represent
indebtedness of the Issuer and will be
issued pursuant to an Indenture between
the Issuer and the Trustee whereby the
Issuer will pledge the related Trust to
secure the Notes under the lien of the
Indenture. As to each Series of Notes
where the Issuer is an owner trust, the
ownership of the related Trust will be
evidenced by certificated or
noncertificated interests (the "Equity
Certificates") issued under the Trust
Agreement, which, unless otherwise
1
<PAGE>
specified in the Prospectus Supplement,
are not offered hereby. The Notes will
represent nonrecourse obligations
solely of the Issuer, and the proceeds
of the related Trust will be the sole
source of payments on the Notes, except
as described herein under "Credit
Enhancement" and 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 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 Fannie Mae
("Fannie Mae") 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 Securities will describe the
Mortgage Assets to be included in the
Trust for such Series.
The Securities........................ The Securities of any Series may be
issued in one or more classes, as
specified in the Prospectus Supplement.
One or more classes of Securities 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 Securities 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 Securities
of such Series throughout the lives of
the Securities 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
Securities entitled to distributions
allocable to interest,
2
<PAGE>
may be entitled to receive interest at
a fixed rate or a rate that is subject
to change from time to time; (vii) may
accrue interest, with such accrued
interest added to the principal or
notional amount of the Securities, and
no payments being made thereon until
certain other classes of the Series
have been paid in full; and (viii) as
to Securities 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 Securities...................... The related Prospectus Supplement wil
specify (i) whether distributions on
the Securities 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 holders
of the Securities (the "Owners"); (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 Securities of the class
entitled thereto.
The aggregate original principal
balance of the Securities will equal
the aggregate distributions allocable
to principal that such Securities will
be entitled to receive; the Securities
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
Securities 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 "Subsequent Transfer
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
Securities are issued. Any Subsequent
Transfer Agreement will require that
any Mortgage Loans so transferred
conform to the requirements specified
in such Subsequent Transfer Agreement.
If a Subsequent Transfer 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 Securities 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 25% of the aggregate
principal amount of the Securities
offered pursuant to the related
Prospectus Supplement. Each Subsequent
Transfer 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
3
<PAGE>
remaining moneys will be applied as a
mandatory prepayment of a class or
classes of Securities 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 Securities
or a credit enhancer may at their
respective options effect early
retirement of a Series of Securities
through the purchase of the Mortgage
Assets in the related Trust. See "The
Pooling and Servicing Agreement -
Termination" and "The Indenture -
Redemption of Notes" 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 Securities by soliciting competitive
bids for the purchase of the assets of
the related Trust or otherwise. See
"Pooling and Servicing Agreement -
Termination" and "The Indenture -
Rights Upon Note Events of Default"
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 Securities of the related
Series, to amounts deemed to be
recoverable from late payments or
liquidation proceeds, to specified
periods or to any combination thereof,
in each case as specified in the
related Prospectus Supplement. Any such
advance will be recoverable as
specified in the related Prospectus
Supplement. See "Servicing of Mortgage
Loans" herein.
Credit Enhancement.................... If specified in the related Prospectus
Supplement, a Series of Securities, 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 Securities in a Series under
which losses are first allocated to any
Subordinated Securities 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............... Securities of one or more classes of a
Series may be issued in book entry form
("Book Entry Securities") 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 Securities 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
Securities ("Beneficial Owners") other
than Clearing Agency Participants may
be effected only through Clearing
Agency Participants. All references to
the Owners of Securities shall mean
Beneficial Owners to the extent
4
<PAGE>
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
Securities - 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") or financial asset
securitization investment trust
("FASIT") under the Internal Revenue
Code of 1986, as amended (the "Code"),
or, if no REMIC or FASIT election is
made, whether the Securities are
considered to be debt obligations,
Standard Securities, Stripped
Securities or Partnership Interests.
The related Prospectus Supplement for
each Series of Securities will specify
whether a REMIC or FASIT 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
Securities could give rise to a
transaction prohibited or otherwise
impermissible under ERISA or the Code.
Certain classes of Securities may not
be transferred unless the Trustee or
the Indenture 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 or the Indenture Trustee,
the Depositor or the Servicer to
additional obligations. See
"Description of the Securities -
General" herein and "ERISA
Considerations" herein and in the
related Prospectus Supplement.
Legal Investment Matters.............. Securities that constitute "mortgage
related securities" under the Secondary
Mortgage Market Enhancement Act of 1984
("SMMEA") will be so described in the
related Prospectus Supplement.
Securities 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 Securities 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
Securities and to pay other expenses.
See "Use of Proceeds" herein.
Rating................................ It is a condition to the issuance of
each class of Securities that each
class of the Securities of such Series
be rated by one or more of Moody's
Investors Service, Inc. ("Moody's"),
Standard & Poor's Ratings Services, a
division of the McGraw-Hill Companies
("Standard & Poor's"), Duff & Phelps
Credit Rating Co. ("DCR") and Fitch
IBCA, Inc. ("Fitch" and each of Fitch,
Moody's, DCR and Standard & Poor's, a
"Rating Agency")
5
<PAGE>
in one of their four highest rating
categories; provided, however, that one
or more classes of Subordinated
Securities and Residual Securities 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 Security, and,
accordingly, there can be no assurance
that the ratings assigned to any class
of Securities 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 Securities of a Series is
revised or withdrawn, the liquidity of
such class of Securities 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 Securities will be
subject to one or more risk factors,
including declines in the value of
Mortgaged Properties, prepayment of
Mortgage Loans, higher risks of
defaults on particular types of
Mortgage Loans, limitations on security
for the Mortgage Loans, limitations on
credit enhancement and various other
factors. See "Risk Factors" herein and
in the related Prospectus Supplement.
6
<PAGE>
RISK FACTORS
Prospective investors should consider, among other things, the
following risk factors in connection with the purchase of the Securities:
Limited Liquidity. There will be no market for the Securities of any
Series prior to the issuance thereof, and there can be no assurance that a
secondary market will develop or, if it does develop, that it will provide
liquidity of investment or will continue for the life of the Securities of such
Series. The market value of the Securities will fluctuate with changes in
prevailing rates of interest. Consequently, the sale of Securities in any market
that may develop may be at a discount from the Securities' par value or purchase
price. Owners of Securities generally have no right to request redemption of
Securities, and the Securities are subject to redemption only under the limited
circumstances described in the related Prospectus Supplement. In addition, the
Securities will not be listed on any securities exchange.
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 Securities will not represent an interest in
or obligation of the Depositor. The Securities 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 Securities 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 Securities should be aware
that the Servicer, the Seller, or, if specified in the related Prospectus
Supplement, the Owners of a Class of Securities or a credit enhancer may at
their respective options effect early retirement of a Series of Securities
through the purchase of Mortgage Assets from the related Trust. See "The Pooling
and Servicing Agreement - Termination" and "The Indenture - Redemption of Notes"
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 Assets. Owners of Securities 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 Securities), for the
payment of principal of, and interest on, that Series of Securities. If the
assets comprising the Trust are insufficient to make payments on such
Securities, 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 Securities of a Series in the priority specified in the related
7
<PAGE>
Prospectus Supplement, a deficiency may have a disproportionately greater effect
on the Securities 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 or the Indenture Trustee, as applicable, may be permitted
to reduce, terminate or substitute all or a portion of the Credit Enhancement
for any Series of Securities, if the applicable rating agencies indicate that
the then-current rating thereof will not be adversely affected.
Original Issue Discount. All the Compound Interest Securities and
Stripped Securities that are entitled only to interest distributions will be,
and certain of the other Securities may be, issued with original issue discount
for federal income tax purposes. An Owner of a Security 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 Securities generally will be treated as original issue discount for this
purpose. Moreover, the calculation of original issue discount on REMIC
Securities (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 - REMIC Securities - Taxation
of Regular Securities - Variable Rate Regular Securities," and "- Non-REMIC
Securities - Standard Securities," "- Non-REMIC Securities - Premium and
Discount" and "- Non-REMIC Securities - Stripped Securities" herein.
Book Entry Registration. Because transfers and pledges of Book Entry
Securities may be effected only through book entries at a Clearing Agency
through Clearing Agency Participants, the liquidity of the secondary market for
Book Entry Securities may be reduced to the extent that some investors are
unwilling to hold Securities in book entry form in the name of Clearing Agency
Participants and the ability to pledge Book Entry Securities may be limited due
to lack of a physical certificate. Beneficial Owners of Book Entry Securities
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 Securities 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 Securities 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 Securities.
Junior Lien Mortgage Loans. Because Mortgage Loans secured by junior
(i.e., second, third, etc.) liens are subordinate to the rights of the
beneficiaries under the related senior deeds of trust or senior mortgages, a
decline in the residential real estate market would adversely affect the
position of the related Trust as a junior beneficiary or junior mortgagee before
having such an effect on the position of the related senior beneficiaries or
senior mortgagees. A rise in interest rates over a period of time, the general
condition of a Mortgaged Property
8
<PAGE>
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.
State and Federal Regulations. Applicable state laws generally regulate
interest rates and other charges, require certain disclosures and require
licensing of the Seller and the Servicer. In addition, most states have other
laws, public policies and general principles of equity relating to the
protection of consumers, unfair and deceptive practices and practices which may
apply to the origination, servicing and collection of the Mortgage Loans. See
"Certain Legal Aspects of the Mortgage Assets" herein.
The Mortgage Loans may also be subject to federal laws, including: (i)
the Truth in Lending Act and Regulation Z promulgated thereunder, which require
certain disclosures to the borrowers regarding the terms of the Mortgage Loans;
(ii) the Equal Credit Opportunity Act and Regulation B promulgated thereunder,
which prohibit discrimination on the basis of age, race, color, sex, religion,
marital status, national origin, receipt of public assistance or the exercise of
any right under the Consumer Credit Protection Act, in the extension of credit;
(iii) the Real Estate Settlement Procedures Act and Regulation X promulgated
thereunder, which require certain disclosures to borrowers regarding the
settlement and servicing of the Mortgage Loans; (iv) the Fair Credit Reporting
Act, which regulates the use and reporting of information related to the
borrower's credit experience; and (v) the Federal Trade Commission Preservation
of Consumer's Claims and Defense Rule, 16 C.F.R. Part 433, regarding the
preservation of a consumer's rights.
It is possible that some of the Mortgage 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 amended the Truth in Lending Act, which in turn led to certain
additional provisions being added to Regulation Z, the implementing regulation
of the Truth in Lending Act. These provisions impose additional disclosure and
other requirements on creditors with respect to non-purchase money mortgage
loans with high interest rates on high up-front fees and changes. In general,
mortgage loans within the purview of the Riegle Act have annual percentage rates
over 10% greater than the yield on Treasury Securities of comparable maturity
and/or fees and points which exceed the greater of 8% of the total loan amount
or $400. The provisions of the Riegle Act apply on a mandatory basis to all
mortgage loans originated on or after October 1, 1995. The provisions can impose
specific statutory liabilities upon creditors who fail to comply with their
provisions and may affect the enforceability of the related loans. In addition,
any assignee of the creditor would generally be subject to all claims and
defenses that the consumer could assert against the creditor, including, without
limitation, the right to rescind the mortgage loan.
Depending on the provisions of the applicable law and the specific
facts and circumstances involved, violations of these laws, policies and
principles may limit the ability of the Servicer to collect all or part of the
principal of or interest on the Mortgage Loans, may entitle the borrower to a
refund of amounts previously paid and, in addition, could subject the Servicer
to damages and administrative sanctions. If the Servicer is unable to collect
all or part of the principal or interest on any Mortgage Loans because of a
violation of the aforementioned laws, public policies or general principles of
equity, distributions or payments to Owners of realized proceeds of the assets
in the related Trust may be delayed, or such proceeds may not be sufficient to
repay all amounts owed to Owners. Furthermore, depending upon whether damages
and sanctions are assessed against the Servicer, such violations may have a
material impact upon the financial ability of the Servicer to continue to act in
such capacity or the ability of the Depositor or the Issuer to withdraw or
replace Mortgage Loans if such violation breaches a
9
<PAGE>
representation or warranty contained in the related Pooling and Servicing
Agreement, Sale and Servicing Agreement or Indenture, as applicable.
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
Securities that each class of offered Securities be rated in one of the four
highest rating categories by one or more of Moody's, Standard & Poor's DCR 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
Security, and, accordingly, there can be no assurance that the ratings assigned
to any class of Securities on the date on which such Securities 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 Securities may be adversely affected. Issuance of any of the
Securities in book-entry form may reduce the liquidity of such Securities in the
secondary trading market because investors may be unwilling to purchase
Securities for which they cannot obtain physical certificates. The rating of
Securities 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 Securities would likely result in a reduction in
the rating of the Securities. The rating of Securities credit enhanced through
subordination or reserve amounts will depend on the actual performance of the
related Mortgage Loans, and a reduction in such rating could occur if defaults
and losses on the related Mortgage Loans exceed the rate assumed in determining
the original level of credit enhancement. Reduction of a rating would adversely
affect the market value and possibly the liquidity of the related Securities.
See "Ratings" in the Prospectus Supplement.
Funds Available for Redemptions at the Request of Note Owners. With
respect to any Series of Notes for which the related Prospectus Supplement
provides for redemptions of such Notes at the request of Note Owners, there can
be no assurance that amounts available for such redemptions for such Notes will
be sufficient to permit such Notes to be redeemed within a reasonable time after
redemption is requested, for reasons including the following:
(i) Scheduled principal payments on the related Mortgage Loans
generally will be minimal in the early years and will increase in the
later years of such Mortgage Loans. As a result, funds available to be
applied to redemptions at the request of Note Owners, may be expected
to be limited in the early years and to increase during the later years
of each Series. Accordingly, the availability of funds for redemptions
of Notes of any Series at the request of Note Owners will depend
largely upon the rates of prepayment of the related Mortgage Loans.
(ii) Prepayments of principal on Mortgage Loans are less
likely to occur during periods of higher interest rates when it is more
likely that requests for redemption by Note Owners will be made. During
periods in which prevailing interest rates are higher than the interest
rate paid on Notes that may be redeemed at the request of Note Owners,
greater numbers of such Notes are expected to be tendered for
redemption in order to take advantage of the higher interest rates
payable on other investments then available. During such periods, there
will likely also be a reduction in the rate of prepayments on the
10
<PAGE>
related Mortgage Loans, thus limiting the funds available to satisfy
requested redemption by Note Owners.
(iii) As specified in the related Prospectus Supplement,
certain Note Owners, such as personal representatives of deceased Note
Owners, may have certain priorities as to redemption at the request of
Note Owners.
DESCRIPTION OF THE SECURITIES
Each Trust will be created pursuant to an Agreement entered into among
the Depositor, the Trustee or Indenture Trustee, the Owner Trustee, if any, the
Master Servicer, if any, and the Servicer. The provisions of each Agreement will
vary depending upon the nature of the Securities to be issued thereunder and the
nature of the related Trust. Securities which represent beneficial interests in
the Trust will be issued pursuant to the Pooling and Servicing Agreement similar
to the form filed as an Exhibit to the Registration Statement of which this
Prospectus is a part. Securities which represent debt obligations of the Trust
will be issued pursuant to an Indenture between the Trust and the Indenture
Trustee. The following summaries and the summaries set forth under "The Pooling
and Servicing Agreement" and "The Indenture" describe certain provisions
relating to each Series of Securities. The Prospectus Supplement for a Series of
Securities will describe the specific provisions relating to such Series. The
Depositor will provide Owners of Securities, without charge, on written request
a copy of the Pooling and Servicing Agreement or the Indenture and the Trust
Agreement, as applicable, for the related Series. Requests should be addressed
to IMC Securities, Inc., 5901 East Fowler Avenue, Tampa, Florida 33617-2362. The
Pooling and Servicing Agreement or the Indenture and the Trust Agreement, as
applicable, relating to a Series of Securities will be filed with the Securities
and Exchange Commission within 15 days after the date of issuance of such Series
of Securities (the "Delivery Date").
The Securities 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
Securities and will not be entitled to payments in respect of the assets
included in any other trust fund established by the Depositor. The Securities
will not represent obligations of the Depositor, the Trustee or the Indenture
Trustee, the Owner Trustee, if any, 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 Securities 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 Securities of such Series.
General
The Securities of each Series will be issued either in book entry form
or in fully registered form. The Securities of a given Series will evidence
undivided beneficial interests in the assets of the related Trust specified in
the related Prospectus Supplement. The Notes of a given Series will represent
non-recourse obligations of the related Issuer, secured by the assets in the
related Trust, and the proceeds of such assets will be in the sole source of
payments on such Notes. The minimum original denomination of each class of
Securities will be specified in the related Prospectus Supplement. The original
"Security Principal Balance" of each Security will equal the aggregate
distributions or payments allocable to principal to which such Security is
entitled and distributions allocable to interest on each Security that is not
entitled to distributions allocable to principal will be calculated based on the
"Notional Principal Balance" of such Security. The Notional Principal Balance of
a Security 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 Securities, the Securities of each Series will be transferable and
exchangeable on a "Security Register" to be maintained at the corporate trust
office or such other office or agency maintained for such purposes by the
Trustee or the Indenture Trustee, as applicable. The Trustee or the Indenture
Trustee, as applicable, will be appointed initially as the
11
<PAGE>
"Security Registrar" and no service charge will be made for any registration of
transfer or exchange of Securities, 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
Securities 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 Securities 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 or the Indenture
Trustee and the Depositor that the purchase of Securities 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 or the Indenture Trustee, the Servicer or
the Depositor to any obligation or liability in addition to those undertaken in
the Pooling and Servicing Agreement or the Indenture, as applicable.
As to each Series of Certificates, 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 Securities 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 Securities 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 Securities
Each Series of Securities 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 Securities and (ii) interest on such
Securities. If specified in the Prospectus Supplement, one or more classes of a
Series of Securities may evidence beneficial ownership interests in separate
groups of assets included in the related Trust.
The Securities will have an aggregate original Security Principal
Balance equal to or less than 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 or
paid, as specified in the related Prospectus Supplement, 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 Security Principal Balance
(or Notional Principal Balance) of the Securities of a Series and the interest
rate on the classes of such Securities will be determined in the manner
specified in the Prospectus Supplement.
Each class of Securities 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 "Security Interest Rate"). One or more classes
of Securities may provide for interest that accrues but is not currently payable
("Compound Interest Securities"). With respect to any class of Compound Interest
Securities, any interest that has accrued but is not paid on a given Payment
Date will be added to the aggregate Security Principal Balance of such class of
Securities on that Payment Date.
A Series of Securities 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
12
<PAGE>
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 Securities 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 Securities may include one or more Classes of Scheduled
Amortization Securities and Companion Securities. "Scheduled Amortization
Securities" are Securities 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 Securities" are Securities 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 Securities on such Payment Date. Because of the manner of
application of payments of principal to Companion Securities, the weighted
average lives of Companion Securities of a Series may be expected to be more
sensitive to the actual rate of prepayments on the Mortgage Assets in the
related Trust than will the Scheduled Amortization Securities of such Series.
One or more Series of Securities may constitute Series of "Special
Allocation Securities", which may include Senior Securities, Subordinated
Securities, Priority Securities and Non-Priority Securities. As specified in the
related Prospectus Supplement for a Series of Special Allocation Securities, the
timing and/or priority of payments of principal and/or interest may favor one or
more classes of Securities over one or more other classes of Securities. 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 Securities in a Series may be comprised of one or more
classes of Senior Securities having a priority in right to distributions of
principal and interest over one or more classes of Subordinated Securities, as a
form of Credit Enhancement. See "Credit Enhancement Subordination" herein.
Typically, the Subordinated Securities will carry a rating by the rating
agencies lower than that of the Senior Securities. In addition, one or more
classes of Securities ("Priority Securities") may be entitled to a priority of
distributions of principal or interest from assets in the Trust over another
class of Securities ("Non-Priority Securities"), but only after the exhaustion
of other Credit Enhancement applicable to such Series. The Priority Securities
and Non-Priority Securities 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 Securities
are registered (the "Owners") at the close of business on the dates specified in
the Prospectus Supplement (each, a "Record Date"). With respect to Securities
other than Book Entry Securities, distributions will be made by check or money
order mailed to the person entitled thereto at the address appearing in the
Security Register or, if specified in the Prospectus Supplement, in the case of
Securities that are of a certain minimum denomination as specified in the
Prospectus Supplement, upon written request by the Owner of a Security, 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
Securities (other than Book Entry Securities) will be made only upon
presentation and surrender of the Securities at the office or agency of the
Trustee specified in the notice of such final distribution. With respect to Book
Entry Securities, 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 Securities
of the related Series (the "Security 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 Security Account and may be available to make payments on the
Securities of the applicable Series on the next succeeding Payment Date or pay
after amounts owed by the Trust.
13
<PAGE>
Distributions of Interest. Unless otherwise specified in the Prospectus
Supplement relating to a given Series of Securities, each Class of Certificates
may bear interests at a different Security Interest Rate, which may be fixed or
adjustable. All of the Notes of a given Series will bear interest at the same
rate, which may be fixed or adjustable (the "Note Rate"). Interest will accrue
on the aggregate Security Principal Balance (or, in the case of Securities
entitled only to distributions allocable to interest, the aggregate Notional
Principal Balance (as defined below)) of each class of Securities entitled to
interest from the date, at the applicable Security Interest Rate and for the
periods (each, an "Interest Accrual Period") specified in the Prospectus
Supplement. The aggregate Security Principal Balance of any class of Securities
entitled to distributions of principal will be the aggregate original Security
Principal Balance of such class of Securities, reduced by all distributions
allocable to principal, and, in the case of Compound Interest Securities,
increased by all interest accrued but not then distributable on such Compound
Interest Securities. With respect to a class of Securities 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 Securities.
To the extent funds are available therefor, interest accrued during
each Interest Accrual Period on each class of Securities entitled to interest
(other than a class of Compound Interest Securities) will be distributable on
the Payment Dates specified in the Prospectus Supplement until the aggregate
Security Principal Balance of the Securities of such class has been distributed
in full or, in the case of Securities entitled only to distributions allocable
to interest, until the aggregate Notional Principal Balance of such Securities
is reduced to zero or for the period of time designated in the Prospectus
Supplement. Distributions of interest on each class of Compound Interest
Securities will commence only after the occurrence of the events specified in
the Prospectus Supplement and, prior to such time, the aggregate Security
Principal Balance (or Notional Principal Balance) of such class of Compound
Interest Securities, will increase on each Payment Date by the amount of
interest that accrued on such class of Compound Interest Securities 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 Securities
will thereafter accrue interest on its outstanding Security 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 Securities on
each Payment Date will be calculated and the manner in which such amount will be
allocated among the classes of Securities entitled to distributions of
principal.
One or more classes of Securities 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 Securities relative to the interests
evidenced by the other Securities.
Unscheduled Distributions. The Securities 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
Securities 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 Security
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 Securities 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 Securities on the next Payment Date and will
include interest at the applicable Security 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 Securities would have been made on the next Payment Date except
14
<PAGE>
as otherwise stated in the related Prospectus Supplement, and, with respect to
Securities 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 or the Indenture Trustee prior to the date of such distribution.
Book Entry Registration
Securities may be issued as Book Entry Securities 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 Securities 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 Securities.
Purchasers and other Beneficial Owners may not hold Book Entry
Securities directly but may hold, transfer or pledge their ownership interest in
the Securities only through Clearing Agency Participants. Furthermore,
Beneficial Owners will receive all payments of principal and interest with
respect to the Securities and, if applicable, may request redemption of
Securities, only through the Clearing Agency and the Clearing Agency
Participants. Beneficial Owners will not be registered Owners of Securities or
be entitled to receive definitive certificates representing their ownership
interest in the Securities except under the limited circumstances, if any,
described in the related Prospectus Supplement. See "Risk Factors - Book Entry
Registration" herein.
If Securities of a Series are issued as Book Entry Securities, 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 Securities of such Series, and to receive and transmit
requests for redemption with respect to such Securities. Clearing Agency
Participants with whom Beneficial Owners have accounts with respect to such Book
Entry Securities 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 Securities 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 Securities
Upon written request of a specified number or percentage interests of
Owners of Securities of record of a Series of Securities for purposes of
communicating with other Owners of Securities with respect to their rights as
Owners of Securities, the Trustee or the Indenture Trustee will afford such
Owners access during business hours to the most recent list of Owners of
Securities of that Series held by the Trustee or the Indenture Trustee. With
respect to Book Entry Securities, the only named Owner on the Security Register
will be the Clearing Agency.
The Pooling and Servicing Agreement or the Indenture, as applicable,
will not provide for the holding of any annual or other meetings of Owners of
Securities.
THE TRUSTS
The Trust for a Series of Securities 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) 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 Security Interest 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 or the Indenture 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.
15
<PAGE>
The Securities 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 Securities
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
Securities. A copy of the Pooling and Servicing Agreement or the Indenture, the
Sale and Servicing Agreement and the Trust Agreement, as applicable, with
respect to each Series of Securities will be attached to the Form 8-K and will
be available for inspection at the corporate trust office of the Trustee or the
Indenture Trustee specified in the related Prospectus Supplement. A schedule of
the Mortgage Assets relating to each Series of Securities, will be attached to
the related Pooling and Servicing Agreement or Sale and Servicing Agreement, as
applicable delivered to the Trustee or the Indenture Trustee upon delivery of
such Securities.
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 Securities
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.
16
<PAGE>
(b) Principal may be payable on a level debt service basis to
fully amortize the Mortgage Loan over its term, may be calculated on
the basis of an amortization schedule that is longer than the original
term to maturity or on an interest rate that is different from the
interest rate on the Mortgage Loan or may not be amortized during all
or a portion of the original term. Payment of all or a substantial
portion of the principal may be due on maturity. Principal may include
interest that has been deferred and added to the principal balance of
the Mortgage Loan.
(c) Monthly payments of principal and interest may be fixed
for the life of the Mortgage Loan, may increase over a specified period
of time or may change from period to period. Mortgage Loans may include
limits on periodic increases or decreases in the amount of monthly
payments and may include maximum or minimum amounts of monthly
payments.
(d) Prepayments of principal may be subject to a prepayment
fee, which may be fixed for the life of the Mortgage Loan or may
decline over time, and may be prohibited for the life of the Mortgage
Loan or for certain periods ("lockout periods"). Certain Mortgage Loans
may permit prepayments after expiration of the applicable lockout
period and may require the payment of a prepayment fee in connection
with any such subsequent prepayment. Other Mortgage Loans may permit
prepayments without payment of a fee unless the prepayment occurs
during specified time periods. The Mortgage Loans may include
"due-on-sale" clauses which permit the mortgagee to demand payment of
the entire Mortgage Loan in connection with the sale or certain
transfers of the related mortgaged property. Other Mortgage Loans may
be assumable by persons meeting the then applicable underwriting
standards of the Servicer, or as may be required by any applicable
government program.
(e) Another type of mortgage loan described in the Prospectus
Supplement.
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 or paid, as specified in the related Prospectus Supplement, 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.
17
<PAGE>
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 Fannie Mae 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 Securities described herein.
Distributions in respect of the MBS will be made by the MBS Servicer or the MBS
Trustee on the dates specified in the related Prospectus Supplement. The MBS
Issuer or the MBS Servicer or another person specified in the related Prospectus
Supplement may have the right or obligation to repurchase or substitute assets
underlying the MBS after a certain date or under other circumstances specified
in the related Prospectus Supplement.
Reserve funds, subordination, cross-support or other credit enhancement
similar to that described for the Securities 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 Securities 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 Securities 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 Securities or with respect to the
assets in the related Trust. Credit Enhancement may be in the form
18
<PAGE>
of (i) the subordination of one or more classes of the Securities of such
Series, (ii) the establishment of one or more Reserve Funds, (iii) 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 (iv) 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
Securities 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 Securities 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 Securities. The issuer of any Financial Guaranty Insurance
Policy (a "Financial Guaranty Insurer") will be described in the related
Prospectus Supplement. Such description will include financial information on
the Financial Guaranty Insurer. In addition, the audited financial statements of
a Financial Guaranty Insurer and an auditors consent to use such financial
statements will be filed with the Securities and Exchange Commission on Form 8-K
or will be incorporated by reference to financial statements already on file
with the Securities and Exchange Commission.
Unless otherwise specified in the related Prospectus Supplement, a
Financial Guaranty Insurance Policy will unconditionally and irrevocably
guarantee to Owners that an amount equal to each full and completed insured
payment will be received by an agent of the Trustee or the Indenture Trustee, as
applicable (an "Insurance Paying Agent"), on behalf of Owners, for distribution
by the Trustee or the Indenture Trustee, as applicable, to each Owner. 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 Owners 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 Securities on any specified date.
Subject to the terms of the related Pooling and Servicing Agreement or
Sale and Servicing Agreement, as applicable, the Financial Guaranty Insurer may
be subrogated to the rights of Owners to receive payments under the Securities
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
Securities of such Series (the "Subordinated Securities") may be paid to one or
more other classes of such Series (the "Senior Securities") 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 Securities and thereafter by the
various classes of Senior Securities, 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 Securities or at any time, the aggregate losses in respect of
defaulted Mortgage Assets which must be borne by the Subordinated Securities by
virtue of subordination and the amount of the distributions otherwise
distributable to the Subordinated Securities that will be distributable to
Owners of Senior Securities 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 Securities or, if applicable, were to exceed the
specified maximum amount, Owners of Senior Securities could experience losses on
the Securities.
19
<PAGE>
In addition to or in lieu of the foregoing, all or any portion of
distributions otherwise payable to Subordinated Securities 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 Securities 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 Securities at the times and under the
circumstances specified in the Prospectus Supplement.
If specified in the Prospectus Supplement, various classes of
Subordinate Securities and Subordinated Securities may themselves be subordinate
in their right to receive certain distributions to other classes of Senior and
Subordinated Securities, respectively, through a cross-support mechanism or
otherwise.
As between classes of Senior Securities and as between classes of
Subordinated Securities, distributions may be allocated among such classes (i)
in the order of their scheduled final distribution dates, (ii) in accordance
with a schedule or formula, (iii) in relation to the occurrence of events, or
(iv) otherwise, in each case as specified in the Prospectus Supplement. As
between classes of Subordinated Securities, payments with respect to Senior
Securities 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 Securities 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 Securities. 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 Securities. Such acceleration may continue for
the life of the related Securities, 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 Securities. In
such case, Credit Enhancement may be provided by a cross-support feature which
may require that distributions be made with respect to Securities evidencing
beneficial ownership of one or more asset groups prior to distributions to
Subordinated Securities 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 Securities. 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 or the Indenture Trustee under the
related Pooling and Servicing Agreement or Sale and Servicing Agreement, as
applicable, 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
20
<PAGE>
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 Securities and cannot be cured by the
Seller.
The original amount of coverage under any Mortgage Pool Insurance
Policy will be reduced over the life of such Securities 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 Securities 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 Securities, 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.
21
<PAGE>
Subject to the foregoing limitations, any Special Hazard Insurance
Policy generally will provide that, where there has been damage to property
securing a foreclosed Mortgage Loan (title to which has been acquired by the
insured) and to the extent such damage is not covered by the hazard insurance
policy or flood insurance policy, if any, maintained with respect to such
Mortgage Loan, the issuer of the Special Hazard Insurance Policy (the "Special
Hazard Insurer") will pay the lesser of (i) the cost of repair or replacement of
such property or (ii) upon transfer of the property to the special hazard
insurer, the unpaid principal balance of such Mortgage Loan at the time of
acquisition of such property by foreclosure or deed in lieu of foreclosure, plus
accrued interest to the date of claim settlement and certain expenses incurred
with respect to such property. If the unpaid principal balance plus accrued
interest and certain expenses is paid by the Special Hazard Insurer, the amount
of further coverage under the related Special Hazard Insurance Policy will be
reduced by such amount less any net proceeds from the sale of the property. Any
amount paid as the cost of repair or replacement of the property will also
reduce coverage by such amount. Restoration of the property with the proceeds
described under (i) above will satisfy the condition under any applicable
Mortgage Pool Insurance Policy that the property be restored before a claim
under such Mortgage Pool Insurance Policy may be validly presented with respect
to the defaulted Mortgage Loan secured by such property. The payment described
under (ii) above will render unnecessary presentation of a claim in respect of
such Mortgage Loan under any related Mortgage Pool Insurance Policy. Therefore,
so long as a Mortgage Pool Insurance Policy remains in effect, the payment by
the Special Hazard Insurer under a Special Hazard Insurance Policy of the cost
of repair or replacement or the unpaid principal balance of the Mortgage Loan
plus accrued interest and certain expenses will not affect the total insurance
proceeds but will affect the relative amounts of coverage remaining under any
related Special Hazard Insurance Policy and any related Mortgage Pool Insurance
Policy.
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 or the Indenture Trustee, as applicable. 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 Securities, 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
22
<PAGE>
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 or the Indenture Trustee, as
applicable, such letter of credit will be irrevocable. Any instrument deposited
therein will name the Trustee or the Indenture Trustee, as applicable, as a
beneficiary and will be issued by an entity acceptable to each rating agency
that rates the Securities. 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 Securities 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 Securities, or for such other purpose as is
specified in such Prospectus Supplement. Such arrangements may include
agreements under which Owners of Securities are entitled to receive amounts
deposited in various accounts held by the Trustee or the Indenture Trustee, as
applicable, 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 Securities, 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 related Pooling and
Servicing Agreement or any Sale and Servicing Agreement (a "Sale and Servicing
Agreement") entered into among the Seller, the Servicer, the Depositor, the
Issuer and the Indenture Trustee. 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
related Pooling and Servicing Agreement or Sale and Servicing Agreement) as well
as satisfaction of certain other criteria. The Servicer is required to be a
Fannie Mae-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 or the Indenture
Trustee, as applicable, 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 related Pooling and Servicing Agreement or Sale and
Servicing Agreement, as applicable. See " - Advances" and " - Servicing
Compensation and Payment of Expenses" below.
23
<PAGE>
Each Servicer will be required to service each Mortgage Loan pursuant
to the terms of the Pooling and Servicing Agreement or the Sale and Servicing
Agreement, as applicable, for the entire term of such Mortgage Loan unless such
Pooling and Servicing Agreement or Sale and Servicing 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 or the Indenture
Trustee, as applicable, 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 Sale and Servicing Agreement.
Notwithstanding the foregoing, the deposits in a Servicer's Custodial
Account will not be required to be fully insured or secured as described above,
and such Servicer will not be required to remit amounts on deposit therein in
excess of the amount so insured or secured, so long as such Servicer meets
certain requirements established by the rating agencies requested to rate the
Securities.
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 or the Indenture
Trustee, as applicable, 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 related
Pooling and Servicing Agreement or Sale and Servicing 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 Pooling and
Servicing Agreement or Sale and Servicing Agreement, as applicable.
24
<PAGE>
Collection and Other Servicing Procedures
Each Servicer will service the Mortgage Loans pursuant to guidelines
established in the related Pooling and Servicing Agreement or Sale and Servicing
Agreement, as applicable.
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 Security
Account when realized and will be distributed to Owners of Securities 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 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
25
<PAGE>
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.
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
Pooling and Servicing Agreement or Sale and Servicing Agreement, as applicable,
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 Fannie Mae 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
26
<PAGE>
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 Pooling and Servicing Agreements and the Sale and Servicing
Agreements will generally require that a title insurance policy be in effect on
each of the Mortgaged Properties and that such title insurance policy contain no
coverage exceptions, except customary exceptions generally accepted in the
mortgage banking industry.
Claims Under Primary Mortgage Insurance Policies and Standard Hazard Insurance
Policies; Other Realization Upon Defaulted Loan
Each Servicer will present claims to any primary insurer under any
related primary mortgage insurance policy and to the hazard insurer under any
related standard hazard insurance policy. All collections under any related
primary mortgage insurance policy or any related standard hazard insurance
policy (less any proceeds to be applied to the restoration or repair of the
related Mortgaged Property or to the reimbursement of Advances by the Servicer)
will be remitted to the Trustee or the Indenture Trustee, as applicable.
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 related Pooling and Servicing Agreement or Sale and Servicing
Agreement, as applicable. 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 Pooling and Servicing Agreement or
the Sale and Servicing Agreement, as applicable. 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 Security Account after such
foreclosure or liquidation and attributable to such Mortgage Loan will be
distributed to Owners of the Securities.
27
<PAGE>
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 Securities 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 Securities. 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 Pooling
and Servicing Agreement or the Sale and Servicing Agreement, as applicable, 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
backup 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 Pooling and Servicing
Agreement or the Sale and Servicing Agreement, as applicable, 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 Pooling and Servicing Agreement or Sale and Servicing
Agreement, as applicable. The Master Servicer will be compensated for the
performance of its services and duties under each Pooling and Servicing
Agreement or Sale and Servicing Agreement as specified in the related Prospectus
Supplement.
THE POOLING AND SERVICING AGREEMENT
The following summary describes certain provisions which will be common
to each Pooling and Servicing Agreement. The summary does not purport to be
complete and is subject to the provisions of a particular Pooling and Servicing
Agreement. Material terms of a specific Pooling and Servicing 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
Securities, 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
Securities to the Depositor in exchange for the Mortgage Loans. Each Mortgage
Loan will be identified in a schedule appearing as an exhibit to the Pooling and
Servicing 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
28
<PAGE>
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 Pooling and Servicing 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 Securities, 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 Securities, each Mortgage is a valid first lien on the
property securing the Mortgage Note (subject only to (a) the lien of current
real property taxes and assessments, (b) covenants, conditions, and
restrictions, rights of way, easements and other matters of public record as of
the date of the recording of such Mortgage, such exceptions appearing of record
being acceptable to mortgage lending institutions generally in the area wherein
the property subject to the Mortgage is located or specifically reflected in the
appraisal obtained by the Depositor and (c) other matters to which like
properties are commonly subject which do not materially interfere with the
benefits of the security intended to be provided by such Mortgage) and such
property is free of material damage and is in good repair or, with respect to a
junior lien Mortgage Loan, that such Mortgage is a valid junior lien Mortgage,
as the case may be and specifying the percentage of the Mortgage Loan Pool
comprised of junior lien Mortgage Loans; (v) at the date of initial issuance of
the Securities, 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 Securities, 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 Securities 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
29
<PAGE>
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 Security
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 Securities 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.
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 Pooling and Servicing 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 Fannie Mae 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 Securities. In the event of such appointment, all rights,
powers, duties and obligations conferred or imposed upon the Trustee by the
Pooling and Servicing 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
30
<PAGE>
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 Pooling and Servicing Agreement, the Securities 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 Securities or the related assets, or amounts deposited in the Security
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 Pooling and Servicing 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 Pooling and Servicing 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
Pooling and Servicing 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 Security Account
The Pooling and Servicing Agreement will require that the Security
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 Securities, 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 Security Account is limited to United States government
securities and other investments acceptable to the rating agencies rating such
Series of Securities, and may include one or more Securities of a Series
("Eligible Investments"). If so specified in the related Prospectus Supplement,
a Security Account may be maintained as an interest bearing account, or the
funds held therein may be invested pending each succeeding Payment Date in
Eligible Investments. If so specified in the related Prospectus Supplement, the
Servicer or its designee will be entitled to receive any such interest or other
income earned on funds in the Security Account as additional compensation. The
Servicer will deposit in the Security 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;
31
<PAGE>
(vi) any Advances made as described under "Servicing of
Mortgage Loans - Advances" herein and certain other amounts required
under the Pooling and Servicing Agreement to be deposited in the
Security 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
Security Account from any Credit Enhancement for the related Series;
and
(ix) all other amounts required to be deposited in the
Security Account pursuant to the related Pooling and Servicing
Agreement.
Reports
Concurrently with each distribution on the Securities, 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 Security Principal Balance of each class
of the Securities after giving effect to distributions on such Payment
Date;
(iv) the aggregate Security Principal Balance of any class of
Compound Interest Securities 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 Securities that was distributed to other classes of
Securities;
(vi) if any class of Securities 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 Securities, 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 Subsequent Transfer Agreement
for the transfer of additional Mortgage Loans to such Trust following the date
on which such Trust is established and the related Securities are issued. The
Trustee of a Trust may enter into Subsequent Transfer 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 Subsequent Transfer Agreement will require that
32
<PAGE>
any Mortgage Loans so transferred to a Trust conform to the requirements
specified in such Subsequent Transfer Agreement. If a Subsequent Transfer
Agreement is to be utilized, the related Trustee will be required to deposit in
the 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 Securities 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 25% of the aggregate principal amount of the
Securities offered pursuant to the related Prospectus Supplement. Each
Subsequent Transfer 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 Subsequent Transfer 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 Securities as specified in the related Prospectus Supplement.
Servicer Events of Default
"Events of Default" under the Pooling and Servicing 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
Securities evidencing interests aggregating not less than 25% of the affected
class of Securities; 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 Pooling and Servicing
Agreement remains unremedied by the Servicer, the Trustee, or Owners of
Securities may terminate all the rights and obligations of the Servicer under
the Pooling and Servicing Agreement, whereupon the Trustee or Master Servicer,
if any, or a new Servicer appointed pursuant to the Pooling and Servicing
Agreement, will succeed to all the responsibilities, duties and liabilities of
the Servicer under the Pooling and Servicing 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 Pooling and Servicing Agreement to
act as successor to the Servicer under the Pooling and Servicing Agreement. If
no such successor shall have been appointed within a specified number of days
following such termination, then either the Depositor or the Trustee may
petition a court of competent jurisdiction for the appointment of a successor
Servicer. Pending the appointment of a successor Servicer, the Trustee or the
Master Servicer, if any, shall act as Servicer.
The Owners of Securities will not have any right under the Pooling and
Servicing Agreement to institute any proceeding with respect to the Pooling and
Servicing Agreement, unless they previously have given to the Trustee written
notice of default and unless the Owners of the percentage of the Securities
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
A Pooling and Servicing Agreement generally may be amended by the
Depositor, the Servicer and the Trustee, without the consent of the Owners of
the Securities, 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
33
<PAGE>
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 such amendment will not adversely affect in any material respect the
interests of any Owners of Securities of that Series. 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 Securities of such Series. 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 Security without
the consent of the Owner of such Security, (ii) adversely affect in any material
respect the interests of the Owners of any class of Securities in any manner
other than as described in (i), without the consent of the Owners of Securities
of such class evidencing not less than a majority of the interests of such class
or (iii) reduce the aforesaid percentage of Securities of any class required to
consent to any such amendment, without the consent of the Owners of all
Securities 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 Pooling and Servicing Agreement will terminate upon the payment as
required by the Pooling and Servicing Agreement of all amounts held by the
Servicer or in the Security Account and required to be paid to them pursuant to
the Pooling and Servicing 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 Securities or
all remaining assets in the Trust. The Pooling and Servicing Agreement will
establish the repurchase price for the assets in the Trust and the allocation of
such purchase price among the classes of Securities. The exercise of such right
will effect early retirement of the Securities 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 Pooling and
Servicing Agreement continue beyond the expiration of 21 years from the death of
the survivor of certain persons named in the Pooling and Servicing Agreement.
The Trustee will give written notice of termination of Pooling and Servicing the
Agreement to each Owner, and the final distribution will be made only upon
surrender and cancellation of the Securities at an office or agency of the
Trustee specified in such notice of termination.
THE INDENTURE
General
Each Series of Notes will be issued pursuant to an Indenture to be
entered into between the related Issuer and the related Trustee. Where
provisions or terms used in a particular Indenture differ from those provided
herein, a description of such provisions or terms will be included in the
related Prospectus Supplement.
The following summaries describe certain provisions of the Indenture
not described elsewhere in this Prospectus. Where particular provisions or terms
used in the Indenture are referred to, the actual provisions (including
definitions of terms) are incorporated by reference as part of such summaries.
The description set forth below is subject to modification in the Prospectus
Supplement for a Series of Notes to describe the terms and provisions of the
particular Indenture relating to such Series of Notes.
Modification of Indenture
With the consent of the holders of not less than a majority of the
aggregate principal amount of the outstanding Notes of any Series issued under
an Indenture, the related Indenture Trustee and the related Issuer may execute a
supplemental indenture to add provisions to, or change in any manner or
eliminate any provisions of,
34
<PAGE>
the Indenture with respect to such Series or modify (except as provided below)
in any manner the rights of the holders of such Notes.
Without the consent of the holders of the Notes of such Series affected
thereby, however, no supplemental indenture shall (a) change the Payment Date of
the principal of, or interest on, any Note of such series or reduce the
principal amount thereof the Note Rate specified thereon, change the provisions
relating to the application of collections on, or the proceeds of the Mortgage
Assets to the payment of principal of or interest on the Notes, or change any
place of payment where, or the coin or currency in which, any Note of such
Series or any interest thereon is payable, or impair the right to institute suit
for the enforcement of certain provisions of the Indenture regarding payment,
(b) reduce the percentage of the aggregate principal amount of the outstanding
Notes of such Series, the consent of the holders of which is required for any
such a supplemental indenture, or the consent of the holders of which is
required for any waiver of compliance with certain provisions of the Indenture
or of certain defaults thereunder and their consequences as provided for in the
Indenture, (c) reduce the percentage of the aggregate principal amount of the
outstanding Notes of any Series to direct the Issuer to liquidate upon a Note
Event of Default (as described below), (d) modify or alter the provisions for
the Indenture except to increase any percentage specified therein or to provide
that certain other provisions of the Indenture cannot be modified or waived
without the consent of the holder of each outstanding Note affected thereby, (e)
modify any of the provisions of the Indenture in such manner as to affect the
calculation of the amount any payment of the interest and principal due on any
Note on any Payment Date or to affect the rights of the holders of Notes of such
Series to the benefits of any provisions for the mandatory redemption of the
Notes of such Series contained therein, or (f) permit the creation of any lien
ranking prior to or on the parity with the lien of the Indenture with respect to
any part of the property subject to a lien under the Indenture or terminate the
lien of the Indenture on any property at any time subject thereto or deprive the
holder of any Note of such Series of the security afforded by the lien of the
Indenture.
The related Issuer and the respective Indenture Trustee may also enter
into supplemental indentures, without obtaining the consent of the Owners of the
Notes of such Series, to cure ambiguities or make minor corrections, to evidence
the succession of another person to the Issuer or the acceptance of a successor
trustee, each in accordance with the Indenture, and to do such other things as
would not adversely affect the interests of the Owners of the Notes of such
Series.
Note Events of Default
Unless otherwise specified in the Prospectus Supplement relating to a
given Series of Notes, a "Note Event of Default" with respect to any Series of
Notes will be defined in the respective Indenture under which such Notes are
issued as: (a) unless otherwise specified in the Prospectus Supplement for such
Series, a default in the payment of interest on any Note of such Series when due
and payable; (b) unless otherwise specified in the Prospectus Supplement for
such Series, a default in the payment of principal on any Note of such Series
when due and payable; (c) a default in the observance of any covenants or
agreements of the Issuer made in the Indenture or any representations and
warranties of the Issuer made in the Indenture, the Sale and Servicing Agreement
or certain other documents, and the continuation of any such default for a
specified period after notice to the related Issuer by the Indenture Trustee or
to the related Issuer and the Indenture Trustee by the holders of a majority of
the principal amount of the Notes of such Series then outstanding; or (d)
certain events of bankruptcy, insolvency, receivership or reorganization of the
related Issuer, whether voluntary or involuntary.
Rights Upon Note Events of Default
Unless otherwise specified in the Prospectus Supplement relating to a
given Series of Notes, in case a Note Event of Default should occur and be
continuing with respect to a Series of Notes, the Indenture Trustee may, and on
request of holders of not less than a majority in principal amount of the Notes
of such Series then outstanding shall, declare the principal of such Series of
Notes to be due and payable. Such declaration may under certain circumstances be
rescinded by the holders of a majority in principal amount of the Notes of such
Series then outstanding.
35
<PAGE>
If, following a Note Event of Default, a Series of Notes has been
declared to be due and payable, the holders representing a majority in principal
amount of the Notes may, by written notice to the Issuer and Indenture Trustee,
rescind and annul the acceleration of the maturity of such Notes if the Issuer
has paid or deposited with the Indenture Trustee a sum sufficient to pay: (i)
all payments of principal of and interest on all Notes and all other amounts
that would then be due upon such Notes if the Note Event of Default giving rise
to such acceleration had not occurred; (ii) all sums paid or advanced by the
Indenture Trustee and the reasonable compensation, expenses, disbursements and
advances of the Indenture Trustee and its agents and counsel; and (iii) all Note
Events of Default, other than the nonpayment of the principal of the Notes that
has become due solely by such acceleration, have been cured or waived.
Subject to the provisions of the Indenture relating to the duties of
the Indenture Trustee, in case a Note Event of Default shall occur and be
continuing, the Indenture Trustee may and at the direction of the holders of the
Notes representing a majority in principal amount of the Notes shall, upon
receipt of satisfactory indemnity and assurances, do one or more of the
following: (i) institute proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the Notes or
under the Indenture, whether by declaration or otherwise, enforce any judgment
obtained, and collect from the Issuer and any other obligor upon such Notes
moneys adjudged due; (ii) institute proceedings from time to time for the
complete or partial foreclosure of the Indenture with respect to the Mortgage
Assets; (iii) exercise any remedies of a secured party under the UCC and take
any other appropriate action to protect and enforce the rights and remedies of
the Indenture Trustee or the holders of the Notes; and (iv) sell the Mortgage
Assets or any portion thereof or rights or interest therein in a commercially
reasonable manner, at one or more public or private sales called and conducted
in any manner permitted by law; provided, however, that the Indenture Trustee
may not sell or otherwise liquidate the Mortgage Assets following a Note Event
of Default, unless (A) all holders of the Notes consent thereto, (B) the
proceeds of such sale or liquidation distributable to the holders of the Notes
are sufficient to discharge in full all amounts then due and unpaid upon such
Notes for principal and interest or (C) the Indenture Trustee determines that
the Mortgage Assets will not continue to provide sufficient funds for the
payment of principal of and interest on the Notes as they would have become due
if the Notes had not been declared due and payable, and the Indenture Trustee
obtains the consent of holders of 66-2/3% in principal amount of the Notes.
List of Note Owners
Unless otherwise specified in the Prospectus Supplement relating to a
given Series of Notes, three or more holders of the Notes of any Series (each of
whom has owned a Note of such Series for at lease six months) may, by written
request to the Indenture Trustee, obtain access to the list of all Note Owners
of such Series maintained by the Indenture Trustee for the purpose of
communicating with other such Note Owners with respect to their rights under the
Indenture. The Indenture Trustee may elect not to afford the requesting Note
Owners access to the list of Note Owners if it agrees to mail the desired
communication or proxy, on behalf of the requesting Note Owners, to all Note
Owners.
Annual Compliance Statement
The related Issuer will be required to file annually with the Indenture
Trustee a written statement as to the fulfillment of its obligations under the
Indenture.
Indenture Trustee's Annual Report
The Indenture Trustee will be required to mail each year to all Owners
of Notes a brief report relating to its eligibility and qualifications to
continue as the Indenture Trustee under the Indenture, any amounts advanced by
it under the Indenture, the amount, interest rate and maturity date of certain
indebtedness owing by the related Issuer to it in the Indenture Trustee's
individual capacity, the property and funds physically held by the Indenture
Trustee as such, any release, or release and substitution, of property subject
to the lien of the Indenture that has not been previously reported, any
additional Series of Notes not previously reported and any action taken by it
which materially affects the Notes and which has not been previously reported.
36
<PAGE>
Satisfaction and Discharge of Indenture
The Indenture will be discharged with respect to the assets securing
the Notes of a Series upon the delivery to the Indenture Trustee for
cancellation of all of the Notes of such Series or, with certain limitations,
upon deposit with the Indenture Trustee of funds sufficient for the payment in
full of all of the Notes of such Series.
Redemption of Notes
To the extent provided in the related Prospectus Supplement, the Notes
of any Series may be (i) redeemed at the request of holders of such Notes; (ii)
redeemed at the option of the related Issuer or another party specified in the
related Prospectus Supplement; or (iii) subject to special redemption under
certain circumstances. The circumstances and terms under which the Notes of a
Series may be redeemed will be described in the related Prospectus Supplement.
Reports by Indenture Trustee to Note Owners
On each Payment Date, the Indenture Trustee will send a report to each
Note Owner setting forth, among other things, the amount of such payment
representing interest, the amount thereof, if any, representing principal and
the outstanding principal amount of an individual Note after giving effect to
the payments made on such Payment Date.
Limitation on Suits
Unless otherwise specified in the Prospectus Supplement relating to a
given Series of Notes, no Note Owners of any Series will have any right to
institute any proceedings with respect to the Indenture unless (1) such holder
has previously given written notice to the Indenture Trustee of a continuing
Note Event of Default with respect to such Series; (2) the holders of a majority
of the principal amount of the Notes of such Series then outstanding have made
written requests to the Indenture Trustee to institute proceedings in respect to
such Note Event of Default in its own name as Indenture Trustee; (3) such
holders have offered to the Indenture Trustee reasonable indemnity satisfactory
to it against the costs, expenses and liabilities to be incurred in compliance
with such request; (4) for a specified period after its receipt of such notice,
request and offer of indemnity the Indenture Trustee has failed to institute any
proceedings; and (5) no direction inconsistent with such written request has
been given to the Indenture Trustee during such period by the holders of not
less than a majority in principal amount of the Notes of such Series then
outstanding.
The Sale and Servicing Agreement
General. The conveyance and servicing of the Mortgage Loans related to
the issuance of a Series of Notes will be pursuant to a Sale and Servicing
Agreement to be entered into between the Issuer, the Seller, the Servicer, the
Depositor and the Indenture Trustee. Where provisions or terms used in a
particular Sale and Servicing Agreement differ from those provided herein, a
description of such provisions or terms will be included in the related
Prospectus Supplement.
Assignment of Mortgage Assets. The Mortgage Loans to be included in the
related Trust will be assigned to the Indenture Trustee on behalf of the holders
of the Notes pursuant to provisions included in the related Sale and Servicing
Agreement that are substantially the same as and the Indenture Trustee with
respect to the Mortgage Loans so conveyed will be substantially similar to,
those described under "The Pooling and Servicing Agreement - Assignment of
Mortgage Assets" herein.
Evidence as to Compliance. The Indenture Trustee will receive an
opinion from a firm of independent public accountants regarding the servicing of
the Mortgage Loans which is substantially the same as described under "The
Pooling and Servicing Agreement - Evidence as to Compliance" herein.
37
<PAGE>
The Indenture Trustee. The Indenture Trustee will be subject to rights
and duties under the Sale and Servicing Agreement substantially the same as
those of the Trustee described under "The Pooling and Servicing Agreement - The
Trustee."
Administration of the Security Account. The Sale and Servicing
Agreement will require that a Security Account be maintained and used in
substantially the same manner as described under "The Pooling and Servicing
Agreement - Administration of the Security Account."
Reports. The Sale and Servicing Agreement will provide that holders of
the Notes will receive reports substantially the same as those described under
"The Pooling and Servicing Agreement - Reports."
Forward Commitments; Pre-Funding. Under the Sale and Servicing
Agreement, the Indenture Trustee of a Trust may enter into Subsequent Transfer
Agreements for the transfer of additional Mortgage Loans to such Trust following
the date on which such Trust is established and the related Notes are issued in
substantially the same manner as described under "The Pooling and Servicing
Agreement - Forward Committments; Pre-Funding."
Servicer Events of Default. The "Events of Default" under the Sale and
Servicing Agreement will be substantially the same as those described under "The
Pooling and Servicing Agreement - Servicer Events of Default."
Rights Upon Servicer Event of Default. The rights upon an Event of
Default under the Sale and Servicing Agreement will be substantially the same as
described under "The Pooling and Servicing Agreement - Rights Upon Servicer
Event of Default."
USE OF PROCEEDS
Substantially all the net proceeds to be received from the sale of each
Series of Securities 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 establishment of any Reserve Fund or
Pre-Funding Account the costs of carrying such Mortgage Assets until sale of the
Securities 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 Securities 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.
38
<PAGE>
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 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
39
<PAGE>
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 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
40
<PAGE>
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 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
41
<PAGE>
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 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
42
<PAGE>
through his or her Chapter 11 or Chapter 13 rehabilitative plan to cure a
monetary default in respect of a mortgage loan on a debtor's residence by paying
arrearages within a reasonable time period and reinstating the original mortgage
loan payment schedule even though the lender accelerated the mortgage loan and
final judgment of foreclosure had been entered in state court (provided no sale
of the residence had yet occurred) prior to the filing of the debtor's petition.
Some courts with federal bankruptcy jurisdiction have approved plans, based on
the particular fact of the reorganization case, that effected the curing of a
mortgage loan default by paying arrearages over a number of years.
Courts with federal bankruptcy jurisdiction have also indicated that
the terms of a mortgage loan secured by property of the debtor may be modified.
These courts have suggested that such modifications may include reducing the
amount of each monthly payment, changing the rate of interest, altering the
repayment schedule and reducing the lender's security interest to the value of
the residence, thus leaving the lender a general unsecured creditor for the
difference between the value of the residence and the outstanding balance of the
loan. Federal bankruptcy law and limited case law indicate that the foregoing
modifications could not be applied to the terms of a loan secured by property
that is the principal residence of the debtor.
The Code provides priority to certain tax liens over the lien of the
mortgage. In addition, substantive requirements are imposed upon mortgage
lenders in connection with the origination and the servicing of mortgage loans
by numerous federal and some state consumer protection laws. These laws include
the federal Truth-in-Lending Act, Real Estate Settlement Procedures Act, Equal
Credit Opportunity Act, Fair Credit Billing Act, Fair Credit Reporting Act and
related statutes. These federal laws impose specific statutory liabilities upon
lenders who originate mortgage loans and who fail to comply with the provisions
of the law. In some cases, this liability may affect assignees of the mortgage
loans.
Generally, Article 9 of the UCC governs foreclosure on cooperative
shares and the related proprietary lease or occupancy agreement. Some courts
have interpreted section 9-504 of the UCC to prohibit a deficiency award unless
the creditor establishes that the sale of the collateral (which, in the case of
a Cooperative Loan, would be the shares of the cooperative and the related
proprietary lease or occupancy agreement) was conducted in a commercially
reasonable manner.
Enforceability of Certain Provisions
Certain of the Mortgage Loans will contain due-on-sale clauses. These
clauses permit the lender to accelerate the maturity of a loan if the borrower
sells, transfers, or conveys the property. The enforceability of these clauses
was the subject of legislation or litigation in many states, and in some cases
the enforceability of these clauses was limited or denied. However, the Garn-St.
Germain Depository Institutions Act of 1982 (the "Garn-St. Germain Act")
preempts state constitutional, statutory and case law prohibiting the
enforcement of due-on-sale clauses and permits lenders to enforce these clauses
in accordance with their terms, subject to certain limited exceptions. The
Garn-St. Germain Act does "encourage" lenders to permit assumption of loans at
the original rate of interest or at some other rate less than the average of the
original rate and the market rate.
The Garn-St. Germain Act also sets forth nine specific instances in
which a mortgage lender covered by the Garn-St. Germain Act (including federal
savings and loan associations and federal savings banks) may not exercise a
due-on-sale clause, notwithstanding the fact that a transfer of the property may
have occurred. These include intra-family transfers, certain transfers by
operation of law, leases of fewer than three years and the creation of a junior
encumbrance. Regulations promulgated under the Garn-St. Germain Act by the
Federal Home Loan Bank Board as succeeded by the Office of Thrift Supervision
(the "OTS"), also prohibit the imposition of a prepayment penalty upon the
acceleration of a loan pursuant to a due-on-sale clause. Any inability of the
Depositor to enforce due-on-sale clauses may affect the average life of the
Mortgage Loans and the number of Mortgage Loans that may be outstanding until
maturity.
Upon foreclosure, courts have imposed general equitable principles.
These equitable principles are generally designed to relieve the borrower from
the legal effect of his defaults under the loan documents. Examples 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
43
<PAGE>
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 any Pooling and Servicing Agreement or Sale and Servicing
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 or the Indenture Trustee, as
applicable, will not be deemed to be a "holder in due course," within the
meaning of the UCC and may take such a mortgage note subject to certain
restrictions on its ability to foreclose and to certain contractual defenses
available to a mortgagor.
Environmental Legislation. Certain states impose a statutory lien for
associated costs on property that is the subject of a cleanup action by the
state on account of hazardous wastes or hazardous substances released or
disposed of on the property. Such a lien will generally have priority over all
subsequent liens on the property and, in certain of these states, will have
priority over prior recorded liens including the lien of a mortgage. In
addition, under federal environmental legislation and under state law in a
number of states, a secured party which takes a deed in lieu of foreclosure or
acquires a mortgaged property at a foreclosure sale or assumes active control
over the operation or management of a property so as to be deemed an "owner" or
"operator" of the property may be liable for the costs of cleaning up a
contaminated site. Although such costs could be substantial, it is unclear
whether they would be imposed on a secured lender (such as a Trust) to
homeowners. In the event that title to a Mortgaged Property securing a Mortgage
Loan in a Trust was acquired by the Trust and cleanup costs were incurred in
respect of the Mortgaged Property, the Trust might realize a loss if such costs
were required to be paid by the Trust.
Soldiers' and Sailors' Civil Relief Act
Generally, under the terms of the Relief Act, a borrower who enters
military service after the origination of a Mortgage Loan 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 Securities.
44
<PAGE>
LEGAL INVESTMENT MATTERS
The Securities 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 Securities 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 Securities.
Any financial institution which is subject to the jurisdiction of the
Comptroller of the Currency, the Board of Governors of the Federal Reserve
System, the FDIC, the OTS, the NCUA or other federal or state agencies with
similar authority should review any applicable rules, guidelines and regulations
prior to purchasing the certificates. The Federal Financial Institutions
Examination Council, for example, has issued a Supervisory Policy Statement on
Securities Activities effective February 10, 1992 (the "Policy Statement"). The
Policy Statement has been adopted by the Comptroller of the Currency, the
Federal Reserve Board, the FDIC and the OTS with respect to the depository
institutions that they regulate. The Policy Statement prohibits depository
institutions from investing in certain "high-risk mortgage securities" except
under limited circumstances, and sets forth certain investment practices deemed
to be unsuitable for regulated institutions. The NCUA issued final regulations
effective December 2, 1991 that restrict and in some instances prohibit the
investment by federal credit unions in certain types of mortgage related
securities.
The foregoing does not take into consideration the applicability of
statutes, rules, regulations, orders, guidelines or agreements generally
governing investments made by a particular investor, including, but not limited
to "prudent investor" provisions, percentage-of-assets limits and provisions
which may restrict or prohibit investment in securities which are not "interest
bearing" or "income paying," or in securities which are issued in book entry
form.
Investors should consult their own legal advisors in determining
whether and to what extent the Securities 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
45
<PAGE>
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
Securities, 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
Securities, an investment in the Securities by a Plan might give rise to a
prohibited transaction under ERISA Sections 406 and 407 and be subject to an
excise tax under Code Section 4975 unless a statutory or administrative
exemption applies.
DOL Prohibited Transaction Exemption 83-1 ("PTE 83-1") exempts from
ERISA's prohibited transaction rules certain transactions relating to the
operation of residential mortgage investment trusts and the purchase, sale and
holding of "mortgage pool pass-through certificates" in the initial issuance of
such certificates. PTE 83-1 permits, subject to certain conditions, transactions
which might otherwise be prohibited between Plans and Parties in Interest with
respect to those Plans involving the origination, maintenance and termination of
mortgage pools consisting of mortgage loans secured by first or second mortgages
or deeds of trust on single-family residential property, and the acquisition and
holding of certain mortgage pool pass-through certificates representing an
interest in such mortgage pools by PTE.
PTE 83-1 sets forth three general conditions which must be satisfied
for any transaction to be eligible for exemption: (i) the maintenance of a
system of insurance or other protection for the pooled mortgage loans and
property securing such loans, and for indemnifying Owners against reductions in
pass-through payments due to property damage or defaults in loan payments in an
amount not less than the greater of one percent of the aggregate principal
balance of all covered pooled mortgage loans or the principal balance of the
largest covered pooled mortgage loan, (ii) the existence of a pool trustee who
is not an affiliate of the sponsor, and (iii) a limitation on the amount of the
payments retained by the pool sponsor, together with other funds inuring to its
benefit, to not more than adequate consideration for selling the mortgage loans
plus reasonable compensation for services provided by the pool sponsor.
Although the Trustee or the Indenture Trustee, as applicable, for any
Series of Securities 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
Securities 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
Securities.
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 Securities,
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 Securities 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
46
<PAGE>
exemptions Each Plan fiduciary should also determine whether, under the general
fiduciary standards of investment prudence and diversification, an investment in
the Securities 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 Securities 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 LLP, special
counsel to the Depositor ("Special Counsel"), with respect to the material
federal income tax consequences of the purchase, ownership and disposition of
Securities. Opinions of counsel are not binding on the IRS, however, and there
is no assurance that the IRS could not challenge successfully the opinions of
counsel. The discussion below does not purport to address all federal income tax
consequences that may be applicable to particular categories of investors, some
of which may be subject to special rules. The authorities on which this
discussion is based are subject to change or differing interpretations, and any
such change or interpretation could apply retroactively. This discussion
reflects the applicable provisions of the Code, as well as final regulations
concerning REMICs (the "REMIC Regulations") and final regulations under Sections
1271 through 1273 and 1275 of the Code concerning debt instruments (the "OID
Regulations"). The Depositor intends to rely on the OID Regulations for all
Securities 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 Securities. 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 Securities.
The Prospectus Supplement for each Series of Securities will discuss any special
tax consideration applicable to any class of Securities 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 Securities, 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.
REMIC Securities
General. With respect to a particular Series of Securities, 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, Securities of a Series as to which one or more REMIC elections are
made are referred to as "REMIC Securities" and will consist of one or more
classes of "Regular Securities" and one class of "Residual Securities" in the
case of each REMIC Pool. Qualification as a REMIC requires ongoing compliance
with certain conditions. With respect to each Series of REMIC Securities,
Special Counsel 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 Securities 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 Securities will be considered to be "residual
interests" in the REMIC Pool. The Prospectus Supplement for each Series of
Securities 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 Securities. REMIC Securities 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 Securities held by a domestic building and loan association will
constitute "a regular or residual interest in a
47
<PAGE>
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 Securities 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 Securities 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 Securities 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 Securities, 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 Securities held by a regulated investment company will not
constitute "government securities" within the meaning of Code Section
851(b)(4)(A)(i). REMIC Securities held by certain financial institutions will
constitute an "evidence of indebtedness" within the meaning of Code Section
582(c)(i). REMIC Securities 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
Securities) 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 below under "Non-REMIC Securities." In that case, no entity-level tax
would be imposed on the REMIC Pool. Alternatively, the Regular Securities 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 Securities 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 Securities 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.
48
<PAGE>
Taxation of Regular Securities
General. Payments received by holders of Regular Securities 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 Security will be treated as
ordinary income to a holder of the Regular Security (the "Regular Owner") as
they accrue, and principal payments on a Regular Security will be treated as a
return of capital to the extent of the Regular Owner's basis in the Regular
Security allocable thereto. Regular Owners must use the accrual method of
accounting with regard to Regular Securities, regardless of the method of
accounting otherwise used by such Regular Owners.
Original Issue Discount. Regular Securities may be issued with
"original issue discount" within the meaning of Code Section 1273(a). Holders of
any class of Regular Securities 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 Owner's income in
any taxable year will be computed as described below.
Each Regular Security (except to the extent described below with
respect to a Regular Security 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 Owner or by random lot (a "Retail
Class Security")) will be treated as a single installment obligation for
purposes of determining the original issue discount includible in a Regular
Owner's income. The total amount of original issue discount on a Regular
Security is the excess of the "stated redemption price at maturity" of the
Regular Security over its "issue price." The issue price of a Regular Security
is the first price at which a substantial amount of Regular Securities 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 Owner for accrued
interest that relates to a period prior to the issue date of the Regular
Security in the issue price of a Regular Security 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 Security always includes the original principal amount
of the Regular Security, 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 reasonable legal remedies exist to compel timely
payment or the debt instrument otherwise provides terms and conditions that make
the likelihood of late payment (other than a late payment that occurs within a
reasonable grace period) or nonpayment a remote contingency. 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 or the likelihood of late payment or nonpayment
is a remote contingency, 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 Securities 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 Securities 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 Security
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 Security
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 Security was outstanding) is
treated as made at
49
<PAGE>
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
Owners should consult their own tax advisors to determine the issue price and
stated redemption price at maturity of a Regular Security.
Under a de minimis rule, original issue discount on a Regular Security
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 Security multiplied by
the weighted average maturity of the Regular Security. For this purpose, the
weighted maturity of the Regular Security is computed as the sum of the amounts
determined by multiplying the number of full years (i.e., rounding down partial
years) from the issue date until each distribution in reduction of stated
redemption price at maturity is scheduled to be made by a fraction, the
numerator of which is the amount of each distribution included in the stated
redemption price at maturity of the Regular Security and the denominator of
which is the stated redemption price at maturity of the Regular Security.
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 Securities (the "Prepayment Assumption"). The Prepayment Assumption with
respect to a Series of Regular Securities 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 Security,
the Regular Owner 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 Security accrued during an accrual period for each day
on which he holds the Regular Security, including the date of purchase but
excluding the date of disposition. Although not free from doubt, the Depositor
intends to treat the monthly period ending on the day before each Payment Date
as the accrual period, rather than the monthly period corresponding to the prior
calendar month. With respect to each Regular Security, 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 Security. For a Regular
Security, 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 Security as of the end of that accrual period that are included in the
Regular Security's stated redemption price at maturity and (b) the distributions
made on the Regular Security during the accrual period that are included in the
Regular Security's stated redemption price at maturity over (ii) the adjusted
issue price of the Regular Security 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
Security 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 Security
at the beginning of any accrual period equals the issue price of the Regular
Security, increased by the aggregate amount of original issue discount with
respect to the Regular Security that accrued in all prior accrual periods and
reduced by the amount of distributions included in the Regular Security's stated
redemption price at maturity that were made on the Regular Security 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 Owner generally will
increase to take into account prepayments on the Regular Securities 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 Securities are
redetermined by treating the Regular Securities as reissued on the date of the
change for an amount equal to the adjusted issue price of the Regular
Securities. To the extent specified in the applicable Prospectus Supplement, an
increase in prepayments on the Mortgage Assets with respect to a Series of
Regular Securities can result in both a change in the priority of principal
payments with respect to certain classes of Regular Securities and either an
increase or decrease in the daily portions of original issue discount with
respect to such Regular Securities.
50
<PAGE>
A purchaser of a Regular Security 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 Security. 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 Security 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 Security who purchased the Regular Security 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 Security
(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 Security is expected to be reduced to zero under the Prepayment
Assumption.
An Owner may elect to include in gross income all stated interest,
original issue discount, de minimis original issue discount, market discount (as
described below under "Market Discount"), de minimis market discount and
unstated interest (as adjusted for any amortizable bond premium or acquisition
premium) currently as it accrues using the constant yield to maturity method. If
this election is made, the holder is treated as satisfying the requirements for
making the elections with respect to amortization of premium and current
inclusion of market discount, each as described under "Premium" and "Market
Discount" below.
Variable Rate Regular Securities. Regular Securities 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 Security). 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 Security to be significantly less or
more than the overall expected return on the Regular Security 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 Security 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
51
<PAGE>
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 Securities 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 Securities. The application of those provisions to instruments such as
variable rate Regular Securities is subject to varying interpretations.
Prospective purchasers of variable rate Regular Securities are advised to
consult their tax advisers concerning the tax treatment of such Regular
Securities.
Market Discount. A purchaser of a Regular Security 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 Security (i) is exceeded by the stated
redemption price at maturity of the Regular Security or (ii) in the case of a
Regular Security having original issue discount, is exceed by the sum of the
issue price of such Regular Security plus any original issue discount that would
have previously accrued thereon if held by an original Regular Owner (who
purchased the Regular Security at its issue price), in either case less any
prior distributions included in the stated redemption price at maturity of such
Regular Security. 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 Security 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 Security
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 Security 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 Security 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 Security 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 Security is disposed of. As
an alternative to the inclusion of market discount in income on the foregoing
basis, the Regular Owner may elect to include market discount in income
currently as it accrues in all market discount instruments acquired by such
Regular Owner 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).
52
<PAGE>
By analogy to the OID Regulations, market discount with respect to a
Regular Security 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
Security multiplied by the weighted average maturity of the Regular Security
(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 Security 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 Owner holds such Regular Security as a
"capital asset" within the meaning of Code Section 1221, the Regular Owner 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 Securities. 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 Securities. The IRS recently published final regulations (the
"Premium Regulations") covering the amortization of bond premiums. The Premium
Regulations describe the constant yield method for amortizing premium and
provide the Regular Owner may offset the premium against corresponding interest
income only as that interest income is taken into account under the Regular
Owner's method of accounting. For instruments that may be called or prepaid
prior to maturity, a Regular Owner 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 Owner's yield. The Premium Regulations are effective for
debt instruments acquired on or after March 2, 1998. A Regular Owner may elect
to amortize bond premium under the Premium Regulations for 1998, with the
election applying to all the Regular Owner's debt instruments held on January 1,
1998. Purchasers who pay a premium for their Regular Securities should consult
their tax advisors regarding the election to amortize premium and the method to
be employed.
Sale or Exchange of Regular Securities. If a Regular Owner sells or
exchanges a Regular Security, the Regular Owner will recognize gain or loss
equal to the difference, if any, between the amount received and his adjusted
basis in the Regular Security. The adjusted basis of a Regular Security
generally will equal the cost of the Regular Security 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 Security and reduced by
amounts included in the stated redemption price at maturity of the Regular
Security 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 Security realized by an investor who holds the Regular Security as a
capital asset will be capital gain or loss. Gain from the disposition of a
Regular Security 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 Security 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 Security. In addition, gain or loss recognized from the sale of a
Regular Security by certain banks or thrift institutions will be treated as
ordinary income or loss pursuant to Code Section 582(c). Net capital gains of
individuals are subject to varying tax rates depending upon the holding period
of the Regular Security.
Taxation of Residual Securities
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 Securities
("Residual Owners") and will not be taxed separately to the REMIC Pool. The
daily portions of REMIC taxable income or net loss of a Residual Owner 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
53
<PAGE>
Residual Owners in proportion to their respective holdings of Residual
Securities 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 Securities,
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 Owners report their pro rata share of taxable income
or net loss of the REMIC Pool will continue until there are no Securities of any
class of the related Series outstanding.
The taxable income recognized by a Residual Owner 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 Securities, on the other hand. Because of the way REMIC taxable
income is calculated, a Residual Owner 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 Owners 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 Owner 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 Securities 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
Securities. When there is more than one class of Regular Securities that
distribute principal sequentially, this mismatching of income and deductions is
particularly likely to occur in the early years following issuance of the
Regular Securities when distributions in reduction of principal are being made
in respect of earlier maturing classes of Securities 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 Securities 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 Securities, may
increase over time as distributions in reduction of principal are made on the
lower yielding classes of Regular Securities, 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 Owners 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 "Treatment of
Certain Items of REMIC Income and Expense - 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 Securities, may have a significant adverse effect upon the Residual Owners
after tax rate of return. In addition, a Residual Owner's taxable income during
certain periods may exceed the income reflected by such Owner 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 Securities.
Basis and Losses. The amount of any net loss of the REMIC Pool that may
be taken into account by the Residual Owner is limited to the adjusted basis of
the Residual Security as of the close of the quarter (or time of disposition of
the Residual Security if earlier), determined without taking into account the
net loss for the quarter. The initial adjusted basis of a purchaser of a
Residual Security is the amount paid for such Residual Security. Such adjusted
basis will be increased by the amount of taxable income of the REMIC Pool
reportable by the Residual Owner and decreased by the amount of loss of the
REMIC Pool reportable by the Residual Owner. A cash
54
<PAGE>
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 Owner as to whom such
loss was disallowed and may be used by such Residual Owner only to offset any
income generated by the same REMIC Pool. Residual Owners should consult their
tax advisors about other limitations on the deductibility of net losses that may
apply to them.
A Residual Owner will not be permitted to amortize directly the cost of
its Residual Security 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 Securities over their life.
However, in view of the possible acceleration of the income of Residual Owners
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 Securities.
If a Residual Security 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 Securities 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
Owner (other than an original holder) in the Residual Security is greater than
the corresponding portion of the REMIC Pool's basis in the Mortgage Assets, the
Residual Owner 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 Securities" 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 Security
should be aware that final regulations (the "Mark to Market Regulations")
relating to the requirement that a securities dealer mark to market securities
held for sale to customers apply 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 Security 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 Securities as described above under "Taxation of
Regular Securities - Original Issue Discount" and "- Variable Rate Regular
Securities," 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 Securities -
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
55
<PAGE>
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
Securities allocable to such discount may be deferred until such discount is
included in income, and any gain on the sale or exchange thereof will be treated
as ordinary income to the extent of the deferred interest deductible at that
time.
Premium. Generally, if the basis of the REMIC Pool in the Mortgage
Assets exceeds the unpaid principal balances thereof, the REMIC Pool will be
considered to have acquired such Mortgage Assets at a premium equal to the
amount of such excess. As stated above, the REMIC Pool's basis in the Mortgage
Assets is the fair market value of the Mortgage Assets, based on the aggregate
of the issue prices of the regular and residual interests in the REMIC Pool
immediately after the transfer thereof to the REMIC Pool. In a manner analogous
to the discussion above under "Taxation of Regular Securities - 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 Security (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 Owner, (ii) will be treated as "unrelated business taxable income"
within the meaning of Code Section 512 if the Residual Owner 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 Owner that is a foreign investor, as
further discussed in "Taxation of Certain Foreign Investors - Residual
Securities" below. Except as discussed below with respect to excess inclusions
from Residual Securities 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 Securities 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 Owner. 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 Owner 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 Securities without "significant value," for any
Residual Owner, the excess inclusion for any calendar quarter is the excess, if
any, of (i) the income of such Residual Owner for that calendar quarter from its
Residual Security over (ii) the sum of the "daily accruals" (as defined below)
for all days during the calendar quarter on which the Residual Owner holds such
Residual Security. For this purpose, the daily accruals with respect to a
Residual Security 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 Security at the beginning of the calendar quarter
and 120 percent of the "Federal long-term rate" in effect at the time the
Residual Security is issued. For this purposes the "adjusted issue price" of a
Residual Security at the beginning of any calendar quarter equals the issue
price of the Residual Security (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 Security before
the beginning
56
<PAGE>
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 Security will be treated as an excess inclusion if the
Residual Securities 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 Securities do not have significant value. Under the REMIC
Regulations, the Residual Securities will have significant value if: (i) the
aggregate of the issue prices of the Residual Securities is at least two percent
of the aggregate issue prices of all Regular Securities and Residual Securities
in the REMIC and (ii) the anticipated weighted average life of the Residual
Securities 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 Security 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 Security based on the relevant
prepayment assumption and expected reinvestment income. The anticipated weighted
average life of a Residual Security 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 Security 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 Security are to be designated as
excess inclusions in an amount corresponding to the Residual Security'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 Security 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 Securities
Disqualified Organizations. If legal title or beneficial interest in a
Residual Security 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 Security for periods after the transfer and (ii) the highest marginal
federal corporate income tax rate. The REMIC Regulations provide that the
anticipated excess inclusions 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 Security and whose term
ended on the close of the last quarter in which excess inclusion was expected to
accrue with respect to the Residual Security. Such a tax generally would be
imposed on the transferor of the Residual Security, 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 Security 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 Security and the transferor pays income tax at the highest corporate
rate on the excess inclusion for the period the Residual Security 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 Security 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 the Pass-Through Entity equal to the product of
(i) the amount of excess
57
<PAGE>
inclusions that are allocable to the interest in the Pass-Through Entity during
the period such interest is held by such Disqualified Organization and (ii) the
highest marginal federal corporate income tax rate. Such tax would be deductible
from the ordinary gross income of the Pass-Through Entity for the taxable year.
The Pass-Through Entity would not be liable for such tax if it has received an
affidavit from such record holder that (i) states under penalty of perjury that
it is not a Disqualified Organization or (ii) furnishes a social security number
and states under penalties of perjury that the social security number is that of
the transferee, provided that during the period such person is the record holder
of the Residual Security, 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 Securities will provide that
neither legal title nor beneficial interest in a Residual Security 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 Securities 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 Security with respect to a Series will have
a legend referring to such restrictions on transfer, and each Residual Owner
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 Securities are disregarded, in which case the transferor
continues to be treated as the owner of the Residual Securities and thus
continues to be subject to tax on its allocable portion of the net income of the
REMIC Pool. Under the REMIC Regulations, a transfer of a Noneconomic Residual
Interest (defined below) to a Residual Owner (other than a Residual Owner 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
58
<PAGE>
conducted, at the time of the transfer, a reasonable investigation of the
financial condition of the transferee and, as a result of the investigation, the
transferor found that the transferee had historically paid its debts as they
came due and found no significant evidence to indicate that the transferor will
not continue to pay its debts as they come due in the future; and (ii) the
transferee represents to the transferor that it understands that, as the holder
of the Noneconomic Residual Interest, the transferee may incur tax liabilities
in excess of any cash flows generated by the residual interest and that the
transferee intends to pay taxes associated with holding of residual interest as
they become due. The Agreement will require the transferee of a Residual
Security 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 Security, and (iv) intends to pay any and all taxes
associated with holding the Residual Security 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 Security 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 Security 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 Security 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 Securities may
provide that a Residual Security 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 Security
Upon the sale or exchange of a Residual Security, the Residual Owner
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
Securities - Basis and Losses") of such Residual Owner in such Residual Security
at the time of the sale or exchange. In addition to reporting the taxable income
of the REMIC Pool, a Residual Owner will have taxable income to the extent that
any cash distribution to the Residual Owner 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 Security. It is possible that the
termination of the REMIC Pool may be treated as a sale or exchange of a Residual
Owner's Residual Security, in which case, if the Residual Owner has an adjusted
basis in the Residual Security remaining when the Residual Owner's interest in
the REMIC Pool terminates, and if the Residual Owner holds such Residual
Security as a capital asset under Code Section 1221, then the Residual Owner
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 Securities.
Consequently, losses on dispositions of Residual Securities will be disallowed
where the seller of the Residual Security, during the period beginning six
months before the sale or disposition of the Residual Security 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 Security.
59
<PAGE>
Taxes That May Be Imposed on the REMIC Pool
Prohibited Transactions. Net income from certain transactions by the
REMIC Pool, called "prohibited transactions", will not be part of the
calculation of income or loss includible in the federal income tax returns of
Residual Owners, 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 Securities as a result of a default on qualified
mortgages or to facilitate a cleanup call (generally, an optional termination to
save administrative costs when no more than a small percentage of the Regular
Securities 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 Mortgage-Backed Securities 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 Owner, (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 three 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
Securities and Residual Owners 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 Owner 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
60
<PAGE>
unified administrative proceeding. The Depositor or other designated Residual
Owners will be obligated to act as "tax matters person," as defined in
applicable Treasury regulations, with respect to the REMIC Pool. If the Code or
Treasury regulations do not permit the Depositor to act as tax matters person in
its capacity as agent of the Residual Owners, the Residual Owner chosen by the
Residual Owners 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 Security 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 Securities for the
entire calendar year. Otherwise, each holder of a Residual Security is required
to treat items on its return consistently with their treatment on the REMIC
Pool's return, unless the holder of a Residual Security either files a statement
identifying the inconsistency or establishes that the inconsistency resulted
from incorrect information received from the REMIC Pool. The Internal Revenue
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 Securities 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 Securities 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 Securities, as well as holders of
Residual Securities, where such Regular Securities 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
Owner's income, determined on a daily basis, bears to the income of all holders
of Regular Securities and Residual Securities with respect to a REMIC Pool. As a
result, individuals, estates or trusts holding REMIC Securities (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 Securities 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 Securities.
Taxation of Certain Foreign Investors
Regular Securities. Interest, including original issue discount,
distributable to Regular Owners 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 Security 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
61
<PAGE>
to an applicable tax treaty or unless the interest on the Regular Security is
effectively connected with the conduct of a trade or business within the United
States by such Non-U.S. Person. In the latter case, such Non-U.S. Person will be
subject to United States federal income tax at regular rates. Investors who are
Non-U.S. Persons should consult their own tax advisors regarding the specific
tax consequences to them of owning a Regular Security. The term "Non-U.S.
Person" means any person who is not a U.S. Person.
Residual Securities. The Conference Committee Report to the 1986 Act
indicates that amounts paid to Residual Owners 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 Owners qualify as "portfolio interest," subject to the conditions
described in "Regular Securities" 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 Security 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
Owner 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 Securities -
Limitations on Offset or Exemption of REMIC Income; Excess Inclusions" above. If
the amounts paid to Residual Owners 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 Security 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 Securities - 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 Securities.
On October 6, 1997, the IRS issued final regulations which could have
an effect on the United States' taxation of foreign investors in Regular
Securities or Residual Securities. The regulations would apply to payments after
December 31, 1999. Investors who are Non-U.S. Persons should consult their own
tax advisors regarding the specific tax consequences to them of owning Residual
Securities.
Backup Withholding
Distributions made on the Regular Securities, and proceeds from the
sale of the Regular Securities 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 Owner
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 Security, or such Owner is otherwise
an exempt recipient under applicable provisions of the Code. Any amounts to be
withheld from distribution on the Regular Securities would be refunded by the
Internal Revenue Service or allowed as a credit against the Regular Owner'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 noncharitable trusts, and partnerships who are either holders of record of
Regular Securities or beneficial owners who own Regular Securities through a
broker or middleman as nominee. All brokers, nominees and all other non-exempt
holders of record of Regular Securities (including corporations, non-calendar
year taxpayers, securities or commodities dealers, real estate investment
trusts, investment companies, common trust funds, thrift institutions and
charitable trusts) may request such information for any calendar quarter by
telephone or in writing by contacting the person designated in Internal Revenue
Service Publication 938 with respect to a particular Series of Regular
Securities. Holders through nominees must request such information from the
nominee. Treasury regulations provide that information necessary to compute the
62
<PAGE>
accrual of any market discount on the Regular Securities 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 Owner 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 Owners,
furnished annually, if applicable, to holders of Regular Securities, 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 Owners, furnished annually to holders of Regular
Securities, 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 "REMIC Securities - Status of REMIC Securities" and " -
Qualification as a REMIC" above.
Non-REMIC Securities
Special Counsel is of the opinion that if a Trust does not elect REMIC
or FASIT status and is not treated as a partnership, and if the Securities are
not treated as debt for federal tax purposes, the tax consequences to the Owners
will be as described below.
Standard Securities
General. If no election is made to treat a Trust (or a segregated pool
of assets therein) with respect to a Series of Securities 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 Securities of a Series, and where such Securities are not
designated as Debt Certificates, as described under "Debt Certificates," as
Stripped Securities, as described below under "Stripped Securities" below or as
Partnership Interests described under "Securities Classified as Partnership
Interests," the holder of each such "Standard Security" 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 Security 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 "Premium and Discount -
Recharacterization of Servicing Fees." Accordingly, the Owner of a Security 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 Owner's method of
accounting. An Owner 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 Securities, 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
Securities, directly or indirectly through a pass-through entity, may have
aggregate taxable income in excess of the aggregate amount of cash received on
such Securities with respect to interest at the pass-through rate on such
Securities or discount thereon. In addition, such expenses are not deductible at
all for purposes of computing the alternative minimum tax and may cause such
investors to be subject to significant additional tax liability. Moreover, where
there is fixed retained yield with respect to the Mortgage
63
<PAGE>
Assets underlying a Series of Securities 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 Securities" and "Premium and Discount -
Recharacterization of Servicing Fees," respectively.
Tax Status. Subject to the discussion below, Special Counsel is of the
opinion that:
1. A Standard Security 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 Security is of the type described in such section.
2. A Standard Security 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 Security is of the type described in such section.
3. A Standard Security 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 Security 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 buydown 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 buydown 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, Owners
are urged to consult their own tax advisors concerning the effects of such
arrangements on the characterization of such Owner's investment for federal
income tax purposes.
Premium and Discount
Owners 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 Securities or thereafter.
Premium. The treatment of premium incurred upon the purchase of a
Security will be determined generally as described above under "REMIC Securities
- - Taxation of Regular Securities - Premium."
64
<PAGE>
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 an Owner'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 an Owner 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. Owners 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 "REMIC
Securities - Taxation of Regular Securities - 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 Securities, 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 Owners 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 an Owner, except that the
income reported by a cash method holder may be slightly accelerated. See
"Stripped Securities" below for a further description of the federal income tax
treatment of stripped bonds and stripped coupons.
65
<PAGE>
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 Owners to
purchase an undivided interest in the Mortgage Assets. In such event, the
present value of such additional payments might be included in the Owner's basis
in such undivided interests for purposes of determining whether the Security was
acquired at a discount, at par, or at a premium. Under this alternative, Owners
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. Owners 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 Securities. Upon sale or exchange of a Security, an
Owner 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 Security. In general, the aggregate adjusted
basis will equal the Owner's cost for the Security, increased by the amount of
any income previously reported with respect to the Security and decreased by the
amount of any losses previously reported with respect to the Security 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 Security was held as a
capital asset.
Stripped Securities
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, Securities that are subject to those rules will be referred to as
"Stripped Securities." The Securities 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 Securities - Recharacterization of the
Servicing Fees" above) and (iii) a class of Securities 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 Security (a "Stripped Owner") 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 Security'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 Securities - Recharacterization of Servicing Fees." For this purpose
the servicing fees will be allocated to the Stripped Securities in proportion to
the respective offering price of each class (or subclass) of Stripped
Securities. The holder of a Stripped Security generally will be entitled to a
deduction each year in respect of the servicing fees, as described above under
"Standard Securities - 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 Securities
for federal income tax purposes is not clear in certain respects at this time,
particularly where such Stripped Securities are issued with respect to a Trust
containing variable rate Mortgage Assets, the Depositor has been advised by
counsel that (i) the Trust will be treated as a grantor trust under subpart E,
Part 1 of subchapter J of the Code and not as an association taxable as a
corporation, and (ii) each Stripped Security should be treated as a single
installment obligation for purposes of calculating original issue
66
<PAGE>
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 Securities 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 Security 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 Security 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 Security would be
treated as stated interest under the original issue discount rules. Further, the
regulations provide that the purchaser of such a Stripped Security 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
Security 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 "REMIC Securities - Taxation of Regular Securities - Market Discount,"
without regard to the de minimis rule therein.
Status of Stripped Securities. No specific legal authority exists as to
whether the character of the Stripped Securities, 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 Securities
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 Securities 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 "Standard Securities - Tax Status" above.
Original Issue Discount. Except as described above under "General,"
each Stripped Security 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 Security 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 Owner in any taxable year likely will be computed generally as
described above under "REMIC Securities - Taxation of Regular Securities -
Original Issue Discount" and "-Taxation of Regular Securities - Variable Rate
Regular Securities." However, with the apparent exception of a Stripped Security
issued with de minimis original issue discount, as described above under
"General," the issue price of a Stripped Security 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 Security
to such Stripped Owner, presumably under the Prepayment Assumption, other than
amounts treated as qualified stated interest.
If the Mortgage Assets prepay at a rate either faster or slower than
that under the Prepayment Assumption, a Stripped Owner'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
67
<PAGE>
and interest on each Mortgage Loan represented by such Stripped Owner's Stripped
Security. While the matter is not free from doubt, the holder of a Stripped
Security 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 Security 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 Securities 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 Security under such rules depends on whether the aggregate amount
of principal payments, if any, to be made on the Stripped Security 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 Security. 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 Security. Such payments of
interest would be includible in the Stripped Owner'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 Security 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 Security, while amounts received in excess of the
applicable Federal rate, as applied to the adjusted basis of the Stripped
Security, 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 Securities.
Sale or Exchange of Stripped Securities. Sale or exchange of a Stripped
Security prior to its maturity will result in gain or loss equal to the
difference, if any, between the amount received and the Stripped Owner's
adjusted basis in such Stripped Security, as described above under "REMIC
Securities - Taxation of Regular Securities - Sale or Exchange of Regular
Securities." To the extent that a subsequent purchaser's purchase price is
exceeded by the remaining payments on the Stripped Securities, 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 Owner other than by original Stripped Owner
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 Securities. Where an
investor purchases more than one class of Stripped Securities, it is currently
unclear whether for federal income tax purposes such classes of Stripped
Securities should be treated separately or aggregated for purposes of the rules
described above.
Because of these possible varying characterizations of Stripped
Securities and the resultant differing treatment of income recognition, Stripped
Owners are urged to consult their own tax advisors regarding the proper
treatment of Stripped Securities for federal income tax purposes.
Reporting Requirements and Backup Withholding
The Trustee or the Indenture Trustee, as applicable, will furnish,
within a reasonable time after the end of each calendar year, to each Owner or
Stripped Owner at any time during such year, such information (prepared on the
basis described above) as the Trustee or the Indenture Trustee, as applicable,
deems to be necessary or desirable to enable such Owners to prepare their
federal income tax returns. Such information will include the amount of original
issue discount accrued on Securities held by persons other than Owners exempted
from the reporting requirements. The amounts required to be reported by the
Trustee or the Indenture Trustee, as applicable, may not be equal to the proper
amount of original issue discount required to be reported as taxable income by
an Owner, other than an original Owner. The Trustee or the Indenture Trustee, as
applicable, will also
68
<PAGE>
file such original issue discount information with the Internal Revenue Service.
If an Owner fails to supply an accurate taxpayer identification number or if the
Secretary of the Treasury determines that an Owner 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 Security 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 Owner on the sale
or exchange of such a Security 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 "REMIC
Securities - Taxation of Certain Foreign Investors - Regular Securities."
Owners should be aware that the IRS issued final regulations on October
20, 1997 which could affect the United States' taxation of foreign investors in
Securities. The regulations would apply to payments after December 31, 1999.
Investors who are non-U.S. Persons should consult their own tax advisors
regarding the specific tax consequences to them of owning Securities.
Debt Certificates
General. Certain Certificates ("Debt Certificates") may be issued with
the intention to treat them, for federal income tax purposes, either as (i)
non-recourse debt of the Depositor secured by the related Mortgage Assets, in
which case the related Trust will constitute only a security device which
constitutes a collateral arrangement for the issuance of secured debt and not an
entity for federal income tax purposes or (ii) debt of a partnership, in which
case the related Trust will constitute a partnership for federal income tax
purposes. Special Counsel is of the opinion that (unless otherwise limited in
the related Prospectus Supplement), for federal income tax purposes, assuming
compliance with all the provisions of the related Indenture, (i) Debt
Certificates will be characterized as debt issued by, and not equity in, the
related Trust and (ii) the related Trust will not be characterized as an
association (or publicly traded partnership within the meaning of Code Section
7704) taxable as a corporation or as a taxable mortgage pool within the meaning
of Code Section 7701(i). Since different criteria are used to determine the
non-tax accounting treatment of the issuance of Debt Certificates, however, the
Depositor expects to treat such transactions, for financial accounting purposes,
as a transfer of an ownership interest in the related Mortgage Assets to the
related Trust and not as the issuance of debt obligations. In this regard, it
should be noted that the IRS has issued a notice stating that, upon examination,
it will scrutinize instruments treated as debt for federal income tax purposes
but as equity for regulatory, rating agency or financial accounting purposes to
determine if their purported status as debt for federal income tax purposes is
appropriate. Assuming, as Special Counsel advises, that Debt Certificates will
be treated as indebtedness for federal income tax purposes, holders of Debt
Certificates, using their method of tax accounting, will follow the federal
income tax treatment hereinafter described.
Original Issue Discount. It is likely that the Debt Certificates will
be treated as having been issued with "original issue discount" within the
meaning of Code Section 1273(a) because interest payments on the Debt
Certificates may, in the event of certain shortfalls, be deferred for periods
exceeding one year. As a result, interest payments may not be considered
"qualified stated interest" payments.
In general, a holder of a Debt Certificate having original issue
discount must include original issue discount in ordinary income as it accrues
in advance of receipt of the cash attributable to the discount, regardless
69
<PAGE>
of the method of accounting otherwise used. The amount of original issue
discount on a Debt Certificate will be computed generally as described under
"REMIC Securities - Taxation of Regular Securities - Original Issue Discount"
and "-Taxation of Regular Securities - Variable Rate Regular Securities." The
Depositor intends to report any information required with respect to the Debt
Certificates based on the OID Regulations.
Market Discount. A purchaser of a Debt Certificate may be subject to
the market discount rules of Code Sections 1276 through 1278. In general,
"market discount" is the amount by which the stated redemption price at maturity
(or, in the case of a Debt Certificate issued with original issue discount, the
adjusted issue price) of the Debt Certificate exceeds the purchaser's basis in a
Debt Certificate. The holder of a Debt Certificate that has market discount
generally will be required to include accrued market discount in ordinary income
to the extent payments includible in the stated redemption price at maturity of
such Debt Certificate are received. The amount of market discount on a Debt
Certificate will be computed generally as described under "REMIC Securities -
Taxation of Regular Securities - Market Discount."
Premium. A Debt Certificate purchased at a cost greater than its
currently outstanding stated redemption price at maturity is considered to be
purchased at a premium. A holder of a Debt Certificate who holds a Debt
Certificate as a "capital asset" within the meaning of Code Section 1221 may
elect under Code Section 171 to amortize the premium under the constant interest
method. That election will apply to all premium obligations that the holder of a
Debt Certificate acquires on or after the first day of the taxable year for
which the election is made, unless the IRS permits the revocation of the
election. In addition, it appears that the same rules that apply to the accrual
of market discount on installment obligations are intended to apply in
amortizing premium on installment obligations such as the Debt Certificates. The
treatment of premium incurred upon the purchase of a Debt Certificate will be
determined generally as described above under "REMIC Securities - Taxation of
Regular Securities - Premium."
Sale or Exchange of Debt Certificates. If a holder of a Debt
Certificate sells or exchanges a Debt Certificate, the holder of a Debt
Certificate will recognize gain or loss equal to the difference, if any, between
the amount received and the holder of a Debt Certificate's adjusted basis in the
Debt Certificate. The adjusted basis in the Debt Certificate generally will
equal its initial cost, increased by any original issue discount or market
discount previously included in the seller's gross income with respect to the
Debt Certificate and reduced by the payments previously received on the Debt
Certificate, other than payments of qualified stated interest, and by any
amortized premium.
In general, except as described above with respect to market discount,
and except for certain financial institutions subject to Code Section 582(c),
any gain or loss on the sale or exchange of a Debt Certificate recognized by an
investor who holds the Debt Certificate as a capital asset (within the meaning
of Code Section 1221), will be capital gain or loss and will be long term or
short term depending on whether the Debt Certificate has been held for more than
one year. For corporate taxpayers, there is no preferential rate afforded to
long-term capital gains. For individual taxpayers, net capital gains are subject
to varying tax rates depending upon the holding period of the Debt Certificates.
Backup Withholding. Holders of Debt Certificates will be subject to
backup withholding rules identical to those applicable to REMIC Regular
Securities. See "REMIC Securities - Backup Withholding."
Tax Treatment of Foreign Investors. Holders of Debt Certificates who
are foreign investors will be subject to taxation in the same manner as foreign
holders of REMIC Regular Securities. See "REMIC Securities - Taxation of Certain
Foreign Investors - Regular Securities."
Notes
With respect to those Securities issued as Notes, no regulations,
published rulings or judicial decisions exist that discuss the characterization
for federal income tax purposes of instruments with terms substantially the same
as the Notes. However, Special Counsel is of the opinion that (unless otherwise
limited in the related Prospectus Supplement), for federal income tax purposes,
assuming compliance with all the provisions of the related Indenture, (i) Notes
will be characterized as debt issued by, and not equity in, the related Trust
and (ii) the
70
<PAGE>
related Trust will not be characterized as an association (or publicly traded
partnership within the meaning of Code Section 7704) taxable as a corporation or
as a taxable mortgage pool within the meaning of Code Section 7701(i). Assuming,
as Special Counsel advises, that Notes are treated as indebtedness for federal
income tax purposes, holders of Notes, using their method of tax accounting,
will follow the same federal income tax treatment as Debt Certificates, as
described above under "Debt Certificates."
For federal income tax purposes, (i) Notes held by a thrift institution
taxed as a "mutual savings bank" or "domestic building and loan association"
will not represent interests in "qualifying real property loans" within the
meaning of Code Section 593(d)(1); (ii) Notes held by a thrift institution taxed
as a domestic building and loan association will not constitute "loans ...
secured by an interest in real property" within the meaning of Code Section
7701(a)(19)(C)(v); (iii) interest on Notes held by a real estate investment
trust will not be treated as "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); (iv) Notes held be a real estate investment trust will not
constitute "real estate assets" or "Government securities" within the meaning of
Code Section 856(c)(5)(A); and (v) Notes held by a regulated investment company
will not constitute "Government securities" within the meaning of Code Section
851(b)(4)(A)(i).
Certificates Classified as Partnership Interests
Certain Trusts may be treated as partnerships for Federal income tax
purposes. In such event, the Trusts may issue Securities characterized as
"Partnership Interests" as discussed in the related Prospectus Supplement. With
respect to such Series of Partnership Interests, Special Counsel 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 or taxable mortgage pool for federal income tax purposes. The
related Prospectus Supplement will also cover any material federal income tax
consequences applicable to the Owners.
FASIT Securities
With respect to a particular Series of Securities, an election may be
made to treat the Trust or one or more trusts or segregated pools of assets
therein as one or more FASITs within the meaning of Code Section 860L. A Trust
or a portion or portions thereof as to which one or more FASIT elections will be
made will be referred to as a "FASIT Pool." For purposes of this discussion,
Securities of a Series as to which one or more FASIT elections are made are
referred to as "FASIT Securities" and will consist of one or more classes of
"FASIT Regular Securities" and one "Ownership Interest Security" in the case of
each FASIT Pool. Qualification as a FASIT requires ongoing compliance with
certain conditions. With respect to each Series of FASIT Securities, Special
Counsel has advised the Depositor that in their opinion (unless otherwise
limited in the related Prospectus Supplement), assuming (i) the making of an
appropriate election, (ii) compliance with all provisions of the related
Indenture and (iii) compliance with the applicable provisions of the law,
including any amendments to the Code or applicable Treasury regulations
thereunder, each FASIT Pool will qualify as a FASIT. In such case, the FASIT
Regular Securities will be considered to be "regular interests" in the FASIT
Pool and generally will be treated for federal income tax purposes as if they
were newly originated debt instruments, and the Ownership Interest Security will
be considered to be the "ownership interest" in the FASIT Pool. The Prospectus
Supplement for each Series of Securities will indicate whether one or more FASIT
elections with respect to the related Trust will be made and will also cover any
material federal income tax consequences applicable to the holders of FASIT
Securities.
PLAN OF DISTRIBUTION
Securities 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 Securities,
including the public offering or purchase price of each class of Securities 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 Securities 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 Securities from time to time in one or more
transactions including negotiated transactions, at fixed public offering prices
or at varying prices to be determined
71
<PAGE>
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 Securities will be set forth on the cover of the Prospectus Supplement
relating to such Series and the members of the underwriting syndicate, if any,
will be named in such Prospectus Supplement.
In connection with the sale of the Securities, Underwriters may receive
compensation from the Depositor or from purchasers of the Securities in the form
of discounts, concessions or commissions. Underwriters and dealers participating
in the distribution of the Securities may be deemed to be underwriters in
connection with such Securities, and any discounts or commissions received by
them from the Depositor and any profit on the resale of Securities 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 Securities 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 Securities 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 Securities 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
Security, and, accordingly, there can be no assurance that the ratings assigned
to a Security 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
Securities of each Series including insolvency issues and certain federal income
tax matters concerning the Securities will be passed upon for the Depositor by
Arter & Hadden LLP, Washington, D.C.
FINANCIAL INFORMATION
A Trust will be formed with respect to each Series of Securities. No
Trust will have any assets or obligations prior to the issuance of the related
Series of Securities. 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.
Although the Notes of any Series will represent obligations of the
related Issuer, such obligations will be nonrecourse and the proceeds of the
assets included in the related Trust will be the sole source of payments on the
Notes of such Series. The Issuer for any Series of Notes will not have, nor be
expected in the future to have, any significant assets available for payments on
such Series of Notes other than the assets included in the related Trust.
Accordingly, the investment characteristics of a Series of Notes will be
determined by the assets included in the related Trust and will not be affected
by the identity of the obligor with respect to such Series of Notes.
72
<PAGE>
Accordingly, no capitalization information or any historical or pro forma ratio
of earnings to fixed charges or any other financial information with respect to
any trust, partnership, limited liability company or corporation formed for the
purpose of issuing a Series of Notes has been or will be included herein or in
the related Prospectus Supplement.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
73
<PAGE>
APPENDIX A
INDEX TO LOCATION OF PRINCIPAL DEFINED TERMS
Page
----
1986 Act....................................................................48
1996 Act....................................................................56
Agreement....................................................................1
AMTI........................................................................56
Applicable Accounting Standards.............................................30
Balloon Loans................................................................7
Beneficial Owners............................................................4
BIF.........................................................................31
Book Entry Registration.....................................................11
Book Entry Securities........................................................4
Certificates.................................................................1
Clearing Agency..............................................................4
Clearing Agency Participants.................................................4
Code.........................................................................5
Companion Securities........................................................13
Compound Interest Securities................................................12
Cooperative Loans...........................................................16
Cooperatives.................................................................2
Credit Enhancement...........................................................4
Credit Enhancer.............................................................10
Custodial Account...........................................................24
Cut-Off Date................................................................12
DCR..........................................................................5
Debt Certificates...........................................................69
Defective Mortgage Loan.....................................................30
Delivery Date...............................................................11
Deposit Date................................................................30
Depositor....................................................................1
Disqualified Organization...................................................58
DOL.........................................................................46
Eligible Investments........................................................31
Equity Certificates..........................................................1
ERISA........................................................................5
Events of Default...........................................................33
FASIT........................................................................5
FASIT Pool..................................................................71
FASIT Regular Securities....................................................71
FASIT Securities............................................................71
Fannie Mae...................................................................2
FDIC........................................................................24
FHLMC........................................................................2
Financial Guaranty Insurance Policy.........................................19
Financial Guaranty Insurer..................................................19
Fitch........................................................................5
Garn-St. Germain Act........................................................43
GNMA.........................................................................2
Indenture....................................................................1
Indenture Trustee............................................................1
Insurance Paying Agent......................................................19
Insurance Proceeds..........................................................23
Insured Payment.............................................................19
Interest Accrual Period.....................................................14
Issuer.......................................................................1
Liquidation Proceeds........................................................23
Loan-to-Value Ratio.........................................................17
Mark to Market Regulations..................................................55
Master Servicer..............................................................1
MBS..........................................................................2
MBS Agreement...............................................................18
MBS Issuer..................................................................18
MBS Servicer................................................................18
MBS Trustee.................................................................18
Monthly Advance.............................................................24
Moody's......................................................................5
Mortgage Assets..............................................................2
Mortgage Loans...............................................................2
Mortgage Notes..............................................................16
Mortgage Pool Insurance Policy..............................................20
Mortgage Rates..............................................................17
Mortgaged Properties........................................................16
Mortgages...................................................................16
Mortgage-Backed Securities...................................................2
Mortgagors..................................................................23
NCUA........................................................................24
Non-Priority Securities.....................................................13
Non-U.S. Person.............................................................62
Noneconomic Residual Interest...............................................58
Nonrecoverable Advance......................................................24
Note Event of Default.......................................................35
Note Rate...................................................................14
Notes........................................................................1
Notional Principal Balance..................................................14
OID Regulations.............................................................47
Original Value..............................................................17
OTS.........................................................................43
Owner Trustee................................................................1
Owners.......................................................................3
Ownership Interest Security.................................................71
Partnership Interests.......................................................71
Pass-Through Entity.........................................................57
Pass-Through Rate............................................................3
Payment Date................................................................13
Plans.......................................................................45
Policy Statement............................................................45
Pool Insurer................................................................21
Pooling and Servicing Agreement..............................................1
Premium Regulations.........................................................53
Prepayment Assumption.......................................................50
Pre-Funding Account..........................................................3
Principal Balance...........................................................17
Principal Prepayments.......................................................14
Priority Securities.........................................................13
PTE 83-1....................................................................46
Rating Agency................................................................5
REIT........................................................................48
REMIC........................................................................5
REMIC Pool..................................................................47
REMIC Regulations...........................................................47
REMIC Securities............................................................47
Record Date.................................................................13
Regular Owner...............................................................49
Regular Securities..........................................................47
Relief Act..................................................................10
Remittance Date.............................................................24
Remittance Rate.............................................................24
Reserve Fund................................................................22
Residual Owners.............................................................53
Residual Securities.........................................................47
Retail Class Security.......................................................49
Riegle Act...................................................................9
SAIF........................................................................31
Sale and Servicing Agreement................................................23
Scheduled Amortization Securities...........................................13
Securities...................................................................1
Securities Interest Rate....................................................12
Security Account............................................................13
Security Principal Balance..................................................11
Security Register...........................................................11
Security Registrar..........................................................12
Seller.......................................................................1
Senior Securities...........................................................19
Servicer.....................................................................1
SMMEA........................................................................5
Special Allocation Securities...............................................13
Special Counsel.............................................................47
Special Hazard Insurance Policy.............................................21
Special Hazard Insurer......................................................22
Standard & Poor's............................................................5
Standard Certificate........................................................63
Stripped Owner..............................................................66
Stripped Securities.........................................................66
Subordinated Securities.....................................................19
Subsequent Transfer Agreement................................................3
Thrift Institution..........................................................47
TMP.........................................................................48
Trust........................................................................1
Trust Agreement..............................................................1
Trustee......................................................................1
U.S. Person.................................................................59
UCC.........................................................................41
Underwriters................................................................71
143132.1d
A-1
<PAGE>
================================================================================
You should rely on the information contained or incorporated by
reference in this prospectus supplement and the accompanying prospectus. We have
not authorized anyone to provide you with different information.
We are not offering the Notes in any state where the offer is not
permitted.
We do not claim the accuracy of the information in this prospectus
supplement and the accompanying prospectus as of any date other than the dates
stated on their cover pages.
----------
TABLE OF CONTENTS
Page
----
PROSPECTUS SUPPLEMENT
Summary of Terms.............................................................S-1
Risk Factors ................................................................S-6
The Seller..................................................................S-10
The Servicer................................................................S-12
The Trust...................................................................S-15
The Depositor...............................................................S-16
Use of Proceeds.............................................................S-16
The Home Equity Loan Pool...................................................S-16
Prepayment and Yield Considerations.........................................S-31
Additional Information......................................................S-38
Description of the Notes....................................................S-38
The Note Insurer............................................................S-44
Credit Enhancement..........................................................S-46
Administration..............................................................S-49
Federal Income Tax Consequences.............................................S-59
State Tax Consequences......................................................S-59
ERISA Considerations........................................................S-59
Ratings.....................................................................S-60
Legal Investment Considerations.............................................S-61
Underwriting................................................................S-61
Experts.....................................................................S-62
Certain Legal Matters.......................................................S-62
Global Clearance, Settlement and Tax
Documentation Procedures.................................................I-1
Index to Location of Principal Defined Terms.................................A-1
PROSPECTUS
Summary of Prospectus..........................................................1
Risk Factors...................................................................7
Description of the Securities.................................................11
The Trusts....................................................................16
Credit Enhancement............................................................19
Servicing of Mortgage Loans...................................................24
The Pooling and Servicing Agreement...........................................29
The Indenture.................................................................35
Use of Proceeds...............................................................39
The Depositor.................................................................39
Certain Legal Aspects of the Mortgage Assets..................................40
Legal Investment Matters..................................................... 46
ERISA Considerations..........................................................47
Federal Income Tax Consequences...............................................48
Plan of Distribution..........................................................74
Ratings.......................................................................74
Legal Matters.................................................................75
Financial Information.........................................................75
Index to Location of Defined Principal Terms.................................A-1
Dealers will deliver a prospectus supplement and prospectus when acting
as underwriters of the Notes and with respect to their unsold allotments or
subscriptions. In addition, all dealers selling the Notes will deliver a
prospectus supplement and prospectus until 90 days after the date of the
prospectus supplement.
================================================================================
<PAGE>
================================================================================
IMC HOME EQUITY LOAN
OWNER TRUST 1998-7
6.38% $529,000,000 HOME EQUITY LOAN
ASSET BACKED NOTES, SERIES 1998-7A
6.52% $71,000,000 HOME EQUITY LOAN
ASSET BACKED NOTES, SERIES 1998-7B
[LOGO]
IMC MORTGAGE COMPANY
Seller
IMC SECURITIES, INC.
Depositor
OCWEN FEDERAL BANK FSB
Servicer
-----------
PROSPECTUS SUPPLEMENT
-----------
PaineWebber Incorporated
December 2, 1998
================================================================================
