<PAGE>
PROSPECTUS SUPPLEMENT Rule 424(b)(5)
(To Prospectus dated September 11, 1997) Registration No. 333-32775
$300,000,000
[LOGO OF THE MONEY STORE APPEARS HERE]
The Money Store Residential Trust 1997-I
$114,676,000 Class A-1 6.420% Notes
$ 64,708,000 Class A-2 6.480% Notes
$ 49,602,000 Class A-3 6.680% Notes
$ 29,710,000 Class M-1 7.085% Notes
$ 17,391,000 Class M-2 7.535% Notes
$ 23,913,000 Class B 7.525% Notes
The Money Store Residential Trust 1997-I (the "Trust") will be formed
pursuant to a Trust Agreement, dated as of August 31, 1997 (the "Trust
Agreement"), among certain subsidiaries of The Money Store Inc. (such
subsidiaries, the "Originators") and First Union Trust Company, National
Association, as owner trustee (the "Owner Trustee"), and will issue notes (the
"Notes") in the following classes: (i) three classes of senior notes (the
"Senior Notes"): Class A-1 Notes, Class A-2 Notes and Class A-3 Notes
(collectively, the "Class A Notes"); and (ii) three classes of subordinated
Notes (the "Subordinated Notes"): Class M-1 Notes and Class M-2 Notes
(collectively, the "Class M Notes") and Class B Notes (the "Class B Notes"). The
Notes will be issued pursuant to an Indenture, dated as of August 31, 1997 (the
"Indenture"), between the Trust and The Bank of New York, as trustee (the
"Indenture Trustee"). The Trust also will issue separate certificates and other
interests representing the beneficial ownership and voting interests in the
Trust. Only the Notes are being offered hereby.
(cover continued on next page)
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See "Risk Factors" on page S-22 herein and page 21 of the Prospectus for a
discussion of certain risks which should be considered by prospective purchasers
of the Notes offered hereby.
-----------------------
THE NOTES REPRESENT OBLIGATIONS OF THE TRUST ONLY AND DO NOT REPRESENT
OBLIGATIONS OF OR INTEREST IN THE MONEY STORE INC. OR ANY OF ITS AFFILIATES OR
SUBSIDIARIES. EXCEPT FOR THE FHA LOANS, THE LOANS ARE NOT INSURED OR GUARANTEED
BY ANY GOVERNMENTAL AGENCY, AND NO GOVERNMENTAL AGENCY HAS PASSED UPON THE
ACCURACY OF THE INFORMATION CONTAINED IN THIS PROSPECTUS SUPPLEMENT OR THE
ACCOMPANYING PROSPECTUS.
-----------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR THE ACCOMPANYING
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-----------------------
The Notes will be purchased by Lehman Brothers Inc. and Bear, Stearns & Co.
Inc. (the "Underwriters") from the Representative, on behalf of the Originators
and the Trust, and will be offered by the Underwriters from time to time in
negotiated transactions or otherwise, at varying prices to be determined at the
time of sale. Aggregate proceeds to the Originators from the sale of the Notes
are expected to be approximately $299,233,871, plus accrued interest, before
deducting expenses payable by the Originators estimated to be approximately
$300,000. See "Underwriting" herein.
The Notes are offered by the Underwriters, when, as and if issued to and
accepted by the Underwriters, subject to approval of certain legal matters by
counsel for the Underwriters. The Underwriters reserve the right to withdraw,
cancel or modify such offer and to reject orders in whole or in part. It is
expected that delivery of the Notes will be made in book-entry form only through
the Same Day Funds Settlement System of The Depository Trust Company in the
United States or Cedel Bank, societe anonyme ("Cedel Bank") or the Euroclear
System ("Euroclear") in Europe on or about September 30, 1997 (the actual such
date being hereinafter referred to as the "Closing Date").
Lehman Brothers Bear, Stearns & Co. Inc.
September 26, 1997
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(cover continued from previous page)
The rights of the holders of the Class M-1, Class M-2 and Class B Notes to
receive distributions on each Remittance Date (as defined herein) will be
subordinated to such rights of the holders of the Class A-1, Class A-2 and Class
A-3 Notes and, in addition, to such rights of the holders of the Class M-1 Notes
(in the case of the Class M-2 Notes and Class B Notes) and of the Class M-2
Notes (in the case of the Class B Notes), all to the extent described herein.
The primary assets of the Trust will consist of a pool (the "Pool") of
loans (the "Loans") having the characteristics described herein. The Loans will
consist primarily of (i) fixed rate, single family residential first, second and
more junior mortgage loans (the "Mortgage Loans") in which the borrowers have
little or no equity (i.e. the related combined loan-to-value ratios approach or
exceed 100%, and (ii) fixed rate unsecured loans (the "Unsecured Loans"). With
respect to certain of the Mortgage Loans, and all of the Unsecured Loans,
substantially all of the loan proceeds were used by the related borrower to
improve a residential home (such loans, the "Home Improvement Loans"). Certain
of the Home Improvement Loans (the "FHA Loans") are partially insured by the
Federal Housing Administration (the "FHA") of the United States Department of
Housing and Urban Development ("HUD") under Title I of the National Housing Act
of 1934 ("Title I"). The Mortgage Loans, other than the FHA Loans, will have
original terms to stated maturity of up to 30 years and the Unsecured Loans,
other than the FHA Loans, will have original terms to stated maturity of up to
25 years. The FHA Loans will have original terms to stated maturity of up to 20
years. The Trust will also include funds on deposit in a separate account (the
"Pre-Funding Account") to be established with the Indenture Trustee (as defined
herein). All of the Loans were originated or purchased by certain wholly-owned
subsidiaries (the "Originators") of the Representative. The Money Store Inc.
will act as the servicer (in such capacity, the "Servicer") of the Loans and the
administrator (in such capacity, the "Claims Administrator") of the FHA Loans.
Except for certain representations and warranties relating to the Loans and
certain other matters, The Money Store Inc.'s obligations with respect to the
Loans are limited to its contractual servicing obligations.
Additional loans (the "Subsequent Loans") may be contributed to the Trust
from the Originators from time to time on or before the close of business on
December 26, 1997 from funds on deposit in the Pre-Funding Account. On the
Closing Date, an aggregate cash amount not to exceed $72,000,000 will be
deposited into the Pre-Funding Account. See "The Transfer and Servicing
Agreements-Pre-Funding Account" herein.
Distributions of principal and interest to the holders of each Class of
Notes will be made on the 15th day of each month or, if the 15th day is not a
business day, the first business day thereafter, commencing October 1997 (each
such day, a "Remittance Date") to the owners of each such Class of Notes as of
the preceding Record Date (as defined herein). Holders of any Class of Notes are
referred to herein as "Holders" or "Noteholders."
There is currently no secondary market for any Class of Notes. The
Underwriters intend to make a secondary market for the Notes, but have no
obligation to do so. There can be no assurance that a secondary market for any
Class of Notes will develop or, if one does develop, that it will offer
sufficient liquidity of investment or continue.
The Class A Notes, Class M Notes and Class B Notes offered by this
Prospectus Supplement each constitute a separate class of one series of Notes
being offered by the Representative and the Originators, on behalf of the Trust,
pursuant to the Prospectus dated September 11, 1997 (the "Prospectus"), of which
this Prospectus Supplement is a part and which accompanies this Prospectus
Supplement. The Prospectus contains important information regarding this
offering which is not contained herein and prospective investors are urged to
read the Prospectus and this Prospectus Supplement in full.
(end of cover page)
S-2
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Until 90 days after the date hereof, all dealers effecting transactions in
the Notes, whether or not participating in this distribution, may be required to
deliver a Prospectus Supplement and the Prospectus. This is in addition to the
obligation of dealers to deliver a Prospectus Supplement and Prospectus when
acting as underwriters and with respect to their unsold allotments or
subscriptions.
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR ENDORSED
THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
S-3
<PAGE>
SUMMARY OF TERMS
This following summary of certain pertinent information is qualified in its
entirety by reference to the detailed information appearing elsewhere in this
Prospectus Supplement and the accompanying Prospectus. Capitalized terms used
but not defined in this Summary of Terms have the meanings assigned to such
terms elsewhere in this Prospectus Supplement.
Securities Offered..................... The Money Store Residential Loan Notes,
Series 1997-I, Class A-1, Class A-2,
Class A-3, Class M-1, Class M-2 and
Class B. Each Class of Notes will be
issued in the initial Class Principal
Balance (as defined herein) and will
bear interest for each Remittance Date
at the per annum rate set forth for such
Class on the cover page hereof.
The per annum rate at which a Class of
Notes bears interest is referred to
herein as the "Remittance Rate" for such
Class.
The statistical information presented in
this Prospectus Supplement concerning
the Loans is based on the preliminary
Pool expected to be delivered to the
Trustee on the Closing Date. The
Representative expects that loans
(including the Subsequent Loans) that
were not contained in the preliminary
Pool will be added to the final Pool.
While the statistical distribution of
the characteristics for the final Pool
of Loans will vary somewhat from the
statistical distribution of such
characteristics for the preliminary Pool
of Loans presented in this Prospectus
Supplement, the Representative does not
believe that the characteristics of the
final Pool will differ materially.
References in this Prospectus Supplement
to the characteristics of the Loans as
of the Cut-Off Date (as defined herein)
are deemed to include the
characteristics, as of the date of their
origination, of those Loans originated
after the Cut-off Date and up to the
Closing Date.
Transaction Structure.................. The Money Store Residential Trust 1997-I
(the "Trust"), is a Delaware business
trust to be formed pursuant to a Trust
Agreement, dated as of August 31, 1997
(the "Trust Agreement"), among the
Originators and First Union Trust
Company, National Association, as owner
trustee (the "Owner Trustee"). The Trust
will issue the following Classes of
Notes pursuant to an Indenture, dated as
of August 31, 1997 (the "Indenture")
between the Trust and The Bank of New
York, as trustee (the "Indenture
Trustee"):
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Senior Notes..................... Class A-1, Class A-2 and Class A-3
Notes.
Subordinated Notes............... Class M-1, Class M-2 and Class B Notes.
Other Securities................. The Trust also will issue separate
certificates (the "Certificates") and
other interests (the ") representing the
beneficial ownership and voting
interests in the Trust. The Certificates
will have no principal balance and only
will be entitled to receive amounts in
excess of amounts required to be
distributed on the Notes. The
Certificates initially will be owned by
The Money Store Inc. and TMS SPV, Inc.,
a wholly-owned subsidiary of The Money
Store Inc. (the "Holder of the GP
Interest"). The Voting Interests
initially will be owned by an
unaffiliated party. Neither the
Certificates nor the Voting Interests
are being offered hereby, and any
information contained herein relating to
the Certificates and the Voting
Interests is included only to provide a
better understanding of the Notes.
Issuer................................. The Money Store Residential Trust
1997-I.
Cut-Off Date........................... August 31, 1997 (or the date of
origination of the Loan, if later) (the
"Cut-Off Date").
Closing Date........................... September 30, 1997.
Representative, Servicer and Claims
Administrator......................... The Money Store Inc., a New Jersey
corporation (in its capacity as sponsor
of the Trust, the "Representative," in
its capacity as the servicer of the
Loans, the "Servicer," and in its
capacity as the administrator of the
insurance claims to the FHA (the
"Claims") with respect to the FHA Loans,
the "Claims Administrator"). In the
Agreement (as defined herein), the
Claims Administrator will appoint its
subsidiary, TMS Mortgage Inc., a New
Jersey corporation, to assist in
performing the functions of the Claims
Administrator. The principal offices of
The Money Store Inc. are located at 2840
Morris Avenue, Union, New Jersey 07083
(telephone number (908) 686-2000) and
3301 C Street, Suite 100-M, Sacramento,
California 95816 (telephone number (916)
446-5000). See "The Representative and
the Originators" herein and in the
Prospectus.
Owner Trustee ......................... First Union Trust Company, National
Association, a national trust company
headquartered in Wilmington, Delaware.
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Indenture Trustee ..................... The Bank of New York, a New York banking
corporation, in its capacity as trustee.
See "The Transfer and Servicing
Agreements-The Indenture Trustee"
herein.
Co-Indenture Trustee................... Chase Manhattan Bank Delaware, a
Delaware banking corporation, will be
the co-indenture trustee under the
Indenture with respect to the FHA Loans
(the "Co-Indenture Trustee").
Custodian ............................. First Trust National Association, a
national banking association,
headquartered in St. Paul, Minnesota, or
such other entity acceptable to the
Indenture Trustee and the Servicer, will
be the "Custodian" with respect to the
Home Improvement Loans. In such
capacity, it will retain the files
relating to the Home Improvement Loans.
The Custodian is a subsidiary of First
Bank Systems, Minneapolis, Minnesota.
See "The Transfer and Servicing
Agreements-The Custodian" herein.
Originators of the Loans............... Each Loan will have been originated and
underwritten, or purchased and
re-underwritten, by the Originators, all
of which are wholly-owned subsidiaries
of the Representative. Additionally,
each Subsequent Loan to be included in
the Trust will have been originated and
underwritten, or purchased and
re-underwritten, by an Originator.
Agreement.............................. The Loans will be contributed to the
Trust by the Originators and serviced by
the Trustee pursuant to a Sale and
Servicing Agreement, dated as of August
31, 1997 (the "Agreement") among the
Trust, the Representative and the
Originators.
Description of the Notes
General.............................. The Notes will represent obligations of
the Trust, the assets of which will
consist primarily of Loans having the
characteristics described herein.
The Final Maturity Date for each Class
of Notes is as set forth herein under
"Maturity, Prepayment and Yield
Considerations." It is expected that the
actual last Remittance Date for each
Class of Notes will occur significantly
earlier than its Final Maturity Date.
See "Maturity, Prepayment and Yield
Considerations" herein.
The Notes are issuable in book-entry
form in minimum denominations of $1,000
original principal
S-6
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amount and integral multiples of $1,000
in excess thereof.
The Notes are issued by, and payable
solely from the property of, the Trust.
The undivided percentage interest of the
holder of any Note in the distributions
to be made to the related Class (the
"Percentage Interest") will be equal to
the percentage obtained by dividing the
denomination specified on such Note by
the original principal balance of such
Class.
Distributions.......................... On each Remittance Date, the Available
Remittance Amount (net of the Servicing
Fee, the Contingency Fee, and the FHA
Insurance Premium relating to the FHA
Loans) will be distributed generally in
the amounts and order of priority set
forth below. Capitalized terms used
below and not defined elsewhere in this
Summary of Terms have the meanings set
forth under "Description of the Notes -
Flow of Funds," which section also
contains a more detailed description of
the amount and priority of the
distributions to be made to Noteholders
and the limitations on certain forms of
credit enhancement. Each Class of Notes
will accrue interest on the basis of a
360-day year of twelve 30-day months.
(i) to pay the monthly Indenture
Trustee's fee, Co-Indenture Trustee's
fee and Owner Trustee's fee;
(ii) to pay the Class A Current
Interest Amount to the Holders of the
Class A Notes, without priority among
the Classes of Class A Notes;
(iii) to pay the Class M-1, Class M-2
and Class B Current Interest Amounts to
the Holders of the Class M-1, Class M-2
and Class B Notes, respectively, in that
order of priority;
(iv) to pay the Class A, Class M-1,
Class M-2 and Class B Principal
Distribution Amounts to the Holders of
the Class A, Class M-1, Class M-2 and
Class B Notes, respectively, generally
in that order of priority (and
sequentially among the Class A-1, Class
A-2 and Class A-3 Notes);
(v) to pay the Class A Interest
Shortfall Carryforward Amounts to the
Holders of the Class A Notes, without
priority among the Holders of the Class
A Notes;
S-7
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(vi) to pay the Accelerated Principal
Distribution Amount to the Holders of
the Class A, Class M-1, Class M-2 and
Class B Notes, generally in that order
of priority (and sequentially among the
Class A-1, Class A-2 and Class A-3
Notes);
(vii) to pay the Class M-1 Interest
Shortfall Carryforward Amounts to the
Holders of the Class M-1 Notes;
(viii) to pay the Class M-1 Realized
Loss Amount to the Holders of the Class
M-1 Notes;
(ix) to pay the Class M-2 Interest
Shortfall Carryforward Amounts to the
Holders of the Class M-2 Notes;
(x) to pay the Class M-2 Realized
Loss Amount to the Holders of the Class
M-2 Notes;
(xi) to pay the Class B Interest
Shortfall Carryforward Amounts to the
Holders of the Class B Notes;
(xii) to pay the Class B Realized Loss
Amount to the Holders of the Class B
Notes;
(xiii) to reimburse the Servicer for any
unreimbursed Advances; and
(xiv) to pay all amounts then remaining
in the Note Distribution Account to the
Owner Trustee for distribution to the
Certificateholders.
Credit Enhancement..................... The credit enhancement consists of (i)
the Spread Amount and (ii) the
subordination of the Class M and Class B
Notes, as described below.
Spread Amount and Application of
Realized Losses..................... Certain provisions of the Trust are
intended to provide for limited
acceleration of the Notes relative to
the amortization of the Loans, generally
in the early months of the transaction.
This limited accelerated amortization is
achieved by applying certain excess
interest collected on the Loans to the
payment of principal on the Notes. This
acceleration feature is intended to
create an amount (the "Spread Amount")
resulting from, and equal to, the excess
of the aggregate principal balances of
the Loans, plus amounts on deposit in
the Pre-Funding Account, over the
aggregate Current Principal Balances of
the Notes.
S-8
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If a Loan becomes a Liquidated Loan
during a Due Period, the Net Liquidation
Proceeds relating thereto and allocated
to principal may be less than the then
outstanding balance of such Loan. The
amount of such insufficiency is a
"Realized Loss."
To the extent that Realized Losses are
experienced, such Realized Losses will
reduce the aggregate outstanding balance
of the Loans (i.e., a reduction in the
collateral balance will occur) and, to
the extent not covered by application of
the Available Remittance Amount, will in
the first instance reduce the Spread
Amount.
If on any Remittance Date occurring
after the Parity Date (as defined
below), after taking into account all
Realized Losses experienced during the
prior Due Period and after taking into
account the distribution of principal
(including the Accelerated Principal
Distribution Amount) with respect to the
Notes on such Remittance Date, the
aggregate Current Principal Balance of
the Notes exceeds the aggregate balance
of the Loans, plus amounts on deposit in
the Pre-Funding Account, as of the end
of the related Due Period (i.e., if the
level of overcollateralization is
negative), then the Current Principal
Balance of the Subordinated Notes will
be reduced (in effect, "written down")
such that the level of the Spread Amount
is zero, rather than negative. Such a
negative level is an "Applied Realized
Loss Amount," which will be applied as a
reduction in the Current Principal
Balance of the related Subordinated
Notes in reverse order of seniority,
i.e., first against the Class B Current
Principal Balance until it is reduced to
zero, then against the Class M-2 Current
Principal Balance until it is reduced to
zero and then against the Class M-l
Current Principal Balance until it is
reduced to zero. The Agreement does not
permit the "write down" of the Current
Principal Balance of any Class A Notes.
Once the Current Principal Balance of a
Class of Subordinated Notes has been
"written down," the amount of such write
down will no longer bear interest, nor
will such amount thereafter be
"reinstated" or "written up," although
the amount of such write down may, on
future Remittance Dates, be paid to
Holders of the Subordinated Notes which
experienced the write down, in direct
order of
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seniority (i.e., first, the Class M-1
Notes, second, the Class M-2 Notes and,
third, the Class B Notes).
As described under "Risk Factors -
Overissuance of Notes," on the Closing
Date the aggregate Original Principal
Balance of the Notes will exceed the
Original Collateral Amount by
approximately 3.5%. It is intended that
in the early months of the transaction
the Monthly Excess Spread collected on
the Loans will be applied as an
Accelerated Principal Distribution
Amount on the Notes, thereby eliminating
this difference and creating a positive
Spread Amount. Therefore, no Class of
Notes will be written down as a result
of Realized Losses until the Remittance
Date following the first to occur of (i)
July 1998 or (ii) the first Remittance
Date on which the aggregate Current
Principal Balance of the Notes (after
taking into account the distribution of
principal on such Remittance Date) is
equal to or less than the aggregate
principal balance of the Loans, plus
amounts on deposit in the Pre-Funding
Account (the first to occur of (i) or
(ii) is referred to as the "Parity
Date").
Subordination of Class M and
Class B Notes....................... The rights of the Holders of the Class M
Notes and the Class B Notes to receive
distributions with respect to the Loans
will be subordinated to such rights of
the Class A Noteholders. This
subordination is intended to enhance the
likelihood of regular receipt by the
holders of the Class A Notes of the full
amount of their monthly payments of
interest and principal and to afford
such holders protection against losses
on Liquidated Loans. The protection
afforded to the Holders of the Class A
Notes by means of the subordination
feature will be accomplished by the
preferential right of the Holders of the
Class A Notes (i) to receive, prior to
any distribution being made on a
Remittance Date in respect of principal
or interest on the Class M Notes and the
Class B Notes, the Class A Current
Interest Amount due them on each
Remittance Date out of the Available
Remittance Amount on deposit on such
date in the Note Distribution Account
and (ii) to receive, prior to any
distribution being made on a Remittance
Date in respect of principal on the
Class M Notes and the Class B Notes, the
Class A Principal Distribution Amount
due them on each Remittance Date out of
the Available Remittance Amount on
deposit on such date in the Note
Distribution Account.
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<PAGE>
In addition, the rights of the Holders
of the Class M-2 Notes and Class B Notes
to receive distributions with respect to
the Loans will be subordinate to such
rights of the Holders of the Class M-1
Notes. This subordination is intended to
enhance the likelihood of regular
receipt by the Holders of the Class M-1
Notes of the full amount of their
monthly payments of interest and
principal and to afford such holders
protection against losses on Liquidated
Loans. The protection afforded to the
Holders of the Class M-1 Notes by means
of the subordination feature will be
accomplished by the preferential right
of the Holders of the Class M-1 Notes
(i) to receive, prior to any
distribution being made on a Remittance
Date in respect of principal or interest
on the Class M-2 Notes and the Class B
Notes, the Class M-1 Current Interest
Amount due them on each Remittance Date
out of the Available Remittance Amount
on deposit on such date in the Note
Distribution Account and (ii) to
receive, prior to any distribution being
made on a Remittance Date in respect of
principal on the Class M-2 Notes and the
Class B Notes, the Class M-1 Principal
Distribution Amount due them on each
Remittance Date out of the Available
Remittance Amount on deposit on such
date in the Note Distribution Account.
In addition, the rights of the Holders
of the Class B Notes to receive
distributions with respect to the Loans
will be subordinate to such rights of
the Holders of the Class M-2 Notes. This
subordination is intended to enhance the
likelihood of regular receipt by the
Holders of the Class M-2 Notes of the
full amount of their monthly payments of
principal and interest and to afford
such holders protection against losses
on Liquidated Loans. The protection
afforded to the Holders of the Class M-2
Notes by means of the subordination
feature will be accomplished by the
preferential right of the Holders of the
Class M-2 Notes (i) to receive, prior to
any distribution being made on a
Remittance Date in respect of interest
or principal on the Class B Notes, the
Class M-2 Current Interest Amount due
them on each Remittance Date out of the
Available Remittance Amount on deposit
on such date in the Note Distribution
Account and (ii) to receive, prior to
any distribution being made on a
Remittance Date in respect of principal
on the Class B Notes, the Class M-2
Principal Distribution Amount due them
on each Remittance Date out of the
Available Remittance
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<PAGE>
Amount on deposit on such date in the
Note Distribution Account.
Pre-Funding Account.................... On the Closing Date, an aggregate cash
amount (the "Pre-Funded Amount") will be
deposited into the Pre-Funding Account
in an amount not to exceed $72,000,000.
Amounts in the Pre-Funding Account may
be used only (i) to acquire Subsequent
Loans and (ii) to make accelerated
payments of principal on the Notes.
During the period (the "Funding Period")
from the Closing Date until the earliest
of (i) the date on which the amount on
deposit in the Pre-Funding Account is
less than $200,000, (ii) the date on
which a Servicer Default (as defined in
the Agreement) or an Event of Default
(as defined in the Indenture) occurs or
(iii) the close of business on December
26, 1997, amounts will, from time to
time, be withdrawn from the Pre-Funding
Account to acquire Subsequent Loans in
accordance with the Agreement. Any
Pre-Funded Amount remaining at the end
of the Funding Period will be
distributed as a principal prepayment on
the next Remittance Date to the
Noteholders then entitled to receive
payments of principal.
Capitalized Interest Account........... On the Closing Date, the Representative
also will make a cash deposit in an
account (the "Capitalized Interest
Account") in the name of the Indenture
Trustee on behalf of the Trust. The
amount deposited in the Capitalized
Interest Account will be used by the
Indenture Trustee on the Remittance
Dates occurring during the Funding
Period to fund the excess, if any, of
(i) the amount of interest accrued for
each such Remittance Date at the
weighted average Remittance Rates of the
Notes on the portion of the Notes having
principal balances exceeding the
principal balances of the Loans over
(ii) the amount of any earnings on funds
in the Pre-Funding Account that are
available to pay interest on the Notes
on each such Remittance Date. Any
amounts remaining in the Capitalized
Interest Account at the end of the
Funding Period are required to be paid
to the Representative.
Remittance and Record Dates............ Distributions on the Class A, Class M
and Class B Notes will be made by or on
behalf of the Indenture Trustee on the
15th day of each month, or if such day
is not a business day, on the first
business day thereafter, commencing
October 15, 1997 (each, a "Remittance
Date"), to each person in whose name a
Class A, Class M or Class B Note is
registered on the last day of the
preceding calendar month (the "Record
Date"), except that the final
distribution on each such
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Class of Notes will be made only upon
presentation and surrender of such Notes
at the office or agency designated for
that purpose.
FHA Insurance.......................... Subject to the then remaining Reserve
Amount (as defined below) of the Owner
Trustee, each FHA Loan will be insured
by the FHA in an amount currently equal
to 90% of the sum of the following: (i)
the unpaid principal and uncollected
interest earned to the date of default,
calculated on the actuarial method even
if the FHA Loan provides for simple
interest, reduced by certain amounts
received by the Claims Administrator in
connection with enforcing a lien on the
related Mortgaged Property, if any,
prior to the lien, if any, of the
related FHA Loan; (ii) the unpaid amount
of interest on the unpaid principal from
the date of default to the date of the
initial submission of the related Claim
to the FHA for payment plus 15 calendar
days, but not for any period greater
than nine months from the date of
default, calculated at 7% per annum; and
(iii) the amount of certain uncollected
court costs, attorney's fees, and
expenses for recording the assignment of
the related Mortgage, if any, to the
United States. See "The Trust-FHA Loans"
in the Prospectus and "Risk
Factors-Limitations on FHA Insurance"
and "Lending Programs-The Home
Improvement Lending Program-FHA Loans"
herein.
The Owner Trustee's Reserve Amount..... Each of the FHA Loans will be insured by
the FHA, to the extent described herein,
under each Originator's FHA contract of
insurance. In connection with the
transfer of the FHA Loans, the
Originators also will file with the FHA
all documents necessary to effect the
transfer of the FHA insurance reserves
applicable to the FHA Loans to the Owner
Trustee's FHA contract of insurance.
Based upon information provided by the
FHA, The Money Store Inc. believes that
upon the transfer referred to above and
after the Funding Period, the FHA
insurance available to the Owner Trustee
will be equal to at least (A) 10% of the
principal balance of the FHA Loans as of
the Cut-Off Date or Subsequent Cut-Off
Date, as the case may be; or (B)
thereafter, 10% of the principal balance
of all Title I loans originated or
purchased and currently reported for FHA
insurance by the Owner Trustee, less
amounts for insurance claims previously
paid to the Owner Trustee by the FHA,
including payments in respect of loans
other than the FHA Loans, and increased
by an
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amount equal to 10% of the lesser of the
original principal balance or the
purchase price paid for Title I loans
subsequently originated or purchased of
record by the Owner Trustee (in the case
of clause (A) or (B), the "Reserve
Amount"). See "The Trust-FHA Insurance"
in the Prospectus and "Risk
Factors-Limitations on FHA Insurance"
herein.
FHA Claims paid to the Owner Trustee by
the FHA with respect to Title I loans
other than the FHA Loans may affect the
total amount of the Reserve Amount.
Since the adequacy of the Owner
Trustee's Reserve Amount is dependent
upon future events, including the
reductions for the payment of claims, no
assurance can be given that the Reserve
Amount is or will be adequate to cover
90% of all potential losses on the FHA
Loans. See "Risk Factors-Limitations on
FHA Insurance" herein.
Obligation of the Claims Administrator. If any FHA Loan becomes a 90 Day
Delinquent FHA Loan (as defined below),
and if sufficient coverage is available
in the Reserve Amount to make an FHA
Payment with respect to such FHA Loan,
the Claims Administrator may, in its
sole discretion, during any subsequent
Due Period, determine to file a Claim
with the FHA with respect to such 90 Day
Delinquent FHA Loan. If the Claims
Administrator determines to file such a
Claim, the Claims Administrator will
follow the procedure described herein
under "The Transfer and Servicing
Agreements-Obligations of the Claims
Administrator."
With respect to any 90 Day Delinquent
FHA Loan transferred to the Claims
Administrator as described above, the
Claims Administrator shall deposit (or,
if the Claims Administrator is not also
the Servicer, the Claims Administrator
shall instruct the Servicer to deposit)
in the Principal and Interest Account
within 24 hours of receipt or
determination thereof the Related
Payments are described herein under "The
Transfer and Servicing
Agreements-Obligations of the Claims
Administrator."
If an FHA Loan becomes a 90 Day
Delinquent FHA Loan when there is
insufficient coverage in the Reserve
Amount or if the Claims Administrator
determines not to file a Claim with the
FHA with respect to such 90 Day
Delinquent FHA Loan, the Custodian will
not transfer such FHA Loan to the Claims
Administrator, no Claim will be made to
the
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<PAGE>
FHA and the Servicer may take other
action, including the commencement of
foreclosure proceedings, on the related
Mortgaged Property, if any. The Servicer
will continue to make Monthly Advances
with respect to interest on 90 Day
Delinquent FHA Loans as described under
"Monthly Advances" herein.
The Noteholders will not have any direct
right to receive the FHA Payments from
the FHA. See "Risk Factors-Dependence on
Claims Administrator, Representative and
Servicer for Making FHA Claims and
Paying the FHA Payments" herein.
A "90 Day Delinquent Loan" is a Loan
with respect to which four consecutive
monthly payments have not been received
by the Servicer as of the last day of
the related Due Period unless, on or
prior to the last day of the Due Period
in which the fourth Monthly Payment is
due, the Servicer has received from the
related obligor on the loan (the
"Obligor") an amount at least equal to
one unpaid monthly payment. A "90 Day
Delinquent FHA Loan" is a 90 Day
Delinquent Loan that is also an FHA
Loan.
An "FHA Payment" is any amount paid by
the FHA pursuant to a Claim with respect
to a 90 Day Delinquent FHA Loan.
FHA Premium Account.................... The Indenture Trustee will establish
with itself a separate account with
respect to the Trust (the "FHA Premium
Account") to reimburse the Claims
Administrator for the payment to the FHA
of the annual insurance premium (the
"FHA Insurance Premium") on each FHA
Loan in the Trust to the extent
described herein under "The Transfer and
Servicing Agreements-FHA Premium
Account."
The Pool............................... Unless otherwise noted, all statistical
percentages in this Prospectus
Supplement concerning the Loans are
measured by the aggregate principal
balances of the Pool of Loans described
herein at the close of business on the
Cut-Off Date and all dollar amounts are
based on the principal balances of such
Loan at the close of business on the
Cut-Off Date. The Loans that will
comprise the Trust as of the Closing
Date are referred to herein as the
"Initial Loans."
The Loans will consist of (i) fixed rate
mortgage loans (the "Mortgage Loans")
and the related promissory notes, retail
installment contracts or
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<PAGE>
obligations, or sales agreements (the
"Loan Notes") secured, except as set
forth below, by first, second or more
junior liens on one- to four-family
residences, units in planned unit
developments ("PUDS"), manufactured
housing and units in condominium
developments (the "Mortgaged
Properties") and (ii) fixed rate
unsecured loans (the "Unsecured Loans").
At the time of origination of each
Mortgage Loan, the related Obligor had
little or no equity (i.e., the related
Combined Loan-to-Value Ratios (as
defined in the Prospectus under "The
Trusts - The Mortgage Loans - General")
approached or exceeded 100%). With
respect to certain of the Mortgage
Loans, and all of the Unsecured Loans,
substantially all of the loan proceeds
were used by the related Obligor to
improve a residential home (such loans,
the "Home Improvement Loans"). Certain
of the Home Improvement Loans also are
FHA Loans.
As stated above, the Agreement will
provide that Subsequent Loans may be
acquired by the Trust from the
Originators from time to time during the
Funding Period from funds on deposit in
the Pre-Funding Account. Each Subsequent
Loan (including Dealer Loans, as defined
herein under "Lending Programs-The Home
Improvement Lending
Program-Dealer/Contractor Origination")
will be originated and underwritten, or
purchased and re-underwritten, by one of
the Originators, substantially in
accordance with the Originators'
underwriting criteria described herein
and in the Prospectus. The acquisition
price for each Subsequent Loan will be
no greater than its unpaid principal
balance as of the related Subsequent
Cut-Off Date. The Agreement will provide
that the Loans, following the conveyance
of any Subsequent Loans to the Trust,
must, in the aggregate, conform to
certain specified characteristics. See
"The Agreements-Representations and
Warranties" in the Prospectus.
The following is a description of
certain characteristics of the Initial
Loans expected to be delivered to the
Indenture Trustee on the Closing Date.
The Representative expects that the
aggregate pool of Subsequent Loans
delivered during the Funding Period also
will conform to these characteristics.
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<PAGE>
Between approximately 45% and 55% of the
Initial Loans will be Mortgage Loans
(other than Home Improvement Loans) and
the balance of the Initial Loans will be
Home Improvement Loans. Between
approximately 20% and 30% of the Initial
Loans will be secured conventional
(i.e., non-FHA insured) Home Improvement
Loans, between approximately 15% and 25%
of the Initial Loans will be unsecured
conventional Home Improvement Loans,
between approximately 5% and 10% of the
Initial Loans will be secured FHA Loans
and less than 1% of the Initial Loans
will be unsecured FHA Loans.
No more than approximately 30.0%, 10.0%,
10.0% 10.0%, 10.0%, 10.0% and 10.0% of
the Initial Loans will be secured by
Mortgaged Properties located in, or
originated to Obligors (as defined
below) with a primary mailing address
located in, California, Florida,
Pennsylvania, Illinois, Washington, New
York and Georgia, respectively. No more
than approximately 5% of the Mortgage
Loans will be secured by Mortgaged
Properties located in, or originated to
Obligors with a primary mailing address
located in, any other state. Based on
representations made by the Obligors on
the Initial Loans, no less than
approximately 99% of the Mortgage Loans
will be secured by one- to four-family
residences, no more than approximately
2% of the Mortgage Loans will be secured
by vacation homes, secondary residences,
or investment properties, no more than
approximately 2% of the Mortgage Loans
will be secured by individual units in
low rise condominiums, no more than
approximately 2% of the Mortgage Loans
will be secured by two-, three- or
four-family houses, no more than
approximately 1% of the Mortgage Loans
will be secured by five or more unit
residential properties ("Multifamily
Mortgaged Properties") and no Mortgage
Loan will be secured by individual units
of other types including high rise
condominiums and mixed-use buildings. No
more than approximately 2% of the
Mortgage Loans will be secured by
manufactured homes.
Approximately 3% of the Initial Mortgage
Loans will be secured by first mortgage
liens on the related Mortgaged Property,
no less than approximately 75% of the
Initial Mortgage Loans will be secured
by second mortgage liens on the related
Mortgaged Property and the remainder of
the Mortgage Loans will be secured by
more junior mortgage liens on the
related Mortgaged Property.
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<PAGE>
The FHA Loans are insured by the FHA to
the extent described herein. The other
Loans are not insured by any
governmental entity.
The Loans will provide for a schedule of
payments which will be, if timely paid,
sufficient to amortize fully the
principal balance of the Loan on or
before its maturity date. The Loans will
be "simple interest" loans. However,
with respect to FHA Loans secured by
Mortgaged Properties located in, or
originated to Obligors with a primary
mailing address located in, states where
the Servicer collects the FHA Insurance
Premium directly from the related
Obligor, payments are applied to the FHA
Insurance Premium prior to accrued
interest. The Loans will bear interest
at fixed rates (each, a "Loan Interest
Rate").
The Initial Loans will bear interest at
fixed Loan Interest Rates which range
from approximately 8.25% to
approximately 20%. The weighted average
Loan Interest Rate of the Initial Loans
will be no less than approximately 13%.
The lowest principal balance of any
Initial Loan as of the respective
Cut-Off Date will be approximately
$1,000, and the highest will be
approximately $500,000. As of the
respective Cut-Off Date, the average
principal balance of the Initial Loans
will be no more than approximately
$13,000. As of the respective Cut-Off
Date, the weighted average remaining
term to stated maturity of the Initial
Loans will be between approximately 185
months to 195 months. The weighted
average term to stated maturity of the
Initial Loans at origination will be
between approximately 190 months to 200
months.
Servicing of the Loans ................ The Servicer will serve as master
servicer for the Loans in accordance
with the Agreement. The Servicer may act
through subservicers, including the
Originators or other affiliates of the
Servicer.
Monthly Advances ...................... The Servicer is required to remit to the
Indenture Trustee no later than the day
of each month which is at least three
business days prior to the Remittance
Date and is in no case earlier than the
seventh business day of such month (the
"Determination Date") the amount (a
"Monthly Advance"), if any, by which (a)
the sum of (x) 30 days' interest at the
weighted average Adjusted Loan
Remittance Rate on the aggregate Current
Principal Balance of each Class of Notes
immediately prior to the related
Remittance
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<PAGE>
Date and (y) the Monthly Excess Spread,
if any, for the related Remittance Date
relating to the Loans exceeds (b) the
amount received by the Servicer in
respect of interest on the Loans as of
the related Record Date (and with
respect to the Remittance Dates during
the Funding Period, the sum of (i) all
funds to be transferred to the Note
Distribution Account from the
Capitalized Interest Account for such
Remittance Date and (ii) certain
investment earnings on amounts in the
Pre-Funding Account for the applicable
Remittance Date). Such advances by the
Servicer are reimbursable in the first
instance from late collections of
interest including amounts received in
connection with the liquidation of
defaulted Loans ("Liquidation
Proceeds"), amounts paid by any insurer
pursuant to any insurance policy
covering a Loan, Mortgaged Property or
REO Property ("Insurance Proceeds"), FHA
Payments and proceeds received by the
Servicer in connection with
condemnation, eminent domain or a
release of lien ("Released Mortgaged
Property Proceeds") collected with
respect to the related Loan as to which
the advances were made, and any other
amount that otherwise would be
distributed on the Notes. The Servicer
is not required to make Monthly Advances
which it determines, in good faith,
would be nonrecoverable from amounts
received in respect of the Loans.
The "Adjusted Loan Remittance Rate," for
a Class of Notes will equal the sum of
the Remittance Rate for such Class and a
rate used to determine certain expenses
of the Trust.
Compensating Interest................ Not later than each Determination Date,
with respect to each Loan to which the
Servicer received a principal payment in
full in advance of the final scheduled
due date (a "Principal Prepayment") or
received a principal payment that is in
excess of five times the scheduled
monthly payment due, but which was not
intended by the Obligor to satisfy the
Loan in full or to cure a delinquency (a
"Curtailment") during the related Due
Period, the Servicer is required to
remit to the Indenture Trustee from
amounts otherwise payable to the
Servicer as servicing compensation
(including the Contingency Fee), an
amount ("Compensating Interest") equal
to any excess of (a) 30 days' interest
on the principal balance of each such
Loan as of the beginning of the related
Due Period, at the weighted average
Adjusted Loan Remittance Rate applicable
to the Remittance Date on
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<PAGE>
which the Compensating Interest will be
distributed over (b) the amount of
interest actually received on the
related Loan during such Due Period.
Servicing and Contingency Fees ........ The Servicer is entitled to a servicing
fee of 0.25% per annum of the principal
balance of each Loan (the "Servicing
Fee"), and a contingency fee of 0.25%
per annum of the principal balance of
each Loan (the "Contingency Fee"), each
calculated and payable monthly from the
interest portion of scheduled monthly
payments, Liquidation Proceeds and
certain other amounts collected.
Rating................................. It is a condition to the issuance of the
Class A Notes that each Class be rated
"AAA" by Standard & Poor's Ratings
Services, a division of The McGraw-Hill
Companies, Inc. ("S&P"), and "AAA" by
Fitch Investors Service, Inc. ("Fitch"
and, together with S&P, the "Rating
Agencies"). It is a condition to the
issuance of the Class M-1 Notes that
they be rated at least "AA" by S&P and
at least "AA" by Fitch. It is a
condition to the issuance of the Class
M-2 Notes that they be rated at least
"A" by S&P and at least "A" by Fitch. It
is a condition to the issuance of the
Class B Notes that they be rated at
least "BBB" by S&P and at least "BBB" by
Fitch. 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 Class of Notes. See
"Rating of the Notes" herein.
Optional Termination by the Servicer... On any Remittance Date from and after
the Remittance Date on which the
aggregate principal balances of the
Loans are less than 10% of the Original
Collateral Amount (such date, the
"Optional Servicer Termination Date"),
the Servicer may, at its option,
purchase, on the next succeeding
Remittance Date, all of the Loans and
any related Mortgaged Property title to
which has been acquired in foreclosure
or by deed in lieu of foreclosure (an
"REO Property") at a price , which when
added to the amounts on deposit in the
Principal and Interest Account, equals
the aggregate Current Principal Balance
of the outstanding Notes, plus accrued
and unpaid interest thereon.
Tax Status............................. In the opinion of Stroock & Stroock &
Lavan LLP, special Federal tax counsel,
for Federal income tax purposes, the
Notes will be characterized as debt, and
the Trust will not be characterized as
an association (or a publicly traded
partnership) taxable as a
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<PAGE>
corporation. Each Noteholder, by the
acceptance of a Note, will agree to
treat the Notes as debt. See "Federal
Income Tax Considerations" herein and
"Federal Income Tax Consequences" in the
Prospectus.
ERISA Considerations................... Subject to the conditions and
considerations discussed under "ERISA
Considerations" herein, the Notes are
eligible for purchase by a pension or
other employee benefit plan subject to
the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or by
individual retirement accounts or
certain types of Keogh plans which are
not subject to ERISA but are subject to
Section 4975 of the Code ("Plans"). See
"ERISA Considerations" herein and in the
Prospectus.
Legal Investment Considerations........ The Notes will not constitute "mortgage
related securities" under the Secondary
Mortgage Market Enhancement Act of 1984
("SMMEA"). Investors should consult
their own legal advisers in determining
whether and the extent to which a Class
of Notes constitutes legal investments
for such investors. See "Legal
Investment Considerations" herein.
Registration of the Notes.............. The Notes will be represented by global
notes registered in the name of Cede &
Co. ("Cede"), as the nominee of The
Depository Trust Company ("DTC"). No
Noteholder will be entitled to receive
definitive notes ("Definitive Notes")
representing such person's interest,
except in the event that Definitive
Notes are issued under the limited
circumstances described herein. All
references herein to "Noteholders" or
"Holders" will reflect the rights of the
beneficial owners of Notes, as such
rights may be exercised through DTC and
Participants except as otherwise
specified herein. See "Risk
Factors-Book-Entry Registration" in the
Prospectus and "Book-Entry Notes"
herein.
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<PAGE>
RISK FACTORS
Prospective Noteholders should consider, in addition to the factors
described under "Risk Factors" in the Prospectus, the following factors.
Trust Assets are the Only Source of Credit Enhancement.
The subordination of the Subordinated Notes to the Class A Notes, the
further subordination within the Subordinated Notes, and the
overcollateralization provisions of the Trust are the sole sources of protection
against losses on Loans and other shortfalls in available funds. If losses or
other shortfalls exceed the protection afforded by such mechanisms, Noteholders
will bear such losses and shortfalls as described herein. See "Description of
the Notes-Credit Enhancement." The assets of the Trust are the sole source of
funds for distributions on the Notes.
Subordination--Limited Protection Afforded to Class A and Class M Notes.
The rights of the Holders of the Class M-1 Notes to receive distributions
with respect to the Loans will be subordinate to the rights of the holders of
the Class A Notes to receive such distributions, the rights of Holders of the
Class M-2 Notes to receive distributions with respect to the Loans will be
subordinate to the rights of the Holders of the Class A and the Class M-1 Notes
to receive such distributions and the rights of the Holders of the Class B Notes
to receive distributions with respect to the Loans will be subordinate to the
rights of the Holders of the Class A, Class M-1 and Class M-2 Notes to receive
such distributions. The subordination of the Subordinated Notes relative to the
Class A Notes (and of the more junior Classes of Subordinate Notes to the less
junior Classes thereof) is intended to enhance the likelihood of regular receipt
by the Holders of the Class A Notes (and such less junior Classes of
Subordinated Notes) of the full amount of the monthly distributions allocable to
them, and to afford such Holders protection against losses.
Overissuance of Notes
On the Closing Date, the aggregate Original Principal Balance of the Notes
will exceed the Original Collateral Amount by approximately $10,144,000
(representing approximately 3.5% of the Original Collateral Amount). It is
intended that in the early months of the transaction the Monthly Excess Spread
collected on the Loans will be applied as an Accelerated Principal Distribution
Amount on the Notes, thereby eliminating this difference and creating a positive
Spread Amount. There can be no assurance, however, that Monthly Excess Spread
will be generated in sufficient amounts to eliminate such
undercollateralization, or to do so within the time period anticipated by
Noteholders.
Unsecured Loans
The Unsecured Loans are not secured by an interest in real estate or
otherwise, and the Trust will be an unsecured creditor as to the related
obligations. In the event of a default under an Unsecured Loan, the Trust will
have recourse only against the Obligor's assets generally, along with all other
unsecured creditors of the Obligor. In a bankruptcy or insolvency proceeding the
obligations of an Obligor under an Unsecured Loan may be discharged in their
entirety. An Obligor for an Unsecured Loan may not demonstrate the same degree
of concern over performance of the Unsecured Loan that such Obligor would have
on a loan secured by real estate or other assets owned by the Obligor. However,
the FHA Loans are entitled to the benefits of FHA insurance to the extent
described herein.
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<PAGE>
Adequacy of the Mortgaged Properties as Security for the Mortgage Loans
The Combined Loan-to-Value Ratios of all of the Mortgage Loans approach or
exceed 100%. The related Mortgaged Properties, therefore, are highly unlikely to
fully collateralize the Mortgage Loans. Even assuming that a Mortgaged Property
provides adequate security for the related Mortgage Loan, substantial delays
could be encountered in connection with the liquidation of a Mortgage Loan that
would result in shortfalls in payments to Noteholders to the extent such
shortfalls are not covered by the credit enhancement described herein.
Relocation of Obligors
With respect to Mortgage Loans with Combined Loan-to-Value Ratios
approaching or exceeding 100%, if the related Obligors relocate they may be
unable to repay their Mortgage Loan in full from the sale proceeds of the
related Mortgaged Property and other funds available to such Obligors, in which
case the Mortgage Loans may experience higher rates of delinquencies, defaults
and losses. However, the FHA Loans are covered by FHA insurance to the extent
described herein.
Dependence on Claims Administrator, Representative, and Servicer for Making FHA
Claims and Paying the FHA Payments
The Indenture Trustee, Owner Trustee and the Noteholders are dependent on
the Claims Administrator to (1) assure that the FHA Loans will be insured by the
FHA, (2) make Claims on 90 Day Delinquent FHA Loans and (3) remit all FHA
Payments received from the FHA to the Indenture Trustee in accordance with the
terms of the Agreement. See "The Transfer and Servicing Agreements-Obligations
of The Claims Administrator" herein.
Limitations on FHA Insurance
The FHA Loans are covered by FHA insurance to the extent described herein.
The Agreement provides that if an FHA Loan becomes a 90 Day Delinquent FHA Loan
and if sufficient coverage is available in the related Reserve Amount, the
Claims Administrator may, in its sole option, file a Claim with the FHA with
respect to such 90 Day Delinquent FHA Loan. If such a Claim is submitted and
assuming the Representative, the Originators and the Claims Administrator comply
with the provisions described herein, the FHA will pay with respect to such 90
Day Delinquent FHA Loan the amount set forth under "The Home Improvement Lending
Program-FHA Loans-Insurance Claims Procedures for Title I Loans" herein
regardless of whether, in the case of FHA Loans, the related Mortgaged Property,
if any, has available equity over and above all liens on such property.
The availability of FHA insurance following a default on an FHA Loan is
subject to a number of conditions, including strict compliance with FHA
regulations in originating and servicing the FHA Loan and limits on the
aggregate insurance coverage available with respect to all FHA Title I loans
then owned and reported for FHA insurance by the Owner Trustee. Although the
Claims Administrator is an FHA-approved lender and believes, and represents and
warrants in the Agreement, that it has complied with FHA regulations, such
regulations are susceptible to substantial interpretation. The Claims
Administrator is not required to obtain, and has not obtained, approval from the
FHA of its origination and servicing practices. Failure to comply with FHA
regulations may result in a denial of FHA insurance claims, and there can be no
assurance that the FHA's enforcement of its regulations will not change in the
future. In addition, any Claim paid by the FHA will cover only 90% of the sum of
the unpaid principal (determined on the actuarial basis) on the FHA Loan, a
portion of the unpaid interest and certain other liquidation costs.
Prior to the transfer of the FHA Loans to the Owner Trustee, the FHA Loans
will be insured by the FHA, to the extent described herein, under the related
Originator's FHA contract of insurance. In connection with the transfer of the
FHA Loans, the Originators also will file with the FHA all documents necessary
to effect the transfer of the FHA insurance reserves applicable to the FHA Loans
to the Owner Trustee's FHA contract of insurance.
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<PAGE>
Based upon information provided by the FHA, The Money Store Inc. believes
that upon the transfer referred to above and after the Funding Period, the FHA
insurance available to the Owner Trustee will be equal to at least (A) 10% of
the principal balance of the FHA Loans as of the Cut-Off Date or Subsequent
Cut-Off Date, as the case may be; or (B) thereafter, 10% of the principal
balance of all Title I loans originated or purchased and currently reported for
FHA insurance by the Owner Trustee, less amounts for insurance claims previously
paid to the Owner Trustee by the FHA, including payments in respect of loans
other than the FHA Loans, and increased by an amount equal to 10% of the lesser
of the original principal balance or the purchase price paid for Title I loans
subsequently originated or purchased of record by the Owner Trustee.
FHA Claims paid to the Owner Trustee by the FHA with respect to Title I
loans other than the FHA Loans may affect the total amount of the Reserve
Amount.
Since the adequacy of the Owner Trustee's Reserve Amount is dependent upon
future events, including the reductions for the payment of claims, no assurance
can be given that the Reserve Amount is or will be adequate to cover 90% of all
potential losses on the FHA Loans.
In connection with the FHA Loans, pursuant to FHA underwriting criteria in
effect at the time substantially all the FHA Loans were originated, there was no
requirement that the Mortgaged Property have any available equity over and above
the total of all liens on such property, including the Title I loan. However,
loans originated between November 18, 1991 and August 15, 1994 that exceeded
$15,000 were limited to a maximum encumbrance of 100% loan to value of all liens
on such property, including the Title I loan, and non-owner occupied property
loans originated after November 18, 1991 were limited to a maximum encumbrance
of 100% loan to value of all liens on such property, including the Title I loan.
See "The Trusts-FHA Loans" in the Prospectus and "Lending Programs-The Home
Improvement Lending Program-FHA Loans-The Title I Loan Program-General" herein.
HOME IMPROVEMENT LENDING PROGRAMS
Prospective Noteholders should consider, in addition to the information
described under "The Single Family Loan Lending Program" in the Prospectus, the
following with respect to the Home Improvement Loans.
FHA Loans
The Title I Loan Program-General
The National Housing Act of 1934 (the "NHA Act"), in Sections 1 and 2(a)
thereof, authorized the creation of the FHA and the Title I credit insurance
program (the "Title I Loan Program"). Several types of loans may be made under
the Title I Loan Program, including, among others, property improvement loans
(the "Title I Property Improvement Loans") which may be made by approved lenders
to finance alterations, repair or improvement of existing single family,
multifamily and nonresidential structures. See "The Trusts-FHA Loans" in the
Prospectus for a general description of the Title I Loan Program.
Requirements for Title I Property Improvement Loans
The following is a description of the requirements for Title I Property
Improvement Loans currently in effect.
A Title I Property Improvement Loan cannot be used to purchase
property. The loan proceeds may only be used to finance property improvements
which substantially protect or improve the basic livability or utility of the
property to be improved. The loan amount may include the cost of the proposed
improvements and (i) architectural and engineering services; (ii) building
permit costs; (iii) credit report costs; (iv) a fee for an actual inspection of
the property by the lender or its agent, not to exceed $75, but only where the
total principal obligation is $7,500 or more; (v) title examination costs; (vi)
appraisal fees in connection with a loan or combination of loans on the same
property with a total principal balance in excess of $15,000; and (vii)
commencing July 5, 1995, origination fees charged by the lender.
S-24
<PAGE>
One borrower may have multiple loans on multiple properties. In addition, a
borrower may obtain more than one loan to improve one property as long as the
total balance does not exceed the maximum permitted for the particular type of
loan involved.
The following maximum dollar limits applied to Title I property improvement
loans when the FHA Loans were originated:
<TABLE>
<CAPTION>
Type of Property Loan Limit
---------------- ----------
<S> <C>
Single Family $25,000 per property (non-manufactured home)
$17,500 per property (manufactured home)
Multifamily $60,000 per property or an average of $12,000
per unit
Nonresidential $25,000 per property
Unsecured $7,500 per property
</TABLE>
Title I loans bear fixed rates of interest and are fully amortizing with
equal installment payments (except for the first or last payments, which may not
exceed 150% of the regular installment payment). Weekly, biweekly, semi-monthly
or monthly payments are permitted at the lender's option. Where the borrower has
an irregular flow of income, the loan may be repaid in quarterly or semi-annual
installments which correspond with the borrower's flow of income. The loan
maturity may not be less than six months nor greater than 20 years plus 32 days.
The interest rate is established by each lender. For applications taken after
June 3, 1996, lenders may not charge any prepayment penalty.
The lender is entitled to recover the following costs from the borrower:
(i) origination fee; (ii) for applications taken after June 3, 1996, discount
points (which may be payable by the borrower or dealer, if applicable); and
(iii) certain other specified fees and charges. These costs set forth in item
(i) with respect to loans for which the credit application was received prior to
July 5, 1995, and the costs set forth in items (ii) and (iii) cannot be paid out
of the loan proceeds.
An eligible borrower of a secured Title I loan must have at least a
one-half interest in one of the following: (i) fee simple title to the related
mortgaged property; (ii) a lease on the mortgaged property which runs at least
six months longer than the loan term; or (iii) a recorded land installment
contract on the mortgaged property.
There are two different types of FHA Loans and Conventional Loans: (1)
direct loans ("Direct Loans") and (2) dealer or dealer-contractor loans ("Dealer
Loans"). On a Direct Loan, the proceeds of the loan are disbursed directly to
the borrower, and there is no participation in the loan application process by a
dealer-contractor. On a Dealer Loan, the dealer-contractor participates in the
financing in some fashion, such as presenting the loan application to the
lending institution, receiving the check or money order (although made payable
to the borrower) or accompanying the borrower to the institution for the purpose
of receiving payment. On Dealer Loans, before it may disburse funds, the lender
must have in its possession a properly signed and dated completion certificate,
a copy of the dealer-contractor's contract or sales agreement, and a borrower's
authorization certificate, if the loan proceeds are to be disbursed to the
dealer-contractor.
S-25
<PAGE>
Title I Underwriting Requirements
Specified loan underwriting requirements must be satisfied prior to loan
approval and disbursement of funds. For secured Title I loans the lender must
verify that the borrower has at least a one-half interest in the mortgaged
property. Additionally, the Originator requires that all owners in fee simple
have signed the lien instrument. A copy of the cost estimated on a direct loan
or a contract signed by the contractor and borrower must be reviewed with the
nature of the work to be done specifically described in the contract. In
addition, the loan file must contain the promissory note, lien instrument and
other documents required by regulation.
The borrower's current paying habits and previous credit history must be
ascertained by obtaining a consumer credit report and by other credit
investigation. Written verification of income and employment is also required.
This may include any one of the following: (i) recent payroll stubs
(year-to-date plus current); (ii) verification of employment forms; (iii) signed
tax returns (self-employed); or (iv) financial statements (self-employed).
Generally, any Title I loan originated after August 1994 in excess of
$7,500 must be secured by a recorded lien on the improved property which is
evidenced by a mortgage or deed of trust executed by the borrower and all other
owners in fee simple. Prior to August 1994, any Title I loan in excess of $5,000
was required to be secured by such a recorded lien. In order to facilitate the
financing of small home improvement projects, the FHA does not require loans of
$7,500 or less, in the case of Title I loans originated after August 1994, and
$5,000 or less, in the case of Title I loans originated prior to August 1994, to
be secured by the property being improved. Notwithstanding the preceding
sentence, such loans must be secured by a recorded lien on the improved
property, if, including such loan, the total amount of all Title I loans
obtained by the borrower exceeds $7,500, or $5,000, as the case may be.
Effective November 18, 1991, for any secured Title I loan or combination of
loans on the same property with a total unpaid principal balance in excess of
$15,000, the borrower is required to have equity in the property being improved
in an amount at least equal to the loan amount, except for certain loans
originated by a governmental institution.
Effective August 15, 1994, for secured Title I loans the requirement
that the borrower have equity in the property was eliminated for owner-occupied
properties if the structure being improved has been completed and occupied at
least six months prior to the date of the related application. For non
owner-occupied properties, or owner occupied properties not meeting this
requirement, the borrower is required to have equity in the property being
improved in an amount at least equal to the loan amount and all existing liens
on such property.
Effective June 3, 1996, for secured Title I Loans the requirement that the
borrower have equity in the property was eliminated for both owner-occupied and
non owner-occupied properties.
Insurance Claims Procedures for Title I Loans
The FHA has specific requirements for servicing of loans in default and
filing of claims. The FHA requires the lender to make a reasonable effort to
contact the borrower and attempt a face-to-face meeting or conduct a telephone
interview prior to accelerating the maturity of the note and filing an insurance
claim.
If the lender's efforts to have the loan brought current are unsuccessful,
the lender is required to notify credit reporting agencies, file a claim with
the FHA for insurance and assign the loan to the United States government,
unless the lender chooses to proceed against the mortgaged property under its
Title I security instrument. If the lender chooses so to proceed, it may not,
without the approval of FHA, also file an insurance claim. However, if the
lender holds an obligation secured by the mortgaged property which is senior to
the Title I loan, it may both proceed against the mortgaged property under the
senior lien instrument and file an insurance claim for the Title I loan. When a
lender files an insurance claim with the FHA, the FHA reviews the claim, the
submitted loan documents relating to the loan and the lender's servicing
practices in order to verify compliance with FHA Title I requirements. Based
upon this review, the loan is either accepted or rejected for insurance claims.
S-26
<PAGE>
Subject to the then remaining reserve amount, the amount of the insurance
claim payment, when made, is equal to 90% of the sum of the following amounts:
(1) The unpaid amount of the loan obligation (net of unpaid principal
and the uncollected interest earned to the date of default calculated according
to the actuarial method).
(2) The unpaid amount of interest on the unpaid amount of the loan
obligation from the date of default to the date of the claim's initial
submission for payment plus 15 calendar days, calculated at the rate of 7% per
annum. (However, interest will not be paid for any period greater than nine
months from the date of default).
(3) The amount of uncollected court costs including fees paid for
issuing, serving and filing a summons.
(4) The amount of attorneys' fees on an hourly or other basis for time
actually expended and billed, not to exceed $500.
(5) The amount of expenses for recording the assignment of the loan to
the United States.
Because Noteholders do not hold a contract of insurance, the FHA will not
recognize the Noteholders as owners of the FHA Loans, or any portion thereof,
who are entitled to submit Claims to the FHA. Noteholders will have no direct
right to receive insurance payments from the FHA.
Dealer/Contractor Origination
The Originators originate loans through and purchase contracts from home
improvement contractors located in various states throughout the United States.
An Originator employs account executives who contact home improvement
contractors and explain the merits and features of the Originator's available
financing plans. Account executives review contractor needs and discuss the
Originator's prevailing home improvement loan rates, terms, credit standards and
policies. If a contractor desires to utilize the Originator's financing
programs, it must make application to the Originator for contractor approval.
The Originator has a contractor approval process pursuant to which the financial
condition, business experience, and qualifications of the contractor are
reviewed prior to its approval to sell or refer loans to the Originator. An
approved contractor's qualifications are reviewed annually in order to determine
whether such approval will be continued. The annual re-approval process includes
the updating of financial and business reference information. Contractors are
also monitored as to default levels, delinquency trends and customer complaint
resolution.
All contractor loans are written on an Originator's approved documents and
are either executed by the borrower in the presence (i) of the Originator's
employees or designated agents or (ii) of the contractor. All contracts which
are purchased are written on forms provided or approved by the Originator. Each
loan or contract is individually approved in accordance with the Originator's
guidelines. The contractor submits the customer credit application and
construction contract to the appropriate Originator office where the customer's
credit worthiness is determined. Credit analysis includes a review of the
customer's previous credit experience, paying habits, length and likelihood of
continued employment, ability to repay the debt, and other factors. The credit
analysis also includes the determination of the ratio of a customer's long-term
debt payments in relation to their gross monthly income.
The Originators require that all secured home improvement loans and
contracts be secured by a recorded lien on the property to be improved. Liens
may be in first, second or more junior position. Certain other criteria for FHA
insured loans and contracts are described under the caption "FHA Loans." If an
Originator determines that the application meets the Originator's underwriting
guidelines (and FHA regulations where applicable) and the credit is approved,
the Originator originates the loan or purchases the contract. Unless a customer
has specifically requested staged funding of a contract, contracts are not
purchased until the customer has verified satisfactory completion of the
S-27
<PAGE>
home improvement project. Where staged funding is used, the Originator requests
a completion certificate from the customer within 60 days of funding.
Property values are generally determined by a drive-by "as-is" appraisal
with the cost of the improvement added to the appraisal to reflect the "after
improvement" value of the property. Title insurance is required on some FHA
Loans where the mortgage is in first position.
Conventional Loans - Underwriting Criteria
Conventional Loans are underwritten in the same manner as the FHA Loans
except that the loan proceeds may be used for projects that do not qualify for
FHA Loans, the amount of the loan may exceed applicable FHA limits, unsecured
loans may not be subject to income verification or debt-to-income ratio
calculations and the loan maturity may be for up to 25 years from origination.
Conventional Loans and contracts are not insured by the FHA.
The original principal amount of a Conventional Loan generally may
not exceed $50,000 for the Originator's secured no equity program, a program in
which no appraisal is required and no loan-to-value ratio is calculated, and
generally may not exceed $75,000 for the Originator's other secured contractor
programs and generally may not exceed $12,500 for the Originator's unsecured
program.
THE TRUST
The Money Store Residential Trust 1997-I is a business trust formed under
the laws of the State of Delaware pursuant to the Trust Agreement for the
transactions described in this Prospectus Supplement. After its formation, the
Trust will not engage in any activity other than (i) acquiring, holding and
managing the Loans and the other assets of the Trust and proceeds therefrom,
(ii) issuing the Notes, the Certificates and the Voting Interests, (iii) making
payments on the Notes and the Certificates 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 Certificates will have no principal balance and will represent the
residual interest in the assets of the Trust. The Voting Interests will entitle
the holders thereof to exercise sole authority to approve or disapprove actions
requiring the approval or disapproval of Certificateholders. The Trust Agreement
will provide that the holder of the Voting Interests will act in accordance with
written directions received from the holders of a majority of the aggregate
Current Principal Balance of the Notes then outstanding; provided, however, that
no action may be taken that would increase or reduce in any manner the amount
of, or accelerate or delay the timing of, collections of payments on Loans or
distributions required to be made for the benefit of the Certificateholders, or
would adversely affect the Federal or state tax consequences to the
Certificateholders, without the consent of the holders of all Certificates
affected thereby. The Certificates initially will be owned by The Money Store
Inc. and TMS SPV, Inc., a wholly-owned subsidiary of The Money Store Inc. The
Voting Interests initially will be owned by an unaffiliated party.
The Trust's principal offices are located in Wilmington, Delaware, in care
of First Union Trust Company, National Association, as Owner Trustee, at One
Rodney Square, First Floor, 920 King Street, Wilmington, Delaware 19801.
THE REPRESENTATIVE AND THE ORIGINATORS
The Money Store Inc. will act as the Servicer of the Loans. Except for
certain representations and warranties relating to the Loans and certain other
matters, The Money Store Inc.'s obligations with respect to the Loans are
limited to its contractual servicing obligations.
S-28
<PAGE>
The Money Store Inc. is a New Jersey corporation and the parent company of
the Originators and their affiliates. The Money Store Inc. is headquartered in
Sacramento, California and Union, New Jersey.
The Money Store Inc. is a financial services company engaged, through its
subsidiaries (including the Originators), in the business of originating,
purchasing, selling and servicing consumer and commercial loans of specified
types and offering related services. Loans originated by The Money Store Inc.
and its subsidiaries primarily consist of home equity loans, including Home
Improvement Loans (collectively, "Home Equity Loans"), loans (the "SBA Loans")
guaranteed in part by the United States Small Business Administration (the
"SBA") and government guaranteed student loans ("Student Loans"). The Money
Store Inc. began providing financing for new and used vehicles (the "Auto
Loans") in early 1995.
Since 1967, The Money Store Inc. and its subsidiaries have been active in
the development of the residential home equity lending industry in the United
States. Based upon industry sources, the Representative believes that during
1995 The Money Store Inc. and its subsidiaries were among the largest
originators, by principal amount, of home equity loans in the United States. In
1979, The Money Store Inc. and its subsidiaries began to originate SBA Loans
and, based upon statistics compiled by the SBA, the Representative believes that
during each of the last 14 SBA fiscal years it originated a greater principal
amount of SBA Loans than any other originator of such loans in the United
States. In 1984, The Money Store Inc. and its subsidiaries entered into the
government guaranteed student loan origination market.
For the years ended December 31, 1995 and 1996 and for the six months ended
June 30, 1997, The Money Store Inc. and its subsidiaries originated or purchased
approximately $3.8 billion, $5.7 billion and $3.3 billion of loans,
respectively. Of those loans, approximately 75%, 73% and 73%, respectively, by
principal amount were home equity loans, approximately 12%, 11% and 10%,
respectively, by principal amount were SBA Loans, approximately 10%, 8%, and 7%
respectively, by principal amount were Student Loans and approximately 3%, 8%
and 10%, respectively, by principal amount were Auto Loans. The business
strategy of The Money Store Inc. has been to identify and pursue niche lending
opportunities which management believes have had widespread unsatisfied demand.
At June 30, 1997, The Money Store Inc. and its subsidiaries operated out of
227 branch locations in 50 states, the District of Columbia and the Commonwealth
of Puerto Rico.
S-29
<PAGE>
The following table shows the originations and portfolio balances of The Money
Store Inc. and its subsidiaries for the periods indicated:
Originations and Serviced Loan Portfolio by Loan Type
(Dollars in thousands)
<TABLE>
<CAPTION>
1995
----
Originations
-----------------------------
Number of Serviced Loan
Amount Loans Portfolio
------ --------- ---------
<S> <C> <C> <C>
Home Equity Loans...... $2,885,044 67,828 $5,751,677
% of Total............. 75.5% 66.7%
SBA Loans.............. $440,728 1,461 $1,907,050
% of Total............. 11.5% 22.1%
Student Loans.......... $369,129 139,946 $845,501
% of Total............. 9.7% 9.8%
Auto Loans............. $128,070 13,141 $117,239
% of Total............. 3.3% 1.4%
---------- -------- -----------
Total....... $3,822,971 222,376 $8,621,467
========== ======== ==========
</TABLE>
<TABLE>
<CAPTION>
Year Ended December 31, Six Months Ended June 30,
----------------------------------------------- ------------------------------------------------
1996 1997
---- ----
Originations Originations
-------------------------- ----------------------------
Number Serviced Loan Number Serviced Loan
Amount of Loans Portfolio Amount of Loans Portfolio
------ -------- --------- ------ -------- ---------
<S> <C> <C> <C> <C> <C> <C>
Home Equity Loans..... $4,150,992 104,519 $8,230,776 $2,435,846 65,090 $9,538,069
% of Total............ 72.9% 67.5% 73.0% 67.9%
SBA Loans............. $635,498 1,769 $2,282,384 $316,975 761 $2,461,069
% of Total............ 11.2% 18.7% 9.5% 17.5%
Student Loans......... $458,459 168,837 $1,203,739 $240,218 39,955 $1,342,955
% of Total............ 8.0% 9.9% 7.2% 9.6%
Auto Loans............ $448,105 45,124 $475,533 $343,919 34,270 $710,886
% of Total............ 7.9% 3.9% 10.3% 5.0%
----- ------ ----- ----- -------- ----
Total................ $5,693,054 320,249 $12,192,432 $3,336,958 140,076 $14,052,979
========== ======= =========== ========== ======= ===========
</TABLE>
S-30
<PAGE>
Although the Originators have no maximum dollar amount for Home Equity
Loans, the actual maximum amount that the Originators will lend is determined by
the applicant's ability to repay the loan, the value of the borrower's equity in
the real estate and the ratio of such equity to the home's appraised value. For
Home Equity Loans originated in 1994, 1995, 1996 and for the six months ended
June 30, 1997, the average loan size was approximately $52,000, $43,000, $40,000
and $37,000, respectively.
The following table illustrates The Money Store Inc.'s delinquency and
charge-off experience with respect to Home Equity Loans in its servicing
portfolio. The Money Store Inc. does not separately report the delinquency and
charge-off experience of its Home Improvement Loans or Unsecured Loans and there
can be no assurance, and no representation is made, that the delinquency and
charge-off experience with respect to the Home Improvement Loans or Unsecured
Loans will be similar to that reflected in the table below.
Home Equity Loan Delinquencies and Charge-Offs
(Dollars in thousands)
<TABLE>
<CAPTION>
As of and for the
As of and for the Years Six Months Ended
Ended December 31, June 30,
------------------------------------ ------------------
1994 1995 1996 1997
---- ---- ---- ----
<S> <C> <C> <C> <C>
30-59 days past due................................. 1.77% 1.76% 1.31% 1.48%
60-89 days past due................................. 0.42% 0.68% 0.81% 0.82%
90+ days past due................................... 1.86% 2.42% 3.83% 4.19%
Loans charged-off, net.............................. $19,942 $24,205 $37,039 $26,033
Loans charged-off, net, as a percentage of
the serviced home equity loan portfolio(1)....... 0.54% 0.42% 0.45% 0.55%
</TABLE>
(1) The percentage of Home Equity Loan charge-offs is calculated based upon the
dollar amount of charge-offs divided by the dollar amount of Home Equity Loans
contained in the Company's serviced loan portfolio.
While the above delinquency and charge-off experience represents the
Servicer's recent experience, there can be no assurance that the future
delinquency and charge-off experience on the Loans included in the Trust will be
similar. See "Description of the Notes" herein for a discussion of the effect to
Noteholders of delinquencies in payments on the Loans.
Legal Proceedings
Because the nature of the business of The Money Store Inc. involves the
collection of numerous accounts, the validity of liens and compliance with state
and federal lending laws, The Money Store Inc. is subject to claims and legal
actions in the ordinary course of its business. While it is impossible to
estimate with certainty the ultimate legal and financial liability with respect
to such claims and actions, The Money Store Inc. believes that the aggregate
amount of such liabilities will not result in monetary damage which would have a
material adverse effect on the financial condition of The Money Store Inc.
Recent Developments
On September 15, 1997 the Representative announced estimates that
annualized net charge-offs on the auto loan portfolio of TMS Auto Holdings, Inc.
("Auto Holdings"), one of its subsidiaries, will be as much as 7% for the
S-31
<PAGE>
quarter ended September 30, 1997 (as compared to 3.82% for the quarter ending
June 30, 1997) and thirty day-and-over delinquencies at September 30, 1997 will
be as much as 10% (as compared to 4.25% at June 30, 1997). The Representative
believes that deterioration in the performance of the auto loan portfolio is
largely attributable to inconsistent application of underwriting standards
resulting in a diminution in the credit quality of auto loan originations. The
overall deterioration in the credit quality of such portfolio also put pressure
on servicing resources which further contributed to the decline in performance.
The Representative believes that the decentralization of processing through the
Auto Holdings' branch network together with the rapid growth of Auto Holdings'
auto loan originations led to less control over the credit quality of such loan
originations. In response to these developments, the Representative is
implementing a number of changes affecting Auto Holdings including strengthening
the quality of the management team, centralizing more processing functions and
consolidating its branch structure. The Representative anticipates a reduction
in auto loan originations while these changes are being implemented. No auto
loan receivables are included in any Pool of Loans.
S-32
<PAGE>
THE LOAN POOL
General
Certain data with respect to the Initial Loans expected to be included in
the Trust is set forth below. References in this Prospectus Supplement to the
characteristics of the Initial Loans as of the Cut-Off Date are deemed to
include the characteristics, as of the date of their origination, of those
Initial Loans originated after the Cut-Off Date and up to the Closing Date. A
Current Report on Form 8-K containing a detailed description (the "Detailed
Description") of the Initial Loans will be available to purchasers of the Notes
upon request and will be filed with the Securities and Exchange Commission
within 15 days after issuance of the Notes. The Detailed Description will
specify the principal balance of the Initial Loans as of the Cut-Off Date, the
initial principal balance of each Class of the Notes and will also include the
following information regarding the Initial Loans (in each case, presented by
(i) principal balance of the Trust as of the Cut-Off Date; (ii) percentage of
the Trust by principal balance; (iii) number of Initial Loans for the Trust):
geographical distribution of the Mortgaged Properties, or mailing address of the
related Obligor interest rates, original principal balances, number of months
since origination and months remaining to stated maturity; and (iv) loan type.
The statistical information presented in this Prospectus Supplement
concerning the Loans is based on the preliminary Pool expected to be delivered
to the Trustee on the Closing Date. The Representative expects that loans
(including the Subsequent Loans) that were not contained in the preliminary Pool
will be added to the final Pool. While the statistical distribution of the
characteristics for the final Pool of Loans will vary somewhat from the
statistical distribution of such characteristics for the preliminary Pool of
Loans presented in this Prospectus Supplement, the Representative does not
believe that the characteristics of the final Pool will differ materially.
The Agreement will provide that Subsequent Loans may be acquired by the
Trust from the Originators from time to time during the Funding Period from
funds on deposit in the Pre-Funding Account. Any Subsequent Loan so acquired
will have been originated and underwritten, or purchased and re-underwritten, by
one of the Originators, substantially in accordance with the Originator's
underwriting criteria described herein and in the Prospectus. The acquisition
price for each Subsequent Loan will be no greater than its unpaid principal
balance as of the related Subsequent Cut-Off Date. The Agreement will provide
that the Pool, following the conveyance of any Subsequent Loans to the Pool,
must, in the aggregate, conform to certain specified characteristics. See "The
Agreements-Representations and Warranties" in the Prospectus.
The Loans
The following is a description of certain characteristics of the pool of
Initial Loans expected to be delivered to the Indenture Trustee on the Closing
Date. The Representative expects that the aggregate pool of Subsequent Loans
delivered during the Funding Period also will conform to these characteristics.
Unless otherwise noted, all percentages in this general discussion are measured
by the expected principal balance of the Initial Loans described herein on the
Cut-Off Date and the statistics are given as of the Cut-Off Date.
Between approximately 45% and 55% of the Initial Loans will be Mortgage
Loans (other than Home Improvement Loans) and the balance of the Initial Loans
will be Home Improvement Loans. Between approximately 20% and 30% of the Initial
Loans will be secured conventional (i.e., non-FHA insured) Home Improvement
Loans, between approximately 20% and 30% of the Initial Loans will be secured
conventional (i.e., non-FHA insured) Home Improvement Loans, between
approximately 15% and 25% of the Initial Loans will be unsecured conventional
Home Improvement Loans, between approximately 5% and 10% of the Initial Loans
will be secured FHA Loans and less than 1% of the Initial Loans will be
unsecured FHA Loans.
Approximately 3% of the Initial Mortgage Loans will be secured by
first mortgage liens, no less than approximately 75% of the Initial Mortgage
Loans will be secured by second mortgage liens and the remainder of the Initial
Mortgage Loans will be secured by more junior mortgage liens. Based on
representations made by the Obligors,
S-33
<PAGE>
no less than approximately 99% of the Mortgage Loans will be secured by one-to
four-family residences, no more than approximately 2% of the Mortgage Loans will
be secured by vacation homes, secondary residences, or investment properties, no
more than approximately 2% of the Mortgage Loans will be secured by individual
units in low-rise condominiums, no more than approximately 2% of the Mortgage
Loans will be secured by two-, three- or four-family houses, no more than
approximately 1% of the Mortgage Loans will be secured by Multifamily Mortgaged
Properties and no Mortgage Loan will be secured by individual units of other
types including high-rise condominiums and mixed-use buildings. No more than
approximately 2% of the Mortgage Loans will be secured by manufactured homes.
No more than approximately 30.0%, 10.0%, 10.0%, 10.0%, 10.0%, 10.0%, and
10.0% of the Initial Loans will be secured by Mortgaged Properties located in,
or originated to Obligors with a primary mailing address located in California,
Florida, Pennsylvania, Illinois, Washington, New York and Georgia, respectively.
No more than approximately 5% of the Initial Loans will be secured by Mortgaged
Properties located in, or originated to Obligors with a primary mailing address
located in, any other state.
The FHA Loans are insured by the FHA to the extent described herein.
The Initial Loans will bear interest at fixed Loan Interest Rates which
range from approximately 8.25% to 20% per annum. The weighted average Loan
Interest Rate of the Initial Loans will be no less than approximately 13% per
annum. The lowest principal balance of any Initial Loan as of the respective
Cut-Off Date will be approximately $1,000 and the highest will be approximately
$500,000. As of the respective Cut-Off Date the average principal balance of the
Initial Loans will be no more than approximately $13,000. As of the respective
Cut-Off Date, the weighted average remaining terms to stated maturity of the
Initial Loans will be between approximately 185 months and 195 months. The
weighted average term to stated maturity of the Initial Loans at origination
will be between approximately 190 months to 200 months. None of the Initial
Loans will be Loans which provide for a stated maturity of less than the period
of time of the corresponding amortization schedule ("Balloon Loans").
Payments on the Loans
The Loans will generally provide for a schedule of payments which will be,
if timely paid, sufficient to amortize fully the principal balance of the
related Loan on or before its maturity date. Interest with respect to the Loans
will accrue on either an actuarial interest method or a simple interest method.
The actuarial interest method provides that interest is charged and
payments are due as of a scheduled day of each month which is fixed at the time
of origination. Scheduled monthly payments on such Loans received either earlier
or later (other than delinquent) than the scheduled due dates thereof will not
affect the amortization schedule or the relative application of such payments to
principal and interest.
The simple interest method provides for the amortization of the amount of
each loan over a series of equal monthly payments. However, unlike the monthly
payment under the actuarial interest method, each monthly payment consists of an
installment of interest which is calculated on the basis of the outstanding
principal balance at the stated interest rate and based upon the period elapsed
since the preceding payment of principal was made, using the method permitted by
applicable law. As payments are received under the loan, the amount received is
applied first to interest accrued to the date of payment and the balance, if
any, is applied to reduce the unpaid principal balance; provided, however, that
with respect to FHA Loans secured by Mortgaged Properties located in or
originated to Obligors with a primary mailing address in states where the
Servicer collects the FHA Insurance Premium directly from the related Obligor,
payments are applied first to the FHA Insurance Premium. Accordingly, if a
borrower pays a fixed monthly installment on such a loan before its scheduled
due date, the portion of the payment allocable to interest for the period since
the preceding payment was made will be less than it would have been had the
payment been made as scheduled, and the portion of the payment applied to reduce
the unpaid principal balance will be correspondingly greater. Conversely, if a
borrower pays a fixed monthly installment on the loan after its scheduled due
date, the portion of the payment allocable to interest for the period since the
preceding payment was made will be greater than it would be had
S-34
<PAGE>
the payment been made as scheduled, and the portion of the payment applied to
reduce the unpaid principal balance will be correspondingly reduced. In
addition, a late charge may be imposed with respect to the past due amount.
The amount of interest payable to the Noteholders on each Remittance Date
will not be affected by interest accruing on the Loans based on the simple
interest method. On each Remittance Date, the Noteholders are entitled to
receive 30 days' interest at the applicable Remittance Rate on the outstanding
principal balances of the applicable Class of Notes. The Servicer is required to
remit to the Indenture Trustee the excess, if any, of the amount of interest the
Noteholders are entitled to receive on each Remittance Date over the interest
collected on the Loans during the related Due Period and available to pay
interest on the Notes. See "The Transfer and Servicing Agreements Monthly
Advances and Compensating Interest" herein.
Similarly, the compensation payable to the Servicer will not be affected by
interest accruing on the Loans based on the simple interest method. The Servicer
is entitled to receive a fee based on the principal balance of the Loans, not
upon the portion of a monthly payment allocable to interest. See "The Transfer
and Servicing Agreements and Other Compensation and Payment of Expenses" herein.
With respect to simple interest Loans, if a payment is received on such a
Loan before its due date, more of such payment will be used on the related
Remittance Date to pay principal on the Notes than if such payment was received
on such due date. Conversely, if a payment is received on such a Loan after its
scheduled due date, less of such payment will be used on the related Remittance
Date to pay principal on the Notes than if such payment was received on its due
date. This will not affect the total amount of principal to be received by the
Holders of Notes over the life of the transaction, but it may affect the
weighted average lives of the Notes.
MATURITY, PREPAYMENT AND YIELD CONSIDERATIONS
The effective yield on the Notes will be slightly lower than the yield
otherwise produced by the applicable Remittance Rate because, while interest
will accrue on such Notes from the first day of each month, the distribution of
such interest will not be made until the 15th day (or if such 15th day is not a
business day, the next succeeding business day) of the month following the month
of accrual.
In general, because the Loans will bear fixed interest rates, when the
level of prevailing interest rates for similar loans significantly declines, the
rate of prepayment of such Loans is likely to increase, although the prepayment
rate is influenced by a number of other factors, including general economic
conditions and homeowner mobility. Similarly, when the level of interest rates
for similar loans significantly rises, the rate of prepayment of such Loans may
decrease. Furthermore, because at origination all of the Mortgage Loans had
Combined Loan-to-Value Rates that approached or exceeded 100%, the related
Obligors will generally have significantly less opportunity to refinance the
indebtedness secured by the related Mortgaged Properties, including the Mortgage
Loans. No prediction can be made as to the prepayment rate that the Loans will
actually experience.
Generally, junior priority mortgage loans and unsecured loans have smaller
average principal balances than first priority mortgage loans and are not viewed
by borrowers as permanent financing. Accordingly, the Loans that are secured by
junior liens or that are unsecured may experience a higher rate of prepayment
than traditional first priority mortgage loans. In addition, any future
limitations on the right of borrowers to deduct interest payments on mortgage
loans for Federal income tax purposes may result in a higher rate of prepayment
of such junior Loans. The obligation of the Servicer to enforce the
"due-on-sale" provisions of the Loans may also increase prepayments. The
prepayment experience of the Pool may be affected by a wide variety of factors,
including general and local economic conditions, mortgage market interest rates,
the availability of alternative financing and homeowner mobility. The
Representative is unaware of any reliable studies that would project the
prepayment risks associated with the Loans based upon current interest rates and
economic conditions and the historical prepayment experience of the
Representative's portfolio of Loans.
S-35
<PAGE>
Unscheduled payments, delinquencies, repurchases of defective Loans,
defaults on the Loans and distributions from the Pre-Funding Account will affect
the amount of funds available to make distributions on each Remittance Date. In
addition, the Servicer may, at its option, on any Remittance Date on and after
the Optional Servicer Termination Date, purchase from the Trust all of the Loans
in the Trust and any related REO Properties, thereby causing the Notes to be
redeemed.
If prepayments of principal are received on the Loans at a rate greater
than that assumed by an investor (including distributions from the Pre-Funding
Account and receipt of Accelerated Principal Distribution Amounts), the yield
will be increased on Notes purchased by such investor at a price less than par
(i.e., the principal balance of a Note at the time of its purchase). Similarly,
if prepayments of principal are received on the Loans at a rate greater than
that assumed by an investor, the yield will be decreased on Notes purchased at a
price greater than par. The effect on an investor's yield of principal
prepayments on the Loans occurring at a rate that is faster (or slower) than the
rate anticipated by the investor in the period immediately following the
issuance of the applicable Class of Notes may not be offset by a subsequent like
reduction (or increase) in the rate of principal payments. The weighted average
lives of the Notes will also be affected by the amount and timing of
delinquencies and defaults on the Loans and the liquidations of defaulted Loans.
Delinquencies and defaults will generally slow the rate of payment of principal
to the Noteholders since the Servicer is not obligated to advance for delinquent
payments of principal. However, this effect will be offset to the extent that
lump sum recoveries on defaulted Loans and foreclosed Mortgaged Properties
result in principal payments on the Loans faster than otherwise scheduled.
Additionally, the Noteholders will be entitled to any FHA Payments received by
the Claims Administrator.
As described herein, certain Classes of Notes will be entitled to receive
payments of principal prior to other Classes of Notes. As a result, the Classes
of Notes receiving payments of principal first will immediately be affected by
the prepayment rate on the Loans in the Trust. However, the timing of
commencement of principal distributions and the weighted average lives of each
Class of Notes will be affected by the prepayment rate experienced both before
and after the commencement of principal distributions on any such Class.
If during the Funding Period the entire original Pre-Funded Amount
has not been used to purchase Subsequent Loans, certain Classes of Notes will be
prepaid in part from and to the extent of such remaining amounts. Although no
assurances can be given, it is anticipated by the Representative that the
principal amount of Subsequent Loans sold to the Trust will require the
application of substantially all the amounts on deposit in the Pre-Funding
Account, and that there should be no material principal prepaid on the Notes
from such amounts.
The Loans are either (i) "simple interest" or "date-of-payment loans" or
(ii) "actuarial method" loans. If a payment is received on a Loan which is a
"simple interest" loan later than scheduled, a smaller portion of such payment
will be applied to principal and a greater portion will be applied to interest
than would have been the case had the payment been received on the scheduled due
date, resulting in such Loan having a longer weighted average life than would
have been the case had the payment been made as scheduled. Conversely, if a
payment on a Loan is received earlier than scheduled, more of such payment will
be applied to principal and less to interest than would have been the case had
the payment been received on its scheduled due date, resulting in such Loan
having a shorter weighted average life than would have been the case had the
payment been made as scheduled.
In the event that less than 30 days' interest is collected on a Loan during
a Due Period, whether due to prepayment in full or a Curtailment, the Servicer
is obligated to pay Compensating Interest with respect thereto, but only to the
extent of the aggregate Servicing Fee and Contingency Fee for the related
Remittance Date. To the extent such shortfalls exceed the amount of Compensating
Interest that the Servicer is obligated to pay, and are not otherwise covered by
Monthly Excess Spread, the yield on the Notes will be adversely affected. Any
shortfall in collections of interest resulting from the early receipt of a
scheduled payment will not be covered by Compensating Interest, but will be
covered by Monthly Advances.
S-36
<PAGE>
The Final Maturity Remittance Date for each Class of Notes is as follows:
<TABLE>
<CAPTION>
Class Final Maturity Date
----- -------------------
<S> <C>
A-1 April 15, 2006
A-2 June 15, 2010
A-3 August 15, 2012
M-1 July 15, 2016
M-2 February 15, 2029
B February 15, 2029
</TABLE>
The Final Maturity Date for the Class B Notes is the Remittance Date
following the latest date upon which a Loan in the Trust matures, including
Subsequent Loans, plus 12 months. The Final Maturity Date for each other Class
of Notes is the date on which the principal balance of the respective Class
would be reduced to zero, assuming that no prepayments are received on the
Loans, that payment of principal of and interest on each of the Loans is timely
received and each Class of Notes receives payments of principal as described
herein. The weighted average lives of the Notes are likely to be shorter than
would be the case if payments actually made on the Loans conformed to the
foregoing assumptions, and the Final Maturity Date with respect to each Class of
Notes could occur significantly earlier than the Final Maturity Date because the
Servicer may purchase all of the Loans under the limited circumstances described
herein. In addition, prepayments are likely to occur on the Loans, which also
would shorten the weighted average life of the Notes. Failure to pay a Class in
full by its Final Maturity Date will be an Event of Default under the Indenture.
"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 lives of the
Notes will be influenced by the priorities established in the Agreement, and by
the rate at which principal payments on the Loans in the Trust are paid, which
may be in the form of scheduled amortization or prepayments (for this purpose,
the term "prepayment" includes Principal Prepayments, Curtailments, FHA Payments
and liquidations due to default). Prepayments on mortgage loans are commonly
measured relative to a prepayment standard or model.
S-37
<PAGE>
The following tables have been prepared assuming that the Trust is
comprised of five loan groups having the following characteristics:
<TABLE>
<CAPTION>
Assumed Initial Original Remaining
Cut-off Date Loan Term to Term to Assumed
Principal Interest Maturity Maturity Amortization Delivery
Balance Rate (in months) (in months) Method of Loans
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1) $47,720,944.36 15.059% 93 86 Level Closing
2) $75,366,922.89 14.144% 180 178 Level Closing
3) $65,398,289.30 13.964% 240 238 Level Closing
4) $27,179,153.75 12.723% 304 301 Level Closing
5) $74,190,689.70 14.113% 194 194 Level Closing
=======================================================================================================
</TABLE>
The following tables also have been prepared assuming (i) all distributions
with respect to the Notes will be made at the scheduled times as described below
under "Description of the Notes," (ii) distributions on the Notes are received
in cash on the 15th day of each month, commencing October 1997, (iii)
prepayments represent payment in full of individual Loans and are received on
the last day of each month (commencing in September 1997) and include 30 days'
interest thereon at the applicable Loan Interest Rate, (iv) the Servicing Fee
and Contingency Fee for each Loan will be 0.25% and 0.25% per annum,
respectively, of the principal balance thereof, (v) no delinquencies or defaults
in payments by Obligors of principal and interest on the Loans are experienced,
(vi) no right of optional termination is exercised except as noted below, (vii)
all of the Subsequent Loans are delivered by the Closing Date, and (viii) the
Notes are purchased on September 30, 1997.
The model used in this Prospectus Supplement is a prepayment assumption
(the "Prepayment Assumption") which represents an assumed rate of prepayment
each month relative to the then outstanding principal balance of a pool of
mortgage loans for the life of such mortgage loans. The tables relating to the
Notes are priced at various Home Equity Prepayment ("HEP") assumptions. HEP
assumes that a pool of loans prepays in the first month at a constant prepayment
rate ("CPR") that corresponds in CPR to one-tenth the given HEP percentage and
increases by an additional one-tenth each month thereafter until the tenth
month, where it remains at a CPR equal to the given HEP percentage. The "100%
Prepayment Assumption" assumes a CPR of 1.4% per annum of the then outstanding
principal balance of the Loans in the first month in the life of such Loans and
an additional 1.4% per annum in each month thereafter until the tenth month.
Beginning in the tenth month and in each month thereafter during the life of the
Loans, 100% Prepayment Assumption assumes a CPR of 14% 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 on the Loans having the
characteristics described below. Correspondingly, 100% Prepayment Assumption
assumes a prepayment rate equal to 100% of the related Prepayment Assumption,
125% Prepayment Assumption assumes 125% of each of the rates described above;
and so forth. The Prepayment Assumption does not purport to be a historical
description of prepayment experience or a prediction of the anticipated rate of
prepayment of the Pool, including the related Loans.
Neither the Prepayment Assumption nor any other prepayment model or
assumption purports to be an historical description of prepayment experience or
a prediction of the anticipated rate of prepayment of any pool of mortgage
loans, including the Loans included in the Trust. Variations in the actual
prepayment experience and the balance of the Loans that prepay may increase or
decrease each weighted average life shown in the following tables. Such
variations may occur even if the average prepayment experience of all such Loans
equals any of the specified percentages of the Prepayment Assumption.
S-38
<PAGE>
Class A-1 Notes
<TABLE>
<CAPTION>
Percentage Weighted
of Prepayment Average Expected
Assumption Life (years) Maturity
------------- ------------ --------
<S> <C> <C>
0% 3.08 7/15/04
75% 1.19 4/15/00
100% (1) 1.02 10/15/99
125% 0.90 7/15/99
150% 0.82 4/15/99
</TABLE>
Class A-2 Notes
<TABLE>
<CAPTION>
Percentage Weighted
of Prepayment Average Expected
Assumption Life (years) Maturity
------------- ------------ --------
<S> <C> <C>
0% 9.29 6/15/09
75% 3.70 9/15/02
100% (1) 3.00 11/15/01
125% 2.51 2/15/01
150% 2.16 8/15/00
</TABLE>
Class A-3 Notes
<TABLE>
<CAPTION>
Percentage Weighted
of Prepayment Average Expected
Assumption Life (years) Maturity
------------- ------------ --------
<S> <C> <C>
0% 13.40 9/15/12
75% 6.72 9/15/06
100% (1) 5.56 1/15/05
125% 4.70 1/15/04
150% 3.98 2/15/03
</TABLE>
S-39
<PAGE>
Class M-1 Notes
<TABLE>
<CAPTION>
Percentage Weighted Earliest
of Prepayment Average Expected Retirement
Assumption Life (years) Maturity Date (2)
------------- ------------ -------- --------
<S> <C> <C> <C>
0% 16.57 7/15/16 2/15/16
75% 11.00 1/15/11 8/15/10
100% (1) 9.26 5/15/09 11/15/08
125% 7.84 10/15/07 4/15/07
150% 6.71 5/15/06 12/15/05
</TABLE>
Class M-2 Notes
<TABLE>
<CAPTION>
Percentage Weighted Earliest
of Prepayment Average Expected Retirement
Assumption Life (years) Maturity Date (2)
------------- ------------ -------- ----
<S> <C> <C> <C>
0% 21.10 6/15/22 2/15/16
75% 15.59 11/15/17 8/15/10
100% (1) 14.08 8/15/16 11/15/08
125% 12.59 1/15/15 4/15/07
150% 11.17 6/15/13 12/15/05
</TABLE>
Class B Notes
<TABLE>
<CAPTION>
Percentage Weighted Earliest
of Prepayment Average Expected Retirement
Assumption Life (years) Maturity Date (2)
------------- ------------ -------- ----
<S> <C> <C> <C>
0% 15.53 6/15/22 2/15/16
75% 9.44 11/15/17 8/15/10
100% (1) 8.01 8/15/16 11/15/08
125% 6.94 1/15/15 4/15/07
150% 6.27 6/15/13 12/15/05
</TABLE>
- --------------------
(1) Pricing Assumption.
(2) Assuming early termination of the Trust when the aggregate principal
balance of the Loans declines to a level equal to 10% of the sum of (i) the
Original Pool Principal Balance and (ii) the original Pre-Funded Amount.
S-40
<PAGE>
DESCRIPTION OF THE NOTES
The following information supplements, and to the extent inconsistent
therewith supersedes, the information in the Prospectus under "Description of
the Securities."
The Notes will be issued pursuant to the Indentures, a copy of which will
be filed in a Current Report on Form 8-K with the Securities and Exchange
Commission after the initial issuance of the Notes. The following summaries
describe material provisions of the Notes and, but does not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all of the provisions of the Notes, the Indenture and the Agreement. Terms
used herein and not otherwise defined will have the meanings set forth in the
Agreement. See "The Transfer and Servicing Agreements" herein.
General
The Notes are obligations of the Trust only and will not represent
obligations of the Representative, the Originators or any of their respective
affiliates. The Notes will be issued in book-entry form in minimum denominations
of $1,000 original principal amount and integral multiples of $1,000 in excess
thereof.
Definitive Notes, if issued, will be transferable and exchangeable at the
corporate trust office of the Indenture Trustee or, at the election of the
Indenture Trustee, at the office of a certificate registrar appointed by the
Indenture Trustee. No service charge will be made for any registration of
exchange or transfer, but the Indenture Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge.
The assets of the Trust will consist of (a) the Loans that from time to
time are subject to the Agreement; (b) amounts that from time to time are
required by the Agreement and the Indenture to be deposited in the Note
Distribution Account, the Principal and Interest Account, the Expense Account,
the Pre-Funding Account and the Capitalized Interest Account, or to be invested
in Permitted Investments; (c) all rights under any insurance policy covering a
Loan or the related Mortgaged Property; and (d) property and any proceeds
thereof acquired by foreclosure of a Loan, deed in lieu of foreclosure or a
comparable conversion.
Distributions on the Notes
On the 15th day of each month or, if such 15th day is not a Business Day,
the first Business Day immediately following, commencing in October 1997 (each
such day being a "Remittance Date," provided, however, that in no event shall
the Remittance Date occur less than three business days following the
Determination Date) until the Current Principal Balance of each Class of Notes
has been reduced to zero, the Indenture Trustee or the Paying Agent will be
required to distribute to the persons in whose name a Note is registered at the
close of business on the last day of the month immediately preceding the month
of the related Remittance Date (the "Record Date"), such Holder's Percentage
Interest multiplied by that portion of the amount allocable to the respective
Class of Notes for such Remittance Date.
The "Current Principal Balance" of any Class of Notes as of any Remittance
Date is the Original Principal Balance of such Class less (i) all amounts
previously distributed to holders of such Class on account of principal and (ii)
all Applied Realized Loss Amounts previously allocated to such Class. The
"Original Principal Balance" of any Class of Notes is the principal balance
thereof set forth on the cover page of this Prospectus Supplement.
A Noteholder's "Percentage Interest" is that fraction, expressed as a
percentage, the numerator of which is the original denomination of such
Noteholder's Notes and the denominator of which is the Original Principal
Balance of the applicable Class of Notes.
A "Business Day" is any day other than (i) a Saturday or Sunday or (ii) a
day on which banking institutions in the States of New York or Delaware are
authorized or obligated by law or executive order to be closed.
S-41
<PAGE>
Flow of Funds
The "Available Remittance Amount" is defined in the Agreement to include,
with respect to any Remittance Date, without duplication:
(i) the sum of all amounts received by the Servicer or any Subservicer on
the Loans (including amounts paid by the Servicer and the Representative and
excluding (a) amounts paid as reimbursement to the Servicer of advances, (b)
amounts retained by the Servicer with respect to the Servicing Fee and the
Contingency Fee, (c) amounts deposited into the Servicing Accounts and (d)
amounts recovered as voidable preferences), during the immediately preceding
calendar month (the "Due Period"), plus
(ii) the amount of any Monthly Advances and Compensating Interest payments
with respect to the Loans remitted by the Servicer for such Remittance Date,
plus
(iii) amounts to be transferred to the Note Distribution Account from the
Pre-Funding Account and the Capitalized Interest Account.
On each Remittance Date, the Indenture Trustee will withdraw the Available
Remittance Amount from the Note Distribution Account (net of amounts required to
be deposited in the FHA Premium Account) and make the following payments in the
following order of priority:
(i) to pay the monthly Indenture Trustee's fee, Co-Indenture Trustee's fee
and the Owner Trustee's fee;
(ii) to pay the Class A Current Interest Amount to the Holders of the Class
A Notes, without priority among the Classes of Class A Notes, as described under
"--A. Class A Interest;"
(iii) to pay the Class M-1, Class M-2 and Class B Current Interest Amounts
to the Holders of the Class M-1, Class M-2 and Class B Notes, respectively, in
that order of priority, as described under "--B. Class M-1 Interest," "--C.
Class M-2 Interest" and "--D. Class B Interest;"
(iv) to pay the Class A, Class M-1, Class M-2 and Class B Principal
Distribution Amounts to Holders of the Class A, Class M-1, Class M-2 and Class B
Notes, respectively, generally in that order of priority, as described under
"--E. Class A Principal Distribution Amount," "--F. Class M-1 Principal
Distribution Amount," "--G. Class M-2 Principal Distribution Amount" and "--H.
Class B Principal Distribution Amount;"
(v) to pay the Class A Interest Shortfall Carryforward Amounts to the
Holders of the Class A Notes, without priority among the Holders of the Class A
Notes, as described under "--I. Class A Interest Shortfall Carryforward
Amounts;"
(vi) to pay the Accelerated Principal Distribution Amount to the Holders of
the Class A, Class M-1, Class M-2 and Class B Notes, generally in that order of
priority, as described under "--J. Accelerated Principal Distribution Amount;"
(vii) to pay the Class M-1 Interest Shortfall Carryforward Amounts to the
Holders of the Class M-1 Notes, as described under "--K. Class M-1 Interest
Shortfall Carryforward Amounts;"
(viii) to pay the Class M-1 Realized Loss Amount to the Holders of the
Class M-1 Notes, as described under "--L. Class M-1 Realized Loss Amount;"
(ix) to pay the Class M-2 Interest Shortfall Carryforward Amounts to the
Holders of the Class M-2 Notes, as described under "--M. Class M-2 Interest
Shortfall Carryforward Amounts;"
S-42
<PAGE>
(x) to pay the Class M-2 Realized Loss Amount to the Holders of the Class
M-2 Notes, as described under "--N. Class M-2 Realized Loss Amount;"
(xi) to pay the Class B Interest Shortfall Carryforward Amounts to the
Holders of the Class B Notes, as described under "--O. Class B Interest
Shortfall Carryforward Amounts;"
(xii) to pay the Class B Realized Loss Amount to the Holders of the Class B
Notes as described under "--P. Class B Realized Loss Amount;"
(xiii) to reimburse the Servicer for any unreimbursed Advances; and
(xiv) to pay all amounts then remaining in the Note Distribution Account to
the Owner Trustee for distribution to the Certificateholders.
A. Class A Interest
One calendar month's interest (computed on the basis of a 360-day year of
twelve 30-day months) will be paid concurrently to the Holders of each Class of
Class A Notes on each Remittance Date, to the extent of the Available Remittance
Amount in the Note Distribution Account on such date, at the related Remittance
Rate on the Current Principal Balance of each Class of Class A Notes.
The "Class A Current Principal Balance" as of any Remittance Date is the
sum of the Class A-1 Current Principal Balance, the Class A-2 Current Principal
Balance and the Class A-3 Current Principal Balance. With respect to any
Remittance Date, the sum of the amounts determined by multiplying the components
of the Class A Current Principal Balance by one-twelfth of the respective Class
A Remittance Rates is hereinafter referred to as the "Class A Interest
Distribution Amount."
If on a particular Remittance Date, the Available Remittance Amount in the
Note Distribution Account is less than the Class A Interest Distribution Amount,
the amount of interest to be distributed in respect of the Class A Notes will be
allocated among each Class thereof (and within a Class among the Notes of such
Class) pro rata in accordance with their respective entitlements to interest,
and the amount of the shortfall for each Class of Class A Notes, together with
interest thereon at the applicable Remittance Rates to the extent permitted by
law (the "Class A-1 Interest Shortfall Carryforward Amount," the "Class A-2
Interest Shortfall Carryforward Amount" and the "Class A-3 Interest Shortfall
Carryforward Amount," respectively, and, collectively, the "Class A Interest
Shortfall Carryforward Amounts"), will be carried forward and distributed as
described, and subject to the limitations set forth, under "-I. Class A Interest
Shortfall Carryforward Amounts" below.
B. Class M-1 Interest
One calendar month's interest (computed on the basis of a 360-day year of
twelve 30-day months) will be paid to the Holders of the Class M-1 Notes on each
Remittance Date, to the extent of the Available Remittance Amount, if any,
remaining in the Note Distribution Account on such date (after distribution of
interest to the Holders of the Class A Notes), at the Class M-1 Remittance Rate
on the Current Principal Balance of the Class M-1 Notes. With respect to any
Remittance Date, the amount determined by multiplying the Class M-1 Current
Principal Balance by one-twelfth of the Class M-1 Remittance Rate is hereinafter
referred to as the "Class M-1 Interest Distribution Amount."
If on a particular Remittance Date, the Available Remittance Amount
remaining in the Note Distribution Account on such date (after distribution of
interest to the Holders of the Class A Notes) is less than the Class M-1
Interest Distribution Amount, the amount of interest to be distributed in
respect of the Class M-1 Notes will be allocated among the Notes of such Class
pro rata in accordance with their respective entitlements to interest, and any
remaining deficiency, together with interest thereon at the applicable
Remittance Rate to the extent permitted by law (the "Class
S-43
<PAGE>
M-1 Interest Shortfall Carryforward Amount"), will be carried forward and
distributed as described, and subject to the limitations set forth, under "--K.
Class M-1 Interest Shortfall Carryforward Amounts" below.
C. Class M-2 Interest
One calendar month's interest (computed on the basis of a 360-day year of
twelve 30-day months) will be paid to the Holders of the Class M-2 Notes on each
Remittance Date, to the extent of the Available Remittance Amount, if any,
remaining in the Note Distribution Account on such date (after distribution of
interest to the Holders of the Class A and Class M-1 Notes), at the Class M-2
Remittance Rate on the Current Principal Balance of the Class M-2 Notes. With
respect to any Remittance Date, the amount determined by multiplying the Class
M-2 Current Principal Balance by one-twelfth of the Class M-2 Remittance Rate is
hereinafter referred to as the "Class M-2 Interest Distribution Amount" (and,
together with the Class M-1 Interest Distribution Amount, the "Class M Interest
Distribution Amount").
If on a particular Remittance Date, the Available Remittance Amount
remaining in the Note Distribution Account on such date (after distribution of
interest to the Holders of the Class A and Class M-1 Notes) is less than the
Class M-2 Interest Distribution Amount, the amount of interest to be distributed
in respect of the Class M-2 Notes will be allocated among the Notes of such
Class pro rata in accordance with their respective entitlements to interest, and
any remaining deficiency, together with interest thereon at the applicable
Remittance Rate to the extent permitted by law (the "Class M-2 Interest
Shortfall Carryforward Amount" and, together with the Class M-1 Interest
Shortfall Carryforward Amount, the "Class M Interest Shortfall Carryforward
Amounts"), will be carried forward and distributed as described, and subject to
the limitations set forth, under "--M. Class M-2 Interest Shortfall Carryforward
Amounts" below.
D. Class B Interest
One calendar month's interest (computed on the basis of a 360-day
year of twelve 30-day months) will be paid to the Holders of the Class B Notes
on each Remittance Date, to the extent of the Available Remittance Amount, if
any, remaining in the Note Distribution Account on such date (after distribution
of interest to the Holders of the Class A and Class M Notes), at the Class B
Remittance Rate on the Current Principal Balance of the Class B Notes. With
respect to any Remittance Date, the amount determined by multiplying the Class B
Current Principal Balance by one-twelfth of the Class B Remittance Rate is
hereinafter referred to as the "Class B Interest Distribution Amount."
If on a particular Remittance Date, the Available Remittance Amount
remaining in the Note Distribution Account on such date (after distribution of
interest to the Holders of the Class A and Class M Notes) is less than the Class
B Interest Distribution Amount, the amount of interest to be distributed in
respect of the Class B Notes will be allocated among the Notes of such Class pro
rata in accordance with their respective entitlements to interest, and any
remaining deficiency, together with interest thereon at the applicable
Remittance Rate to the extent permitted by law (the "Class B Interest Shortfall
Carryforward Amount"), will be carried forward and distributed as described, and
subject to the limitations set forth, under "-- O. Class B Interest Shortfall
Carryforward Amounts" below.
E. Class A Principal Distribution Amount
Holders of each Class of Class A Notes will be entitled to receive on each
Remittance Date as payments of principal, in the order of priority set forth
below and to the extent of the Available Remittance Amount in the Note
Distribution Account on such Remittance Date after payment of the Class A, Class
M and Class B Interest Distribution Amounts (collectively, the "Interest
Distribution Amounts"), the Senior Percentage of the Principal Distribution
Amount. For any Remittance Date, the "Principal Distribution Amount" is the
excess, if any, of (A) the sum, without duplication, of (i) all payments and
other recoveries of principal of a Loan (net of amounts reimbursable to the
Servicer pursuant to the Agreement) received by the Servicer or any Subservicer
in the related Due Period; (ii) the principal portion of any Loan actually
purchased by the Representative for breach of a representation and warranty or
other defect, and actually received by the Indenture Trustee as of the related
Determination Date; (iii) any adjustments with respect to substitutions of Loans
for which the Representative or an Originator has breached a representation or
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warranty deposited in the Principal and Interest Account and transferred to the
Note Distribution Account as of the related Determination Date; (iv) the then
outstanding Principal Balance of any Loan which, during the related Due Period,
has become a Liquidated Loan; and (v) amounts, if any, released from the
Pre-Funding Account on the Remittance Dates during the Funding Period over (B)
the Subordination Reduction Amount for such Remittance Date. The amount
determined by multiplying the Senior Percentage by the Principal Distribution
Amount is hereinafter referred to as the "Class A Formula Principal Distribution
Amount."
The "Senior Percentage" for any Remittance Date prior to the Class B
Cross-over Date, and for any Remittance Date on or after the Class B Cross-over
Date on which the Trigger Event is in effect (as described under "Description of
the Notes-Distribution Amounts-Class B-1 Principal"), will be 100%. For any
Remittance Date on or after the Class B Cross-over Date on which the Trigger
Event is not in effect, the "Senior Percentage" will equal a fraction, expressed
as a percentage, the numerator of which is the sum of the Current Principal
Balances of the Class A and the Class M Notes as of the immediately preceding
Remittance Date and the denominator of which is the sum of the Current Principal
Balances of the Class A, the Class M and the Class B Notes as of the immediately
preceding Remittance Date.
A "Liquidated Loan" is a defaulted Loan or Mortgaged Property (a) as
to which all amounts that the Servicer reasonably expects to recover on account
of such Loan have been received (including from FHA Payments) or (b) is a 90 Day
Delinquent Loan.
The "Class A Principal Distribution Amount" for any Remittance Date is
intended to be equal to the Class A Formula Principal Distribution Amount. If
the Class A Formula Principal Distribution Amount exceeds the Available
Remittance Amount in the Note Distribution Account on such Remittance Date
(after payment of all Interest Distribution Amounts), then the Class A Principal
Distribution Amount shall instead equal such remaining Available Remittance
Amount.
The Class A Principal Distribution Amount will be distributed first to the
Holders of the Class A-1 Notes until the Class A-1 Current Principal Balance has
been reduced to zero, then to the Holders of the Class A-2 Notes until the Class
A-2 Principal Balance has been reduced to zero, and then to the Holders of the
Class A-3 Notes until the Class A-3 Principal Balance has been reduced to zero;
provided, however that on any Remittance Date on which the Current Principal
Balance of the Subordinated Notes has been reduced to zero, any amounts payable
to the Class A Notes on such Remittance Date shall be distributed pro rata and
not sequentially. Holders of each Class of Class A Notes will be paid principal
on each Remittance Date in accordance with their respective Percentage
Interests.
The "Subordination Reduction Amount" for any Remittance Date is equal to
the lesser of (i) the amount set forth in clause (A) of the definition of
Principal Distribution Amount and (ii) the excess, if any, of the then current
Spread Amount over the then current Specified Subordinated Amount.
The "Spread Amount" for any Remittance Date is equal to the excess, if any,
of (i) the aggregate principal balances of the Loans as of the last day of the
immediately preceding Due Period and any amounts on deposit in the Pre-Funding
Account over (ii) the aggregate principal balances of the Notes (after taking
into account all distributions of principal on such Remittance Date).
The "Specified Subordinated Amount" means, for any Remittance Date (i)
prior to the Spread Amount Stepdown Date, 7.4% of the Original Collateral Amount
and (ii) on and after the Spread Amount Stepdown Date, the greater of (A) 14.8%
of the then current aggregate principal balance of the Loans as of the last day
of the related Due Period and (B) 0.5% of the Original Collateral Amount;
provided, however, that the Specified Subordinated Amount shall never exceed the
then Current Principal Balance of the Notes.
The "Spread Amount Stepdown Date" means the later to occur of (i) the
Remittance Date occurring in October 2000 and (ii) the first Distribution Date
on which the aggregate principal balances of the Loans as of the last
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day of the related Due Period is less than 50% of the sum of aggregate principal
balances of the Initial Loans as of the Cut-Off Date and the original Pre-Funded
Amount (the "Original Collateral Amount").
F. Class M-1 Principal Distribution Amount
On each Remittance Date on and after the Class A Current Principal Balance
has been reduced to zero, the Holders of the Class M-1 Notes will be entitled to
receive, as payments of principal, the Senior Percentage of the Principal
Distribution Amount (the "Class M-1 Formula Principal Distribution Amount"),
subject to the prior payment of all Interest Distribution Amounts payable on
such Remittance Date and Class A Principal Distribution Amounts, if any, payable
on such Remittance Date, until the Class M-1 Current Principal Balance is
reduced to zero.
The "Class M-1 Principal Distribution Amount" for any Remittance Date is
intended to be equal to the Class M-1 Formula Principal Distribution Amount. If
the Class M-1 Formula Principal Distribution Amount exceeds the Available
Remittance Amount in the Note Distribution Account on such Remittance Date
(after payment of all Interest Distribution Amounts, and, if any, the Class A
Principal Distribution Amounts), then the Class M-1 Principal Distribution
Amount shall instead equal such remaining Available Remittance Amount.
On each Remittance Date on or after the Class B Cross-over Date on which
the Trigger Event is not in effect, payments of principal will be made to Class
B Noteholders, even if Class M-1 Noteholders are not yet entitled to receive
payments of principal because the Class A Current Principal Balance has not been
reduced to zero.
G. Class M-2 Principal Distribution Amount
On each Remittance Date on and after the Class A Current Principal Balance
and the Class M-1 Current Principal Balance have been reduced to zero, the
Holders of the Class M-2 Notes will be entitled to receive, as payments of
principal, the Senior Percentage of the Principal Distribution Amount (the
"Class M-2 Formula Principal Distribution Amount"), subject to the prior payment
of all Interest Distribution Amounts payable on such Remittance Date and Class A
and Class M-1 Principal Distribution Amounts, if any, payable on such Remittance
Date, until the Class M-2 Current Principal Balance is reduced to zero.
The "Class M-2 Principal Distribution Amount" for any Remittance Date is
intended to be equal to the Class M-2 Formula Principal Distribution Amount. If
the Class M-2 Formula Principal Distribution Amount exceeds the Available
Remittance Amount in the Note Distribution Account on such Remittance Date
(after payment of all Interest Distribution Amounts and, if any, the Class A
Principal Distribution Amounts and the Class M-1 Principal Distribution Amount),
then the Class M-2 Principal Distribution Amount shall instead equal such
remaining Available Remittance Amount.
On each Remittance Date on or after the Class B Cross-over Date on which
the Trigger Event is not in effect, payments of principal will be made to Class
B Noteholders, even if Class M-2 Noteholders are not yet entitled to receive
payments of principal because either the Class A Current Principal Balance or
the Class M-1 Current Principal Balance has not been reduced to zero.
H. Class B Principal Distribution Amount
Prior to the Class B Cross-over Date, there will be no distributions of
principal on the Class B Notes. The "Class B Cross-over Date" will be the
earlier of (A) the Remittance Date on which the Class M-2 Principal Balance is
reduced to zero, and (B) the first Remittance Date on or after the Remittance
Date in October 2000 on which the fraction, expressed as a percentage, the
numerator of which is the sum of the Class A and Class M Current Principal
Balances as of the immediately preceding Remittance Date and the denominator of
which is the aggregate outstanding principal balance of the Loans as of the end
of the second preceding Due Period, is less than or equal to 69.25%.
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On each Remittance Date on or after the Class B Cross-over Date and prior
to the Remittance Date on which the Class A and Class M Current Principal
Balances have been reduced to zero, holders of Class B Notes will be entitled to
receive distributions of principal only if a Trigger Event is not in effect. A
"Trigger Event" will be in effect on a Remittance Date if either (i) the
Sixty-Day Delinquency Ratio (as defined in the Agreement) as of such Remittance
Date exceeds 50% of the Class A Credit Enhancement Percentage (as defined
below); or (ii) both (A) either (x) the Weighted Average Five-Month Sixty-Day
Delinquency Ratio (as defined in the Agreement) as of such Remittance Date
exceeds 9% or (y) the Cumulative Realized Losses (as defined in the Agreement)
as of such Remittance Date exceed $39,130,560; and (B) either (x) the Weighted
Average Five-Month Sixty-Day Delinquency Ratio as of such Remittance Date
exceeds 15% or (y) the Cumulative Realized Losses as of such Remittance Date
exceed $13,043,520; or (iii) the fraction, expressed as a percentage, the
numerator of which is the sum of the Class A and Class M Current Principal
Balances as of the immediately preceding Remittance Date and the denominator of
which is the aggregate outstanding principal balance of the Loans as of the end
of the second preceding Due Period is greater than 69.25%.
The "Class A Credit Enhancement Percentage" on any Remittance Date is equal
to 100% minus the fraction, expressed as a percentage, the numerator of which is
the Current Principal Balance of Class A Notes on the immediately preceding
Remittance Date and the denominator of which is the principal balance of the
Loans as of the last day of the second preceding Due Period.
On each Remittance Date on or after the Class B Cross-over Date, if the
Trigger Event is not in effect on such Remittance Date, the Holders of the Class
B Notes will be entitled to receive, as payments of principal, the Class B
Percentage (as described under "Description of the Notes-Distribution
Amounts-Class B Principal" herein) of the Principal Distribution Amount (the
"Class B Formula Principal Distribution Amount"), subject to the prior payment
of all Interest Distribution Amounts and all Class A and Class M Principal
Distribution Amounts, if any, payable on such Remittance Date until the Class
B-1 Current Principal Balance is reduced to zero.
Until such time as the Class A and Class M Current Principal Balances have
been reduced to zero, the "Class B Percentage" for any Remittance Date will be
100% minus the Senior Percentage. The "Class B Percentage" for each Remittance
Date, if any, after the Class A and Class M Current Principal Balances have been
reduced to zero will equal 100%.
The "Class B Principal Distribution Amount" for any Remittance Date is
intended to be equal to the Class B Formula Principal Distribution Amount. If
the Class B Formula Principal Distribution Amount exceeds the Available
Remittance Amount in the Note Distribution Account on such Remittance Date
(after payment of all Interest Distribution Amounts and, if any, the Class A
Principal Distribution Amounts and the Class M Principal Distribution Amounts),
then the Class B Principal Distribution Amount shall instead equal such
remaining Available Remittance Amount.
I. Class A Interest Shortfall Carryforward Amounts
On each Remittance Date, after all payments of amounts as set forth in A
through H above, inclusive, the aggregate Class A Interest Shortfall
Carryforward Amounts will be paid concurrently to the Holders of each Class of
Class A Notes to the extent of the remaining Available Remittance Amount in the
Note Distribution Account on such date. If on a particular Remittance Date, the
remaining Available Remittance Amount in the Note Distribution Account is less
than the aggregate Class A Interest Shortfall Carryforward Amounts, the portion
of the remaining Available Remittance Amount to be distributed in respect of
each Class of Class A Notes will be allocated among the Classes (and within a
Class among the Notes of such Class) pro rata in accordance with their
respective entitlements to Class A Interest Shortfall Carryforward Amounts, and
any Class A Interest Shortfall Carryforward Amounts or interest thereon not paid
shall be carried forward to the next Remittance Date.
J. Accelerated Principal Distribution Amount
On each Remittance Date, after all payments of amounts as set forth in A
through I above, inclusive, the Accelerated Principal Distribution Amount will
be paid to the Holders of the Notes in the same order and priority as
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payments of the Principal Distribution Amount described in E, F, G and H above.
For any Remittance Date the "Accelerated Principal Distribution Amount" equals
the lesser of (i) the remaining Available Remittance Amount in the Note
Distribution Account on such Remittance Date and (ii) the Subordinated
Deficiency Amount for such Remittance Date.
For any Remittance Date, the "Subordinated Deficiency Amount" equals the
excess, if any, of (i) the Specified Subordinated Amount for such Remittance
Date over (ii) the then current Spread Amount, after giving effect to all
payments previously made on such Remittance Date.
K. Class M-1 Interest Shortfall Carryforward Amounts
On each Remittance Date, after all payments of amounts as set forth
in A through J above, inclusive, the aggregate Class M-1 Interest Shortfall
Carryforward Amounts will be paid to the Holders of the Class M-1 Notes to the
extent of the lesser of (i) the remaining Available Remittance Amount in the
Note Distribution Account on such date and (ii) the Available Maximum
Subordination Amount. If on a particular Remittance Date, the remaining
Available Remittance Amount in the Note Distribution Account is less than the
aggregate Class M-1 Interest Shortfall Carryforward Amounts, the portion of the
remaining Available Remittance Amount to be distributed in respect of the Class
M-1 Notes will be allocated among the Notes of such Class pro rata, and any
Class M-1 Interest Shortfall Carryforward Amounts not paid shall be carried
forward to the next Remittance Date, subject to the Available Maximum
Subordination Amount.
L. Class M-1 Realized Loss Amount
On each Remittance Date, after all payments of amounts as set forth in A
through K above, inclusive, the Class M-1 Realized Loss Amount will be paid to
the Holders of the Class M-1 Notes to the extent of the lesser of (i) the
remaining Available Remittance Amount in the Note Distribution Account on such
Remittance Date and (ii) the Available Maximum Subordination Amount. If on a
particular Remittance Date, the remaining Available Remittance Amount in the
Note Distribution Account is less than the aggregate Class M-1 Realized Loss
Amount, the portion of the remaining Available Remittance Amount to be
distributed in respect of the Class M-1 Notes will be allocated among the Notes
of such Class, pro rata, and any Class M-1 Realized Loss Amount not paid shall
be carried forward to the next Remittance Date, subject to the Available Maximum
Subordination Amount.
M. Class M-2 Interest Shortfall Carryforward Amounts
On each Remittance Date, after all payments of amounts as set forth
in A through L above, inclusive, the Class M-2 Interest Shortfall Carryforward
Amounts will be paid to the Holders of the Class M-2 Notes to the extent of the
lesser of (i) the remaining Available Remittance Amount in the Note Distribution
Account on such Remittance Date and (ii) the Available Maximum Subordination
Amount. If on a particular Remittance Date, the remaining Available Remittance
Amount in the Note Distribution Account is less than the aggregate Class M-2
Interest Shortfall Carryforward Amounts, the portion of the Available Remittance
Amount to be distributed in respect of the Class M-2 Notes will be allocated
among the Notes of such Class pro rata, and any Class M-2 Interest Shortfall
Carryforward Amounts not paid shall be carried forward to the next Remittance
Date, subject to the Available Maximum Subordination Amount.
N. Class M-2 Realized Loss Amount
On each Remittance Date, after all payments of amounts as set forth in A
through M above, inclusive, the Class M-2 Realized Loss Amount will be paid to
the Holders of the Class M-2 Notes to the extent of the lesser of (i) the
remaining Available Remittance Amount in the Note Distribution Account on such
Remittance Date and (ii) the Available Maximum Subordination Amount. If on a
particular Remittance Date, the remaining Available Remittance Amount in the
Note Distribution Account is less than the aggregate Class M-2 Realized Loss
Amount, the portion of the remaining Available Remittance Amount to be
distributed in respect of the Class M-2 Notes will
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be allocated among the Notes of such Class, pro rata, and any Class M-2 Realized
Loss Amount not paid shall be carried forward to the next Remittance Date,
subject to the Available Maximum Subordination Amount.
O. Class B Interest Shortfall Carryforward Amounts
On each Remittance Date, after all payments of amounts as set forth in A
through N above, inclusive, the aggregate Class B Interest Shortfall
Carryforward Amounts will be paid to the Holders of the Class B Notes to the
extent of the lesser of (i) the remaining Available Remittance Amount in the
Note Distribution Account on such date and (ii) the Available Maximum
Subordination Amount. If on a particular Remittance Date, the remaining
Available Remittance Amount in the Note Distribution Account is less than the
aggregate Class B Interest Shortfall Carryforward Amounts, the portion of the
Available Remittance Amount to be distributed in respect of the Class B Notes
will be allocated among the Notes of such Class pro rata, and any Class B
Interest Shortfall Carryforward Amounts not paid shall be carried forward to the
next Remittance Date, subject to the Available Maximum Subordination Amount.
P. Class B Realized Loss Amount
On each Remittance Date, after all payments of amounts as set forth in A
through O above, inclusive, the Class B Realized Loss Amount will be paid to the
Holders of the Class B Notes to the extent of the lesser of (i) the remaining
Available Remittance Amount in the Note Distribution Account on such Remittance
Date and (ii) the Available Maximum Subordination Amount. If on a particular
Remittance Date, the remaining Available Remittance Amount in the Note
Distribution Account is less than the aggregate Class B Realized Loss Amount,
the portion of the remaining Available Remittance Amount to be distributed in
respect of the Class B Notes will be allocated among the Notes of such Class,
pro rata, and any Class B Realized Loss Amount not paid shall be carried forward
to the next Remittance Date, subject to the Available Maximum Subordination
Amount.
When the Available Maximum Subordination Amount has been reduced to zero,
(i) no further Class M-1, Class M-2 or Class B Interest Shortfall Carryforward
Amounts or Class M-1, Class M-2 or Class B Realized Loss Amounts shall be
carried forward to succeeding Remittance Dates and, (ii) interest shall cease to
accrue on all remaining Class M-1, Class M-2 or Class B Interest Shortfall
Carryforward Amounts.
For so long as any Notes shall be outstanding, at no time shall the
cumulative sum of (i) all Class M-1, Class M-2 and Class B Interest Shortfall
Carryforward Amounts and (iii) Class M-1, Class M-2 or Class B Realized Loss
Amounts (such amounts being hereinafter referred to collectively as "Shortfall
Amounts") exceed $7,604,173 (the "Maximum Subordination Amount"). The "Available
Maximum Subordination Amount" at any time shall be the Maximum Subordination
Amount less all distributions made in respect of Shortfall Amounts up to and
including the current Remittance Date.
Credit Enhancement
The credit enhancement provided for the benefit of the Notes consists of
(i) the Spread Amount and (ii) the subordination of the Class M and Class B
Notes.
Spread Amount and Application of Realized Losses
Certain provisions of the Trust are intended to provide for limited
acceleration of the Notes relative to the amortization of the Loans, generally
in the early months of the transaction. This limited accelerated amortization is
achieved by applying certain excess interest collected on the Loans to the
payment of principal on the Notes. This acceleration feature is intended to
create an amount (the "Spread Amount") resulting from, and equal to, the excess
of the aggregate principal balances of the Loans, plus amounts on deposit in the
Pre-Funding Account, over the aggregate Current Principal Balances of the Notes.
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If a Loan becomes a Liquidated Loan during a Due Period, the Net
Liquidation Proceeds relating thereto and allocated to principal may be less
than the then outstanding balance of such Loan. The amount of such insufficiency
is a "Realized Loss."
To the extent that Realized Losses are experienced, such Realized Losses
will reduce the aggregate outstanding balance of the Loans (i.e., a reduction in
the collateral balance will occur) and, to the extent experienced and not
covered by application of the Available Remittance Amount, will in the first
instance reduce the Spread Amount.
The Agreement requires that the Spread Amount be initially increased
to, and thereafter maintained at, the Specified Subordinated Amount. This
increase and subsequent maintenance is intended to be accomplished by the
application of Monthly Excess Spread to fund Accelerated Principal Distribution
Amounts. Such Accelerated Principal Distribution Amounts, since they are funded
from interest collections on the Loans but are distributed as principal on the
Notes, will increase the related Spread Amount.
Application of Monthly Excess Spread
The weighted average Adjusted Loan Remittance Rate is expected to be higher
than the weighted average of the Remittance Rates on the Notes, thus generating
certain excess interest collections which, in the absence of losses, will not be
necessary to fund interest distributions on the Notes. The Agreement provides
that this excess interest (the "Monthly Excess Spread") be applied to the extent
available, to make accelerated payments of principal (i.e., the Accelerated
Principal Distribution Amount) to the Class or Classes then entitled to receive
distributions of principal. Such application will cause the aggregate Current
Principal Balance of the Notes to amortize more rapidly than the Loans,
resulting in overcollateralization.
The required level of the Spread Amount for any Remittance Date is the
Specified Spread Amount for such Remittance Date. Since the actual level of the
Spread Amount is expected to be negative as of the Closing Date, (the original
Current Principal Balance of the Notes will exceed the Original Collateral
Amount), in the early months of the transaction, subject to the availability of
Monthly Excess Spread, Accelerated Principal Distribution Amounts will be paid,
with the result that the Spread Amount will increase to the level of the
Specified Subordinated Amount.
Once the Specified Subordinated Amount has been reached, Realized losses
not covered by application of Monthly Excess Spread will reduce the principal
balance of the Loans without giving rise to a corresponding reduction of the
Current Principal Balance of the Notes). The cashflow priorities of the Trust
require that, in this situation, Accelerated Principal Distribution Amounts be
paid (subject to the availability of any Monthly Excess Spread in subsequent
months) for the purpose of re-establishing the Spread Amount at the
then-required Specified Subordinated Amount.
If on any Remittance Date occurring after the Parity Date, after taking
into account all Realized Losses experienced during the prior Due Period, and
the distribution of principal (including the Accelerated Principal Distribution
Amount) with respect to the Notes on such Remittance Date, the aggregate Current
Principal Balance of the Notes exceeds the aggregate balance of the Loans as of
the end of the related Due Period (i.e., if the level of overcollateralization
is negative), then the Current Principal Balance of the Subordinate Notes will
be reduced (in effect, "written down") such that the level of the Spread Amount
is zero, rather than negative. Such a negative level is an "Applied Realized
Loss Amount," which will be applied as a reduction in the Current Principal
Balance of the related Subordinate Notes in reverse order of seniority, i.e.,
first against the Class B Current Principal Balance until it is reduced to zero,
then against the Class M-2 Current Principal Balance until it is reduced to zero
and then against the Class M-1 Current Principal Balance until it is reduced to
zero. The Agreement does not permit the "write down" of the Current Principal
Balance of any Class A Note.
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Once the Current Principal Balance of a Class of Subordinate Notes has been
"written down," the amount of such write down will no longer bear interest, nor
will such amount thereafter be "reinstated" or "written up," although the amount
of such write down may, on future Remittance Dates, be paid to Holders of the
Subordinate Notes which experienced the write down, in direct order of seniority
(i.e., first, the Class M-1 Notes, second, the Class M-2 Notes and, third, the
Class B Notes).
The "Specified Subordinated Amount" means, for any Remittance Date (i)
prior to the Spread Amount Stepdown Date, 7.4% of the Original Collateral Amount
and (ii) on and after the Spread Amount Stepdown Date, the greater of (A) 14.8%
of the aggregate principal balance of the Loans as of the last day of the
related Due Period and (B) 0.5% of the Original Collateral Amount; provided,
however, that the Specified Subordinated Amount shall never exceed the then
Current Principal Balance of the Notes.
The transfer of Subsequent Loans to the Trust during the Funding
Period must not result in the Notes receiving a lower credit rating from the
Rating Agencies upon termination of the Funding Period than the rating that was
obtained at the time of the issuance of the Notes. In connection therewith, the
Rating Agencies may require that the required level of the Specified
Subordinated Amount be increased.
"Class B Applied Realized Loss Amount" means, as of any Remittance
Date, the lesser of (x) the Class B Current Principal Balance (after taking into
account the distribution of the Class B Principal Distribution Amount on such
Remittance Date, but prior to the application of the Class B Applied Realized
Loss Amount, if any, on such Remittance Date) and (y) the Applied Realized Loss
Amount as of such Remittance Date.
"Class B Realized Loss Amount" means, as of any Remittance Date, the lesser
of (x) the Class B Unpaid Realized Loss Amount as of such Remittance Date and
(y) the portion of the Available Remittance Amount for such Remittance Date
remaining after application of amounts set forth in clauses (i) through (xi),
inclusive, under "--Flow of Funds."
"Class M-1 Applied Realized Loss Amount" means, of any Remittance Date, the
lesser of (x) the Class M-1 Current Principal Balance (after taking into account
the distribution of the Class M-1 Principal Distribution Amount on such
Remittance Date, but prior to the application of the Class M-1 Applied Realized
Loss Amount, if any, on such Remittance Date) and (y) the excess of (i) the
Applied Realized Loss Amount as of such Remittance Date over (ii) the sum of the
Class M-2 Applied Realized Loss Amount and the Class B Applied Realized Loss
Amount, in each case as of such Remittance Date.
"Class M-1 Realized Loss Amount" means, as of any Remittance Date, the
lesser of (x) the Class M-1 Unpaid Realized Loss Amount as of such Remittance
Date and (y) the portion of the Available Remittance Amount for such Remittance
Date remaining after application of amounts set forth in clauses (i) through
(vii), inclusive, under "--Flow of Funds."
"Class M-2 Applied Realized Loss Amount" means as of any Remittance Date,
the lesser of (x) the Class M-2 Current Principal Balance (after taking into
account the distribution of the Class M-2 Principal Distribution Amount on such
Remittance Date, but prior to the application of the Class M-2 Applied Realized
Loss Amount, if any, on such Remittance Date) and (y) the excess of (i) the
Applied Realized Loss Amount as of such Remittance Date over (ii) the Class B
Applied Realized Loss Amount as of such Remittance Date
"Class M-2 Realized Loss Amount" means, as of any Remittance Date, the
lesser of (x) the Class M-2 Unpaid Realized Loss Amount as of such Remittance
Date and (y) the portion of the Available Remittance Amount for such Remittance
Date remaining after application of amounts set forth in clauses (i) through
(ix), inclusive, under "--Flow of Funds."
"Unpaid Realized Loss Amount" means for any Class of the Subordinate Notes
as to any Remittance Date, the excess of (x) the aggregate cumulative amount of
related Applied Realized Loss Amounts with respect to such
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Class for all prior Remittance Dates over (y) the aggregate, cumulative amount
of related Realized Loss Amounts with respect to such Class for all prior
Remittance Dates.
Subordination of Class M Notes and Class B Notes
The rights of the Holders of the Class M Notes and the Class B Notes
to receive distributions with respect to the Loans will be subordinated to such
rights of the Class A Noteholders. This subordination is intended to enhance the
likelihood of regular receipt by the holders of the Class A Notes of the full
amount of their monthly payments of interest and principal and to afford such
holders protection against losses on Liquidated Loans. The protection afforded
to the Holders of the Class A Notes by means of the subordination feature will
be accomplished by the preferential right of the Holders of the Class A Notes
(i) to receive, prior to any distribution being made on a Remittance Date in
respect of principal or interest on the Class M Notes and the Class B Notes, the
Class A Current Interest Amount due them on each Remittance Date out of the
Available Remittance Amount on deposit on such date in the Note Distribution
Account and (ii) to receive, prior to any distribution being made on a
Remittance Date in respect of principal on the Class M Notes and the Class B
Notes, the Class A Principal Distribution Amount due them on each Remittance
Date out of the Available Remittance Amount on deposit on such date in the Note
Distribution Account.
In addition, the rights of the Holders of the Class M-2 Notes and
Class B Notes to receive distributions with respect to the Loans will be
subordinate to such rights of the Holders of the Class M-1 Notes. This
subordination is intended to enhance the likelihood of regular receipt by the
Holders of the Class M-1 Notes of the full amount of their monthly payments of
interest and principal and to afford such holders protection against losses on
Liquidated Loans. The protection afforded to the Holders of the Class M-1 Notes
by means of the subordination feature will be accomplished by the preferential
right of the Holders of the Class M-1 Notes (i) to receive, prior to any
distribution being made on a Remittance Date in respect of principal or interest
on the Class M-2 Notes and the Class B Notes, the Class M-1 Current Interest
Amount due them on each Remittance Date out of the Available Remittance Amount
on deposit on such date in the Note Distribution Account and (ii) to receive,
prior to any distribution being made on a Remittance Date in respect of
principal on the Class M-2 Notes and the Class B Notes, the Class M-1 Principal
Distribution Amount due them on each Remittance Date out of the Available
Remittance Amount on deposit on such date in the Note Distribution Account.
In addition, the rights of the Holders of the Class B Notes to receive
distributions with respect to the Loans will be subordinate to such rights of
the Holders of the Class M-2 Notes. This subordination is intended to enhance
the likelihood of regular receipt by the Holders of the Class M-2 Notes of the
full amount of their monthly payments of principal and interest and to afford
such holders protection against losses on Liquidated Loans. The protection
afforded to the Holders of the Class M-2 Notes by means of the subordination
feature will be accomplished by the preferential right of the Holders of the
Class M-2 Notes (i) to receive, prior to any distribution being made on a
Remittance Date in respect of interest or principal on the Class B Notes, the
Class M-2 Current Interest Amount due them on each Remittance Date out of the
Available Remittance Amount on deposit on such date in the Note Distribution
Account and (ii) to receive, prior to any distribution being made on a
Remittance Date in respect of principal on the Class B Notes, the Class M-2
Principal Distribution Amount due them on each Remittance Date out of the
Available Remittance Amount on deposit on such date in the Note Distribution
Account.
Reports to Noteholders
On each Remittance Date, the Indenture Trustee will be required to forward
to each Noteholder (which will be Cede, as registered Holder of each Class of
Notes and the nominee of DTC, unless and until Definitive Notes are issued), a
statement which will set forth, among other things:
(a) the amount of such distribution to Holders of each Class of Notes
allocable to interest (separately identifying any Interest Shortfall
Carryforward Amount);
(b) the amount of such distribution to holders of each Class of Notes
allocable to principal;
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(c) the amount, if any, by which the applicable Class Formula Principal
Distribution Amount exceeds the applicable Class Principal Distribution
Amount for such Remittance Date;
(d) the Current Principal Balance of each Class of Notes after giving
effect to the distribution of principal on such Remittance Date;
(e) the Senior Percentage and Class B Percentage for the current Remittance
Date;
(f) the Class Factor (a percentage derived from a fraction the numerator of
which is the Current Principal Balance of a particular Class and the
denominator of which is the original principal balance of such Class);
(g) the Spread Amount and Specified Subordinated Amount for such Remittance
Date;
(h) the aggregate principal balance of the Loans at the end of the
preceding Due Period;
(i) whether a Trigger Event is in effect;
(j) the amount of any Applied Realized Loss Amount, Realized Loss Amount
and Unpaid Realized Loss Amount for each Class as of the close of such
Remittance Date; and
(k) the number and aggregate principal balance of Loans delinquent (i)
30-59 days and (ii) 60 or more days.
The Statement described above to be furnished each Class of Notes need only
provide information relating to that Class of Notes. Information furnished
pursuant to clauses (a) through (d) will be expressed as dollar amounts for a
Class of Notes with a 1% Percentage Interest or per $1,000 denomination of
Notes.
Book-Entry Notes
The Notes will be book-entry Notes (the "Book-Entry Notes"). Persons
acquiring beneficial ownership interests in the Notes ("Note Owners") will hold
their Notes through DTC in the United States, or Cedel Bank or Euroclear (in
Europe) if they are participants of such systems, or indirectly through
organizations which are participants in such systems. The Book-Entry Notes will
be issued in one or more Notes which equal the aggregate principal balance of
the Notes and will initially be registered in the name of Cede & Co., the
nominees of DTC. Cedel Bank and Euroclear will hold omnibus positions on behalf
of their participants through customers' securities accounts in Cedel Bank'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. will act as depositary for Cedel Bank
and Morgan Guaranty Trust Company of New York, Brussels Office, 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 original principal balances of $1,000 and integral multiples of
$1,000 in excess thereof. Except as described below, no person acquiring a
Book-Entry Notes (each, a "beneficial owner") will be entitled to receive a
physical Note representing such Note (a "Definitive Class A Note"). Unless and
until Definitive Class A Notes are issued, it is anticipated that the only
"Noteholder" of the Notes will be Cede & Co., as nominee of DTC. Note Owners
will not be Noteholders as that term is used in the Indenture or the Agreement.
Note 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
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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 Bank or Euroclear, as appropriate).
Note Owners will receive all distributions of principal of, and interest
on, the Notes from the Indenture Trustee through DTC and DTC participants. While
the 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 the Notes and is required
to receive and transmit distributions of principal of, and interest on, the
Notes. Participants and indirect participants with whom Note Owners have
accounts with respect to Notes are similarly required to make book-entry
transfers and receive and transmit such distributions on behalf of their
respective Note Owners. Accordingly, although Note Owners will not possess
Notes, the Rules provide a mechanism by which Note Owners will receive
distributions and will be able to transfer their interest.
Note Owners will not receive or be entitled to receive Notes representing
their respective interests in the Notes, except under the limited circumstances
described below. Unless and until Definitive Notes are issued, Note Owners who
are not Participants may transfer ownership of Notes only through Participants
and indirect participants by instructing such Participants and indirect
participants to transfer 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 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 Note Owners.
Because of time zone differences, credits of securities received in Cedel
Bank 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 Bank Participants on such business day. Cash received in
Cedel Bank or Euroclear as a result of sales of securities by or through a Cedel
Bank 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 Bank or Euroclear cash account only as
of the business day following settlement in DTC. For information with respect to
tax documentation procedures relating to the Notes, see "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 Bank 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 Bank
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 Bank Participants and Euroclear Participants may not deliver
instructions directly to the European Depositaries.
DTC, which is a New York-chartered limited purpose trust company, performs
services for its participants, some of which (and/or their representatives) own
DTC. In accordance with its normal procedures, DTC is expected to record the
positions held by each DTC participant in the Book-Entry Notes, whether held for
its own account or as a
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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 is incorporated under the laws of Luxembourg as a professional
depository. Cedel Bank holds securities for its participating organizations
("Cedel Bank Participants") and facilitates the clearance and settlement of
securities transactions between Cedel Bank Participants through electronic
book-entry changes in accounts of Cedel Bank Participants, thereby eliminating
the need for physical movement of Notes. Transactions may be settled in Cedel
Bank in any of 28 currencies, including United States dollars. Cedel Bank
provides to its Cedel Bank Participants, among other things, services for
safekeeping, administration, clearance and settlement of internationally traded
securities and securities lending and borrowing. Cedel Bank interfaces with
domestic markets in several countries. As a professional depository, Cedel Bank
is subject to regulation by the Luxembourg Monetary Institute. Cedel Bank
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 Bank is
also available to others, such as banks, brokers, dealers and trust companies
that clear through or maintain a custodial relationship with a Cedel Bank
Participant, either directly or indirectly.
Euroclear was created in 1968 to hold securities for its participants
("Euroclear Participants") and to clear and settle transactions between
Euroclear Participants through simultaneous electronic book-entry delivery
against payment, thereby eliminating the need for physical movement of Notes and
any risk from lack of simultaneous transfers of securities and cash.
Transactions may be settled in any of 32 currencies, including United States
dollars. Euroclear includes various other services, including securities lending
and borrowing and interfaces with domestic markets in several countries
generally similar to the arrangements for cross-market transfers with DTC
described above. Euroclear is operated by the Brussels, Belgium office of Morgan
Guaranty Trust Company of New York (the "Euroclear Operator"), under contract
with Euroclear Clearance Systems S.C., a Belgian cooperative corporation (the
"Cooperative"). All operations are conducted by the Euroclear Operator, and all
Euroclear securities clearance accounts and Euroclear cash accounts are accounts
with the Euroclear Operator, not the Cooperative. The Cooperative establishes
policy for Euroclear on behalf of Euroclear Participants. Euroclear Participants
include banks (including central banks), securities brokers and dealers and
other professional financial intermediaries. Indirect access to Euroclear is
also available to other firms that clear through or maintain a custodial
relationship with a Euroclear Participant, either directly or indirectly.
The Euroclear Operator is the Belgian branch of a New York banking
corporation which is a member bank of the Federal Reserve System. As such, it is
regulated and examined by the Board of Governors of the Federal Reserve System
and the New York State Banking Department, as well as the Belgian Banking
Commission.
Securities clearance accounts and cash accounts with the Euroclear Operator
are governed by the Terms and Conditions Governing Use of Euroclear and the
related Operating Procedures of the Euroclear System and applicable Belgian law
(collectively, the "Terms and Conditions"). The Terms and Conditions govern
transfers of securities and cash within Euroclear, withdrawals of securities and
cash from Euroclear, and receipts of payments with respect to securities in
Euroclear. All securities in Euroclear are held on a fungible basis without
attribution of specific Notes to specific securities clearance accounts. The
Euroclear Operator acts under the Terms and Conditions only on behalf of
Euroclear Participants, and has no record of or relationship with persons
holding through Euroclear Participants.
Distributions on the Book-Entry Notes will be made on each Distribution
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 payments 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
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respect to Notes held through Cedel Bank or Euroclear will be credited to the
cash accounts of Cedel Bank 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 Notes 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 Notes.
Monthly and annual reports on the Trust will be provided to Cede & Co., as
nominee of DTC, and may be made available by Cede & Co. 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 Agreement 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 Bank or the
Euroclear Operator, as the case may be, will take any other action permitted to
be taken by a Noteholder under the Indenture or the Agreement on behalf of a
Cedel Bank 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 Servicer
advises the Indenture Trustee in writing that DTC is no longer willing,
qualified or able to discharge properly its responsibilities as nominee and
depository with respect to the Book-Entry Notes and the Servicer or the
Indenture Trustee is unable to locate a qualified successor, (b) the Servicer,
at its sole option, with the consent of the Indenture Trustee, elects to
terminate a book-entry system through DTC or (c) after the occurrence of an
Event of Default (as defined herein), beneficial owners having Percentage
Interests aggregating not less than 51% of the aggregate Current Principal
Balance of the Book-Entry Notes advise the Indenture Trustee and DTC through the
Financial Intermediaries and the DTC participants in writing that the
continuation of a book-entry system through DTC (or a successor thereto) is no
longer in the best interests of 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 note or notes
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 and Noteholders
under the Indenture and the Agreement.
Although DTC, Cedel Bank and Euroclear have agreed to the foregoing
procedures in order to facilitate transfers of Notes among participants of DTC,
Cedel Bank and Euroclear, they are under no obligation to perform or continue to
perform such procedures and such procedures may be discontinued at any time.
None of the Seller, the Servicer or the Indenture Trustee will have any
responsibility for any aspect of the records relating to or payments made on
account of beneficial ownership interests of the Book-Entry Notes held by Cede &
Co., as nominee for DTC, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
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THE TRANSFER AND SERVICING AGREEMENTS
The following summary describes certain terms of the Indenture, the Sale
and Servicing Agreement and the Trust Agreement (collectively, the "Transfer and
Servicing Agreements"). Forms of the Transfer and Servicing Agreements have been
filed as exhibits to the Registration Statement. Copies of the Transfer and
Servicing Agreements will be filed with the Commission following the issuance of
the Notes. This summary does not purport to be complete and is subject to, and
qualified in its entirety by reference to, all the provisions of the Transfer
and Servicing Agreements. The following summary supplements, and to the extent
inconsistent therewith replaces, the description of the general terms and
provisions of the Transfer and Servicing Agreements set forth under the heading
"The Agreements" in the Prospectus.
Contribution and Assignment of the Loans
On the Closing Date, the Originators will contribute the Initial Loans to
the Trust. The Trust will, concurrently with such contribution of the Initial
Loans and the deposit of funds in the Pre-Funding Account and Capitalized
Interest Account deliver the Notes. The Trust will pledge and assign the Initial
Loans, Pre-Funding Account and Capitalized Interest Account to the Indenture
Trustee as collateral for the Notes.
Following the Closing Date, the funds in the Pre-Funding Account will be
used by the Trust to acquire from the Originators, from time to time prior to
the end of the Funding Period, subject to the availability thereof, Subsequent
Loans having characteristics that are generally similar to the characteristics
of the Initial Loans. The Trust will pledge and assign such Subsequent Loans to
the Indenture Trustee.
In addition, the Originators will, as to each Loan, deliver to the
Indenture Trustee (or, with respect to the Home Improvement Loans, the
Custodian) the related Note endorsed to the order of holder or in blank, without
recourse, any assumption and modification agreements and, with respect to the
Mortgage Loans, the Mortgage with evidence of recording indicated thereon
(except for any Mortgage not returned from the public recording office), an
assignment of the Mortgage in the name of the Indenture Trustee (or, with
respect to the FHA Loans, the Co-Trustee) in recordable form, and any
intervening assignment of the Mortgage (each, an "Indenture Trustee's Loan
File"). Assignments of the Mortgages to the Indenture Trustee (or, with respect
to the FHA Loans, the Co-Trustee) will be recorded to protect the Trust and the
Indenture Trustee's interest in the Mortgage Loans against the claims of certain
creditors of the Originators or subsequent purchasers. The Originators will
deliver such assignments to the Indenture Trustee (or, with respect to the Home
Improvement Loans, the Custodian) after recordation. If the Originators cannot
deliver the Mortgage or any assignment with evidence of recording thereon
concurrently with the conveyance thereof under the Sale and Servicing Agreement
because they have not yet been returned by the public recording office, the
Originators will deliver or cause to be delivered to the Indenture Trustee (or,
with respect to the Home Improvement Loans, the Custodian) a certified true
photocopy of such Mortgage or assignment. The Originators will deliver or cause
to be delivered to the Indenture Trustee (or, with respect to the Home
Improvement Loans, the Custodian) any such Mortgage or assignment with evidence
of recording indicated thereon upon receipt thereof from the public recording
office. The Indenture Trustee or the Custodian will review (or cause to be
reviewed) each Indenture Trustee's Loan File within 60 days after the conveyance
of the related Home Loan to the Trust to ascertain that all required documents
have been executed and received.
Representations and Warranties
In addition to the representations and warranties as to each Loan described
under the caption "The Agreements-Representations and Warranties" in the
Prospectus, the Representative and each Originator will represent in the
Agreement that (i) each FHA Loan is an FHA Title I loan, underwritten in
accordance with applicable FHA requirements and submitted to the FHA for
insurance; (ii) assuming sufficient coverage remains available in the Reserve
Amount, each Claim filed by the Claims Administrator with respect to a 90 Day
Delinquent FHA Loan will be honored by the FHA in accordance with the rules and
regulations of the FHA.
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Obligation of the Claims Administrator
If any FHA Loan becomes a 90 Day Delinquent FHA Loan, and if sufficient
coverage is available in the Reserve Amount to make an FHA Payment with respect
to such FHA Loan, the Claims Administrator may, in its sole discretion, during
any subsequent Due Period, determine to file a Claim with the FHA with respect
to such 90 Day Delinquent FHA Loan. If the Claims Administrator determines to
file such a Claim, the Claims Administrator will so notify the Indenture Trustee
and the Custodian no later than the Determination Date following such
determination and shall request delivery of the related Indenture Trustee's Loan
File. Upon receipt of such certification and request, the Custodian shall, no
later than the related Remittance Date, release to the Claims Administrator the
related Indenture Trustee's Loan File and the Indenture Trustee and the
Custodian shall execute and deliver such instruments necessary to enable the
Claims Administrator to file a Claim with the FHA on behalf of the Indenture
Trustee. Within 120 days of its receipt of the related Indenture Trustee's Loan
File, the Claims Administrator shall, in its sole discretion, either file a
Claim with the FHA for an FHA Payment with respect to such 90 Day Delinquent FHA
Loan or, if the Claims Administrator determines not to file such a Claim, return
to the Indenture Trustee the related Indenture Trustee's Loan File.
With respect to any 90 Day Delinquent FHA Loan transferred to the Claims
Administrator as described above, the Claims Administrator shall deposit (or, if
the Claims Administrator is not also the Servicer, the Claims Administrator
shall instruct the Servicer to deposit) in the Principal and Interest Account
within 24 hours of receipt or determination thereof the following amounts (such
amounts to be net of certain amounts that would be reimbursable to the Servicer
under the Agreement with respect to amounts in the Principal and Interest
Account): (i) any FHA Payments; (ii) the amount, if any, by which the FHA
Payment was reduced in accordance with FHA Regulations due to the Claims
Administrator enforcing a lien on the FHA Property prior to the lien of the
related 90 Day Delinquent FHA Loan; and (iii) any principal and interest
payments received with respect to a 90 Day Delinquent FHA Loan after the Due
Period in which the FHA Loan is transferred to the Claims Administrator and
before either the related FHA Payment is paid or the related Indenture Trustee's
Loan File is returned to the Custodian, as the case may be (the amounts referred
to in (ii) and (iii) above are referenced to herein as "Related Payments").
If an FHA Loan becomes a 90 Day Delinquent FHA Loan when there is
insufficient coverage in the Reserve Amount, or if the Claims Administrator
determines not to file a Claim with the FHA with respect to such 90 Day
Delinquent FHA Loan, the Custodian will not transfer such FHA Loan to the Claims
Administrator, no Claim will be made to the FHA and the Servicer may take other
action, including the commencement of foreclosure proceedings, on the related
Mortgaged Property, if any.
FHA Premium Account
The FHA Premium Account will be established with the Indenture Trustee and
will be available to reimburse the Claims Administrator for the payment to the
FHA of the FHA Insurance Premium on each FHA Loan. The FHA Insurance Premium is
an annual premium equal to 0.5% of the original principal balance of the FHA
Loan. If the related Obligor pays the FHA Insurance Premium in addition to the
Monthly Payment, any payment of the FHA Insurance Premium received during a Due
Period will be deposited in the FHA Premium Account on the related Remittance
Date. In certain states, the Servicer is prohibited from directly collecting the
FHA Insurance Premium from the related Obligor. With respect to FHA Loans
secured by Mortgaged Properties located in such states, the Servicer will cause
to be deposited in the FHA Premium Account a specified percentage of each
scheduled interest payment. Since an Obligor pays interest on the declining
principal balance of the related FHA Loan and the FHA Insurance Premium is based
upon the original principal balance of the FHA Loan, the amount of interest
allocated to the FHA Premium Account may be more or less than the amount of the
related FHA Insurance Premium. The Servicer has agreed to satisfy any resulting
shortfall from its own funds.
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Pre-Funding Account
On the Closing Date, the Pre-Funded Amount will be deposited into the
Pre-Funding Account in an amount not to exceed $72,000,000. Pre-Funded Amounts
may be used only (i) to acquire Subsequent Loans for the Trust and (ii) to make
accelerated payments of principal on the Notes of the Trust. During the period
(the "Funding Period") from the Closing Date until the earliest of (i) the date
on which the amount on deposit in the Pre-Funding Account is less than $200,000,
(ii) the date on which an Event of Default occurs under the Agreement or (iii)
at the close of business on December 26, 1997, amounts will, from time to time,
be withdrawn from the Pre-Funding Account to acquire Subsequent Loans in
accordance with the Agreement. Any Pre-Funded Amount remaining at the end of the
Funding Period will be distributed as a principal prepayment on the next
Remittance Date to the Notes of the Trust.
All funds in the Pre-Funding Account are required to be held (i)
uninvested, up to the limits insured by the Federal Deposit Insurance
Corporation or (ii) invested in instruments designated as "Permitted
Instruments" in the Agreement. Any investment earnings on funds in the
Pre-Funding Account will be applied to payment of interest on the applicable
Notes.
Capitalized Interest Account
On the Closing Date, the Representative also will make a cash deposit in an
account (the "Capitalized Interest Account") in the name of the Indenture
Trustee on behalf of the Trust. The amount deposited in the Capitalized Interest
Account will be used by the Indenture Trustee on the Remittance Dates occurring
during the Funding Period to fund the excess, if any, of (i) the amount of
interest accrued for each such Remittance Date at the weighted average
Remittance Rates of the Notes on the portion of the Notes having principal
balances exceeding the principal balances of the Loans over (ii) the amount of
any earnings on funds in the Pre-Funding Account that are available to pay
interest on the Notes on each such Remittance Date. Any amounts remaining in the
Capitalized Interest Account at the end of the Funding Period are required to be
paid to the Representative.
All funds in the Capitalized Interest Account are required to be held (i)
uninvested, up to the limits insured by the Federal Deposit Insurance
Corporation or (ii) invested in Permitted Instruments. Any investment earnings
on funds in the Capitalized Interest Account will be applied to payment of
interest on the Notes.
Payments on the Loans
The Agreement requires the Servicer to establish and maintain one or more
principal and interest accounts (each, a "Principal and Interest Account") at
one or more institutions designated as a "Designated Depository Institution" in
the Agreement.
All funds in the Principal and Interest Accounts are required to be held
(i) uninvested, up to the limits insured by the Federal Deposit Insurance
Corporation or (ii) invested in Permitted Instruments. Any investment earnings
on funds held in the Principal and Interest Accounts are for the account of the
Servicer.
The Servicer is required to deposit in the related Principal and Interest
Account (within 24 hours of receipt) all payments received after the Cut-Off
Date on account of principal and interest on the related Loans (but net of the
Servicing Fee and the Contingency Fee with respect to each Loan, other servicing
compensation payable to the Servicer as permitted by the Agreement and any
amounts required to be deposited into the Servicing Accounts referred to below).
Not later than the day of each month which is the later of (i) the third
Business Day prior to the 15th day of such month and (ii) the seventh Business
Day of such month (each such day a "Determination Date"), the Servicer is
required to wire transfer to the Indenture Trustee the Available Remittance
Amount in the segregated trust accounts maintained with the Indenture Trustee
for such purpose (each a "Note Distribution Account").
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The Agreement also will require the Servicer to establish and maintain, in
addition to the Principal and Interest Accounts one or more accounts (each a
"Servicing Account") in a depository institution the deposits of which are
insured by the Federal Deposit Insurance Corporation to the maximum extent
permitted by law. The Servicer will deposit and retain therein all collections
from the Obligors for the payment of taxes, assessments, insurance premiums, or
comparable items as agent of the Obligors and in trust as provided in the
Agreement. Amounts in any Servicing Account may relate to mortgage loans in more
than one mortgage pool or to mortgage loans not yet included in a mortgage pool.
All funds in the Servicing Accounts are required to be held (i) uninvested, up
to the limits insured by the Federal Deposit Insurance Corporation or (ii)
invested in Permitted Instruments. Any investment earnings on funds held in the
Servicing Accounts are for the account of the Servicer. Withdrawals of amounts
from the Servicing Accounts may be made only to effect timely payment of taxes,
assessments, insurance premiums, or comparable items, to reimburse the Servicer
for any advances made with respect to such items, to refund to any Obligors any
sums as may be determined to be overages, to pay interest, if required, to
Obligors on balances in the Servicing Accounts, to pay earnings not required to
be paid to Obligors to the Servicer or to clear and terminate the Servicing
Accounts at or at any time after the termination of the Agreement.
Monthly Advances and Compensating Interest
Not later than the close of business on each Determination Date, the
Servicer is required to remit to the Indenture Trustee for deposit in the Note
Distribution Account an amount equal to the amount, if any, by which (a) the sum
of (x) 30 days' interest at the weighted average Adjusted Loan Remittance Rates
on the aggregate outstanding Principal Balances of each Class of Notes
immediately prior to the related Remittance Date and (y) the Monthly Excess
Spread, if any, for the related Remittance Date relating to the Loans exceeds
(b) the amount received by the Servicer in respect of interest on the Loans as
of the related Record Date (and, with respect to the Remittance Dates during the
Funding Period, the sum of (i) all funds to be transferred to the Note
Distribution Account from the Capitalized Interest Account for such Remittance
Date and (ii) certain investment earnings on amounts in the Pre-Funding Account
for the Remittance Date). Such excess is defined as the "Monthly Advance."
Not later than the close of business on each Determination Date, with
respect to each Loan for which a Principal Prepayment in full or Curtailment was
received during the related Due Period, the Servicer is required to remit to the
Indenture Trustee for deposit in the Note Distribution Account from amounts
otherwise payable to it as servicing compensation, an amount equal to the excess
of (a) 30 days' interest on the principal balance of each such Loan as of the
beginning of the related Due Period at the weighted average Adjusted Loan
Remittance Rates applicable to the Remittance Date on which such amount will be
distributed, over (b) the amount of interest actually received on the related
Loan for such Due Period (such difference, "Compensating Interest").
Servicing and Other Compensation and Payment of Expenses; Replacement of
Servicer
The Servicer is entitled to a servicing fee of 0.25% per annum of the
principal balance of each Loan (the "Servicing Fee") and a contingency fee of
0.25% per annum of the principal balance of each Loan (the "Contingency Fee").
The Contingency Fee is meant to provide additional servicing compensation to a
successor servicer if The Money Store Inc. is replaced as Servicer under the
Agreement. However, as long as The Money Store Inc. acts as Servicer, it is
entitled to receive the Contingency Fee, although such amount is not deemed
servicing compensation. The Servicing Fee and Contingency Fee are each
calculated and payable monthly from the interest portion of scheduled monthly
payments, liquidation proceeds and certain other collected proceeds. In
addition, the Servicer is entitled under the Agreement to retain additional
servicing compensation in the form of assumption and other administrative fees,
prepayment penalties and premiums, late payment charges, interest paid on funds
in the Principal and Interest Accounts, interest paid on earnings realized on
Permitted Instruments, and certain other excess amounts. Upon the occurrence of
certain Servicing Delinquency Triggers (as defined in the Agreement) the holders
of Notes representing in excess of 50% of the aggregate Current Principal
Balances of all Classes may determine to terminate the Servicer.
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Insolvency Event
If any of certain events of voluntary corporate dissolution or insolvency,
readjustment of debt, marshaling of assets and liabilities, commencement of
bankruptcy proceedings under an Insolvency Law or similar proceedings with
respect to such person indicating its insolvency or inability to pay its
obligations (each, an "Insolvency Event") occurs with respect to the Holder of
the GP Interest, the Loans will be liquidated and the Trust will be terminated
90 days after the date of such Insolvency Event, unless, before the end of such
90 day period, the Owner Trustee shall have received written instructions from
the Holder of the Voting Interest (who, in turn, will act upon written
instructions furnished by holders of Notes representing in excess of 50% of the
aggregate Current Principal Balances of all Classes of Notes) to the effect that
such party objects to the liquidation of the Loans and dissolution of the Trust.
Promptly after the occurrence of any Insolvency Event with respect to the Holder
of the GP Interest, notice thereof is required to be given to Noteholders;
provided, however, that any failure to give such required notice will not
prevent or delay termination of the Trust. Upon termination of the Trust, the
Owner Trustee will direct the Indenture Trustee promptly to sell the assets of
the Trust in a commercially reasonable manner. The proceeds from any such sale
of the assets of the Trust will be treated as collections on the Loans, in
accordance with the terms of the Agreement.
Optional Termination
The Servicer may, at its option, effect an early redemption or termination
of the Notes on any Remittance Date on or after which the aggregate outstanding
principal balance of the Loans declines to 10% or less of the Original
Collateral Amount, by purchasing the Loans for a price equal to the aggregate
Current Principal Balance of the Notes, plus accrued and unpaid interest
thereon.
The Indenture
Modification of the Indenture. With the consent of the holders of a
majority of the aggregate Current Principal Balance of Notes then outstanding,
the Indenture Trustee and the Trust may execute a supplemental indenture to add
provisions to, or change in any manner or eliminate any provisions of, the
Indenture, or to modify (except as provided below) in any manner the rights of
the Noteholders.
Without the consent of the holder of each outstanding Note affected
thereby, however, no supplemental indenture will (i) change the date of payment
of any installment of principal of or interest on any Note or reduce the
principal amount thereof, the interest rate thereon or the redemption price with
respect thereto, change the provisions of the Indenture relating to the
application of collections on, or the proceeds of the sale of, the assets of the
Trust to 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 or any interest
thereon is payable, (ii) impair the right to institute suit for the enforcement
of certain provisions of the Indenture regarding payment, (iii) reduce the
percentage of the aggregate amount of the outstanding Notes the consent of the
holders of which is required for any supplemental indenture or the consent of
the holders of which is required for any waiver of compliance with certain
provisions of the Indenture or certain defaults thereunder and their
consequences as provided for in the Indenture, (iv) modify or alter certain
provisions of the Indenture regarding the determination of Notes that are
considered "outstanding" for consent, waivers and other matters, (v) reduce the
percentage of the aggregate outstanding amount of the Notes the consent of the
holders of which is required to direct the Issuer to sell or liquidate the
Loans, (vi) decrease the percentage of the aggregate principal amount of the
Notes required to amend the sections of the Indenture which specify the
applicable percentage of aggregate principal amount of the Notes necessary to
amend the Indenture or certain other related agreements, (vii) modify any of the
provisions of the Indenture in such manner as to affect the calculation of the
amount of any payment of interest or principal due on any Note or (viii) permit
the creation of any lien ranking prior to or on a parity with the lien of the
Indenture with respect to any of the collateral for the Notes or, except as
otherwise permitted or contemplated in the Indenture, terminate the lien of the
Indenture on any such collateral or deprive the holder of any Note of the
security afforded by the lien of the Indenture.
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The Trust and the Indenture Trustee may also enter into supplemental
indentures, but without obtaining the consent of Noteholders, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or modifying in any manner the rights of Noteholders
so long as such action will not, in the opinion of counsel satisfactory to the
Indenture Trustee, adversely affect in any material respect the interest of any
Noteholder.
Events of Default; Rights Upon Event of Default. An "Event of Default" with
respect to the Notes is defined in the Indenture as consisting of the following
(except as described in the remaining sentences of this paragraph): (i) a
default for five days or more in the payment of any interest on any Note (other
than any Class Interest Shortfall Carryforward Amounts) after the same becomes
due and payable; provided, however, that so long as any Class A Notes remain
outstanding, the default in such payment on a Class M Note or Class B Note shall
not be deemed an Event of Default, and so long as any Class M Notes remain
outstanding, the default in such payment on a Class B Note shall not be deemed
an Event of Default; or (ii) a default in the payment of principal of any Note
when the same becomes due and payable; provided, however, that so long as any
Class A Notes remain outstanding, the default in such payment on a Class M Note
or Class B Note shall not be deemed an Event of Default, and so long as any
Class M Notes remain outstanding, the default in such payment on a Class B Note
shall not be deemed an Event of Default; or (iii) a default in the observance or
performance of any covenant or agreement of the Trust made in the Indenture and
the continuation of any such default for a period of 30 days (or, for certain
defaults, 90 days) after notice thereof is given to the Trust by the Indenture
Trustee or to the Trust and the Indenture Trustee by the holders of at least 25%
in aggregate Current Principal Balance of the Notes then outstanding; (iv) any
representation or warranty made by the Trust in the Indenture or in any
certificate delivered pursuant thereto or in connection therewith having been
incorrect in a material respect as of the time made, and such breach not having
been cured within 30 days (or, for certain breaches, 90 days) after notice
thereof is given to the Trust by the Indenture Trustee or to the Trust and the
Indenture Trustee by the holders of at least 25% in aggregate Current Principal
Balance of the Notes then outstanding; or (v) certain events of bankruptcy,
insolvency, receivership or liquidation of the Trust.
The amount of principal required to be distributed to Noteholders on any
Remittance Date is limited to the portion of the Available Remittance Amount on
deposit in the Note Distribution Account and allocated to such purposes.
Therefore, the failure to pay principal on any Class of Notes may not result in
an Event of Default until the Final Maturity Date of any such Class of Notes.
If an Event of Default should occur and be continuing, the Indenture
Trustee or holders of a majority in aggregate Current Principal Balance of the
Notes then outstanding may declare all outstanding Notes to be immediately due
and payable, by notice to the Trust or notice to the Indenture Trustee if given
by the Noteholders. Such declaration may be rescinded by the holders of a
majority in aggregate current Principal Balance of the Notes then outstanding if
(i) the Trust has paid to the Indenture Trustee a sum equal to all amounts then
due with respect to the Notes (without giving effect to such acceleration) and
due to the Indenture Trustee and (ii) all Events of Default (other than
nonpayment of amounts due solely as a result of such acceleration) have been
cured or waived.
If the Notes have been declared to be due and payable following an
Event of Default with respect thereto, the Indenture Trustee may, in its
discretion, sell the Loans or elect to maintain possession of the Loans. In
addition, the Indenture Trustee is prohibited from selling the Loans following
an Event of Default, other than a default for five days or more in the payment
of any interest or a default in the payment of any principal on any Note, unless
(i) the holders of 100% of the aggregate Current Principal Balance of the Notes
outstanding consent to such sale, (ii) the Trustee determines that the proceeds
of such sale are sufficient to pay in full the principal of and the accrued
interest on the Notes outstanding or (iii) the Indenture Trustee determines that
the collections on the Loans and other assets of the Trust would not be
sufficient on an ongoing basis to make all payments on the Notes as such
payments would have become due if such Notes had not been declared due and
payable, and the Indenture Trustee obtains the consent of the holders of
66 2/3% of the aggregate Current Principal Balance of the Notes then
outstanding.
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Subject to the provisions of the Indenture relating to the duties of the
Indenture Trustee, if an Event of Default should occur and be continuing with
respect to the Notes, the Indenture Trustee will be under no obligation to
exercise any of the rights or powers under the Indenture at the request or
direction of any of the holders of Notes, if the Indenture Trustee reasonably
believes it will not be adequately indemnified against the costs, expenses and
liabilities which might be incurred by it in complying with such request.
Subject to such provisions for indemnification and certain limitations contained
in the Indenture, the holders of a majority in aggregate Current Principal
Balance of the outstanding Notes will have the right to direct the time, method
and place of conducting any proceeding or any remedy available to the Indenture
Trustee.
No holder of any Note will have the right to institute any proceeding with
respect to the Indenture, unless (i) such holder previously has given to the
Indenture Trustee written notice of a continuing Event of Default, (ii) the
holders of not less than 25% in Current Principal Balance of the outstanding
Notes have requested in writing that the Indenture Trustee institute such
proceeding in its own name as Indenture Trustee, (iii) such holder or holders
have offered the Indenture Trustee reasonable indemnity, (iv) the Indenture
Trustee has for 60 days after notice 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 holders of a majority in
Current Principal Balance of the outstanding Notes.
In addition, the Indenture Trustee and the Noteholders will covenant that
they will not, prior to the date which is one year and a day after the
termination of the Indenture, institute against the Trust or the Holder of the
GP Interest any bankruptcy, reorganization or other proceeding under any Federal
or state bankruptcy or similar law in connection with any obligations relating
to the Notes, the Indenture or the Basic Documents (as defined below).
Certain Covenants. The Trust may not consolidate with or merge into any
other entity, unless (i) the entity formed by or surviving such consolidation or
merger is organized under the laws of the United States, or any state, and such
entity expressly assumes the Trust's obligation to make due and punctual
payments upon the Notes and the performance or observance of every agreement and
covenant of the Trust under the Indenture, (ii) no Event of Default has occurred
and is continuing immediately after such merger or consolidation, (iii) such
consolidation or merger will not result in any of the Rating Agencies lowering
its ratings then assigned to the Notes, (iv) the Trust has received an opinion
of counsel to the effect that such consolidation or merger would have no
material adverse federal or Delaware tax consequence to the Trust or to any
Certificateholder or Noteholder, (v) any action as is necessary to maintain the
lien and security interest created by the Indenture shall have been taken and
(vi) the Trust shall have delivered to the Indenture Trustee an officer's
certificate of the Trust and an opinion of counsel each stating that such
consolidation or merger and any supplemental indenture relating thereto comply
with the terms of the Indenture and that all conditions precedent provided for
in the Indenture to such transaction have been complied with (including any
Exchange Act filings) in all material respects.
Except as otherwise permitted by the Indenture, the Transfer and Servicing
Agreement and related documents (the "Basic Documents"), the Trust may not
convey or transfer all or substantially all its properties or assets, including
the assets securing the Notes, unless for the most part the conditions specified
in (i) through (vi) above with respect to a permitted merger or consolidation
are met, plus the acquiror must agree (a) that all right, title and interest in
the property and assets so conveyed or transferred are subordinate to the rights
of the Noteholders, (b) to indemnify the Trust (unless otherwise provided in the
supplemental indenture) and (c) to make all filings with the Commission required
by the Exchange Act in connection with the Notes.
The Trust will not, among other things, (i) except as expressly permitted
by the Basic Documents, sell, transfer, exchange or otherwise dispose of any of
the assets of the Trust, (ii) claim any credit on or make any deduction from the
principal and interest payable in respect of any Notes (other than amounts
withheld under the Code or applicable state law) or assert any claim against nay
present or former holder of Notes because of the payment of taxes levied or
assessed upon the Trust (iii) permit the validity or effectiveness of the
Indenture to be impaired, or permit the lien of the Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any person to be
released from any covenants or obligations with respect to any Notes under the
Indenture
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except as may be expressly permitted thereby, (iv) permit any lien, charge,
excise, claim, security interest, mortgage or other encumbrance (other than the
lien of the Indenture) to be created on or extend to or otherwise arise upon or
burden the assets of the Trust or any part thereof, or any interest therein or
the proceeds thereof (other than certain tax and other liens arising by
operation of law, except as expressly permitted by the Basic Documents) or (v)
permit the lien of the Indenture not to constitute a valid first priority (other
than with respect to such tax or other lien) security interest in the assets
securing the Notes.
The Trust may not engage in any activity other than financing, purchasing,
owning, selling, servicing and managing the Loans and activities incidental
thereto.
The Trust will not issue, incur, assume or guarantee or otherwise become
liable for any indebtedness other than the Notes or otherwise in accordance with
the Basic Documents.
Annual Compliance Statement and Other Notices. The Issuer will be required
to deliver to the Indenture Trustee annually, commencing in 1998, a written
statement as to the fulfillment of its obligations under the Indenture. The
Trust is required to give the Indenture Trustee written notice of each Event of
Default among other notices. The Indenture Trustee will notify Noteholders of
known defaults under the Indenture within 90 days after their occurrence.
Satisfaction and Discharge of Indenture. The Indenture will be discharged
with respect to the collateral securing the Notes upon the delivery to the
Indenture Trustee for cancellation of all the Notes or, with certain
limitations, upon deposit with the Indenture Trustee of funds sufficient for the
payment in full of all the Notes.
The Owner Trustee and Indenture Trustee
The Owner Trustee, the Indenture Trustee and any of their respective
affiliates may hold Notes in their own names or as pledgees. For the purpose of
meeting the legal requirements of certain jurisdictions, the Servicer, the Owner
Trustee and the Indenture Trustee acting jointly (or in some instances, the
Owner Trustee or the Indenture Trustee acting alone) will have the power to
appoint co-trustees or separate trustees of all or any part of the Trust. In the
event of such an appointment, all rights, powers, duties and obligations
conferred or imposed upon the Owner Trustee by the Sale and Servicing Agreement
and the Trust Agreement and upon the Indenture Trustee by the Indenture will be
conferred or imposed upon the Owner Trustee and the Indenture Trustee,
respectively, and in each such case such separate trustee or co-trustee,
jointly, or, in any jurisdiction in which the Owner Trustee or Indenture Trustee
will be incompetent or unqualified to perform certain acts, singly upon such
separate trustee or co-trustee, which will exercise and perform such rights,
powers, duties and obligations solely at the direction of the Owner Trustee or
the Indenture Trustee, as applicable.
The Owner Trustee and the Indenture Trustee may resign at any time, in
which event the Servicer will be obligated to appoint a successor thereto. The
Servicer may also remove the Owner Trustee or the Indenture Trustee if either
ceases to be eligible to continue as such under the Trust Agreement or the
Indenture, as the case may be, becomes legally unable to act or becomes
insolvent. In such circumstances, the Servicer will be obligated to appoint a
successor Owner Trustee or a successor Indenture Trustee, as applicable. Any
resignation or removal of the Owner Trustee or Indenture Trustee and appointment
of a successor thereto will not become effective until acceptance of the
appointment by such successor.
Duties of the Owner Trustee and Indenture Trustee
First Union Trust Company, National Association will be the Owner Trustee
under the Trust Agreement. The Owner Trustee will make no representations as to
the validity or sufficiency of the Trust Agreement, the Certificates, the Notes
(other than the execution thereof) or any Loans or related documents, and will
not be accountable for the use or application by the Originators of any funds
paid to the Originators in respect of the Notes or the Loans, or the investment
of any monies by the Servicer before such monies are deposited into the Note
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Distribution Account or the Certificate Distribution Account. The Owner Trustee
will be required to perform only those duties specifically required of it under
the Trust Agreement. Generally, those duties will be limited to the receipt of
the various certificates, reports or other instruments required to be furnished
to the Owner Trustee under the Trust Agreement in which case it will only be
required to examine them to determine whether they conform to the requirements
of the Trust Agreement. The Owner Trustee will not be charged with knowledge of
a failure by the Servicer to perform its duties under the Trust Agreement, Sale
and Servicing Agreement or Administration Agreement, which failure constitutes
an Event of Default, unless the Owner Trustee obtains actual knowledge of such
failure.
The Owner Trustee will be under no obligation to exercise any of the rights
or powers vested in it by the Trust Agreement or to institute, conduct or defend
any litigation thereunder or in relation thereto at the request, order or
direction of any of the Certificateholders, unless such Certificateholders have
offered to the Owner Trustee security or indemnity against the costs, expenses
and liabilities that may be incurred therein or thereby.
The Bank of New York will be the Indenture Trustee under the Indenture. The
Indenture Trustee will make no representations as to the validity or sufficiency
of the Indenture, the Notes (other than the execution and authentication
thereof) or any Loans or related documents, and will not be accountable for the
use or application by the Originators or the Owner Trustee of any funds paid to
the Originators or the Owner Trustee in respect of the Notes or the Loans, or
the investment of any monies by the Servicer before such monies are deposited
into the Note Distribution Account. So long as no Event of Default under the
Indenture or the Sale and Servicing Agreement has occurred or is continuing, the
Indenture Trustee will be required to perform only those duties specifically
required of it under the Transfer and Servicing Agreements. Generally, those
duties will be limited to the receipt of the various certificates, reports on
other instruments required to be furnished to the Indenture Trustee under the
Indenture, in which case it will only be required to examine them to determine
whether they conform to the requirements of the Indenture. The Indenture Trustee
will not be charged with knowledge of a failure by the Servicer to perform its
duties under the Trust Agreement, Sale and Servicing Agreement or Administration
Agreement, which failure constitutes an Event of Default under the Indenture or
the Sale and Servicing Agreement, unless the Indenture Trustee obtains actual
knowledge of such failure.
The Co-Indenture Trustee
Chase Manhattan Bank, Delaware, a Delaware banking corporation
headquartered in Wilmington, Delaware, will be the Co-Indenture Trustee with
respect to the FHA Loans.
The Custodian
First Trust National Association, a national banking association
headquartered in St. Paul, Minnesota, or such other entity acceptable to the
Indenture Trustee and the Servicer, will be the Custodian with respect to the
Home Improvement Loans. In such capacity, it will retain the files relating to
the Home Improvement Loans. The Custodian is a subsidiary of First Bank Systems,
Minneapolis, Minnesota.
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FEDERAL INCOME TAX CONSIDERATIONS
PROSPECTIVE NOTEHOLDERS ARE ADVISED TO CONSULT THEIR TAX ADVISORS WITH
REGARD TO THE DEFERRAL INCOME TAX CONSEQUENCES OF THE PURCHASE, OWNERSHIP, OR
DISPOSITION OF INTERESTS IN THE NOTES, AS WELL AS THE TAX CONSEQUENCES ARISING
UNDER THE LAWS OF ANY STATE, FOREIGN COUNTRY OR OTHER TAXING JURISDICTION.
Stroock & Stroock & Lavan LLP, special tax counsel to the Trust, is of the
opinion, that for federal income tax purpose the Notes will be characterized as
debt, and the Trust will not be characterized as an association (or a publicly
traded partnership) taxable as a corporation. Opinions of counsel are not
binding on the Internal Revenue Service (the "IRS") and there can be no
assurance that the IRS could not successfully challenge this conclusion.
Moreover, no ruling will be sought from the IRS with respect to the transaction
described herein.
STATE TAX CONSIDERATIONS
Potential Noteholders should consider the state and local income tax
consequences of the purchase, ownership and disposition of the Notes. State and
local income tax laws may differ substantially from the corresponding federal
law, and this discussion does not purport to describe any aspect of the income
tax laws of any state or locality. Therefore, potential Noteholders should
consult their own tax advisors with respect to the various state and local tax
consequences of an investment in the Notes.
ERISA CONSIDERATIONS
Section 406 of ERISA, and/or Section 4975 of the Code, prohibits a pension,
profit-sharing or other employee benefit plan, as well as individual retirement
accounts and certain types of Keogh Plans (each a "Benefit Plan") from engaging
in certain transactions with persons that are "articles in interest" under ERISA
or "disqualified persons" under the Code with respect to such Benefit Plan. A
violation of these "prohibited transaction" rules may result in an excise tax or
other penalties and liabilities under ERISA and the Code for such persons. Title
I of ERISA also requires that fiduciaries of a Benefit Plan subject to ERISA
make investments that are prudent, diversified (except if prudent not to do so)
and in accordance with governing plan documents.
Certain transactions involving the purchase, holding or transfer of the
Notes might be deemed to constitute prohibited transactions under ERISA and the
Code if assets of the Trust were deemed to be assets of a Benefit Plan. Under a
regulation issued by the United States Department of Labor (the "Plan Assets
Regulation"), the assets of the Trust would be treated as plan assets of a
Benefit Plan for the purposes of ERISA and the Code only if the Benefit Plan
acquires an "Equity Interest" in the Trust and none of the exceptions contained
in the Plan Assets Regulation is applicable. An equity interest is defined under
the Plan Assets Regulation as an interest other than an instrument which is
treated as indebtedness under applicable local law and which has no substantial
equity features. The Representative believes that the Notes should be treated as
indebtedness without substantial equity features for purposes of the Plan Assets
Regulation. However, without regard to whether the Notes are treated as an
Equity Interest for such purposes, the acquisition or holding of Notes by or on
behalf of a Benefit Plan could be considered to give rise to a prohibited
transaction if the Trust, the Owner Trustee or the Indenture Trustee, the owner
of collateral, or any of their respective affiliates is or becomes a party in
interest or a disqualified person with respect to such Benefit Plan. In such
case, certain exemptions from the prohibited transaction rules could be
applicable depending on the type and circumstances of the plan fiduciary making
the decision to acquire a Note. Included among these exemptions are: Prohibited
Transaction Class Exemption ("PTCE") 90-1, regarding investments by insurance
company pooled separate accounts; PTCE 95-60, regarding investments by insurance
company general accounts; PTCE 91-38, regarding investments by bank collective
investment funds; PTCE 96-23, regarding transactions affected by in-house asset
managers; and PTCE 84-14, regarding transactions effected by "qualified
professional asset managers."
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Employee benefit plans that are governmental plans (as defined in Section
3(32) of ERISA) and certain church plans (as defined in Section 3(33) of ERISA)
are not subject to ERISA requirements.
A plan fiduciary considering the purchase of Notes should consult its tax
and/or legal advisors regarding whether the assets of the Trust would be
considered plan assets, the possibility of exemptive relief from the prohibited
transaction rules and other issues and their potential consequences.
LEGAL INVESTMENT CONSIDERATIONS
No Class of Notes will constitute "mortgage related securities" for
purposes of SMMEA. Accordingly, many institutions with legal authority to invest
in comparably rated securities based on first mortgage loans or deeds of trust
may not be legally authorized to invest in the Notes. No representation is made
herein as to whether any Class of Notes constitutes a legal investment for any
entity under any applicable statute, law, rule, regulation or order. Prospective
purchasers are urged to consult with their counsel concerning the status of the
Notes as legal investments for such purchasers prior to investing in any Class
of Notes.
S-67
<PAGE>
UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting Agreement
dated September 25, 1997 (the "Underwriting Agreement"), the Representative, on
behalf of the Originators, has agreed to cause the Trust to sell, and each
Underwriter has agreed to purchase, the principal amount of each Class of Notes
set forth below its name.
<TABLE>
<CAPTION>
Lehman Brothers Inc. Bear, Stearns & Co., Inc.. Total
-------------------- -------------------------- -----
<S> <C> <C> <C>
Class A-1 $ 76,450,000 $ 38,226,000 $114,676,000
Class A-2 $ 43,139,000 $ 21,569,000 $ 64,708,000
Class A-3 $ 33,068,000 $ 16,534,000 $ 49,602,000
Class M-1 $ 19,807,000 $ 9,903,000 $ 29,710,000
Class M-2 $ 11,594,000 $ 5,797,000 $ 17,391,000
Class B $ 15,942,000 $ 7,971,000 $ 23,913,000
---------- ---------- ----------
Total $200,000,000 $100,000,000 $300,000,000
=========== =========== ===========
</TABLE>
The Notes will be offered by the Underwriters from time to time in
negotiated transactions or otherwise, at varying prices to be determined at the
time of sale. Aggregate proceeds to the Originators from the sale of the Notes
are expected to be approximately $299,233,871, plus accrued interest, before
deducting expenses payable by the Originators estimated to be approximately
$300,000.
The Representative has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933, as amended.
Each of the Underwriters may provide investment banking services for the
Representative for which it will receive additional compensation.
LEGAL MATTERS
Certain legal matters relating to the validity of the issuance of the Notes
will be passed upon for the Representative by Eric R. Elwin, Esq., Corporate
Counsel of the Representative. Certain legal matters relating to the issuance of
the Notes will be passed upon for the Underwriters by Stroock & Stroock & Lavan
LLP, New York, New York. Stroock & Stroock & Lavan LLP has performed legal
services for the Representative and it is expected that it will continue to
perform such services in the future.
RATING OF THE NOTES
It is a condition to the issuance of the Class A Notes that each Class be
rated "AAA" by S&P and "AAA" by Fitch. It is a condition to the issuance of the
Class M-1 Notes that they be rated at least "AA" by S&P and at least "AA" by
Fitch. It is a condition to the issuance of the Class M-2 Notes that they be
rated at least "A" by S&P and at least "A" by Fitch. It is a condition to the
offering of the Class B Notes that they be rated at least "BBB" by S&P and at
least "BBB" by Fitch. 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
Class of Notes.
S-68
<PAGE>
FINANCIAL INFORMATION
The Trust has been formed to own the Loans and to issue the Notes and the
Certificates. The Trust had no assets or obligations prior to the issuance of
the Notes and the Certificates and will not engage in any activities other than
those described herein. Accordingly, no financial statements with respect to the
Trust are included in this Prospectus Supplement.
S-69
<PAGE>
INDEX OF PRINCIPAL TERMS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Accelerated Principal Distribution Amount............................. S-48
Adjusted Loan Remittance Rate......................................... S-19
Agreement............................................................. S-6
Applied Realized Loss Amount.......................................... S-9
Auto Loans............................................................ S-29
Available Maximum Subordination Amount................................ S-49
Available Remittance Amount........................................... S-7
Balloon Loans......................................................... S-34
Basic Documents....................................................... S-63
Beneficial owner...................................................... S-53
Book-Entry Notes...................................................... S-53
Business Day.......................................................... S-41
Capitalized Interest Account.......................................... S-12
Cede.................................................................. S-21
Cedel Bank............................................................ S-1
Cedel Bank Participants............................................... S-55
Certificates.......................................................... S-5
Claims................................................................ S-5
Claims Administrator.................................................. S-2
Class A Notes......................................................... S-1
Class A Credit Enhancement Percentage................................. S-47
Class A Current Principal Balance..................................... S-43
Class A Formula Principal Distribution Amount......................... S-45
Class A Interest Distribution Amount.................................. S-43
Class A Interest Shortfall Carryforward Amount........................ S-43
Class A Principal Distribution Amount................................. S-45
Class A-1 Interest Shortfall Carryforward Amount...................... S-43
Class A-2 Interest Shortfall Carryforward Amount...................... S-43
Class A-3 Interest Shortfall Carryforward Amount...................... S-43
Class B Applied Realized Loss Amount.................................. S-51
Class B Notes......................................................... S-1
Class B Cross-over Date............................................... S-46
Class B Formula Principal Distribution Amount......................... S-47
Class B Interest Distribution Amount.................................. S-44
Class B Interest Shortfall Carryforward Amount........................ S-44
Class B Percentage.................................................... S-47
Class B Principal Distribution Amount................................. S-47
Class B Realized Loss Amount.......................................... S-51
Class M Interest Distribution Amount.................................. S-44
Class M Interest Shortfall Carryforward Amounts....................... S-44
Class M Notes......................................................... S-1
Class M-1 Applied Realized Loss Amount................................ S-51
Class M-1 Formula Principal Distribution Amount....................... S-46
Class M-1 Interest Distribution Amount................................ S-43
Class M-1 Interest Shortfall Carryforward Amount...................... S-43
Class M-1 Principal Distribution Amount............................... S-46
Class M-1 Realized Loss Amount........................................ S-51
</TABLE>
S-70
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Class M-2 Formula Principal Distribution Amount....................... S-46
Class M-2 Interest Distribution Amount................................ S-44
Class M-2 Interest Shortfall Carryforward Amount...................... S-44
Class M-2 Principal Distribution Amount............................... S-46
Class M-2 Realized Loss Amount........................................ S-51
Closing Date.......................................................... S-1
Compensating Interest................................................. S-19
Contingency Fee....................................................... S-20
Conventional Loans.................................................... S-28
Cooperative........................................................... S-55
Co-Indenture Trustee.................................................. S-6
CPR................................................................... S-38
Current Principal Balance............................................. S-41
Curtailment........................................................... S-19
Custodian............................................................. S-6
Cut-Off Date.......................................................... S-5
Dealer Loans.......................................................... S-25
Definitive Notes...................................................... S-21
Definitive Class A Note............................................... S-53
Designated Depository Institution..................................... S-59
Detailed Description.................................................. S-33
Determination Date.................................................... S-18
Direct Loans.......................................................... S-25
Disqualified Persons.................................................. S-66
DTC................................................................... S-21
Due Period............................................................ S-42
ERISA................................................................. S-21
Euroclear............................................................. S-1
Euroclear Operator.................................................... S-55
Euroclear Participants................................................ S-55
European Depositaries................................................. S-53
Exemption............................................................. S-3
FHA................................................................... S-2
FHA Insurance Premium................................................. S-15
FHA Loans............................................................. S-2
FHA Payment........................................................... S-15
FHA Premium Account................................................... S-15
Financial Intermediary................................................ S-53
Fitch................................................................. S-20
Funding Period........................................................ S-12
HEP................................................................... S-38
Holder of the GP Interest............................................. S-5
Holders............................................................... S-2
Home Equity Loans..................................................... S-29
Home Improvement Loans................................................ S-2
HUD................................................................... S-2
Indenture Trustee..................................................... S-1
Indenture Trustee's Loan File......................................... S-57
Initial Loans......................................................... S-15
Insurance Proceeds.................................................... S-19
</TABLE>
S-71
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Interest Distribution Amounts......................................... S-44
IRS................................................................... S-66
Liquidated Loan....................................................... S-45
Liquidation Proceeds.................................................. S-19
Loan Interest Rate.................................................... S-18
Loans................................................................. S-2
Maximum Subordination Amount.......................................... S-49
Monthly Advance....................................................... S-18
Monthly Excess Spread................................................. S-50
Mortgage Loans........................................................ S-2
Multifamily Mortgaged Properties...................................... S-17
NHA Act............................................................... S-24
90 Day Delinquent FHA Loan............................................ S-15
90 Day Delinquent Loan................................................ S-15
Note Distribution Account............................................. S-59
Noteholders........................................................... S-2
Note Owners........................................................... S-53
Notes................................................................. S-1
Obligor............................................................... S-15
Optional Servicer Termination Date.................................... S-20
Original Collateral Amount............................................ S-46
Original Principal Balance............................................ S-41
Originators........................................................... S-1
Owner Trustee......................................................... S-1
Parity Date........................................................... S-10
Percentage Interest................................................... S-7
Permitted Instruments................................................. S-59
Plan Asset Regulations................................................ S-66
Plans................................................................. S-21
Pool.................................................................. S-2
Pre-Funded Amount..................................................... S-12
Pre-Funding Account................................................... S-2
Prepayment............................................................ S-37
Prepayment Assumption................................................. S-38
Principal and Interest Account........................................ S-59
Principal Distribution Amount......................................... S-44
Principal Prepayment.................................................. S-19
Prospectus............................................................ S-2
PUDS.................................................................. S-16
Rating Agencies....................................................... S-20
Realized Loss......................................................... S-50
Record Date........................................................... S-41
Related Payments...................................................... S-58
Released Mortgaged Property Proceeds.................................. S-19
Relevant Depositary................................................... S-53
Remittance Date....................................................... S-2
Remittance Rate....................................................... S-4
REO Property.......................................................... S-20
Representative........................................................ S-5
Reserve Amount........................................................ S-14
</TABLE>
S-72
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Rules................................................................. S-54
S&P................................................................... S-20
SBA................................................................... S-29
SBA Loans............................................................. S-29
Senior Notes.......................................................... S-1
Senior Percentage..................................................... S-45
Servicer.............................................................. S-2
Servicing Account..................................................... S-60
Servicing Fee......................................................... S-20
Shortfall Amounts..................................................... S-49
SMMEA................................................................. S-21
Specified Subordinated Amount......................................... S-45
Spread Amount......................................................... S-8
Spread Amount Stepdown Date........................................... S-45
Student Loans......................................................... S-29
Subordinated Deficiency Amount........................................ S-48
Subordinated Notes.................................................... S-1
Subordination Reduction Amount........................................ S-45
Subsequent Loans...................................................... S-2
Terms and Conditions.................................................. S-55
Title I............................................................... S-2
Title I Loan Program.................................................. S-24
Title I Property Improvement Loans.................................... S-24
Transfer and Servicing Agreements..................................... S-57
Trigger Event......................................................... S-47
Trust................................................................. S-1
Trust Agreement....................................................... S-1
Underwriters.......................................................... S-1
Underwriting Agreement................................................ S-68
Unpaid Realized Loss Amount........................................... S-51
Unsecured Loans....................................................... S-16
Voting Interests...................................................... S-5
Weighted Average Life................................................. S-37
</TABLE>
S-73
<PAGE>
ANNEX I
GLOBAL CLEARANCE, SETTLEMENT AND TAX DOCUMENTATION PROCEDURES
Except in certain limited circumstances, the globally offered Notes (the
"Global Securities") will be available only in book-entry form. Investors in the
Global Securities may hold such Global Securities through any of The Depository
Trust Company, Cedel Bank or Euroclear. The Global Securities will be tradeable
as home market instruments in both the European and U.S. domestic markets.
Initial settlement and all secondary trades will settle in same-day funds.
Secondary market trading between investors holding Global Securities
through Cedel Bank and Euroclear will be conducted in the ordinary way in
accordance with their normal rules and operating procedures and in accordance
with conventional Eurobond practice (i.e., seven calendar day settlement).
Secondary market trading between investors holding Global Securities
through DTC will be conducted according to the rules and procedures applicable
to U.S. corporate debt obligations and prior Asset-Backed Securities issues.
Secondary, cross-market trading between Cedel Bank or Euroclear and DTC
Participants holding Notes will be effected on a delivery-against-payment basis
through the respective Depositaries of Cedel Bank 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 Bank and
Euroclear will hold positions on behalf of their participants through their
respective Depositaries, which in turn will hold such positions in accounts as
DTC Participants.
Investors electing to hold their Global Securities through DTC will follow
the settlement practices applicable to prior Asset-Backed Securities issues.
Investor securities custody accounts will be credited with their holdings
against payment in same-day funds on the settlement date.
Investors electing to hold their Global Securities through Cedel Bank or
Euroclear accounts will follow the settlement procedures applicable to
conventional Eurobonds, except that there will be no temporary global security
and no "lock-up" or restricted period. Global Securities will be credited to the
securities custody accounts on the settlement date against payment in same-day
funds.
Secondary Market Trading
Since the purchaser determines the place of delivery, it is important to
establish at the time of the trade where both the purchaser's and seller's
accounts are located to ensure that settlement can be made on the desired value
date.
Trading between DTC Participants. Secondary market trading between
DTC Participants will be settled using the procedures applicable to prior
Asset-Backed Securities issues in same-day funds.
I-1
<PAGE>
Trading between Cedel Bank and/or Euroclear Participants. Secondary market
trading between Cedel Bank Participants or Euroclear Participants will be
settled using the procedures applicable to conventional eurobonds in same-day
funds.
Trading between DTC Seller and Cedel Bank or Euroclear Purchaser. When
Global Securities are to be transferred from the account of a DTC Participant to
the account of a Cedel Bank Participant or a Euroclear Participant, the
purchaser will send instructions to Cedel Bank or Euroclear through a Cedel Bank
Participant or Euroclear Participant at least one business day prior to
settlement. Cedel Bank or Euroclear will instruct the respective Depositary, as
the case may be, to receive the Global Securities against payment. Payment will
include interest accrued on the Global Securities based upon a year consisting
of 12 months of 30 days each. For transactions settling on the 31st of the
month, payment will include interest accrued to and excluding the first day of
the following month. Payment will then be made by the respective Depositary of
the DTC Participant's account against delivery of the Global Securities. After
settlement has been completed, the Global Securities will be credited to the
respective clearing system and by the clearing system, in accordance with its
usual procedures, to the Cedel Bank Participant's or Euroclear Participant's
account. The securities credit will appear the next day (European time) and the
cash debt will be back-valued to, and the interest on the Global Securities will
accrue from, the value date (which would be the preceding day when settlement
occurred in New York.) If settlement is not completed on the intended value date
(i.e., the trade fails), the Cedel Bank, or Euroclear cash debt will be valued
instead as of the actual settlement date.
Cedel Bank 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 Bank or Euroclear. Under
this approach, they may take on credit exposure to Cedel Bank or Euroclear until
the Global Securities are credited to their accounts one day later.
As an alternative, if Cedel Bank or Euroclear has extended a line of credit
to them, Cedel Bank Participants or Euroclear Participants can elect not to
preposition funds and allow that credit line to be drawn upon the finance
settlement. Under this procedure, Cedel Bank Participants or Euroclear
Participants purchasing Global Securities would incur overdraft charges for one
day, assuming they cleared the overdraft when the Global Securities were
credited to their accounts. However, interest on the Global Securities would
accrue from the value date. Therefore, in many cases the investment income on
the Global Securities earned during that one-day period may substantially reduce
or offset the amount of such overdraft charges, although this result will depend
on each Cedel Bank Participant's or Euroclear Participant's particular cost of
funds.
Since the settlement is taking place during New York business hours, DTC
Participants can employ their usual procedures for sending Global Securities to
the respective European Depositary for the benefit of Cedel Bank 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 Bank or Euroclear Seller and DTC Purchaser. Due to
time zone differences in their favor, Cedel Bank 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 Bank or Euroclear through a Cedel Bank Participant or
Euroclear Participant at least one business day prior to settlement. In these
cases Cedel Bank or Euroclear will instruct the respective Depositary, as
appropriate, to deliver the Global Securities to the DTC Participant's account
against payment. Payment will include interest accrued on the Global Securities
based upon a year consisting of 12 months of 30 days each. For transactions
settling on the 31st of the month, payment will include interest accrued to and
excluding the first day of the following month. The payment will then be
reflected in the account of the Cedel Bank Participant or Euroclear Participant
the following day, and receipt of the cash proceeds in the Cedel Bank
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 Bank 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
I-2
<PAGE>
value date (i.e., the trade fails), receipt of the cash proceeds in the Cedel
Bank Participant's or Euroclear Participant's account would instead be valued as
of the actual settlement date.
Finally, day traders that use Cedel Bank or Euroclear and that
purchase Global Securities from DTC Participants for delivery to Cedel Bank
Participants or Euroclear Participants should note that these trades would
automatically fail on the sale side unless affirmative action were taken. At
least three techniques should be readily available to eliminate this potential
problem:
(a) borrowing through Cedel Bank or Euroclear for one day (until the
purchase side of the day trade is reflected in their Cedel Bank 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 Bank 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 Bank Participant or
Euroclear Participant.
Certain U.S. Federal Income Tax Documentation Requirements
A beneficial owner of Global Securities holding securities through Cedel
Bank, or Euroclear (or through DTC if the holder has an address outside the
U.S.) will be subject to the 30% U.S. withholding tax that generally applies to
payments of interest (including original issue discount) on registered debt
issued by U.S. Persons, unless (i) each clearing system, bank or other financial
institution that holds customers' securities in the ordinary course of its trade
or business in the chain of intermediaries between such beneficial owner and the
U.S. entity required to withhold tax complies with applicable certification
requirements and (ii) such beneficial owner takes one of the following steps to
obtain an exemption or reduced tax rate.
Exception for non-U.S. Persons (Form W-8). Beneficial owners of Global
Securities that are non-U.S. Persons can obtain a complete exemption from the
withholding tax by filing a signed Form W-8 (Certificate of Foreign Status). If
the information shown on Form W-8 changes, a new Form W-8 must be filed within
30 days of such change.
Exemption for non-U.S. Persons with effectively connected income (Form
4224). A non-U.S. Person including a non-U.S. corporation or bank with a U.S.
branch, for which the interest income is effectively connected with its conduct
of a trade or business in the United States, can obtain an exemption from the
withholding tax by filing Form 4224 (Exemption from Withholding of Tax on Income
Effectively Connected with the Conduct of a Trade or Business in the United
States).
Exemption or reduced rate for non-U.S. Persons resident in treaty
countries. (Form 1001). Non-U.S. Persons that are Note Owners residing in a
country that has a tax treaty with the United States can obtain an exemption or
reduced tax rate (depending on the treaty terms) by filing Form 1001 (Ownership,
Exemption or Reduced Rate Certificate). If the treaty provides only for a
reduced rate, withholding tax will be imposed at that rate unless the filer
alternatively files Form W-8. Form 1001 may be filed by the 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 Note Owner of a Global
Security or, in the case of a Form 1001 or a Form 4224 filer, his agent, files
by submitting the appropriate form to the person through whom it holds (the
clearing agency, in the case of persons holding directly on the books of the
clearing agency). Form W-8 and Form 1001 are effective for three calendar years
and Form 4224 is effective for one calendar year.
I-3
<PAGE>
The term "U.S. Person" means (i) a citizen or resident of the United
States, (ii) a corporation or partnership organized in or under the laws of the
United States or any political subdivision thereof, (iii) an estate the income
of which is includible in gross income for United States tax purposes,
regardless of its source or (iv) a trust other than a "Foreign Trust," as
defined in Section 7701(a)(31) of the Code. 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 advise concerning their holding and disposing of the
Global Securities.
I-4
<PAGE>
PROSPECTUS
- ----------
THE MONEY STORE INC.
(Representative)
THE MONEY STORE ASSET BACKED CERTIFICATES
THE MONEY STORE ASSET BACKED NOTES
(Issuable in Series)
This Prospectus relates to The Money Store Asset Backed Certificates (the
"Certificates") and The Money Store Asset Backed Notes (the "Notes" and
collectively with the Certificates, the "Securities") described herein, issuable
in one or more series (each a "Series"), which may be sold from time to time on
terms determined at the time of sale and described in the related Supplement to
this Prospectus (each a "Prospectus Supplement"), evidencing specified interests
in, or rights to receive payments from, one or more trust funds (each, a
"Trust"), the primary assets of which will consist of one or more pools (each, a
"Pool") of certain mortgage loans and certain other mortgage-related or other
similar assets more particularly described herein (the "Mortgage Assets"). The
Mortgage Assets and other assets of any Trust will be described in the
Prospectus Supplement for the related Series of Certificates and/or Notes.
Certain of the Mortgage Assets may have been originated by wholly-owned
subsidiaries (the "Originators") of The Money Store Inc. ("The Money Store" or
the "Representative"). Certain other of the Mortgage Assets may have been
acquired by The Money Store, an Originator or an affiliate thereof from other
lenders or government agencies, or may consist of mortgage pass-through or
mortgage-backed securities issued by government agencies or private lenders. In
addition, if so specified in the related Prospectus Supplement, the Trust will
include monies on deposit in one or more trust accounts to be established with a
Trustee (as defined herein), which may include a Pre-Funding Account (as defined
herein) which would be used to purchase additional Mortgage Assets for the
related Trust from time to time during the Funding Period (as defined herein)
specified in the related Prospectus Supplement. If specified in the related
Prospectus Supplement, certain of the related Securities may evidence a
fractional undivided ownership interest in a Trust which will hold a beneficial
ownership interest in another trust fund which will contain the Mortgage Assets.
Securities may also be entitled to the benefits of insurance policies, cash
accounts, letters of credit, financial guaranty insurance policies, third party
guarantees, guaranties of The Money Store, supplemental interest payments or
other forms of credit enhancement, maturity protection or derivative
instruments, to the extent described in the related Prospectus Supplement. The
Prospectus Supplement for each Series of Securities will name the entities
(which will include The Money Store or one of its affiliates and may include
other entities) which will act, directly or through one or more sub-servicers,
as master servicers (each, in such capacity, the "Master Servicer") of such
Mortgage Assets.
Each Series of Securities will be issued in one or more classes (each, a
"Class"). Each Class of Securities of any series will represent the right to
receive, or be secured by, a specified amount of payments of principal and/or
interest on the related Mortgage Assets in the manner described herein and in
the related Prospectus Supplement. The right of each Class of Securities to
receive payments may be senior or subordinate to the rights of one or more of
the other Classes of such Series. The right of the holders of any Class of
Notes ("Noteholders") and the right of the holders of any Class of Certificates
("Certificateholders" and collectively with the Noteholders, "Securityholders"
or "Holders") to receive any distributions of principal and interest will be set
forth in the related Prospectus Supplement. A Series may include two or more
Classes of Certificates and/or Notes which differ as to the timing and priority
of payment, interest rate or amount of distributions in respect of principal or
interest or both. A Series may include one or more Classes of Certificates
and/or Notes entitled to distributions in respect of principal, with
disproportionate, nominal or no interest distributions, or to interest
distributions, with disproportionate, nominal or no distributions in respect of
principal. Distributions on Certificates of any Series will be subordinated to
prior payments due on the related Notes, if any, to the extent described herein
and in the related Prospectus Supplement. The Securities of each Series will
represent fractional undivided ownership interests in the related Trust.
See Risk Factors on page 21 herein for a discussion of certain risk factors
which should be considered by prospective purchasers of the Securities offered
hereby.
------------------------
The date of this Prospectus is September 11, 1997
<PAGE>
Distributions to Holders of Securities will be made on certain dates specified
in the related Prospectus Supplement (each, a "Remittance Date"), which may be
monthly, quarterly, semi-annually or at such other intervals as are specified
therein. The rate at which any Class of Certificates (the "Pass-Through Rate")
or the rate at which any Class of Notes (the "Interest Rate") bear interest or
the method of calculating such Pass-Through Rate or Interest Rate, which may be
fixed or variable, will be set forth in the related Prospectus Supplement.
Distributions on the Certificates and/or Notes of a Series will be made only
from the assets of the related Trust and certain related property. The Pass-
Through Rate for a Class of Certificates or the Interest Rate for a Class of
Notes that bear interest based upon a floating rate of interest, as specified in
the related Prospectus Supplement, may base such floating rate upon any of
following: (i) the auction procedures described herein (such Securities being
referred to herein as "Auction Rate Securities"), (ii) the London interbank
offered rate for U.S. dollar deposits for a specified period ("LIBOR") plus an
amount set forth in the related Prospectus Supplement , (iii) the average bond
equivalent rates of weekly auctions of Treasury bills for a specified period
(the "T-Bill Rate") plus an amount set forth in the related Prospectus
Supplement or (iv) any such other method or procedures used to determine the
floating rate of interest as may be described in the applicable Prospectus
Supplement.
The Securities will not represent an obligation of or interest in the
Representative (except for any Guaranty (as defined herein) issued in connection
with a Series), the Originators, or any affiliate thereof and, except to the
extent described herein or specified in the related Prospectus Supplement, will
not be insured or guaranteed by any governmental agency or instrumentality or
(except as otherwise specified in the related Prospectus Supplement) by any
other person. Unless otherwise specified in the related Prospectus Supplement,
the only obligations of the Representative or the Originators with respect to a
Series of Securities will be pursuant to certain limited representations and
warranties. Except for certain representations and warranties relating to the
Mortgage Assets and certain other exceptions, the Master Servicer's obligations
with respect to the related Series of Certificates and/or Notes will be limited
to its contractual servicing obligations. If the amount available for
distribution to Holders on any Remittance Date is less than the amount due to
them, the Master Servicer, to the extent provided in the related Prospectus
Supplement, may be obligated, under certain terms and conditions, to advance
cash to such Holders, to the extent such deficiency is attributable to
delinquent payments of principal and/or interest during the immediately
preceding Due Period (as defined herein). See "Description of the Securities --
Monthly Advances and Compensating Interest."
The yield to Holders on each Class of Certificates and/or Notes of a Series
may be affected by the rate of payment of principal (including prepayments) of
the Mortgage Assets in the related Trust and the timing of receipt of such
payments as described herein and in the related Prospectus Supplement. A Trust
may be subject to early termination under the circumstances described herein and
in the related Prospectus Supplement.
If specified in a Prospectus Supplement, an election may be made to treat each
Trust as a "real estate mortgage investment conduit" ("REMIC") for federal
income tax purposes. See "Federal Income Tax Consequences."
----------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS OR THE RELATED PROSPECTUS SUPPLEMENT. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------------------
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT
PASSED ON OR ENDORSED THE MERITS OF THIS OFFERING.
ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
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Offers of the Securities may be made through one or more different methods,
including offerings through underwriters, as more fully described under "Plan of
Distribution" herein and in the related Prospectus Supplement. The intention of
any underwriter to make a secondary market in the Securities will be set forth
in the related Prospectus Supplement. There can be no assurance that a
secondary market for the Securities will develop, or if it does develop, that it
will continue. This Prospectus may not be used to consummate sales of a Series
of Securities unless accompanied by a Prospectus Supplement.
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 obligation of dealers to deliver a Prospectus and Prospectus Supplement when
acting as underwriters and with respect to their unsold allotments or
subscriptions.
PROSPECTUS SUPPLEMENT
The Prospectus Supplement relating to a Series of Certificates and/or Notes to
be offered hereunder, among other things, will set forth with respect to such
Series of Certificates and/or Notes: (i) the aggregate principal amount, the
Pass-Through Rate, Interest Rate or Rates or other applicable annual rate or
rates of interest (or the manner of determining such rate or rates) and
authorized denominations of each Class of such Certificates and/or Notes; (ii)
certain information concerning the Mortgage Assets and insurance policies, cash
accounts, letters of credit, financial guaranty insurance policies, third party
guarantees, guaranties of The Money Store, supplemental interest payments or
other forms of credit enhancement or maturity protection or other derivative
instruments, if any, relating to the Pools or all or part of the related
Certificates and/or Notes; (iii) the specified interest of each Class of
Certificates and/or Notes in, and manner and priority of, the distributions on
the Mortgage Assets; (iv) information as to the nature and extent of
subordination with respect to such Series of Certificates and/or Notes, if any;
(v) the Remittance Dates; (vi) information as to the Master Servicer; (vii) the
circumstances, if any, under which each Trust may be subject to early
termination; (viii) whether the Representative intends to elect to cause the
Trust to be treated as a REMIC; and (ix) additional information with respect to
the plan of sale of such Certificates and/or Notes.
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 450 Fifth
Street, N.W., Washington, D.C. 20549; 7 World Trade Center, 13th Floor, New
York, New York 10048; and Northwestern Atrium 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. The Commission maintains a Web site that contains
reports, proxy and information statements and other information regarding
registrants that file electronically with the Commission. The address of such
site is http://www.sec.gov.
No person has been authorized to give any information or to make any
representation other than those contained in this Prospectus and any Prospectus
Supplement with respect hereto and, if given or made, such information or
representations must not be relied upon. This Prospectus and any Prospectus
Supplement with respect hereto do not constitute an offer to sell or a
solicitation of an offer to buy any securities other than the 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.
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REPORTS TO SECURITYHOLDERS
Periodic and annual reports concerning any Securities and the related Trust
will be provided to the Securityholders as described in the related Prospectus
Supplement. If specified in the related Prospectus Supplement, a Series of
Certificates and/or Notes may be issuable in book-entry form. In such event, the
related Certificates and/or Notes may be registered in the name of Cede & Co.
("Cede"), the nominee of The Depository Trust Company ("DTC") or another
nominee. All reports will be provided to Cede or such other nominee, which in
turn will provide such reports to Participants and Indirect Participants (as
defined herein) of DTC or such other entities as described in the related
Prospectus Supplement. Such Participants and Indirect Participants will then
forward such reports to the beneficial owners of Securities. See "Description of
the Securities -- Book-Entry Registration."
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
All documents filed by or on behalf of the Trust referred to in the
accompanying Prospectus Supplement with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), subsequent to the date of this Prospectus and prior to the
termination of the offering of the Certificates issued by such Trust shall be
deemed to be incorporated by reference in this Prospectus and the related
Prospectus Supplement and to be a part hereof from the date of the filing of
such documents. With respect to any Class of Certificates and/or Notes that is
supported by a Guaranty of The Money Store (a "Guaranty"), The Money Store's
Annual Report on Form 10-K for the year ended December 31, 1996, and Quarterly
Reports on Form 10-Q for the periods ended March 31 and June 30, 1997, which
have been filed with the Commission, are hereby incorporated by reference in
this Prospectus and the related Prospectus Supplement. With respect to any
Class of Securities that is supported by a Guaranty, all documents filed by The
Money Store 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 and
prior to the termination of the offering of the Securities shall be deemed to be
incorporated by reference into this Prospectus and the related Prospectus
Supplement and to be a part hereof from the respective dates of filing such
documents. Any statement contained herein or 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 the accompanying Prospectus Supplement) 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 such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute part of this Prospectus. The Representative will provide without
charge to each person to whom a copy of the Prospectus is delivered, on the
written or oral request of any such person, a copy of any or all of the
documents incorporated herein by reference, except the exhibits to such
documents (unless such exhibits are specifically incorporated by reference in
such documents). Requests for such copies should be directed to The Money Store
Inc., 3301 C Street, Suite 100-M, Sacramento, California 95816, Attention:
Investor Relations, Telephone: (916) 446-5000.
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SUMMARY OF TERMS
This summary is qualified in its entirety by reference to the detailed
information appearing elsewhere in this Prospectus and in the related Prospectus
Supplement. Capitalized terms used but not defined in this Prospectus shall
have the meanings assigned to such terms elsewhere in this Prospectus.
Securities
Offered ............ The Money Store Asset Backed Certificates (the
"Certificates") and The Money Store Asset Backed Notes
(the "Notes"). Notes are issuable from time to time in
Series pursuant to an Indenture (an "Indenture"), and
Certificates are issuable from time to time in Series
pursuant to either a Pooling and Servicing Agreement (a
"Pooling and Servicing Agreement") or a Trust Agreement (a
"Trust Agreement"). As used herein, "Agreements" means,
collectively, with respect to a Series of Certificates, the
related Pooling and Servicing Agreement or the related
Trust Agreement, with respect to a Series of Notes, the
related Indenture and the related Sale and Servicing
Agreement, as the context requires, and with respect to a
Series of Securities, the relevant combination of
Agreements for such Series. Each Certificate of a Series
will evidence an interest in the Trust Fund or Trust Funds
for such Series, as specified in the related Prospectus
Supplement. Each Series of Securities will consist of one
or more Classes, each Class may differ in, among other
things, the amounts allocated to and the priority of
principal and interest payments. The Securities of each
Class will be issued in fully registered form in the
denominations specified in the related Prospectus
Supplement. If so specified in the related Prospectus
Supplement, the Securities or certain Classes of such
Securities offered thereby may be available in book-entry
form only.
Issuers ............ Certain trust funds (each, a "Trust") represented by The
Money Store or its affiliates, the primary assets of which
will be one or more Pools of Mortgage Loans and certain
other Mortgage Assets.
Representative
and Master
Servicer ........... The Money Store Inc. ("The Money Store"), a New Jersey
corporation, or certain of its affiliates. The Prospectus
Supplement relating to any Series of Certificates and/or
Notes will name the entities (which may include The Money
Store or one of its affiliates and may additionally include
other unrelated entities) which will act, directly or
through one or more Sub-Servicers (as defined herein), as
master servicers (each, in such capacity, the "Master
Servicer"), on the terms and conditions set forth in the
related Pooling and Servicing Agreement or Sale and
Servicing Agreement (a "Sale and Servicing Agreement").
The principal offices of The Money Store are located in
Sacramento, California and Union, New Jersey. See "The
Representative and the Originators."
The Mortgage
Assets ............. The Securities will evidence fractional undivided ownership
interests in certain Trusts further described herein. The
primary assets of each Trust may consist of one or more
pools (each, a "Pool") of Mortgage Loans and certain other
mortgage-related assets ("Mortgage Assets") specified in
the related Prospectus Supplements, which may include (i)
first, second and more junior lien mortgage loans, deeds of
trust or participations therein secured by one- to four-
family residential properties, including low-rise
condominiums, single family detached homes, single-family
attached homes, planned unit developments and
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mixed use properties (collectively, "Single Family Loans,"
which Single Family Loans may be "Conventional Loans"
(i.e., loans that are not insured or guaranteed by any
----
governmental agency) or loans that are insured by the
Federal Housing Authority ("FHA") or partially guaranteed
by the Veterans' Administration ("VA") as specified in the
related Prospectus Supplement), (ii) loans or
participations therein secured by security interests or
similar liens on shares in private, non-profit cooperative
housing corporations ("Cooperatives") and on the related
proprietary leases or occupancy agreements granting
exclusive rights to occupy specific dwelling units in such
Cooperatives' buildings ("Cooperative Loans"), (iii) first,
second and more junior lien mortgage loans, deeds of trust
or participations therein secured by multifamily
residential or mixed-use properties, such as rental
apartment buildings (including buildings owned by
Cooperatives) or projects containing five or more
residential units ("Multifamily Loans"), (iv) conditional
sales contracts and installment sales or loan agreements or
participations therein secured by manufactured housing
("Contracts"), (v) mortgage-backed securities issued or
guaranteed by the Government National Mortgage Association
("GNMA"), the Federal National Mortgage Association
("FNMA") or the Federal Home Loan Mortgage Corporation
("FHLMC") (the "Agency Securities"), (vi) privately issued
mortgage-backed securities not constituting Agency
Securities ("Private Mortgage-Backed Securities" or
"PMBS"), (vii) first, second and more junior home
improvement mortgage loans that are either conventional
loans ("Secured Conventional Home Improvement Loans") or
loans originated under the Title I credit insurance program
created under the National Housing Act of 1934 by the
Federal Housing Administration ("FHA Loans"), and (viii)
unsecured home improvement loans consisting of conventional
unsecured home improvement loans and FHA insured home
improvement loans (the "Unsecured Home Improvement Loans").
The Single Family Loans, Cooperative Loans, Multifamily
Loans, Secured Conventional Home Improvement Loans, FHA
Loans and Unsecured Home Improvement Loans are sometimes
referred to herein collectively as the "Mortgage Loans."
The Mortgage Loans may be closed-end or revolving as
described in the related Prospectus Supplement.
A. Mortgage
Loans ........... The payment terms of the Mortgage Loans to be included in
any Pool will be described in the related Prospectus
Supplement and may include any of the following features,
combinations thereof or other features described in the
related Prospectus Supplement:
(a) Interest may be payable at a fixed rate (a "Fixed Rate")
or may be payable at a rate that is adjustable from time
to time in relation to an index, that may be fixed for a
period of time or under certain circumstances and is
followed by an adjustable rate, a rate that other-wise
varies from time to time, or a rate that is convertible
from an adjustable rate to a fixed rate (each, an
"Adjustable Rate"). The specified rate of interest on a
Mortgage Loan is its "Mortgage Interest 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 permit the payment of interest at a
rate lower than the Mortgage Interest Rate for a period
of time or for the life of the Mortgage Loan, and the
amount of any difference may be
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contributed from funds supplied by the seller of the
properties securing the related Mortgage Loan (the
"Mortgaged Properties") or another source or may be
treated as accrued interest and added to the principal
of the Mortgage Loan.
(b) Principal may be payable on a level basis to fully
amortize the Mortgage Loan over its term, may be
calculated on the basis of an assumed amortization
schedule that is significantly longer than the original
term to maturity or on an interest rate that is
different from the Mortgage Interest Rate, 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 (a "balloon" payment). From time
to time, 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 ("graduated payments"), 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 adjust or 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 other transfers of
the related Mortgaged Properties. Other Mortgage Loans
may be assumable by persons meeting the then applicable
underwriting standards of the originator.
The Mortgaged Properties relating to Mortgage Loans may be
located in any one of the fifty states, the District of
Columbia, the Commonwealth of Puerto Rico or any other
commonwealth, territory or possession of the United States.
The Mortgaged Properties generally will be covered by
standard hazard insurance policies ("Standard Hazard
Insurance Policies") insuring against losses due to fire
and various other causes. The Mortgage Loans may be
covered by Primary Mortgage Insurance Policies to the
extent provided in the related Prospectus Supplement. As
set forth in the related Prospectus Supplement, certain of
the Mortgage Loans underlying a given Series of Securities
may have been originated by the Representative, the
Originators or affiliates thereof and certain Mortgage
Loans may have been purchased by the Representative, an
Originator or an affiliate thereof in the open market or in
privately negotiated transactions, including transactions
with entities affiliated with the Representative.
Certain of the Mortgage Loans may be partially insured by
the FHA, an agency of the United States Department of
Housing and Urban Development ("HUD"),
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pursuant to the Title I credit insurance program (the
"Title I Loan Program") of the National Housing Act of
1934. Several types of loans may be made under the Title I
Loan Program, including (1) property improvement loans; (2)
manufactured home purchase loans, (3) manufactured home lot
loans; and (4) combination loans (to purchase a
manufactured home and a lot). The Title I Loan Program is a
coinsurance program. The lender initially is at risk for
10% of the principal balance of each loan. The FHA will
insure the remaining 90% of the principal balance of each
loan, subject to certain limits. Such FHA insurance is
accorded the full faith and credit of the United States of
America.
The Prospectus Supplement for each Series of Securities
generally will specify with respect to all Mortgage Loans
expected to be included in the related Pool as of the
related closing date, among other things, (i) the expected
aggregate outstanding principal balance and the expected
average outstanding principal balance of the Mortgage Loans
in such Pool as of the date specified in the Prospectus
Supplement, (ii) the largest expected principal balance and
the smallest expected principal balance of any of the
Mortgage Loans, (iii) the types of Mortgaged Properties
and/or other assets securing the Mortgage Loans and the
percentage, if any, of Unsecured Home Improvement Loans
expected to be included in the related Pool, (iv) the
original terms to maturity of the Mortgage Loans, (v) the
expected weighted average term to maturity of the Mortgage
Loans as of the date specified in the Prospectus Supplement
and the expected range of the terms to maturity, (vi) the
earliest origination date and latest maturity date of any
of the Mortgage Loans, (vii) the expected weighted average
Combined Loan-to-Value Ratios at origination (viii) the
expected weighted average Mortgage Rate or APR and ranges
of Mortgage Rates or APRs borne by the Mortgage Loans or
Contracts (as the case may be), (ix) in the case of
Mortgage Loans having Adjustable Rates, the expected
weighted average of the Adjustable Rates as of the date set
forth in the Prospectus Supplement and maximum permitted
Adjustable Rates, if any, (x) the expected aggregate
outstanding principal balance, if any, of "buydown"
mortgage loans (as hereinafter described) and Mortgage
Loans having graduated payment provisions, as of the date
set forth in the Prospectus Supplement, (xi) the amount of
any Guaranty Insurance Policy, Mortgage Pool Insurance
Policy, Special Hazard Insurance Policy or Bankruptcy Bond
(each as defined herein) to be maintained with respect to
such Pool, (xii) the amount, if any, and terms of any
other credit enhancement or other derivative instruments to
be provided with respect to all or any Mortgage Loans or
the Pool and (xiii) the expected geographic location of the
Mortgaged Properties, if any.
B. Contracts ....... Contracts will consist of conditional sales and installment
sales or loan agreements secured by new or used
Manufactured Homes (as defined herein). To the extent
provided in the related Prospectus Supplement, each
Contract will be fully amortizing and will bear interest at
a fixed annual percentage rate ("APR").
C. Agency
Securities ...... The Agency Securities will consist of (i) fully modified
pass-through mortgage-backed certificates guaranteed as to
timely payment of principal and interest by the Government
National Mortgage Association ("GNMA Certificates"), (ii)
guaranteed mortgage pass-through certificates issued and
guaranteed as to timely payment of principal and interest
by the Federal National Mortgage Association ("FNMA
Certificates"), (iii) Mortgage Participation Certificates
issued and guaranteed as to timely payment of interest
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and, unless otherwise specified in the related Prospectus
Supplement, ultimate payment of principal by the Federal
Home Loan Mortgage Corporation ("FHLMC Certificates"), (iv)
stripped mortgage-backed securities representing an
undivided interest in all or a part of either the principal
distributions (but not the interest distributions) or the
interest distributions (but not the principal
distributions) or in some specified portion of the
principal and interest distributions (but not all of such
distributions) on certain GNMA, FNMA, FHLMC or other
government agency or government-sponsored agency
Certificates and, unless otherwise specified in the
Prospectus Supplement, guaranteed to the same extent as the
underlying securities, (v) another type of guaranteed pass-
through certificate issued or guaranteed by GNMA, FNMA,
FHLMC or another government agency or government-sponsored
agency and described in the related Prospectus Supplement,
or (vi) a combination of such Agency Securities. All GNMA
Certificates will be backed by the full faith and credit of
the United States. No FNMA or FHLMC Certificates will be
backed, directly or indirectly, by the full faith and
credit of the United States. The Agency Securities may
consist of pass-through securities issued under the GNMA I
Program, the GNMA II Program, FHLMC's Cash or Guarantor
Program or another program specified in the Prospectus
Supplement. The payment characteristics of the Mortgage
Loans underlying the Agency Securities will be described in
the related Prospectus Supplement. See "The Trusts--Agency
Securities."
D. Private Mortgage-
Backed
Securities ...... Private Mortgage-Backed Securities may include (i) mortgage
participations or pass-through certificates representing
beneficial interests in certain mortgage loans or (ii)
Collateralized Mortgage Obligations ("CMOs") secured by
such mortgage loans. Although individual mortgage loans
underlying a Private Mortgage-Backed Security (each an
"Underlying Mortgage Loan") may be insured or guaranteed by
the United States or an agency or instrumentality thereof,
they need not be, and the Private Mortgage-Backed
Securities themselves will not be, so insured or
guaranteed. Unless otherwise specified in the Prospectus
Supplement relating to a Series of Securities, payments on
the Private Mortgage-Backed Securities will be distributed
directly to the Trustee as registered owner of such Private
Mortgage-Backed Securities. See "The Trusts--Private
Mortgage-Backed Securities."
The Prospectus Supplement for each Series of Securities
will specify, with respect to any Private Mortgaged-Backed
Securities owned by the related Trust: (i) the aggregate
approximate principal amount and type of Private Mortgage-
Backed Securities; (ii) certain characteristics of the
mortgage loans underlying the Private Mortgage-Backed
Securities, including (A) the payment features of such
mortgage loans, (B) the approximate aggregate principal
amount, if known, of the underlying mortgage loans which
are insured or guaranteed by a governmental entity, (C) the
servicing fee or range of servicing fees with respect to
such mortgage loans, and (D) the minimum and maximum stated
maturities of the mortgage loans at origination; (iii) the
maximum original term-to-stated maturity of the Private
Mortgage-Backed Securities; (iv) the weighted average term-
to-stated maturity of the Private Mortgage-Backed
Securities; (v) the pass-through or certificate rate or
ranges thereof for the Private Mortgage-Backed Securities;
(vi) the weighted average pass-through or certificate rate
of the Private Mortgage-Backed Securities; (vii) the issuer
of the Private Mortgage-Backed Securities (the "PMBS
Issuer"), the servicer of the
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Private Mortgage-Backed Securities (the "PMBS Servicer")
and the trustee of the Private Mortgage-Backed Securities
(the "PMBS Trustee"); (viii) certain characteristics of
credit support, if any, such as reserve funds, insurance
policies, letters of credit, financial guaranty insurance
policies or third party guarantees, relating to the
mortgage loans underlying the Private Mortgage-Backed
Securities, or to such Private Mortgage-Backed Securities
themselves; (ix) the terms on which underlying mortgage
loans for such Private Mortgage-Backed Securities may, or
are required to, be repurchased prior to stated maturity;
and (x) the terms on which substitute mortgage loans may be
delivered to replace those initially deposited with the
PMBS Trustee. See "The Trusts."
Pre-Funding
Account ............ If provided in the related Prospectus Supplement, the
original principal amount of a Series of Securities may
exceed the principal balance of the Mortgage Assets
initially being delivered to the Trustee. Cash in an
amount up to the amount of such difference (such amount,
the "Pre-Funded Amount") will be deposited into a separate
trust account (the "Pre-Funding Account") maintained with
the Trustee for the benefit of the Holders. During the
period set forth in the related Prospectus Supplement (the
"Funding Period"), the Pre-Funded Amount in the Pre-Funding
Account may be used to purchase additional Mortgage Assets
for the related Trust subject to the satisfaction of
certain conditions specified under the Agreements.
For a Trust that elects to be characterized as either a
REMIC or a grantor trust under current federal income tax
laws, the maximum length of the related Funding Period will
not exceed three calendar months or 90 days, respectively,
from the date of issuance of the Securities and otherwise
the maximum length of the Funding Period will not exceed
the period set forth in the related Prospectus Supplement.
The amount of the initial Pre-Funded Amount is intended not
to exceed the aggregate principal balance of additional
Mortgage Assets that the Representative anticipates will be
acquired and conveyed to the Trust during the applicable
Funding Period.
Prior to the conveyance of any additional Mortgage Assets
to the Trust, the Representative will be required to give
notice of the additional Mortgage Assets to be conveyed to
the Trust to the Trustee(s) and any third-party credit
enhancement provider. Upon the satisfaction of the
conditions set forth in the Agreement, the Trustee will
release from the Pre-Funding Account the necessary funds to
purchase the additional Mortgage Assets to be conveyed to
the Trust on such date. If any Pre-Funded Amount remains
on deposit in the Pre-Funding Account at the end of the
Funding Period, such amount, in the amounts and in the
manner specified in the related Prospectus Supplement, will
be used to prepay some or all Classes of the related Series
of Certificates and/or Notes.
Revolving Period
and Amortization
Period; Retained
Interest ........... If the related Prospectus Supplement so provides, there may
be a period commencing on the date of issuance of a Class
or Classes of Notes and/or Certificates of a Series and
ending on the date set forth in the related Prospectus
Supplement (each, a "Revolving Period") during which
limited or no principal payments will be made to one or
more Classes of Notes and/or Certificates of the related
Series as are identified in such Prospectus Supplement.
Some or all
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collections of principal otherwise allocated to such
Classes of Notes or Certificates may be (i) utilized during
the Revolving Period to acquire additional Mortgage Assets
which satisfy the criteria described under "The Trusts--The
Mortgage Loans" and the criteria set forth in the related
Prospectus Supplement, (ii) held in an account and invested
in Permitted Investments (as defined herein), for later
distribution to Securityholders, (iii) applied to those
Notes or Certificates for such Series, if any, specified in
the related Prospectus Supplement as then are in
amortization, or (iv) otherwise applied as specified in the
related Prospectus Supplement.
An "Amortization Period" is the period during which an
amount of principal is payable to Holders of Securities
which, during the Revolving Period, were not otherwise
entitled to such payments. If so specified in the related
Prospectus Supplement, during an Amortization Period all or
a portion of principal collections on the Mortgage Loans
may be applied as specified above for a Revolving Period
and, to the extent not so applied, will be distributed to
the Classes of Notes and/or Certificates for such Series
specified in the related Prospectus Supplement as then
being entitled to payments of principal. In addition, if
so specified in the related Prospectus Supplement, amounts
deposited in certain accounts for the benefit of one or
more Classes of Notes or Certificates for such Series may
be released from time to time or on a specified date and
applied as a payment of principal on such Classes of Notes
and/or Certificates. The related Prospectus Supplement
will set forth the circumstances which will result in the
commencement of an Amortization Period.
Each Series which has a Revolving Period may also issue
to the Representative or one of its affiliates a
certificate evidencing an undivided beneficial interest (a
"Retained Interest") in such Series not represented by the
other Securities issued by the related Trusts. As further
described in the related Prospectus Supplement, the value
of such Retained Interest will fluctuate as the amount of
Notes and Certificates of the related Series of Securities
outstanding is reduced.
Description of the
Certificates ....... Each Certificate will represent a fractional undivided
ownership interest in the Trust created pursuant to the
related Agreement. The primary assets of such Trust will
be a Pool of Mortgage Loans and certain other Mortgage
Assets. The Certificates of any Series may be issued in
one or more Classes, as specified in the related Prospectus
Supplement. A Series of Certificates may include one or
more Classes of senior Certificates (collectively, "Senior
Certificates") which receive certain preferential treatment
specified in the related Prospectus Supplement with respect
to one or more Classes of subordinate Certificates
(collectively, the "Subordinated Certificates"). In
addition, a Series may include one or more Series entitled
to (i) principal payments with disproportionate, nominal or
no interest payments or (ii) interest payments with
disproportionate, nominal or no principal payments (such
Certificates, "Strip Certificates"). Certain Series or
Classes of Certificates may be covered by a Guaranty
Insurance Policy, Mortgage Pool Insurance Policy, Special
Hazard Insurance Policy, Bankruptcy Bond or other insurance
policies, cash accounts, letters of credit, financial
guaranty insurance policies, third party guarantees,
supplemental interest payments or other forms of credit
enhancement or maturity protection, or derivative products
as described herein and in the related Prospectus
Supplement.
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Each Class of Certificates within a Series will evidence
the interests specified in the related Prospectus
Supplement, which may (i) include the right to receive
distributions allocable only to principal, only to interest
or to any combination thereof; (ii) include the right to
receive distributions only of prepayments of principal
throughout the lives of the Certificates or during
specified periods; (iii) be subordinated in its right to
receive distributions of scheduled payments of principal,
prepayments of principal, interest or any combination
thereof to one or more other Classes of Certificates of
such Series throughout the lives of the Certificates or
during specified periods or may be subordinated with
respect to certain losses or delinquencies; (iv) include
the right to receive such distributions only after the
occurrence of events specified in the Prospectus
Supplement; (v) include the right 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) include, as to Certificates entitled to
distributions allocable to interest, the right to receive
interest at a fixed rate or a floating rate; and (vii)
include, as to Certificates entitled to distributions
allocable to interest, the right to distributions allocable
to interest only after the occurrence of events specified
in the related Prospectus Supplement, and in each case, may
accrue interest until such events occur, as specified in
such Prospectus Supplement. The timing and amounts of such
distributions may vary among Classes, over time, or
otherwise as specified in the related Prospectus
Supplement. The Pass-Through Rate for a Class of
Certificates that pay interest based upon a floating rate
of interest, as specified in the related Prospectus
Supplement, may base such floating rate upon any of
following: (i) the auction procedures for Auction Rate
Securities described herein, (ii) LIBOR plus an amount set
forth in the related Prospectus Supplement , (iii) the T-
Bill Rate plus an amount set forth in the related
Prospectus Supplement or (iv) any such other method or
procedures used to determine the floating rate of interest
as may be described in the applicable Prospectus
Supplement.
The Certificates will be issuable in fully registered form,
in minimum denominations of $1,000 and integral multiples
of $1,000 in excess thereof (or such other amounts as may
be set forth in a Prospectus Supplement), except that one
Certificate of each Class may be issued in a different
denomination. See "Description of Securities."
With respect to any Series of Securities including one or
more Classes of Notes, distributions in respect of the
Certificates may be subordinated in priority of payment to
payments on the Notes of such Series, to the extent
specified in the related Prospectus Supplement.
Description of the
Notes .............. Any Series of Securities may include one or more Classes of
Notes, as specified in the related Prospectus Supplement,
each of which will be issued pursuant to an Indenture and
will be treated as debt obligations of the related Trust.
Unless otherwise specified in the related Prospectus
Supplement, Notes will be available for purchase in
denominations of $1,000 and integral multiples of $1,000
(or such other accounts as may be set forth in a Prospectus
Supplement), except that one Note of each Class may be
issued in a different denomination, in book-entry form or
in definitive form, as specified in the related Prospectus
Supplement. See "Description of the Securities."
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Each Class of Notes will have a stated principal amount
and will bear interest at the Interest Rate or Rates as
specified in the related Prospectus Supplement, which may
be different for each Class of Notes and may be fixed,
variable, adjustable, or any combination of the foregoing.
The related Prospectus Supplement will specify the Interest
Rate for each Class of Notes or the method for determining
the Interest Rate. The Interest Rate for a Class of Notes
that pay interest based upon a floating rate of interest,
as specified in the related Prospectus Supplement, may base
such floating rate upon any of following: (i) the auction
procedures for Auction Rate Securities described herein,
(ii) LIBOR plus an amount set forth in the related
Prospectus Supplement , (iii) the T-Bill Rate plus an
amount set forth in the related Prospectus Supplement or
(iv) any such other method or procedures used to determine
the floating rate of interest as may be described in the
applicable Prospectus Supplement. Each Note may also
represent a fractional undivided interest in, or be
entitled to receive payments from, monies on deposit, if
any, in the Pre-Funding Account as specified in the related
Prospectus Supplement and any other account established for
the benefit of Noteholders, as specified in the related
Prospectus Supplement.
A Series may include two or more Classes of Notes which
differ as to the timing and priority of payment, seniority,
allocations of loss, Interest Rate or amount of payments of
principal or interest, or as to which payments of principal
or interest may or may not be made upon the occurrence of
specified events or on the basis of collections from
designated portions of the Mortgage Assets for such Series.
In addition, a Series may include one or more Classes of
Notes entitled to (i) principal payments with
disproportionate, nominal or no interest payments or (ii)
interest payments with disproportionate, nominal or no
principal payments (such Notes, "Strip Notes"). A Series
of Notes may include one or more Classes of senior Notes
(collectively, "Senior Notes") which receive certain
preferential treatment specified in the related Prospectus
Supplement with respect to one or more Classes of
subordinate Notes (collectively, the "Subordinated Notes").
Certain Series or Classes of Notes may be covered by a
Guaranty Insurance Policy, Mortgage Pool Insurance Policy,
Special Hazard Insurance Policy, Bankruptcy Bond or other
insurance policies, cash accounts, letters of credit,
financial guaranty insurance policies, third party
guarantees, supplemental interest payments or other forms
of credit enhancement or maturity protection or derivative
instruments, as described herein and in the related
Prospectus Supplement.
Credit
Enhancement ........ The Mortgage Assets in a Trust or the Securities of one or
more Classes in the related Series may have the benefit of
one or more types of credit enhancement, as described in
the related Prospectus Supplement. The protection against
losses afforded by any such credit support may be limited.
Such credit enhancement may include one or more of the
following types:
A. Subordination
and Reserve
Accounts ........ The rights of all Certificateholders will be subordinated
to the rights of all Noteholders of a Series to receive
distributions to the extent described in the related
Prospectus Supplement, with respect to the Mortgage Assets
and other assets in the related Trust. The rights of the
holders of Subordinated Certificates and/or Subordinated
Notes, as the case may be (collectively, "Subordinated
Securities"), of a Series to receive distributions will be
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subordinated to the rights of the holders of the Senior
Certificates and/or Senior Notes, as the case may be
(collectively, "Senior Securities"), of the same Series to
receive distributions to the extent described in the
related Prospectus Supplement. This subordination is
intended to enhance the likelihood of regular receipt by
holders of Senior Securities of the full amount of payments
which such holders would be entitled to receive if there
had been no losses or delinquencies. The protection
afforded to the holders of Senior Securities through
subordination may be accomplished by the preferential right
of such holders to receive, prior to any distribution being
made in respect of the related Subordinated Securities the
amounts of principal and interest due to them on each
Remittance Date out of the funds available for distribution
on such date in the related Distribution Account (as
defined herein) to the extent described in the related
Prospectus Supplement. The protection afforded to the
holders of Senior Securities through subordination also may
be accomplished by allocating certain types of losses or
delinquencies to the related Subordinated Securities to the
extent described in the related Prospectus Supplement.
If so specified in the related Prospectus Supplement, the
same Class of Securities may constitute Senior Certificates
and/or Senior Notes, as the case may be, with respect to
certain types of payments or certain losses or
delinquencies and Subordinated Certificates and/or
Subordinated Notes, as the case may be, with respect to
other types of payments or losses or delinquencies. If so
specified in the related Prospectus Supplement,
subordination may apply only in the event of certain types
of losses not covered by other forms of credit support,
such as hazard losses not covered by Standard Hazard
Insurance Policies or losses due to the bankruptcy of a
Mortgagor not covered by a Bankruptcy Bond. If further
specified in the related Prospectus Supplement, one or more
reserve accounts (each, a "Reserve Account") may be
established and maintained, in whole or in part, by the
deposit therein of distributions allocable to the holders
of Subordinated Certificates and/or Subordinated Notes, as
the case may be, for a specified time or until a specified
level is reached. The related Prospectus Supplement will
set forth information concerning the amount of
subordination of a Class or Classes of Subordinated
Certificates and/or Subordinated Notes, as the case may be,
in a Series, the circumstances in which such subordination
will be applicable, the manner, if any, in which the amount
of subordination will decrease over time, the manner of
funding any Reserve Account, and the conditions under which
amounts in any such Reserve Account will be used to make
distributions to holders of Senior Certificates and/or
Senior Notes, as the case may be, or released to holders of
Subordinated Certificates and/or Subordinated Notes, as the
case may be, from the related Trust.
B. Guaranty
Insurance
Policy .......... A certificate or note guaranty insurance policy (each a
"Guaranty Insurance Policy") may be obtained and maintained
for each Class or Series of Certificates and/or Notes.
Guaranty Insurance Policies generally unconditionally and
irrevocably guarantee that the full amount of the
distributions of principal and interest, as well as any
other amounts specified in the related Prospectus
Supplement, will be received by an agent of the Trustee,
for distribution by the Trustee to holders of the covered
Securities. Guaranty Insurance Policies may have certain
limitations set forth in the related Prospectus Supplement,
including (but not limited to) limitations on the insurer's
obligation to guarantee the Master Servicer's obligation to
repurchase
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or substitute for any Mortgage Loans, to guarantee any
specified rate of prepayments or to provide funds to redeem
Securities on any specified date.
C. Spread
Amount .......... If so specified in the related Prospectus Supplement,
certain Classes of Certificates and/or Notes may be
entitled to receive limited acceleration of principal
relative to the amortization of the related Mortgage
Assets. The accelerated amortization will be achieved by
applying certain excess interest collected on the Mortgage
Assets to the payment of principal on such Classes of
Securities. This acceleration feature is intended to
create an amount (the "Spread Amount"), resulting from, and
generally equal to, the excess of the aggregate principal
balances of the applicable Mortgage Assets over the
principal balances of the applicable Classes of Securities.
Once the required Spread Amount is reached, and subject to
the provisions described in the next sentence and in the
related Prospectus Supplement, the acceleration feature
will cease, unless necessary to maintain the required level
of the Spread Amount. The applicable Agreement may provide
that, subject to certain floors, caps and triggers, the
required level of the Spread Amount may increase or
decrease over time. An increase would result in a
temporary period of accelerated amortization of the
applicable Classes of Securities to increase the actual
level of the Spread Amount to its required level; a
decrease would result in a temporary period of decelerated
amortization to reduce the actual level of the Spread
Amount to its required level. An Agreement also may
provide that after one or more Classes of Securities have
been paid to the required level of the Spread Amount,
excess interest, together with certain other excess
amounts, may be applied to make-up shortfalls in, or
accelerate the amortization of, other Classes of
Securities.
D. Mortgage Pool
Insurance
Policy .......... A mortgage pool insurance policy or policies ("Mortgage
Pool Insurance Policy") may be obtained and maintained for
each Series pertaining to Mortgage Loans and Contracts,
limited in scope, covering defaults on the related Mortgage
Loans or Contracts in an initial amount equal to a
specified percentage of the aggregate principal balance of
all Mortgage Loans or Contracts included in the Pool as of
the Cut-off Date or such other date as is specified in the
related Prospectus Supplement.
E. Special Hazard
Insurance
Policy .......... In the case of Mortgage Loans or Contracts, certain
physical risks that are not otherwise insured against by
Standard Hazard Insurance Policies may be covered by a
special hazard insurance policy or policies (a "Special
Hazard Insurance Policy"). The level of coverage of each
Special Hazard Insurance Policy will be specified in the
related Prospectus Supplement.
F. Bankruptcy
Bonds ........... A mortgagor bankruptcy bond or bonds ("Bankruptcy Bond")
may be obtained to cover certain losses resulting from a
reduction by a bankruptcy court of scheduled payments of
principal or interest on a Mortgage Loan or Contract or a
reduction by such court of the principal amount of a
Mortgage Loan or Contract, and will cover certain unpaid
interest on the amount of such a principal reduction. The
level of coverage of each Bankruptcy Bond will be specified
in the related Prospectus Supplement.
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G. Cross
Support ......... If so specified in the Prospectus Supplement, the ownership
interests of separate Trusts or separate groups of assets
may be evidenced by separate Classes of the related Series
of Certificates and/or Notes. In such case, credit support
may be provided by a cross-support feature which requires
that distributions be made with respect to certain
Certificates and/or Notes evidencing interests in one or
more Trusts or asset groups prior to distributions to other
Certificates and/or Notes evidencing interests in other
asset groups or Trusts. If specified in the related
Prospectus Supplement, the coverage provided by one or more
forms of credit support may apply concurrently to two or
more separate Trusts, without priority among such Trusts,
until the credit support is exhausted. If applicable, the
Prospectus Supplement will identify the Trusts or asset
groups 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 or asset groups.
H. Supplemental
Interest
Payments ........ If so specified in the Prospectus Supplement, one or more
Classes of Certificates and/or Notes may be entitled to
receive supplemental interest payments under specified
circumstances. Supplemental interest payments will be
available to fund some or all of the difference, if any,
between the interest owed to a Class of Securities on a
Remittance Date and the interest that would be available to
pay such interest assuming no defaults or delinquencies on
the Mortgage Assets. Such differences may result if the
interest rates on the applicable Classes of Securities are
based upon an index that differs from the index used in
determining the interest rates on the Mortgage Assets.
Except as otherwise provided in a Prospectus Supplement,
supplemental interest payments will not be available to
fund shortfalls resulting from delinquencies or defaults on
the Mortgage Assets.
I. Maturity
Protection ...... If so specified in the Prospectus Supplement, one or more
Classes of Certificates and/or Notes may be entitled to
third-party payments to help provide that the holders of
such Securities receive their unpaid principal on or prior
to a specified date.
J. The Guaranty ... If so specified in the Prospectus Supplement, and in order
to provide additional credit enhancement, The Money Store
may provide a guaranty of amounts due on certain Classes of
Certificates and/or Notes. The amount and formula for
calculating such guaranty shall be as set forth in the
Prospectus Supplement.
K. Other Insurance,
Guarantees, Swaps,
and Similar
Instruments or
Agreements ...... If specified in the related Prospectus Supplement, a Trust
may include in lieu of some or all of the foregoing or in
addition thereto letters of credit, financial guaranty
insurance policies, other third party guarantees, limited
guarantees or insurance from agencies or instrumentalities
of the United States, and other arrangements for
maintaining timely payments or providing additional
protection against losses on the assets included in such
Trust, paying administrative expenses, or accomplishing
such other purpose as may be described in the Prospectus
Supplement. The Trust may include a guaranteed
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investment contract or reinvestment agreement pursuant to
which funds held in one or more accounts will be invested
at a specified rate.
If any Class of Securities has a floating interest rate, or
if any of the Mortgage Assets has a floating interest rate,
the Trust may include an interest rate swap contract, an
interest rate cap agreement or similar hedge contract
providing limited protection against interest rate risks.
If provided in the related Prospectus Supplement, interest
and/or principal on one or more Classes of the Securities
of a Series may be paid to Holders thereof in a currency
other than U.S. dollars. If so provided, the Trust may, in
connection therewith, enter into one or more currency rate
swaps to provide limited protection against foreign
currency rate fluctuation risks. One or more Classes of
Securities also may be issued in conjunction with a put or
call feature entitling (in the case of a put) or obligating
(in the case of a call) the applicable Securityholders to
sell some or all of its Securities to the party named in
the applicable Prospectus Supplement on the date or dates
set forth therein. Any such arrangement must be acceptable
to each nationally recognized rating agency that provides a
rating for the related Series of Securities (the "Rating
Agency"). Additionally, to the extent a significant portion
of the Mortgage Loans underlying a given Series of
Securities consists of FHA Loans, the related Prospectus
Supplement will describe the features of any related credit
support including, but not limited to, that provided by the
FHA, if any.
Monthly Advances ... If so specified in the related Prospectus Supplement, the
Master Servicer will be required under each Agreement to
remit to the Trustee no later than the day of each month
which is at least three business days prior to the
Remittance Date and is in no case earlier than the seventh
business day of such month (the "Determination Date") the
amount (a "Monthly Advance"), if any, by which (a) the sum
of (x) 30 days' interest at the weighted average Adjusted
Mortgage Loan Remittance Rate (as defined herein under
"Description of the Securities--Monthly Advances and
Compensating Interest") on the then outstanding principal
balance of the related Series of Certificates and/or Notes
and (y) the amount, if any, required to be deposited into
the related Reserve Account (as specified in the related
Prospectus Supplement) for the related Remittance Date
exceeds (b) the amount received by the Master Servicer in
respect of interest on the Mortgage Loans as of the related
Record Date. Such advances by the Master Servicer are
reimbursable in the first instance from late collections of
interest, including amounts received in connection with the
liquidation of defaulted Mortgage Loans ("Liquidation
Proceeds"), amounts paid by any insurer pursuant to any
insurance policy covering a Mortgage Loan, Mortgaged
Property or REO Property ("Insurance Proceeds"), and
proceeds received by the Master Servicer in connection with
condemnation, eminent domain or a release of lien
("Released Mortgaged Property Proceeds") collected with
respect to the related Mortgage Loans as to which the
advances were made, and any other amount that would
otherwise be distributed on the Class R Certificates. The
Master Servicer will not be required to make any Monthly
Advances which it determines, in good faith, would be
nonrecoverable from amounts received in respect of the
Mortgage Loans. See "Description of the Securities--
Monthly Advances and Compensating Interest."
Compensating
Interest ........... If so specified in the related Prospectus Supplement, with
respect to each Mortgage Loan as to which the Master
Servicer receives a principal payment in full in advance of
the final scheduled due date (a "Principal Prepayment") or
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receives a principal payment that exceeds the scheduled
payment by a specified multiple, but which was not intended
by the Mortgagor to satisfy the Mortgage Loan in full or to
cure a delinquency (a "Curtailment"), the Master Servicer
will be required to remit to the Trustee, from amounts
otherwise payable to the Master Servicer as servicing
compensation, an amount ("Compensating Interest") equal to
any excess of (a) 30 days' interest on the principal
balance of each such Mortgage Loan as of the beginning of
the related Due Period at the applicable weighted average
Adjusted Mortgage Loan Remittance Rate over (b) the amount
of interest actually received on the related Mortgage Loan
during such Due Period.
Optional
Termination ........ The Master Servicer, certain insurers, the holders of
certain classes of Certificates or Notes, or certain other
entities specified in the related Prospectus Supplement may
have the option to effect early retirement of a Series of
Securities through the purchase of the related Mortgage
Assets and other assets in the related Trust under the
circumstances and in the manner described in "The
Agreement--Termination; Purchase of Mortgage Loans."
Mandatory
Termination ........ The Trustee, the Master Servicer or certain other entities
specified in the related Prospectus Supplement may be
required to effect early retirement of a Series of
Securities under the circumstances and in the manner
specified in the related Prospectus Supplement and herein
under "The Agreement--Termination; Purchase of Mortgage
Loans."
Trustee ............ The trustee or trustees under any Agreement relating to a
Series of Securities (each, a "Trustee") will be specified
in the related Prospectus Supplement. Additionally, any
Co-Trustees, Custodians or Co-Custodians will be set forth
in the related Prospectus Supplement.
Federal Income Tax
Consequences ....... The federal income tax consequences of the purchase,
ownership and disposition of the Certificates of each
series will depend on whether an election is made to treat
the corresponding Trust (or certain assets of the Trust) as
a "real estate mortgage investment conduit" ("REMIC") under
the Internal Revenue Code of 1986, as amended (the "Code"),
and, if such election is not made, whether the Trust is
structured and intended to be treated as a grantor trust, a
partnership or otherwise.
REMIC. If an election is to be made to treat the Trust (or
-----
certain assets of the Trust) for a Series of Certificates
as a REMIC for federal income tax purposes, the related
Prospectus Supplement will specify which Class or Classes
thereof will be designated as regular interests in the
REMIC ("REMIC Regular Certificates") and which class of
Certificates will be designated as the residual interest in
the REMIC ("REMIC Residual Certificates"). To the extent
provided herein and in the related Prospectus Supplement,
in the opinion of Stroock & Stroock & Lavan LLP, special
federal tax counsel ("Federal Tax Counsel"), Certificates
representing an interest in the REMIC generally will be
considered "real estate assets" for purposes of Section
856(c)(5)(A) of the Code and assets described in Section
7701(a)(19)(C) of the Code, but generally will not be
considered "residential loans" for purposes of Section
593(g)(4)(B) of the Code.
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In the opinion of Federal Tax Counsel, for federal income
tax purposes, REMIC Regular Certificates generally will be
treated as debt obligations of the Trust with payment terms
equivalent to the terms of such Certificates. Holders of
REMIC Regular Certificates will be required to report
income with respect to such Certificates under an accrual
method, regardless of their normal tax accounting method.
Original issue discount, if any, on REMIC Regular
Certificates will be includible in the income of the
Holders thereof as it accrues, in advance of receipt of the
cash attributable thereto, which rate of accrual will be
determined based on a reasonable assumed prepayment rate.
The REMIC Residual Certificates generally will not be
treated as evidences of indebtedness for federal income tax
purposes, but instead, as representing rights to the
taxable income or net loss of the REMIC.
Each holder of a REMIC Residual Certificate will be
required to take into account separately its pro rata
portion of the REMIC's taxable income or loss. Certain
income of a REMIC (referred to as "excess inclusions")
generally may not be offset by such a holder's net
operating loss carryovers or other deductions, and in the
case of a tax-exempt holder of a REMIC Residual Certificate
will be treated as "unrelated business taxable income." In
certain situations, particularly in the early years of a
REMIC, holders of a REMIC Residual Certificate may have
taxable income, and possibly tax liabilities with respect
to such income, in excess of cash distributed to them.
"Disqualified organizations," as defined in "Federal Income
Tax Consequences--REMIC Residual Certificates--Tax on
Disposition of REMIC Residual Certificates; Restriction on
Transfer; Holding by Pass-Through Entities," are prohibited
from acquiring or holding any beneficial interest in the
REMIC Residual Certificates.
Grantor Trust. If no election is to be made to treat the
-------------
Trust for a series of Certificates ("Non-REMIC
Certificates") as a REMIC, the Trust may be classified as a
grantor trust for federal income tax purposes and not as an
association taxable as a corporation or a taxable mortgage
pool. In the opinion of Federal Tax Counsel, holders of
Non-REMIC Certificates will be treated for such purposes,
subject to the possible application of the stripped bond
rules, as owners of undivided interests in the related
Mortgage Assets, generally will be required to report as
income their pro rata share of the entire gross income
(including amounts paid as reasonable servicing
compensation) from the Mortgage Assets, and will be
entitled, subject to certain limitations, to deduct their
pro rata share of expenses of the Trust.
To the extent provided in the related Prospectus
Supplement, Non-REMIC Certificates generally will represent
interests in "real estate assets" for purposes of Section
856(c)(5)(A) of the Code and "Loans . . . principally
secured by an interest in real property" within the meaning
of Section 7701(a)(19)(C)(v) of the Code, but should not be
considered "residential loans" for purposes of Section
593(g)(4)(B) of the Code.
Partnership. If no election is to be made to treat the
-----------
Trust for a Series as a REMIC and it is so specified in the
related Prospectus Supplement, the Trust will be treated as
a partnership for federal income tax purposes, and Federal
Tax Counsel will deliver its opinion generally to the
effect that the Trust will not be an association (or
publicly traded partnership) taxable as a corporation, or a
taxable mortgage pool, for federal income tax purposes.
Each Noteholder, by the acceptance of a Note of such
series, will agree to treat such Note as
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indebtedness, and each Certificateholder, by the acceptance
of a Certificate of such series, will agree to treat the
related Trust as a partnership in which such
Certificateholder is a partner for federal income and state
tax purposes.
Investors are advised to consult their tax advisors and to
review "Federal Income Tax Consequences" herein and, if
applicable, in the related Prospectus Supplement.
ERISA
Considerations ..... Fiduciaries of employee benefit plans or other retirement
plans or arrangements, including individual retirement
accounts, certain Keogh plans, and collective investment
funds, separate accounts and insurance company general
accounts in which such plans, accounts or arrangements are
invested, that are subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or
the Code should carefully review with their legal advisors
whether an investment in Securities will cause the assets
of the related Trust to be considered plan assets under the
Department of Labor ("DOL") regulations set forth in 29
C.F.R. Section 2510.3-101 (the "Plan Asset Regulations"),
thereby subjecting the Trustee and the Master Servicer to
the fiduciary investment standards of ERISA, and whether
the purchase, holding or transfer of Securities gives rise
to a transaction that is prohibited under ERISA or subject
to the excise tax provisions of Section 4975 of the Code,
unless a DOL administrative exemption applies. See "ERISA
Considerations."
Legal
Investment ......... Each Prospectus Supplement will describe the extent, if
any, to which the Classes of Securities offered thereby
will constitute "mortgage-related securities" for purposes
of the Secondary Mortgage Market Enhancement Act of 1984
("SMMEA") and whether they will be legal investments for
certain types of institutional investors under SMMEA. See
"Legal Investment" herein.
Registration of
Securities ......... Securities may be represented by global certificates and
notes registered in the name of Cede, as nominee of DTC or
another nominee. In such case, Securityholders will not be
entitled to receive definitive certificates and/or notes
representing such Holders' interests, except in certain
circumstances described in the related Prospectus
Supplement. See "Description of the Securities--Book-Entry
Registration" herein.
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RISK FACTORS
Limited Liquidity
There can be no assurance that a secondary market for the Securities will
develop or, if a secondary market does develop, that it will provide Holders of
the Securities with liquidity of investment or that it will continue for the
lives of the Securities.
Book-Entry Registration
Issuance of the Certificates and/or Notes in book-entry form may reduce the
liquidity of such Securities in the secondary trading market since investors may
be unwilling to purchase Securities for which they cannot obtain physical
Securities.
Since transactions in Certificates and Notes will, in most cases, be able
to be effected only through DTC, Direct or Indirect Participants and certain
banks, the ability of a Securityholder to pledge a Certificate or Note to
persons or entities that do not participate in the DTC system, or otherwise to
take actions in respect of such Securities, may be limited due to lack of a
physical certificate or note representing such Securities.
Securityholders may experience some delay in their receipt of distributions
of interest on and principal of the Securities since distributions may be
required to be forwarded by the Trustee to DTC and, in such a case, DTC will be
required to credit such distributions to the accounts of its Participants which
thereafter will be required to credit them to the accounts of the applicable
Class of Securityholders either directly or indirectly through Indirect
Participants or such other entities as described in the related Prospectus
Supplement. See "Description of the Securities--Book-Entry Registration."
Nature of Security
Certain of the Mortgage Loans will be loans secured by junior liens
subordinate to the rights of the mortgagee under each related senior mortgage.
As a result, the proceeds from any liquidation, insurance or condemnation
proceedings will be available to satisfy the principal balance of a junior
mortgage loan only to the extent that the claims, if any, of each such senior
mortgagee are satisfied in full, including any related foreclosure costs. In
addition, a mortgagee may not foreclose on the mortgaged property unless it
forecloses subject to any related senior mortgage or mortgages, in which case it
must either pay the entire amount of each senior mortgage to the applicable
mortgagee at or prior to the foreclosure sale or undertake the obligation to
make payments on each senior mortgage in the event of default thereunder. In
servicing mortgage loans in their portfolios, it has been the Originators'
practice to satisfy each such senior mortgage at or prior to the foreclosure
sale only to the extent that they determine any amounts so paid will be
recoverable from future payments and collections on the mortgage loans or
otherwise. The Trusts will not have any source of funds to satisfy any such
senior mortgage or make payments due to any senior mortgagee. See "Certain
Legal Aspects of the Mortgage Loans--Foreclosure/Repossession."
An overall decline in the market value of residential real estate, the
general condition of a Mortgaged Property, or other factors, could adversely
affect the values of the Mortgaged Properties such that the outstanding balances
of the Mortgage Loans which are junior mortgage loans, together with any senior
liens on the Mortgaged Properties, equal or exceed the value of the Mortgaged
Properties. Such a decline could extinguish the interest of the related Trust
in the Mortgaged Property before having any effect on the interest of the
related senior mortgagee. The Representative will not be able to quantify the
impact of any property value declines on the Mortgage Loans or predict whether,
to what extent or how long such declines may continue. In periods of such
declines, the actual rates of delinquencies, foreclosures and losses on the
Mortgage Loans could be higher than those historically experienced in the
mortgage lending industry in general. See "The Single Family Lending Program--
Servicing and Collections."
Certain of the Mortgage Loans may constitute "Balloon Loans." Balloon
Loans are originated with a stated maturity of less than the period of time of
the corresponding amortization schedule. As a result, upon the maturity of a
Balloon Loan, the Mortgagor will be required to make a "balloon" payment which
will be significantly larger than
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such Mortgagor's previous monthly payments. The ability of such a Mortgagor to
repay a Balloon Loan at maturity frequently will depend on such borrower's
ability to refinance the Mortgage Loan. The ability of a Mortgagor to refinance
such a Mortgage Loan will be affected by a number of factors, including the
level of available mortgage rates at the time, the value of the related
Mortgaged Property, the Mortgagor's equity in the related Mortgaged Property,
the financial condition of the Mortgagor and the tax laws and general economic
conditions at the time.
Although a low interest rate environment may facilitate the refinancing of
a balloon payment, the receipt and reinvestment by Securityholders of the
proceeds in such an environment may produce a lower return than that previously
received in respect of the related Mortgage Loan. Conversely, a high interest
rate environment may make it more difficult for the Mortgagor to accomplish a
refinancing and may result in delinquencies or defaults. None of the
Representative, the Originators, the Master Servicer or the Trustee will be
obligated to provide funds to refinance any Mortgage Loan.
General economic conditions have an impact on the ability of borrowers to
repay mortgage loans. Loss of earnings, illness and other similar factors may
lead to an increase in delinquencies and bankruptcy filings by borrowers. In
the event of bankruptcy of a Mortgagor, it is possible that a Trust could
experience a loss with respect to such Mortgagor's Mortgage Loan. In
conjunction with a Mortgagor's bankruptcy, a bankruptcy court may suspend or
reduce the payments of principal and interest to be paid with respect to such
Mortgage Loan or permanently reduce the principal balance of such Mortgage Loan,
thus either delaying or permanently limiting the amount received by the Trust
with respect to such Mortgage Loan. Moreover, in the event a bankruptcy court
prevents the transfer of the related Mortgaged Property to a Trust, any
remaining balance on such Mortgage Loan may not be recoverable.
Even assuming that the Mortgaged Properties provide adequate security for
the Mortgage Loans, substantial delays could be encountered in connection with
the liquidation of defaulted Mortgage Loans and corresponding delays in the
receipt of related proceeds by the Securityholders could occur. An action to
foreclose on a Mortgaged Property securing a Mortgage Loan is regulated by state
statutes and rules and is subject to many of the delays and expenses of other
lawsuits if defenses or counterclaims are interposed, sometimes requiring
several years to complete. Furthermore, in some states an action to obtain a
deficiency judgment is not permitted following a nonjudicial sale of a Mortgaged
Property. In the event of a default by a Mortgagor, these restrictions, among
other things, may impede the ability of the Master Servicer to foreclose on or
sell the Mortgaged Property or to obtain Liquidation Proceeds (net of expenses)
sufficient to repay all amounts due on the related Mortgage Loan. The Master
Servicer will be entitled to deduct from Liquidation Proceeds all expenses
reasonably incurred in attempting to recover amounts due on the related
liquidated Mortgage Loan and not yet repaid, including payments to prior
lienholders, legal fees and costs of legal action, real estate taxes, and
maintenance and preservation expenses. In the event that any Mortgaged
Properties fail to provide adequate security for the related Mortgage Loans and
insufficient funds are available from applicable Credit Enhancement,
Certificateholders could experience a loss on their investment.
Liquidation expenses with respect to defaulted mortgage loans do not vary
directly with the outstanding principal balance of the loan at the time of
default. Therefore, assuming that a servicer took the same steps in realizing
upon a defaulted mortgage loan having a small remaining principal balance as it
would in the case of a defaulted mortgage loan having a larger principal
balance, the amount realized after expenses of liquidation would be smaller as a
percentage of the outstanding principal balance of the smaller mortgage loan
than would be the case with a larger loan. Because the average outstanding
principal balances of the Mortgage Loans which are junior mortgage loans are
small relative to the size of the loans in a typical pool composed entirely of
first mortgages, realizations net of liquidation expenses on defaulted Mortgage
Loans which are junior mortgage loans may also be smaller as a percentage of the
principal amount of such junior mortgage loans than would be the case with a
typical pool of first mortgage loans.
Under environmental legislation and case law applicable in various states,
including California, a secured party that takes a deed in lieu of foreclosure,
acquires a mortgaged property at a foreclosure sale or which, prior to
foreclosure, has been involved in decisions or actions which may lead to
contamination of a 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 holder of a mortgage note (such as a Trust)
which, under the terms of the Agreement, is not
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required to take an active role in operating the Mortgaged Properties. See
"Certain Legal Aspects of the Mortgage Loans--Environmental Considerations."
Certain of the Mortgaged Properties relating to Mortgage Loans may not be
owner occupied. It is possible that the rate of delinquencies, foreclosures and
losses on Mortgage Loans secured by non-owner occupied properties could be
higher than for loans secured by the primary residence of the borrower.
Unsecured Home Improvement Loans
The obligations of the borrower under any Unsecured Home Improvement Loan
included in a Pool will not be secured by an interest in the related real estate
or otherwise, and the related Trust Fund, as the owner of such Unsecured Home
Improvement Loan, will be a general unsecured creditor as to such obligations.
As a consequence, in the event of a default under an Unsecured Home Improvement
Loan, the related Trust Fund will have recourse only against the borrower's
assets generally, along with all other general unsecured creditors of the
borrower. In a bankruptcy or insolvency proceeding relating to a borrower on an
Unsecured Home Improvement Loan, the obligations of the borrower under such
Unsecured Home Improvement Loan may be discharged in their entirety,
notwithstanding the fact that the portion of such borrower's assets made
available to the related Trust Fund as a general unsecured creditor to pay
amounts due and owing thereunder are insufficient to pay all such amounts. A
borrower on an Unsecured Home Improvement Loan may not demonstrate the same
degree of concern over performance of the borrower's obligations under such Home
Improvement Loan as if such obligations were secured by the real estate or other
assets owned by such borrower.
Pre-Funding Accounts
If a Trust Fund includes a Pre-Funding Account and the principal balance of
additional Mortgage Loans delivered to the Trust Fund during the Pre-Funding
Period is less than the original Pre-Funded Amount, the Holders of the
Securities of the related Series will receive a prepayment of principal as and
to the extent described in the related Prospectus Supplement. Any such
principal prepayment may adversely affect the yield to maturity of the
applicable Securities.
The ability of a Trust Fund to obtain subsequent Mortgage Loans during the
related Pre-Funding Period will be dependent on the ability of the Originators
to originate or acquire Mortgage Loans that satisfy the requirements for
transfer to the Trust Fund. The ability of the Originators to originate or
acquire such Mortgage Loans will be affected by a variety of social and economic
factors, including the prevailing level of market interest rates, unemployment
levels and consumer perception of general economic conditions.
Combined Loan-to-Value Ratios
The Originators' underwriting standards allow loans to be approved with
Combined Loan-to-Value Ratios (as defined below) that exceed 100%. Because the
original Combined Loan-to-Value Ratios of certain of the Mortgage Loans may be
high relative to that of other similar mortgage loans, recoveries on defaulted
Mortgage Loans may be lower than the level of recoveries experienced by such
other defaulted mortgage loans.
Legal Considerations
Applicable state laws generally regulate interest rates and other charges,
require certain disclosures, and require licensing of the Originators and the
Master Servicer. In addition, most states have other laws, public policy 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. 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 Master 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 Master Servicer to damages and administrative
sanctions. See "Certain Legal Aspects of the Mortgage Loans."
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The Mortgage Loans may also be subject to federal laws, including: (i) the
Federal Truth in Lending Act and Regulation Z promulgated thereunder, which
require certain disclosures to the borrowers regarding the terms of the 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 Fair Credit Reporting Act, which regulates the use and
reporting of information related to the borrower's credit experience; and (iv)
the NHA Act (as defined herein) with respect to FHA Loans.
The Mortgage Loans may be subject to the Home Ownership and Equity
Protection Act of 1994 (the "Home Ownership Act") which amended the Federal
Truth in Lending Act as it applies to mortgages subject to the Home Ownership
Act. The Home Ownership Act requires certain additional disclosures, specifies
the timing of such disclosures and limits or prohibits the inclusion of certain
provisions in mortgages subject to the Home Ownership Act. The Home Ownership
Act also provides that any purchaser or assignee of a mortgage covered by the
Home Ownership Act is subject to all of the claims and defenses which the
borrower could assert against the original lender. The maximum damages that may
be recovered in an action under the Home Ownership Act from an assignee is the
remaining amount of indebtedness plus the total amount paid by the borrower in
connection with the mortgage loan. Any Trust for which the Mortgage Assets
include Mortgage Loans subject to the Home Ownership Act would be subject to all
of the claims and defenses which the borrower could assert against the original
lender. Any violation of the Home Ownership Act which would result in such
liability would be a breach of the applicable Originator's representations and
warranties, and the Representative would be obligated to cure, repurchase or, if
permitted by the related Agreement, substitute for the Mortgage Loan in
question.
Prepayment Considerations
Unless otherwise specified in the related Prospectus Supplement, the
Mortgage Loans may be prepaid in full or in part at any time; however, a
prepayment penalty or premium may still be imposed in connection therewith. The
rate of prepayments of the Mortgage Loans cannot be predicted and may be
affected by a wide variety of economic, social, and other factors, including
prevailing interest rates, the availability of alternative financing and
homeowner mobility. Therefore, no assurance can be given as to the level of
prepayments that a Trust will experience.
A number of factors suggest that the prepayment behavior of a pool
including junior mortgage loans may be significantly different from that of a
pool composed entirely of first mortgage loans with equivalent interest rates
and maturities. One such factor is the smaller average principal balance of a
pool of junior mortgage loans which may result in a higher prepayment rate than
that of a pool of first mortgage loans with a larger average balance, regardless
of the interest rate environment. A small principal balance, however, also may
make refinancing a junior mortgage loan at a lower interest rate less attractive
to the borrower relative to refinancing a larger balance first mortgage loan, as
the perceived impact to the borrower of lower interest rates on the size of the
monthly payment for a junior mortgage loan may be less than for a first mortgage
loan with a larger balance. Other factors that might be expected to affect the
prepayment rate of a pool of junior mortgage loans include the amounts of, and
interest rates on, the underlying senior mortgage loans, and the use of first
mortgage loans as long-term financing for home purchase and junior mortgage
loans as shorter-term financing for a variety of purposes, including home
improvement, education expenses and purchases of consumer durables such as
automobiles. Accordingly, the Mortgage Loans which are junior mortgage loans
may experience a higher rate of prepayment than traditional fixed-rate mortgage
loans. In addition, any future limitations on the right of borrowers to deduct
interest payments on home equity mortgage loans for federal income tax purposes
may further increase the rate of prepayments of such junior mortgage loans. See
"Maturity, Prepayment and Yield Considerations."
Prepayments may result from voluntary early payments by borrowers
(including payments in connection with refinancings of the related senior
mortgage loan or loans), sales of Mortgaged Properties subject to "due-on-sale"
provisions and liquidations due to default, as well as the receipt of proceeds
from physical damage, credit life and disability insurance policies and, if so
specified in the related Prospectus Supplement, amounts on deposit in the Pre-
Funding Account at the end of the Funding Period being applied to the payment of
principal of the Securities. In addition, repurchases or purchases from a Trust
of Mortgage Loans required to be made by the Representative under the Agreement
will have the same effect on the affected Securityholders as a prepayment of
such Mortgage Loans.
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Unless otherwise specified in the related Prospectus Supplement, all of the
secured Mortgage Loans contain "due-on-sale" provisions, and the Master Servicer
will be required to enforce such provisions unless (i) such enforcement would
materially increase the risk of default or delinquency on, or materially
decrease the security for, such Mortgage Loan or (ii) such enforcement is not
permitted by applicable law, in which case the Master Servicer is authorized to
permit the purchaser of the related Mortgaged Property to assume the Mortgage
Loan. See "The Agreement" in the related Prospectus Supplement.
Collections on the Mortgage Loans may vary due to the level of incidence of
delinquent payments and of prepayments. Collections on the Mortgage Loans may
also vary due to seasonal purchasing and payment habits of borrowers.
Certain of the Mortgage Loans may be "simple interest" or "date-of-payment
loans." If a payment is received on such a Mortgage Loan later than scheduled,
a smaller portion of such payment will be applied to principal and a greater
portion will be applied to interest than would have been the case had the
payment been received on the scheduled due date, resulting in such Mortgage Loan
having a longer average life than would have been the case had the payment been
made as scheduled. Conversely, if a payment on such a Mortgage Loan is received
earlier than scheduled, more of such payment will be applied to principal and
less to interest than would have been the case had the payment been received on
its scheduled due date, resulting in such Mortgage Loan having a shorter average
life than would have been the case had the payment been made as scheduled.
The Status of the Mortgage Loans in the Event of
Bankruptcy of the Representative or an Originator
In the event of the bankruptcy of the Representative or an Originator at a
time when it or any affiliate thereof holds a subordinated interest in a Trust
Fund, a trustee in bankruptcy of the Representative or its creditors could
attempt to recharacterize the sale of the Mortgage Loans to the related Trust as
a borrowing by the Representative, the Originator or such affiliate with the
result, if such recharacterization is upheld, that the Securityholders would be
deemed to be creditors of the Representative, the Originator or such affiliate,
secured by a pledge of the Mortgage Loans. If such an attempt were successful,
a trustee in bankruptcy could elect to accelerate payment of the Securities and
liquidate the Mortgage Loans, with the Securityholders entitled to the then
outstanding principal amount thereof together with accrued interest. Thus, the
Securityholders could lose the right to future payments of interest, and might
suffer reinvestment loss in a lower interest rate environment.
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 Master 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 Master Servicer to foreclose
on an affected Mortgage Loan during the Mortgagor's period of active duty
status. Thus, in the event that such a Mortgage Loan goes into default, there
may be delays and losses occasioned by the inability to realize upon the
Mortgaged Property in a timely fashion.
Security Rating
If set forth in the related Prospectus Supplement, the rating of one or
more Classes of Securities may depend, to a large extent, on the
creditworthiness of a third party provider of credit enhancement. In such
event, any reduction in the rating assigned to the claims-paying ability of such
provider below the rating initially given to such Class of Securities would
likely result in a reduction in the rating of such Class of Securities. See
"Rating."
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Other
To the extent a significant portion of the Mortgage Loans underlying a
given series of Securities consists of FHA Loans and/or Secured Conventional
Home Improvement Loans, the related Prospectus Supplement will describe any
additional Risk Factors related to such Mortgage Loans.
THE TRUSTS
A Trust for any Series of Securities will include the Mortgage Assets
consisting of (A) one or more Pools* comprised of (i) Single Family Loans, (ii)
Cooperative Loans, (iii) Multifamily Loans, (iv) Contracts, (v) FHA Loans, (vi)
Secured Conventional Home Improvement Loans, (vii) Unsecured Home Improvement
Loans, or (B) Agency Securities or Private Mortgage-Backed Securities, in each
case, as specified in the related Prospectus Supplement, together with payments
in respect of such Mortgage Assets and certain other accounts, obligations or
agreements, in each case as specified in the related Prospectus Supplement. The
Mortgage Loans may be closed-end or revolving as described in the related
Prospectus Supplement.
The Notes of each Series will be secured by the pledge of the assets of the
related Trust, and the Certificates of each Series will represent interest in
the assets of the related Trust. The Securities will be entitled to payment
only from the assets of the related Trust and, to the extent specified in a
Prospectus Supplement, payments in respect of the assets of other trusts
established by the Representative, the Originators or any of their affiliates.
If specified in the related Prospectus Supplement, certain Securities will
evidence the entire fractional undivided ownership interest in a Trust which
will contain a beneficial ownership interest in another Trust which will contain
all or some of the Mortgage Assets.
Certain of the Mortgage Assets may have been originated by the Originators.
Other Mortgage Assets may have been acquired by the Representative, an
Originator or an affiliate thereof in the open market or in privately negotiated
transactions, including transactions with entities affiliated with the
Representative. See "Mortgage Loan Program--Underwriting Criteria."
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 is offered,
more general information of the nature described below will be provided in the
Prospectus Supplement, and specific information will be set forth in a report on
Form 8-K to be filed with the Commission within fifteen days after the initial
issuance of such Securities (the "Detailed Description"). A copy of the
Agreement 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 specified in the related Prospectus Supplement. A schedule of the
Mortgage Assets relating to such Series (the "Mortgage Asset Schedule") will be
attached to the Agreement delivered to the Trustee upon delivery of the
Securities.
The Mortgage Loans--General
The real property and Manufactured Homes, as the case may be, which secure
repayment of the Mortgage Loans and Contracts (the "Mortgaged Properties") may
be located in any one of the fifty states, the District of Columbia, the
Commonwealth of Puerto Rico or any other commonwealth, territory or possession
of the United
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* Whenever the terms "Pool," "Certificates," "Notes," and "Securities" are
used in this Prospectus, such terms will be deemed to apply, unless the
context indicates otherwise, to one specific Pool, the Certificates
representing certain undivided fractional interests, as described below, in
a single Trust consisting primarily of the Mortgage Loans in such Pool, and
the Notes shall refer to debt obligations of such Trust secured by the
related Pool of Mortgage Loans. Similarly, the term "Pass-Through Rate"
will refer to the Pass-Through Rate borne by the Certificates of one
specific Series, the terms "Interest Rate will refer to the Interest Rate
borne by the Notes of one specific Series and the term "Trust" will refer
to one specific Trust.
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States. It is expected that the Mortgage Loans or Contracts will be Conventional
Loans (i.e., loans that are not insured or guaranteed by any governmental
agency). However, if specified in the related Prospectus Supplement, certain of
the Single Family Loans may be insured by the FHA or partially guaranteed by the
VA. Mortgage Loans with Combined Loan-to-Value Ratios and/or certain principal
balances may be covered wholly or partially by Primary Mortgage Insurance
Policies. The Mortgage Loans may be covered by Standard Hazard Insurance
Policies.
All of the Mortgage Loans in a Pool will provide for payments to be made
monthly ("monthly pay"), bi-weekly or on such other terms as may be described in
a Prospectus Supplement. The payment terms of the Mortgage Loans to be included
in a Trust 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, or an Adjustable Rate
(i.e., a rate that is 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 is 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). The specified rate of interest on a Mortgage Loan is its
Mortgage Interest 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 Mortgage Interest Rate
for a period of time or for the life of the Mortgage Loan, and the amount
of any difference may be contributed from funds supplied by the seller of
the Mortgaged Property securing the related Mortgage Loan or another source
or may be treated as accrued interest added to the principal of the
Mortgage Loan.
(b) Principal may be payable on a level basis to fully amortize the
Mortgage Loan over its term, may be calculated on the basis of an assumed
amortization schedule that is significantly longer than the original term
to maturity or on an interest rate that is different from the Mortgage
Interest Rate, 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 ("balloon" payments). 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
("graduated payments") 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. Mortgage Loans may require the monthly payments of principal and
interest to increase for a specified period, provide for deferred payment
of some or all of the payments due during a specified period, which may be
recouped as deferred interest through negative amortization or otherwise.
Other Mortgage Loans sometimes referred to as "growing equity" mortgage
loans may provide for periodic scheduled payment increases for a specified
period with the full amount of such increases being applied to principal.
(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 Originator.
To the extent a significant portion of the Mortgage Loans underlying a
given Series of Securities consist of FHA Loans and/or Secured Conventional Home
Improvement Loans, the related Prospectus Supplement will describe the material
provisions of such Mortgage Loans and the programs under which they were
originated. The
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Prospectus Supplement for each Series of Securities will contain information
with respect to all the Mortgage Loans expected to be included in the related
Pools as of the related closing date, including (i) the expected aggregate
outstanding principal balance and the expected average outstanding principal
balance of the Mortgage Loans as of the date set forth in the Prospectus
Supplement, (ii) the largest expected principal balance and the smallest
expected, principal balance of any of the Mortgage Loans, (iii) the types of
Mortgaged Properties and/or other assets securing the Mortgage Loans (e.g., one-
to four-family houses, vacation and second homes, Manufactured Homes,
multifamily apartments or other real property) and the percentage, if any, of
Unsecured Home Improvement Loans expected to be included in the related Pool,
(iv) the original terms to maturity of the Mortgage Loans, (v) the expected
weighted average term to maturity of the Mortgage Loans as of the date set forth
in the Prospectus Supplement and the expected range of the terms to maturity,
(vi) the earliest origination date and latest maturity date of any of the
Mortgage Loans, (vii) the expected weighted average Combined Loan-to-Value
Ratios at origination (except with respect to home improvement loans), (viii)
the expected Mortgage Interest Rate or APR and ranges of Mortgage Interest Rates
or APRs borne by the Mortgage Loans, (ix) in the case of Mortgage Loans having
Adjustable Rates, the expected weighted average of the Adjustable Rates, if any,
(x) the expected aggregate outstanding principal balance, if any, of Buy-Down
Loans and Mortgage Loans having graduated payment provisions as of the date set
forth in the Prospectus Supplement, (xi) the amount of any Mortgage Pool
Insurance Policy, Special Hazard Insurance Policy or Bankruptcy Bond to be
maintained with respect to such Pool, (xii) the amount, if any, and terms of any
other credit enhancement or other derivative instruments to be provided with
respect to all or a material portion of the Mortgage Loans or the Pool and
(xiii) the expected geographic location of the Mortgaged Properties. If specific
information respecting the Mortgage Loans is not known to the Representative at
the time the related Securities are initially offered, more general information
of the nature described above will be provided in the Prospectus Supplement and
specific information will be set forth in the Detailed Description.
The Combined "Loan-to-Value Ratio" of a Single Family Loan at any given
time is the ratio, expressed as a percentage, determined by dividing (x) the sum
of the original principal balance of the Single Family Loan (less the amount, if
any, of the premium for credit life insurance) plus the then-current principal
balance of the related first lien, if any, by (y) the value of the related
Mortgaged Property, based upon the appraisal or valuation made at the time of
origination of the Single Family Loan. To the extent a significant portion of
the Mortgage Loans underlying a given Series of Securities consists of FHA loans
and/or Secured Conventional Home Improvement Loans, the related Prospectus
Supplement may describe the method for calculating the Combined Loan-to-Value
Ratio, if deemed relevant by the Representative. In the case of Refinance
Loans, the value of the related Mortgaged Property generally will be based on an
appraisal or valuation obtained at the time of refinancing. For purposes of
calculating the Combined Loan-to-Value Ratio of a Contract relating to a new
Manufactured Home, the value of such Manufactured Home generally will be no
greater than the sum of a fixed percentage of the list price of the unit
actually billed by the manufacturer to the dealer (exclusive of freight to the
dealer site) including "accessories" identified in the invoice (the
"Manufacturer's Invoice Price"), plus the actual cost of any accessories
purchased from the dealer, a delivery and set-up allowance, depending on the
size of the unit, and the cost of state and local taxes, filing fees and up to
three years prepaid hazard insurance premiums. The value of a used Manufactured
Home generally will be the least of the sales price, appraised value, and, if
applicable, National Automobile Dealer's Association book value plus prepaid
taxes and hazard insurance premiums. The appraised value of a Manufactured Home
will be based upon the age and condition of the manufactured housing unit and
the quality and condition of the mobile home park in which it is situated, if
applicable.
The Mortgage Loans in any Trust may include Mortgage Loans whose Combined
Loan to Value Ratios exceed 100%. The related Mortgaged Properties are unlikely
to provide adequate security for such Mortgage Loans. Even assuming that a
Mortgaged Property provides adequate security for the related Mortgage Loan,
substantial delays could be encountered in connection with the liquidation of a
Mortgage Loan that would result in current shortfalls in payments to
Securityholders to the extent such shortfalls are not covered by any credit
enhancement as described in the related Prospectus Supplement. In addition,
liquidation expenses relating to any liquidated Mortgage Loan (such as legal
fees, real estate taxes, and maintenance and preservation expenses) will reduce
the liquidation proceeds otherwise available for payment to Securityholders. In
the event that any Mortgaged Property fails to provide adequate security for the
related Mortgage Loan, any losses in connection with such Mortgage Loan will be
borne by Securityholders as described in the related Prospectus Supplement to
the extent that the applicable credit enhancement described in the related
Prospectus Supplement is insufficient to absorb all such losses.
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No assurance can be given that values of the Mortgaged Properties have
remained or will remain at their levels on the dates of origination of the
related Mortgage Loans. If the real estate market should experience an overall
decline in property values such that the outstanding principal balances of the
Mortgage Loans (plus any additional financing by other lenders on the same
Mortgaged Properties), in a particular Pool become equal to or greater than the
value of such Mortgaged Properties, the actual rates of delinquencies,
foreclosures and losses could be higher than those now generally experienced in
the mortgage lending industry. An overall decline in the market value of real
estate, the general condition of a Mortgaged Property, or other factors, could
adversely affect the values of the Mortgaged Properties such that the
outstanding balances of the Mortgage Loans, together with any additional liens
on the Mortgaged Properties, equal or exceed the value of the Mortgaged
Properties. Under such circumstances, the actual rates of delinquencies,
foreclosures and losses could be higher than those now generally experienced in
the mortgage lending industry.
Certain of the residential mortgage loans to be included in a Trust are
expected to be residential mortgage loans secured by second, third or fourth
liens ("Home Equity Loans") subordinate to the rights of the mortgagee under
each related senior mortgage. The proceeds from any liquidation, insurance or
condemnation of Mortgaged Properties relating to Home Equity Loans in a Pool
will be available to satisfy the principal balance of such Home Equity Loans
only to the extent that the claims, if any, of the related senior mortgagee,
including any related foreclosure costs, are satisfied in full. In addition,
the Master Servicer may not foreclose on a Mortgaged Property relating to a Home
Equity Loan unless it forecloses subject to the related senior mortgage or
mortgages, in which case it must either pay the entire amount of each senior
mortgage to the applicable mortgagee at or prior to the foreclosure sale or
undertake the obligation to make payments on each senior mortgage in the event
of default thereunder. Generally, in servicing Home Equity Loans in their loan
portfolios, it has been the Originators' practice to satisfy each senior
mortgage at or prior to a foreclosure sale only to the extent that they
determine any amounts so paid will be recoverable from future payments and
collections on the Home Equity Loans or otherwise. The Trusts will not have any
source of funds to satisfy any such senior mortgage or make payments due to any
senior mortgagee. See "Certain Legal Aspects of the Mortgage Loans--
Foreclosure/Repossession."
In addition, general economic conditions and other factors (which may or
may not effect real property values) have an impact on the ability of mortgagors
to repay mortgage loans. Loss of earnings, illness and other similar factors
may lead to an increase in delinquencies and bankruptcy filings by mortgagors.
In the event of bankruptcy of a mortgagor, it is possible that a Trust could
experience a loss with respect to the related Mortgage Loan. In conjunction with
a mortgagor's bankruptcy, a bankruptcy court may suspend or reduce the payments
of principal and interest to be paid with respect to such Mortgage Loan or
permanently reduce the principal balance of such Mortgage Loan, thus either
delaying or permanently limiting the amount received by such Trust with respect
thereto. Moreover, in the event a bankruptcy court prevents the transfer of the
related Mortgaged Property to the Trust, any remaining balance on such Mortgage
Loan may not be recoverable.
Other factors affecting mortgagors' ability to repay Mortgage Loans include
excessive building resulting in an oversupply of housing stock or a decrease in
employment reducing the demand for units in an area; federal, state or local
regulations and controls affecting rents; prices of goods and energy;
environmental restrictions; increasing labor and material costs; and the
relative attractiveness of the Mortgaged Properties. To the extent that such
losses are not covered by credit enhancements, such losses will be borne, at
least in part, by the Securityholders of the related Series.
The Representative will cause the Mortgage Loans comprising each Pool to be
assigned to the Trustee named in the related Prospectus Supplement for the
benefit of the holders of the Securities of the related Series. One or more
Master Servicers named in the related Prospectus Supplement will service the
Mortgage Loans, either directly or through Sub-Servicers, pursuant to the
Agreement and will receive a fee for such services. See "Mortgage Loan Program"
and "The Agreement." With respect to Mortgage Loans serviced through a Sub-
Servicer, the Master Servicer will remain liable for its servicing obligations
under the related Agreement as if the Master Servicer alone were servicing such
Mortgage Loans.
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The only obligations of the Representative or the Originators with respect
to a Series of Securities will be to provide (or, where the Representative or an
Originator acquired a Mortgage Loan from another originator, obtain from
such originator) certain representations and warranties concerning the Mortgage
Loans and to assign to the Trustee for such Series of Securities the
Representative's or Originator's rights with respect to such representations and
warranties. See "The Agreements--Sale of Mortgage Loans." The obligations of
the Master Servicer with respect to the Mortgage Loans will consist principally
of its contractual servicing obligations under the related Agreement and its
obligation to make certain cash advances in the event of delinquencies in
payments on or with respect to the Mortgage Loans in the amounts described
herein under "Description of the Securities--Advances." The obligations of a
Master Servicer to make advances may be subject to limitations, to the extent
provided herein and in the related Prospectus Supplement.
If provided in the related Prospectus Supplement, the original principal
amount of a Series of Securities may exceed the principal balance of the
Mortgage Assets initially being delivered to the Trustee. Cash in an amount
equal to such difference (the "Pre-Funded Amount") will be deposited into a
separate trust account (the "Pre-Funding Account") maintained with the Trustee.
During the period set forth in the related Prospectus Supplement (the "Funding
Period"), amounts on deposit in the Pre-Funding Account may be used to purchase
additional Mortgage Assets for the related Trust subject to the satisfaction of
certain conditions specified under the Agreements. Any amounts remaining in the
Pre-Funding Account at the end of such period will be distributed as a principal
prepayment to the holders of the related Series of Securities at the time and in
the manner set forth in the related Prospectus Supplement.
Single Family and Cooperative Loans
Single Family Loans will consist of mortgage loans, deeds of trust or
participation or other beneficial interests therein, secured by first, second or
more junior liens on one- to four-family residential properties. If so
specified in a Prospectus Supplement, the Single Family Loans may include loans
or participations therein secured by mortgages or deeds of trust on condominium
units in low-rise condominium buildings together with such condominium units'
appurtenant interests in the common elements of the condominium buildings.
Cooperative Loans generally will be secured by security interests in or similar
liens on stock, shares or membership certificates issued by Cooperatives and in
the related proprietary leases or occupancy agreements granting exclusive rights
to occupy specific dwelling units in such Cooperatives' buildings.
The Mortgaged Properties relating to Single Family Loans will consist of
detached or semi-detached one-family dwelling units, two- to four-family
dwelling units, townhouses, rowhouses, individual condominium units in low-rise
condominium buildings, individual units in planned unit developments, and
certain mixed use and other dwelling units. Such Mortgaged Properties may
include vacation and second homes or investment properties. A portion of a
dwelling unit may contain a commercial enterprise.
Multifamily Loans
"Multifamily Loans" will consist of mortgage loans, deeds of trust or
participation or other beneficial interests therein, secured by first, second or
more junior liens on rental apartment buildings, mixed-use properties or
projects containing five or more residential units.
Mortgaged Properties which secure Multifamily Loans may include high-rise,
mid-rise and garden apartments. Certain of the Multifamily Loans may be secured
by apartment buildings owned by Cooperatives. In such cases, the Cooperative
owns all the apartment units in the building and all common areas. 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
apartments or 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 mortgage loans, real property
taxes, maintenance expenses and other capital or ordinary expenses. Those
payments are in addition to any payments of principal and interest the tenant-
stockholder must make on any loans to the tenant-stockholder secured by its
shares in the Cooperative. The Cooperative will be directly responsible for
building management and, in most
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cases, payment of real estate taxes and hazard and liability insurance. A
Cooperative's ability to meet debt service obligations on a Multifamily Loan, as
well as all other operating expenses, will be dependent in large part on the
receipt of maintenance payments from the tenant-stockholders, as well as any
rental income from units or commercial areas the Cooperative might control.
Unanticipated expenditures may in some cases have to be paid by special
assessments on the tenant-stockholders.
Substantially all of the Multifamily Loans will be secured by mixed-use
properties, with no less than approximately 90% of such properties, measured by
square footage, number of units and projected rent, being allocated to
residential units.
Contracts
Contracts will consist of manufactured housing conditional sales contracts
and installment sales or loan agreements each secured by a Manufactured Home.
Contracts may be conventional, insured by the Federal Housing Administration
("FHA") or partially guaranteed by the Veterans Administration ("VA"), as
specified in the related Prospectus Supplement. Unless otherwise specified in
the related Prospectus Supplement, each Contract will be fully amortizing and
will bear interest at its APR.
The "Manufactured Homes" securing the Contracts will consist of
manufactured homes within the meaning of 42 United States Code, Section 5402(6),
which defines a "manufactured home" as "a structure, transportable in one or
more sections, which, in the traveling mode, is eight body feet or more in width
or forty body feet or more in length, or, when erected on site, is three hundred
twenty or more square feet, and which is built on a permanent chassis and
designed to be used as a dwelling with or without a permanent foundation when
connected to the required utilities, and includes the plumbing, heating, air
conditioning, and electrical systems contained therein; except that such term
shall include any structure which meets all the requirements of [this] paragraph
except the size requirements and with respect to which the manufacturer
voluntarily files a certification required by the Secretary of Housing and Urban
Development and complies with the standards established under [this] chapter."
The related Prospectus Supplement will specify for the Contracts contained
in the related Trust, among other things, the date of origination of the
Contracts; the APRs on the Contracts; the Contract loan-to-value ratios; the
minimum and maximum outstanding principal balances as of the Cut-off Date and
the average outstanding principal balance; the outstanding principal balances of
the Contracts included in the related Trust; and the original maturities of the
Contracts and the last maturity date of any Contract.
FHA Loans
The FHA Loans will consist of home improvement loans originated under Title
I (the "Title I Loan Program") of the National Housing Act of 1934 (the "NHA
Act"). Under the NHA Act, the Federal Housing Administration (the "FHA"), an
agency of the United States Department of Housing and Urban Development ("HUD"),
is authorized and empowered to insure qualified lending institutions against
losses on eligible loans. Several types of loans may be made under the Title I
Loan Program, including (1) property improvement loans; (2) manufactured home
purchase loans; (3) manufactured home lot loans; and (4) combination loans (to
purchase a manufactured home and a lot). Property improvement loans (the "Title
I Property Improvement Loans") may be made by approved lenders to finance
alterations, repair or improvement of existing single family, multifamily,
manufactured housing and nonresidential structures.
Title I Property Improvement Loans, in addition to improvements to protect
the livability or utility of single family, multifamily or manufactured housing
or nonresidential property, also include loans for the renovation or
preservation of historic residential structures and loans to finance the
installation of fire safety equipment in existing health care facilities. Loan
processing and credit determinations are done by an approved financial
institution. Each lender is required to use prudent lending standards in
underwriting individual loans.
Under the Title I Loan Program, the FHA does not review individual loans at
the time of approval (as is typically the case with some other federal loan
programs), except when the amount of a Title I Property Improvement
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Loan would result in any borrower having a total unpaid principal obligation on
such loans in excess of certain specified amounts, in which case HUD approval
must be obtained.
The Title I Loan Program is a coinsurance program. The lender initially is
at risk for 10% of the principal balance of each loan. The FHA will insure the
remaining 90% of the principal balance of each loan, subject to the limits of
the reserve amount discussed below. Such FHA insurance is accorded the full
faith and credit of the United States of America. Thus, a lender under the
program risks the loss of up to 10% of the principal balance on every loan
submitted to the FHA for an insurance claim (or a greater amount if the lender's
reserve amount is diminished or exhausted), plus a portion of the interest on
such loans.
At the time the FHA receives a new loan origination or transfer of note
report from an approved lender, the FHA adds to the balance in the reserve
amount established by the FHA for the lender originating or purchasing such loan
an amount equal to 10% of the amount disbursed, advanced or expended by the
lender in originating or purchasing the loan. The balance in the reserve amount
limits the amount of claims the FHA is required to pay.
The reserve amount established by the FHA for each lender will be reduced
by the amount of all insurance claims approved for payment in conjunction with
losses on such loans. The lender's reserve amount will be increased based upon
additions made pursuant to the origination or purchase of eligible loans
registered for insurance.
The FHA charges a fee of 0.50% per annum of the original balance for each
loan it insures, on a non-declining basis. The FHA bills the lender annually
(on the anniversary date of origination) for the insurance premium, unless the
loan has a maturity of 25 months or less, in which case the insurance charge is
payable in one lump sum. If a loan is prepaid during the year, the FHA will not
rebate the insurance premium nor reduce the balance in the lender's insurance
coverage reserve account. The unused insurance charge will, however, be rebated
when a Title I loan is refinanced.
Secured Conventional Home Improvement Loans
The Secured Conventional Home Improvement Loans will consist of secured
conventional loans, the proceeds of which generally will be used for purposes
similar to those described under the heading "--FHA Loans." To the extent set
forth in the related Prospectus Supplement, the Secured Conventional Home
Improvement Loans will be fully amortizing and will bear interest at a fixed or
variable annual percentage rate.
Unsecured Home Improvement Loans
The Unsecured Home Improvement Loans will consist of conventional unsecured
home improvement loans and FHA insured unsecured home improvement loans. To the
extent set forth in the related Prospectus Supplement, the Unsecured Home
Improvement Loans will be fully amortizing and will bear interest at a fixed or
variable annual percentage rate.
Agency Securities
Government National Mortgage Association. GNMA is a wholly-owned corporate
instrumentality of the United States within the United Stated Department of
Housing and Urban Development HUD. Section 306(g) of Title II of the National
Housing Act of 1934, as amended (the "Housing Act"), authorizes GNMA to, among
other things, guarantee the timely payment of the principal of and interest on
certificates which represent an interest in a pool of mortgage loans insured by
FHA under the Housing Act, or Title V of the Housing Act of 1949 ("FHA Loans"),
or partially guaranteed by the VA under the Servicemen's Readjustment Act of
1944, as amended, or chapter 37 of Title 38, United States Code ("VA Loans").
Section 306(g) of the Housing Act provides that "the full faith and credit
of the United States is pledged to the payment of all amounts which may be
required to be paid under any guarantee under this subsection." In order to
meet its obligations under any such guarantee, GNMA may, under Section 306(d) of
the Housing Act, borrow from
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the United States Treasury in an amount which is at any time sufficient to
enable GNMA, with no limitations as to amount, to perform its obligations under
its guarantee.
GNMA Certificates. Each GNMA Certificate held in a Trust Fund (which may
be a GNMA I Certificate or a GNMA II Certificate) will be a "fully modified
pass-through" mortgaged-backed certificate issued and serviced by a mortgage
banking company or other financial concern ("GNMA Issuer") approved by GNMA or
approved by FNMA as a seller-servicer of FHA Loans and/or VA Loans. The
mortgage loans underlying the GNMA Certificates held in a Trust Fund will
consist of FHA Loans and/or VA Loans. Each such mortgage loan is secured by a
one- to four-family residential property or a manufactured home. GNMA will
approve the issuance of each such GNMA Certificate in accordance with a guaranty
agreement (a "Guaranty Agreement") between GNMA and the GNMA Issuer. Pursuant
to its Guaranty Agreement, a GNMA Issuer will be required to advance its own
funds in order to make timely payments of all amounts due on each such GNMA
Certificate, even if the payments received by the GNMA Issuer on the FHA Loans
or VA Loans underlying each such GNMA Certificate are less than the amounts due
on each such GNMA Certificate.
The full and timely payment of principal of and interest on each GNMA
Certificate will be guaranteed by GNMA, which obligation is backed by the full
faith and credit of the United States. Each such GNMA Certificate will have an
original maturity of not more than 40 years (but may have original maturities of
substantially less than 40 years). Each such GNMA Certificate will provide for
the payment by or on behalf of the GNMA Issuer to the registered holder of such
GNMA Certificate of scheduled monthly payments of principal and interest equal
to the registered holder's proportionate interest in the aggregate amount of the
monthly principal and interest payment on each FHA Loan or VA Loan underlying
such GNMA Certificate, less the applicable servicing and guarantee fee which
together equal the difference between the interest on the FHA Loans or VA Loans
and the pass-through rate on the GNMA Certificate. In addition, each payment
will include proportionate pass-through payments of any prepayments of principal
on the FHA Loans or VA Loans underlying such GNMA Certificate and liquidation
proceeds in the event of a foreclosure or other disposition of any such FHA
Loans or VA Loans.
If a GNMA Issuer is unable to make the payments on a GNMA Certificate as it
becomes due, it must promptly notify GNMA and request GNMA to make such payment.
Upon notification and request, GNMA will make such payments directly to the
registered holder of such GNMA Certificate. In the event no payment is made by
a GNMA Issuer and the GNMA Issuer fails to notify and request GNMA to make such
payment, the holder of such GNMA Certificate will have recourse only against
GNMA to obtain such payment. The Trustee or its nominee, as registered holder
of the GNMA Certificates held in a Trust Fund, will have the right to proceed
directly against GNMA under the terms of the Guaranty Agreements relating to
such GNMA Certificates for any amounts that are not paid when due.
All mortgage loans underlying a particular GNMA Certificate must have the
same interest rate (except for pools of mortgage loans secured by manufactured
homes) over the term of the loan. The interest rate on such GNMA I Certificate
will equal the interest rate on the mortgage loans included in the pool of
mortgage loans underlying such GNMA I Certificate, less one-half percentage
point per annum of the unpaid principal balance of the mortgage loans.
Mortgage loans underlying a particular GNMA II Certificate may have per
annum interest rates that vary from each other by up to one percentage point.
The interest rate on each GNMA II Certificate will be between one-half
percentage point and one and one-half percentage points lower than the highest
interest rate on the mortgage loans included in the pool of mortgage loans
underlying such GNMA II Certificate (except for pools of mortgage loans secured
by manufactured homes).
Regular monthly installment payments on each GNMA Certificate held in a
Trust Fund will be comprised of interest due as specified on such GNMA
Certificate plus the scheduled principal payments on the FHA Loans or VA Loans
underlying such GNMA Certificate due on the first day of the month in which the
scheduled monthly installments on such GNMA Certificate is due. Such regular
monthly installments on each such GNMA Certificate are required to be paid to
the Trustee as registered holder by the 15th day of each month in the case of a
GNMA I Certificate and are required to be mailed to the Trustee by the 20th day
of each month in the case of a GNMA II Certificate. Any principal prepayments
on any FHA Loans or VA Loans underlying a GNMA Certificate held in a
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Trust Fund or any other early recovery of principal on such loan will be passed
through to the Trustee as the registered holder of such GNMA Certificate.
GNMA Certificates may be backed by graduated payment mortgage loans or by
"buydown" mortgage loans for which funds will have been provided (and deposited
into escrow accounts) for application to the payment of a portion of the
borrowers' monthly payments during the early years of such mortgage loan.
Payments due the registered holders of GNMA Certificates backed by pools
containing "buydown" mortgage loans will be computed in the same manner as
payments derived from other GNMA Certificates and will include amounts to be
collected from both the borrower and the related escrow account. The graduated
payment mortgage loans will provide for graduated interest payments that, during
the early years of such mortgage loans, will be less than the amount of stated
interest on such mortgage loans. The interest not so paid will be added to the
principal of such graduated payment mortgage loans and, together with interest
thereon, will be paid in subsequent years. The obligations of GNMA and of a
GNMA Issuer will be the same irrespective of whether the GNMA Certificates are
backed by graduated payment mortgage loans or "buydown" mortgage loans. No
statistics comparable to the FHA's prepayment experience on level payment, non-
buydown loans are available in respect of graduated payment or buydown
mortgages. GNMA Certificates related to a Series of Securities may be held in
book-entry form.
GNMA also guarantees the timely payment of principal of and interest on
"fully modified pass-through" mortgage-backed securities issued and serviced by
certain mortgage banking companies and other financial concerns ("FNMA Project
Issuers") based upon and backed by pools of multi-family residential mortgage
loans coinsured by FHA and GNMA Project Issuers under the Housing Act ("GNMA
Project Certificates"). The Prospectus Supplement for a Series of Securities
that includes GNMA Project Certificates will set forth additional information
regarding the GNMA guaranty program, servicing of the mortgage pool, the payment
of principal and interest on GNMA Project Certificates and other matters with
respect to multi-family residential mortgage loans that qualify for the GNMA
guaranty.
Federal National Mortgage Association. FNMA is a federally chartered and
privately owned corporation organized and existing under the Federal National
Mortgage Association Charter Act (the "Charter Act"). FNMA was originally
established in 1938 as a United States government agency to provide supplemental
liquidity to the mortgage market and was transformed into a stockholder-owned
and privately-managed corporation by legislation enacted in 1968.
FNMA provides funds to the mortgage market primarily by purchasing mortgage
loans from lenders, thereby replenishing their funds for additional lending.
FNMA acquires funds to purchase mortgage loans from many capital market
investors that may not ordinarily invest in mortgages, thereby expanding the
total amount of funds available for housing. Operating nationwide, FNMA helps
to redistribute mortgage funds from capital-surplus to capital-short areas.
FNMA Certificates. FNMA Certificates are either Guaranteed Mortgage Pass-
Through Certificates ("FNMA MBS") or Stripped Mortgage-Backed Securities ("FNMA
SMBS"). The following discussion of FNMA Certificates applies equally to both
FNMA MBS and FNMA SMBS, except as otherwise indicated. Each FNMA Certificate
included in the Trust for a Series will represent a fractional undivided
interest in a pool of mortgage loans formed by FNMA. Each such pool will
consist of mortgage loans of one of the following types: (i) fixed-rate level
installment conventional mortgage loans; (ii) fixed-rate level installment
mortgage loans that are insured by FHA or partially guaranteed by the VA; (iii)
adjustable rate conventional mortgage loans; or (iv) adjustable rate mortgage
loans that are insured by the FHA or partially guaranteed by the VA. Each
mortgage loan must meet the applicable standards set forth under the FNMA
purchase program. Each such mortgage loan will be secured by a first lien on a
one-family or two- to four-family residential property. Each such FNMA
Certificate will be issued pursuant to a trust indenture. Original maturities
of substantially all of the conventional, level payment mortgage loans
underlying a FNMA Certificate are expected to be between either 8 to 15 years or
20 to 40 years. The original maturities of substantially all of the fixed rate
level payment FHA Loans or VA Loans are expected to be 30 years.
Mortgage loans underlying a FNMA Certificate may have annual interest rates
that vary by as much as two percentage points from each other. The rate of
interest payable on a FNMA MBS (and the series pass-through rate
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payable with respect to a FNMA SMBS) is equal to the lowest interest rate of any
mortgage loan in the related pool, less a specified minimum annual percentage
representing servicing compensation and FNMA's guaranty fee. Under a regular
servicing option (pursuant to which the mortgagee or other servicer assumes the
entire risk of foreclosure losses), the annual interest rates on the mortgage
loans underlying a FNMA Certificate will be between 50 basis points and 250
basis points greater than the annual pass-through rate if a FNMA MBS or the
series pass-through rate if a FNMA SMBS; and under a special servicing option
(pursuant to which FNMA assumes the entire risk for foreclosure losses), the
annual interest rates on the mortgage loans underlying a FNMA Certificate will
generally be between 55 basis points and 255 basis points greater than the
annual FNMA Certificate pass-through rate if a FNMA MBS, or the series pass-
through rate if a FNMA SMBS.
FNMA guarantees to each registered holder of a FNMA Certificate that it
will distribute on a timely basis amounts representing such holder's
proportionate share of scheduled principal and interest payments at the
applicable pass-through rate provided for by such FNMA Certificate on the
underlying mortgage loans, whether or not received, and such holder's
proportionate share of the full principal amount of any foreclosed or other
finally liquidated mortgage loan, whether or not such principal amount is
actually recovered. The obligations of FNMA under its guarantees are
obligations solely of FNMA and are not backed by, nor entitled to, the full
faith and credit of the United States. If FNMA were unable to satisfy its
obligations, distributions to holders of FNMA Certificates would consist solely
of payments and other recoveries on the underlying mortgage loans and,
accordingly, monthly distributions to holders of FNMA Certificates would be
affected by delinquent payments and defaults on such mortgage loans.
FNMA SMBS are issued in series of two or more classes, with each class
representing a specified undivided fractional interest in principal
distributions and interest distributions (adjusted to the series pass-through
rate) on the underlying pool of mortgage loans. The fractional interests of
each class in principal and interest distributions are not identical, but the
classes in the aggregate represent 100% of the principal distributions and
interest distributions (adjusted to the series pass-through rate) on the
respective pool. Because of such difference between the fractional interests in
principal and interest of each class, the effective rate of interest on the
principal of each class of FNMA SMBS may be significantly higher or lower than
the series pass-through rate and/or the weighted average interest rate of the
underlying mortgage loans.
Unless otherwise specified by FNMA, FNMA Certificates evidencing interests
in pools of mortgages formed on or after May 1, 1985 will be available in book-
entry form only. Distributions of principal and interest on each FNMA
Certificate will be made by FNMA on the 25th day of each month to the persons in
whose name the FNMA Certificate is entered in the books of the Federal Reserve
Banks (or registered on the FNMA Certificate register in the case of fully
registered FNMA Certificates) as of the close of business on the last day of the
preceding month. With respect to FNMA Certificates issued in book-entry form,
distributions thereon will be made by wire, and with respect to fully registered
FNMA Certificates, distributions thereon will be made by check.
Federal Home Loan Mortgage Corporation. FHLMC is a publicly held United
States government-sponsored enterprise created pursuant to the Federal Home Loan
Mortgage Corporation Act, Title III of the Emergency Home Finance Act of 1970,
as amended (the "FHLMC Act"). The common stock of FHLMC is owned by the Federal
Home Loan Banks. FHLMC was established primarily for the purpose of increasing
the availability of mortgage credit for the financing of urgently needed
housing. It seeks to provide an enhanced degree of liquidity for residential
mortgage investments primarily by assisting in the development of secondary
markets for conventional mortgages. The principal activity of FHLMC currently
consists of the purchase of first lien conventional mortgage loans or
participation interests in such mortgage loans and the sale of the mortgage
loans or participations so purchased in the form of mortgage securities,
primarily FHLMC Certificates. FHLMC is confined to purchasing, so far as
practicable, mortgage loans that it deems to be of such quality, type and class
as to meet generally the purchase standards imposed by private institutional
mortgage investors.
FHLMC Certificates. Each FHLMC Certificate represents an undivided
interest in a pool of mortgage loans that may consist of first lien conventional
loans, FHA Loans or VA Loans (a "FHLMC Certificate Group"). FHLMC Certificates
are sold under the terms of a Mortgage Participation Certificate Agreement. A
FHLMC Certificate may be issued under either FHLMC's Cash Program or Guarantor
Program.
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Unless otherwise described in the Prospectus Supplement, Mortgage loans
underlying the FHLMC Certificates held by a Trust Fund will consist of mortgage
loans with original terms to maturity of between 10 and 40 years. Each such
mortgage loan must meet the applicable standards set forth in the FHLMC Act. A
FHLMC Certificate Group may include whole loans, participation interests in
whole loans and undivided interests in whole loans and/or participations
comprising another FHLMC Certificate Group. Under the Guarantor Program, any
such FHLMC Certificate Group may include only whole loans or participation
interests in whole loans.
FHLMC guarantees to each registered holder of a FHLMC Certificate the
timely payment of interest on the underlying mortgage loans to the extent of the
applicable Security rate on the registered holder's pro rata share of the unpaid
principal balance outstanding on the underlying mortgage loans in the FHLMC
Certificate Group represented by such FHLMC Certificate, whether or not
received. FHLMC also guarantees to each registered holder of a FHLMC
Certificate ultimate receipt by such holder of all principal on the underlying
mortgage loans, without any offset or deduction, to the extent of such holder's
pro rata share thereof, but does not, except if and to the extent specified in
the Prospectus Supplement for a Series of Securities, guarantee the timely
payment of scheduled principal. Under FHLMC's Gold PC Program, FHLMC guarantees
the timely payment of principal based on the difference between the pool factor,
published in the month preceding the month of distribution and the pool factor
published in such month of distribution. Pursuant to its guarantees, FHLMC
indemnifies holders of FHLMC Certificates against any diminution in principal by
reason of charges for property repairs, maintenance and foreclosure. FHLMC may
remit the amount due on account of its guarantee of collection of principal at
any time after default on an underlying mortgage loan, but not later than (i) 30
days following foreclosure sale, (ii) 30 days following payment of the claim by
any mortgage insurer, or (iii) 30 days following the expiration of any right of
redemption, whichever occurs later, but in any event no later than one year
after demand has been made upon the mortgagor for accelerated payment of
principal. In taking actions regarding the collection of principal after
default on the mortgage loans underlying FHLMC Certificates, including the
timing of demand for acceleration, FHLMC reserves the right to exercise its
judgment with respect to the mortgage loans in the same manner as for mortgage
loans which it has purchased but not sold. The length of time necessary for
FHLMC to determine that a mortgage loan should be accelerated varies with the
particular circumstances of each mortgagor, and FHLMC has not adopted standards
which require that the demand be made within any specified period.
FHLMC Certificates are not guaranteed by the United States or by any
Federal Home Loan Bank and do not constitute debts or obligations of the United
States or any Federal Home Loan Bank. The obligations of FHLMC under its
guarantee are obligations solely of FHLMC and are not backed by, nor entitled
to, the full faith and credit of the United States. If FHLMC were unable to
satisfy such obligations, distributions to holders of FHLMC Certificates would
consist solely of payments and other recoveries on the underlying mortgage loans
and, accordingly, monthly distributions to holders of FHLMC Certificates would
be affected by delinquent payments and defaults on such mortgage loans.
Registered holders of FHLMC Certificates are entitled to receive their
monthly pro rata share of all principal payments on the underlying mortgage
loans received by FHLMC, including any scheduled principal payments, full and
partial prepayments of principal and principal received by FHLMC by virtue of
condemnation, insurance, liquidation or foreclosure, and repurchases of the
mortgage loans by FHLMC or the seller thereof. FHLMC is required to remit each
registered FHLMC Certificateholder's pro rata share of principal payments on the
underlying mortgage loans, interest at the FHLMC pass-through rate and any other
sums such as prepayment fees, within 60 days of the date on which such payments
are deemed to have been received by FHLMC.
Under FHLMC's Cash Program, with respect to pools formed prior to June 1,
1987, there is no limitation on the amount by which interest rates on the
mortgage loans underlying a FHLMC Certificate may exceed the pass-through rate
on the FHLMC Certificate. With respect to FHLMC Certificates issued on or after
June 1, 1987, the maximum interest rate on the mortgage loans underlying such
FHLMC Certificates may exceed the pass through rate of the FHLMC Certificates by
50 to 100 basis points. Under such program, FHLMC purchases groups of whole
mortgage loans from sellers at specified percentages of their unpaid principal
balances, adjusted for accrued or prepaid interest, which when applied to the
interest rate of the mortgage loans and participations purchased, results in the
yield (expressed as a percentage) required by FHLMC. The required yield, which
includes a minimum servicing
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fee retained by the servicer, is calculated using the outstanding principal
balance. The range of interest rates on the mortgage loans and participations in
a FHLMC Certificate group under the Cash Program will vary since mortgage loans
and participations are purchased and assigned to a FHLMC Certificate group based
upon their yield to FHLMC rather than on the interest rate on the underlying
mortgage loans.
Under FHLMC's Guarantor Program, the pass-through rate on a FHLMC
Certificate is established based upon the lowest interest rate on the underlying
mortgage loans, minus a minimum servicing fee and the amount of FHLMC's
management and guaranty income as agreed upon between the seller and FHLMC. For
FHLMC Certificate Groups formed under the Guarantor Program with certificate
numbers beginning with 18-012, the range between the lowest and the highest
annual interest rates on the mortgage loans in a FHLMC Certificate group may not
exceed two percentage points.
FHLMC Certificates duly presented for registration of ownership on or
before the last business day of a month are registered effective as of the first
day of the month. The first remittance to a registered holder of a FHLMC
Certificate will be distributed so as to be received normally by the 15th day of
the second month following the month in which the purchaser became a registered
holder of the FHLMC Certificates. Thereafter, such remittance will be
distributed monthly to the registered holder so as to be received normally by
the 15th day of each month. The Federal Reserve Bank of New York maintains
book-entry accounts with respect to FHLMC Certificates sold by FHLMC on or after
January 2, 1985, and makes payments of principal and interest each month to the
registered holders thereof in accordance with such holders' instructions.
FHLMC also issues mortgage participation certificates representing an
undivided interest in a group of multi-family residential mortgage loans or
participations in multi-family residential mortgage loans purchased by FHLMC
("FHLMC Project Certificates"). The Prospectus Supplement for a Series of
Securities issued by a Trust that included FHLMC Project Certificates will set
forth additional information regarding multi-family residential mortgage loans
that qualify for purchase by FHLMC.
Stripped Mortgage-Backed Securities. Agency Securities may consist of one
or more stripped mortgage-backed securities, each as described herein and in the
related Prospectus Supplement. Each such Agency Security will represent an
undivided interest in all or part of either the principal distributions (but not
the interest distributions) or the interest distributions (but not the principal
distributions), or in some specified portion of the principal and interest
distributions (but not all of such distributions) on certain FHLMC, FNMA, GNMA
or other government agency or government-sponsored agency certificates. The
underlying securities will be held under a trust agreement by FHLMC, FNMA, GNMA
or another government agency or government- sponsored agency, each as trustee,
or by another trustee named in the related Prospectus Supplement. FHLMC, FNMA,
GNMA or another government agency or government-sponsored agency will guarantee
each stripped Agency Security to the same extent as such entity guarantees the
underlying securities backing such stripped Agency Security, unless otherwise
specified in the related Prospectus Supplement.
Other Agency Securities. If specified in the related Prospectus
Supplement, a Trust Fund may include other mortgage pass-through certificates
issued or guaranteed by GNMA, FNMA, FHLMC or other government agencies or
government-sponsored agencies. The characteristics of any such mortgage pass-
through certificates will be described in such Prospectus Supplement. If so
specified, a combination of different types of Agency Securities may be held in
a Trust Fund.
Private Mortgage-Backed Securities
General. Private Mortgage-Backed Securities may consist of (a) mortgage
participations or pass-through certificates representing beneficial interests in
certain mortgage loans or (b) CMOs secured by such mortgage loans. Private
Mortgage-Backed Securities will have been issued pursuant to a PMBS agreement
(the "PMBS Agreement"). The seller/servicer of the underlying mortgage loans
will have entered into the PMBS Agreement with the PMBS Trustee under the PMBS
Agreement. The PMBS Trustee or its agent, or a custodian, will possess the
mortgage loans underlying such Private Mortgage-Backed Security. Mortgage loans
underlying a Private Mortgage-Backed Security will be serviced by the PMBS
Servicer directly or by one or more sub-servicers who may be subject to the
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supervision of the PMBS Servicer. The PMBS Servicer will be approved as a
servicer by FNMA or FHLMC and, if FHA Loans underlie the Private Mortgage-Backed
Securities, approved by the Department of Housing and Urban Development ("HUD")
as an FHA mortgagee.
The PMBS Issuer will be a financial institution or other entity engaged
generally in the business of mortgage lending or the acquisition of mortgage
loans, a public agency or instrumentality of a state, local or federal
government, or a limited purpose or other corporation organized for the purpose
of among other things, establishing trusts and acquiring and selling housing
loans to such trusts and selling beneficial interests in such trusts. If so
specified in the Prospectus Supplement, the PMBS Issuer may be an affiliate of
the Representative. The obligations of the PMBS Issuer will generally be
limited to certain representations and warranties with respect to the assets
conveyed by it to the related trust. Unless otherwise specified in the related
Prospectus Supplement, the PMBS Issuer will not have guaranteed any of the
assets conveyed to the related trust or any of the Private Mortgage-Backed
Securities issued under the PMBS Agreement. Additionally, although the mortgage
loans underlying the Private Mortgage-Backed Securities may be guaranteed by an
agency or instrumentality of the United States, the Private Mortgage-Backed
Securities themselves will not be so guaranteed.
Distributions of principal and interest will he made on the Private
Mortgage-Backed Securities on the dates specified in the related Prospectus
Supplement. The Private Mortgage-Backed Securities may be entitled to receive
nominal or no principal distributions or nominal or no interest distributions.
Principal and interest distributions will be made on the Private Mortgage-Backed
Securities by the PMBS Trustee or the PMBS Servicer. The PMBS Issuer or the
PMBS Servicer may have the right to repurchase assets underlying the Private
Mortgage-Backed Securities after a certain date or under other circumstances
specified in the related Prospectus Supplement.
Underlying Mortgage Loans. The Underlying Mortgage Loans underlying the
Private Mortgage-Backed Securities may consist of fixed rate, level payment,
fully amortizing loans or graduated payment mortgage loans, buydown loans,
adjustable rate mortgage loans, or loans having balloon or other special payment
features. Such Underlying Mortgage Loans may be Single Family Loans,
Multifamily Loans, Cooperative Loans or Contracts secured by Manufactured Homes.
As specified in the related Prospectus Supplement, (i) no Underlying Mortgage
Loan will have had a Combined Loan-to-Value Ratio at origination in excess of
the percentage set forth in the related Prospectus Supplement, (ii) each
underlying mortgage loan will have had an original term to stated maturity of
not less than 5 years and not more than 40 years, (iii) each Underlying Mortgage
Loan (other than Cooperative Loans) will be required to be covered by a standard
hazard insurance policy (which may be a blanket policy), and (iv) each mortgage
loan (other than Cooperative Loans or Contracts secured by a Manufactured Home)
will be covered by a title insurance policy.
Credit Support Relating to Private Mortgage-Backed Securities. Credit
support in the form of subordination of other private mortgage certificates
issued under the PMBS Agreement, reserve funds, insurance policies, letters of
credit, financial guaranty insurance policies, guarantees or other types of
credit support may be provided with respect to the Underlying Mortgage Loans or
with respect to the Private Mortgage-Backed Securities themselves.
Additional Information. The Prospectus Supplement for a Series for which
the related Trust includes Private Mortgage-Backed Securities will specify (i)
the aggregate approximate principal amount and type of the Private Mortgage-
Backed Securities to be included in the Trust Fund, (ii) certain characteristics
of the Underlying Mortgage Loans including (A) the payment features of such
Underlying Mortgage Loans, (B) the approximate aggregate principal balance, if
known, of Underlying Mortgage Loans insured or guaranteed by a governmental
entity, (C) the servicing fee or range of servicing fees with respect to the
Underlying Mortgage Loans, and (D) the minimum and maximum stated maturities of
the Underlying Mortgage Loans at origination, (iii) the maximum original term-
to-stated maturity of the Private Mortgage-Backed Securities, (iv) the weighted
average term-to-stated maturity of the Private Mortgage-Backed Securities, (v)
the pass-through or certificate rate of the Private Mortgage-Backed Securities,
(vi) the weighted average pass-through or certificate rate of the Private
Mortgage-Backed Securities, (vii) the PMBS Issuer, the PMBS Servicer (if other
than the PMBS Issuer) and the PMBS Trustee for such Private Mortgage-Backed
Securities, (viii) certain characteristics of credit support, if any, such as
reserve funds, insurance policies, letters of credit or guarantees relating to
the Underlying Mortgage Loans or to such Private Mortgage-Backed Securities
themselves, (ix) the terms on which the Underlying Mortgage Loans for such
Private Mortgage-
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Backed Securities may, or are required to, be purchased prior to their stated
maturity or the stated maturity of the Private Mortgage-Backed Securities and
(x) the terms on which other mortgage loans may be substituted for those
originally underlying the Private Mortgage-Backed Securities.
USE OF PROCEEDS
The Representative and the Originators may use the net proceeds to be
received from the sale of the Securities of each Series for general corporate
purposes, including repayment of debt, including but not limited to warehouse
facilities, and the origination and acquisition of residential mortgage loans
and other loans. The Representative expects Securities to be sold in Series
from time to time.
THE REPRESENTATIVE AND THE ORIGINATORS
The Mortgage Loans will have been originated or acquired by the
Originators. The Money Store will act as the Master Servicer of the Mortgage
Loans and other Mortgage Assets. Except for certain representations and
warranties relating to the Mortgage Loans and other Mortgage Assets and certain
other matters, the obligations of The Money Store with respect to the Mortgage
Loans and other Mortgage Assets will be limited to its contractual servicing
obligations.
The Money Store is a New Jersey corporation and is headquartered in
Sacramento, California and Union, New Jersey.
The Money Store is a financial services company engaged, through its
subsidiaries (including the Originators), in the business of originating,
purchasing, selling and servicing consumer and commercial loans of specified
types and offering related services. Loans originated by The Money Store and
its subsidiaries have consisted primarily of mortgage loans, loans partially
guaranteed by the United States Small Business Administration, student loans,
and automobile loans.
Since 1967, The Money Store and its subsidiaries have been active in the
development of the residential home equity lending industry in the United
States.
THE SINGLE FAMILY LOAN LENDING PROGRAM
Overview
The Money Store's and the Originators' mortgage lending activities consist
primarily of originating, purchasing, selling and servicing mortgage loans that
are primarily secured by one- to four-family residential properties, including
low-rise condominiums, single-family detached homes, single-family attached
homes, planned unit developments and mixed use properties (collectively, "Single
Family Loans"). It has been the Originators' policy generally not to make
mortgage loans secured by high-rise condominiums, cooperative residences or
other categories of properties that management believes have demonstrated
relatively high levels of risk. The majority of Single Family Loans are to
borrowers owning a single-family detached home. Single Family Loans are made to
borrowers for, among other purposes, education, home improvements and debt
consolidation. The Money Store and its subsidiaries also originate, with the
intention of selling and servicing, Multifamily Loans, FHA Loans, Secured
Conventional Home Improvement Loans, Unsecured Home Improvement Loans and loans
partially guaranteed by the United States Small Business Administration. In
addition, The Money Store and its subsidiaries from time to time purchase
packages of loans from other lenders or government agencies.
The Originators originate and purchase Single Family Loans with original
terms of up to 40 years. The following is a description of the origination,
underwriting, servicing and other procedures used by The Money Store and the
Originators in connection with their Single Family Loan program. If a
significant portion of the Mortgage
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Loans underlying a given Series of Securities consists of FHA Loans, Secured
Conventional Home Improvement Loans and/or Unsecured Home Improvement Loans, the
related Prospectus Supplement will contain a similar description of the program
relating to such Mortgage Loans.
Single Family Loan Origination
The Originators' Single Family Loan origination offices are generally
located in small and medium-sized suburban communities. All Single Family Loan
origination offices have a manager who reports to senior management. Each
regional office supervises the operations of a group of states. The supervision
of all of the Originator's underwriting and administrative functions is
conducted from the Sacramento, California headquarters.
The entire application and approval process for Single Family Loans is
generally conducted by telephone. The Originators attempt to grant approvals of
loans quickly to borrowers meeting their underwriting criteria. A loan officer
is responsible for completing, evaluating and processing the loan application of
a prospective borrower based on information obtained from the borrower and
verified with third parties. Depending on the size of the loan applied for,
loan applications must be approved by an underwriter located in the Sacramento,
California headquarters. Loan officers are trained to structure loans that meet
the applicant's needs, while satisfying the Originators' lending criteria. If
an applicant does not meet the lending criteria, the loan officer may offer to
make a smaller loan, if a smaller loan would meet the lending criteria, or
suggest a debt consolidation package that better suits the applicant's needs.
The Originators also acquire Single Family Loans through an indirect
lending program, from independent brokers. Such Single Family Loans are
underwritten by the Originators using the same criteria applied to loans
originated by such Originator. Brokers participating in this program must
satisfy certain requirements established by the Originators pertaining to
experience, size of business and various licenses and approvals. The
Originators also acquire, from time to time, portfolios of Single Family Loans
from various third parties. The Originators will not sell such acquired loans
to a Trust unless the Originators determine that such loans, when originated,
were underwritten using the same criteria applied to loans originated by the
Originators.
Starting in October 1995, the Originators began originating Single Family
Loans under a program that will result in lower interest rates for borrowers
that make timely payments during the early years of the related loan. Under
this program, if a borrower remits all scheduled payments during the first year
of the loan on a timely basis, the interest rate on the loan will be reduced
0.50% per annum. If the borrower remits all scheduled payments during the
second year of the loan on a timely basis, the interest rate will be reduced an
additional 0.50% per annum and, if all payments are made during the third year
of the loan on a timely basis, the interest rate will be reduced a final 0.50%
per annum. Once the interest rate on a loan is reduced, it will not be
increased, regardless of the borrowers future payment record.
Underwriting Criteria
The following is a brief description of certain of the underwriting
standards used by the Originators to underwrite Single Family Loans. The
underwriting process is intended to assess both the prospective borrower's
ability to repay and the adequacy of the real property security as collateral
for the loan granted. To the extent that the relevant underwriting criteria
differ from those described herein, the related Prospectus Supplement for such
Series will specifically describe such criteria.
In certain cases deemed appropriate by an Originator's underwriters, loans
may be made outside of the Originator's guidelines with the prior approval of
pre-designated senior officials. No information is available with respect to
the portion of the Mortgage Loans which was originated outside of these
guidelines.
The Originators' objective in originating Single Family Loans is to provide
loans to borrowers with satisfactory income and credit histories deemed
sufficient to demonstrate the ability to repay their loan. The primary and
initial origination policy is to analyze the applicant's creditworthiness (i.e.,
a determination of the applicant's ability to repay the loan). Creditworthiness
is assessed by examination of a number of factors, which may include calculating
a debt-to-income ratio obtained by dividing a borrower's fixed monthly debt by
the borrower's gross
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monthly income. Fixed monthly debt generally includes (i) the monthly payment
under the related prior mortgages (which generally includes an escrow for real
estate taxes) based, in the case of an adjustable-rate first mortgage, on the
assumption that the then-current rate is the rate at which interest will accrue
on such loan, (ii) the monthly payment on the loan applied for and (iii) other
installment debt, including, for revolving debt, the required monthly payment
thereon or if no such payment is specified, 5% of the balance as of the date of
calculation. Fixed monthly debt does not include any debt (other than revolving
credit debt) described above that matures within less than 10 months of the date
of calculation. Except as otherwise set forth in the related Prospectus
Supplement, the debt-to-income ratio of any borrower will not have exceeded 50%
as of origination of the related loan. Creditworthiness is also assessed by
examining the applicant's credit history through standard credit reporting
bureaus, and by checking the applicant's payment history with respect to the
first mortgage, if any, on the property.
The second origination policy for Single Family Loans is a determination of
the Combined Loan-to-Value Ratio. Combined Loan-to-Value Ratio guidelines are
established depending on the type of loan. For each Single Family Loan, the
Originator confirms the value of the property to be mortgaged by appraisals
(which in certain cases may be drive-by appraisals) performed by independent
appraisers. Drive-by appraisals involve a visual observation of the exterior of
the characteristics and condition of the property and the neighborhood. Because
the interior dimensions, improvements and conditions are not inspected, a drive-
by appraisal produces only a general approximation of value for the particular
property. If the Originator has previously originated a loan to the same
borrower secured by the same property within one year, the Originator may rely
on the prior appraisal in conjunction with a new drive-by appraisal. If an
appraisal is not required to be obtained for a Single Family Loan, the value of
the related mortgaged property, as represented by the borrower, may be evaluated
through other methods such as a drive-by appraisal, a review of comparable sales
or tax assessments or reliance upon a recent sales price for such mortgaged
property. Such methods do not constitute an appraisal of the related mortgaged
property. All Combined Loan-to-Value Ratios are determined prior to approval of
the loans.
The Originators have several procedures which they use to verify
information obtained from an applicant. The applicant's outstanding balance and
payment history on any senior mortgage may be verified by calling the senior
mortgage lender. If the senior mortgage lender cannot be reached by telephone
to verify this information, the Originator may rely upon information provided by
the applicant, such as a recent statement from the senior lender and
verification of payment, such as canceled checks, or upon information provided
by national credit bureaus.
In order to verify an applicant's employment status, the Originators may
obtain from the applicant recent tax returns or other tax forms (e.g., W-2
forms) or current pay stubs or may telephone the applicant's employer or obtain
written verification from the employer. As in the case of the senior mortgage
lender verification procedures, if the employer will not verify employment
history over the telephone, the Originator may rely solely on the other
information provided by the applicant.
The Originators will not close a Single Family Loan prior to receiving
evidence that the property securing the loan is insured. In addition, at the
closing, the borrower is required to sign a letter addressed to his insurance
carrier naming the Originator as a loss payee under the insurance policy, which
the Originator will thereafter mail to the insurer. Accordingly, the Originator
normally will not be named as a loss payee with respect to the property securing
the Single Family Loan at the time the loan is closed.
A title search is ordered to verify the vesting of title to the Mortgaged
Property, along with the existence of any mortgages, tax or other liens that
have been levied on the property, to assure that the lien priority will be as
represented by the borrower.
Most Single Family Loans originated or purchased by the Originators
generally are scheduled to amortize over their terms and provide for equal
monthly payments over their terms. The Originators also offer a "balloon"
mortgage on a limited basis. The Originators collect nonrefundable points, late
charges and various fees in certain states in connection with their mortgage
loans. Other fees charged, where allowable, include those related to credit
reports, lien searches, title insurance and recordings, prepayment fees and
appraisal fees. From time-to-time, the Originators may originate or purchase
Single Family Loans containing other features. To the extent that a substantial
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portion of a Trust Fund consists of such Single Family Loans such features will
be described in the related Prospectus Supplement.
Although the Originators have no maximum dollar amount for Single Family
Loans, the actual maximum amount that they will lend is determined by an
evaluation of the applicant's ability to repay the loan, the value of the
borrower's equity in the real estate and the ratio of such equity to the real
estate's appraised value.
Commencing in 1997, the Originators began originating Single Family Loans
with Combined Loan-to-Value Ratios exceeding 100%. Such Single Family Loans are
originated to borrowers believed by the Originators to have the income capacity
and credit history to offset the lack of equity in the related Mortgaged
Property. Such Single Family Loans generally bear a higher rate of interest
than Single Family Loans with lower Combined Loan-to-Value Ratios.
Quality Control
Quality control is exercised in two areas: lending and documentation
standards. In the case of Single Family Loans, a centralized quality control
staff checks to confirm that lending and documentation standards are met. Every
month, at least one office is audited and every loan type originated during the
prior month by such office is reviewed for compliance with lending and
documentation standards. Five percent of all Single Family Loans originated by
the Originators are audited at random on a monthly basis for compliance with
lending and documentation standards. Additional offices receive audits on a
random, monthly basis. In order to confirm the validity of appraisals obtained
at the time loans are made, reappraisals are obtained for the property securing
the loans in approximately two percent to five percent of the transactions.
Refinancing Policy
Where the Originators believe that borrowers having existing loans with
them are likely to refinance such loans due to interest rate changes or other
reasons, the Originators actively attempt to retain such borrowers through
solicitations of such borrowers to refinance with the Originators. Such
refinancings generate fee and servicing income for the Originators. Since the
solicited borrowers may refinance their existing loans in any case, the
Representative believes that this practice will be unlikely to affect the
prepayment experience of the Single Family Loans in a material respect. The
Originators also have solicited their borrowers who are in good standing to
apply for additional loans, consistent with their origination standards, where
deemed appropriate.
Servicing and Collections
The Money Store or one of its affiliates, as Master Servicer, will be
required under the related Agreement to master service the Mortgage Loans and
other Mortgage Assets underlying a particular Series of Securities with the same
degree of skill and care that it exercises with respect to all comparable loans
and assets that it master services for its own account. Servicing includes, but
is not limited to, post-origination loan processing, customer service,
remittance handling, collections and liquidations.
Borrowers are sent payment coupon books or monthly statements that specify
the fixed payment due and the late payment amount, if any. Due dates for
payments occur throughout the calendar month. If payment is not received within
fifteen working days of the due date, an initial collection effort is made by
telephone in an attempt to bring the delinquent account current. The various
stages of delinquency are monitored and evaluated on a monthly basis.
Means of contacting delinquent accounts include, but are not limited to,
telephone calls and collection letters. When an account is 30 days past due,
the collection supervisor analyzes the account to determine the appropriate
course of action. If a borrower is experiencing difficulty in making payments
on time, the Servicer may modify the payment schedule (as permitted by the
Agreement) but will not remove the loan from a delinquency status.
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The course of action taken by the Servicer is dependent upon a number of
factors including the borrower's payment history, the amount of equity in the
related Mortgaged Property and the reason for the current inability to make
timely payments.
When a loan is 90 days past due, the related Mortgaged Property is required
to be reappraised and the results evaluated by the Company to determine a course
of action. Foreclosure regulations and practices and the rights of the owner in
default vary from state to state, but generally procedures may be initiated if:
(i) the loan is 90 days or more delinquent; (ii) a notice of default on a senior
lien is received or (iii) the servicer discovers circumstances indicating
potential loss exposure. During the foreclosure process, any expenses incurred
by the Servicer may be added to the amount owed by the borrower, as permitted by
applicable law. Upon completion of the foreclosure, the property is sold to an
outside bidder, or passes to the mortgagee, in which case the Servicer proceeds
to liquidate the asset.
The Servicer may not foreclose on the property securing a junior mortgage
loan unless it forecloses subject to the related senior mortgages. In such
cases, the Servicer generally will pay the amount due on the senior mortgages to
the senior mortgagees, if the Servicer considers it to be in the best interest
of the related Securityholders to do so. In the event that foreclosure
proceedings have been instituted on a senior mortgage prior to the initiation of
the Servicer's foreclosure action, the Servicer will either satisfy such
mortgage at the time of the foreclosure sale or take other appropriate action.
The Servicer retains "in-house" counsel in part to help assist with problem
accounts. Such counsel may be utilized by all levels of management to help
avoid legal problems, including those associated with consumer lending.
Servicing and charge-off policies and collection practices may change over
time in accordance with the servicer's business judgment, changes in its real-
estate loan portfolio and applicable laws and regulations, as well as other
items.
Regulations and practices regarding the liquidation of properties (e.g.,
foreclosure) and the rights of the borrower in default vary greatly from state
to state. Only if a delinquency cannot otherwise be cured will the servicer
decide that liquidation is the appropriate course of action. If, after
determining that purchasing a property securing a mortgage loan will minimize
the loss associated with such defaulted loan, the servicer may bid at the
foreclosure sale for such property or accept a deed in lieu of foreclosure.
DESCRIPTION OF THE SECURITIES
Each Series of Certificates will be issued, from time to time, pursuant to
either a Pooling and Servicing Agreement or a Trust Agreement, and each Series
of Notes will be issued, from time to time, pursuant to an Indenture, each to be
dated as of the date set forth in the related Prospectus Supplement (each such
date, a "Cut-off Date"), among The Money Store, the applicable Originators
and/or certain affiliates thereof and the Trustee for the benefit of the related
Certificateholders or Noteholders, as the case may be, of such Series. A Series
may contain either Certificates or Notes or a combination thereof. 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. A form
of a Pooling and Servicing Agreement, Trust Agreement, Sale and Servicing
Agreement and an Indenture have each been filed as an exhibit to the
Registration Statement of which this Prospectus is a part. The following
summaries describe certain material provisions which may appear in each
Agreement. The Prospectus Supplement for a Series of Securities will describe
any provision of the Agreement relating to such Series that materially differs
from the description thereof contained in this Prospectus. The summaries do not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, all of the provisions of the Agreement for each Series of
Securities and the applicable Prospectus Supplement. The Representative will
provide a copy of the Agreement (without exhibits) relating to any Series
without charge upon written request of a holder of a Security of such Series
addressed to The Money Store, 2840 Morris Avenue, Union, New Jersey 07083,
Attention: Corporate Counsel.
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General
The Securities of each Series will represent debt obligations of, in the
case of Notes, or fractional undivided ownership interests in, in the case of
Certificates, a Trust created pursuant to the related Agreement and/or such
other assets as may be described in the related Prospectus Supplement. The
Securities will be issued in fully registered form, in minimum denominations of
$1,000 and integral multiples of $1,000 in excess thereof (or such other amounts
do may be set forth in a Prospectus Supplement), except that one Certificate or
Note of each Class may be issued in a different denomination.
Definitive Securities, if issued, will be transferable and exchangeable at
the corporate trust office of the Trustee or, at the election of the Trustee, at
the office of a Security Registrar appointed by the Trustee. No service charge
will be made for any registration of exchange or transfer, but the Trustee may
require payment of a sum sufficient to cover any tax or other governmental
charge. If provided in the related Agreement, a security administrator may
perform certain duties in connection with the administration of the Securities.
The Securities will not represent obligations of the Representative (except
with respect to a Guaranty issued in connection with a Series), the Originators
or any affiliate thereof. The assets of each Trust will consist of one or more
of the following, as set forth in the related Prospectus Supplement, (a) the
Mortgage Loans that from time to time are subject to the related Agreement and
which are held in the related Pool; (b) the assets for the Trust that from time
to time are required by the Agreement to be deposited in certain reserve
accounts, including the Distribution Account, the Principal and Interest
Account, the Expense Account, the Letter of Credit Fee Account and the Insurance
Account (each, as defined herein), or to be invested in Permitted Investments
(as defined herein); (c) property and any proceeds thereof acquired by
foreclosure of the Mortgage Loans in such Pool, deed in lieu of foreclosure or a
comparable conversion; (d) any Primary Mortgage Insurance Policies; (e) any
Mortgage Pool Insurance Policies; (f) any Special Hazard Insurance Policies; (g)
any Bankruptcy Bonds; and (h) all rights under any other insurance policies,
guarantees, supplemental interest payments, surety bonds, letters of credit,
guaranties of The Money Store or other credit enhancement or maturity protection
or other derivative instrument covering any Securities, any Mortgage Loan in the
related Pool or any related Mortgaged Property which is required to be
maintained pursuant to the related Agreement.
Each Series of Securities will be issued in one or more Classes. Each
Class of Securities of a Series will evidence beneficial ownership of the
interest in assets of the related Trust specified in the related Prospectus
Supplement. A Class of Securities may be divided into two or more Sub-Classes,
as specified in the related Prospectus Supplement.
A Series may include two or more Classes of Certificates, as specified in
the related Prospectus Supplement, which differ as to the timing and priority of
payment, seniority, allocations of loss, Pass-Through Rate or amount of payments
of principal or interest, or as to which payments of principal or interest may
or may not be made upon the occurrence of specified events or on the basis of
collections from designated portions of the Mortgage Assets for such Series. A
Series of Certificates may include one or more Classes of Senior Certificates
that receive certain preferential treatment, specified in the related Prospectus
Supplement, with respect to one or more Classes of Subordinated Certificates of
such Series. Certain Series or Classes of Certificates within a Series may be
covered by a Guaranty Insurance Policy, Mortgage Pool Insurance Policy, Special
Hazard Insurance Policy, Bankruptcy Bond or other insurance policies, cash
accounts, letters of credit, financial guaranty insurance policies, third party
guarantees, supplemental interest payments or other forms of credit enhancement
or maturity protection, or derivative products, in each case as described herein
and in the related Prospectus Supplement. The Pass-Through Rate for a Class of
Certificates that pay interest based upon a floating rate of interest, as
specified in the related Prospectus Supplement, may base such floating rate upon
any of the following: (i) the auction procedures for Auction Rate Securities
described herein, (ii) LIBOR plus an amount set forth in the related Prospectus
Supplement , (iii) the T-Bill Rate plus an amount set forth in the related
Prospectus Supplement or (iv) any such other method or procedures used to
determine the floating rate of interest as may be described in the applicable
Prospectus Supplement. In addition, a Series may include one or more Classes of
Certificates entitled to (a) principal payments with disproportionate, nominal
or no interest payments or (b) interest payments with disproportionate, nominal
or no principal payments (Strip Certificates).
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A Series may include two or more Classes of Notes, as specified in the
related Prospectus Supplement, which differ as to the timing and priority of
payment, seniority, allocations of loss, Interest Rate or amount of payments of
principal or interest, or as to which payments of principal or interest may or
may not be made upon the occurrence of specified events or on the basis of
collections from designated portions of the Mortgage Assets for such Series. A
Series of Notes may include one or more Classes of Senior Notes which receive
certain preferential treatment specified in the related Prospectus Supplement
with respect to one or more Classes of Subordinated Notes of such Series.
Certain Series or Classes of Notes within a Series may be covered by a Guaranty
Insurance Policy, Mortgage Pool Insurance Policy, Special Hazard Insurance
Policy, Bankruptcy Bond or other insurance policies, cash accounts, letters of
credit, financial guaranty insurance policies, third party guarantees,
supplemental interest payments or other forms of credit enhancement or maturity
protection, or derivative products, in each case as described herein and in the
related Prospectus Supplement. The Interest Rate for a Class of Notes that pay
interest based upon a floating rate of interest, as specified in the related
Prospectus Supplement, may base such floating rate upon any of following: (i)
the auction procedures for Auction Rate Securities described herein, (ii) LIBOR
plus an amount set forth in the related Prospectus Supplement , (iii) the T-Bill
Rate plus an amount set forth in the related Prospectus Supplement or (iv) any
such other method or procedures used to determine the floating rate of interest
as may be described in the applicable Prospectus Supplement. In addition, a
Series may include one or more Classes of Notes entitled to (a) principal
payments with disproportionate, nominal or no interest payments or (b) interest
payments with disproportionate, nominal or no principal payments (Strip Notes).
With respect to any Series of Securities that includes one or more Classes
of Notes, distributions in respect of the Certificates may be subordinated in
priority of payment to payments on the Notes of such Series, to the extent
specified in the related Prospectus Supplement.
Unless otherwise specified in the related Prospectus Supplement,
distributions of principal and interest (or, where applicable, of principal only
or interest only) on the related Securities will be made by the Trustee on each
Remittance Date, in the amounts specified in the related Prospectus Supplement.
Distributions will be made to the persons in whose names the Securities are
registered at the close of business on the record dates specified in the
Prospectus Supplement unless Definitive Securities have been issued, the
registered holder of all Securities will be Cede or such other nominee specified
in the related Prospectus Supplement. Distributions will be made by check
mailed to the persons entitled thereto at the address appearing in the register
maintained for holders of Securities (the "Security Register") or, to the extent
described in the related Prospectus Supplement, by wire transfer or by such
other means as are described therein, except that the final distribution in
retirement of the Securities will be made only upon presentation and surrender
of the Securities at the office or agency of the Trustee or other person
specified in the final distribution notice to Securityholders.
Distributions on Securities
Each Class of Securities within a Series will evidence the interests
specified in the related Prospectus Supplement, which may (i) include the right
to receive distributions allocable only to principal, only to interest or to any
combination thereof; (ii) include the right to receive distributions only of
prepayments of principal throughout the lives of the Securities or during
specified periods; (iii) be subordinated in its 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 or may be
subordinated with respect to certain losses or delinquencies; (iv) include the
right to receive such distributions only after the occurrence of events
specified in the Prospectus Supplement; (v) include the right 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)
include, as to Securities entitled to distributions allocable to interest, the
right to receive interest at a Fixed Rate or an Adjustable Rate; and (vii)
include, as to Securities entitled to distributions allocable to interest, the
right to distributions allocable to interest only after the occurrence of events
specified in the related Prospectus Supplement, and in each case, may accrue
interest until such events occur, as specified in such Prospectus Supplement.
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Distributions allocable to principal and interest on the Securities will be
made by the Trustee out of, and only to the extent of, funds available in the
related Distribution Account and other accounts to the extent described in the
related Prospectus Supplement. To the extent described in the related Prospectus
Supplement, on each Remittance Date, the Master Servicer will withdraw from the
applicable Distribution Account and such other accounts as may be described in
the related Prospectus Supplement and distribute to the Securityholders of each
Class (other than a Series having a Class of Subordinated Certificates, as
described below), either the specified interest of such Class in the Pool times
the aggregate of all amounts on deposit in the Distribution Account as of the
Determination Date, or, in the case of Classes which have been assigned an
aggregate principal balance and Pass-Through Rate or Interest Rate, payments of
interest and payments in reduction of such aggregate principal balance from all
amounts on deposit in the Distribution Account on the Determination Date, in the
priority and calculated in the manner set forth in the related Prospectus
Supplement, except, in each case, for (i) all payments on the Mortgage Loans
that were due on or before the Cut-off Date; (ii) all Principal Prepayments,
Liquidation Proceeds and Insurance Proceeds received after the period specified
in the related Prospectus Supplement (the "Principal Prepayment Period"); (iii)
all scheduled payments of principal and interest due on a date or dates
subsequent to the Determination Date; (iv) amounts representing reimbursement
for Advances, as specified in the related Prospectus Supplement; (v) amounts
representing reimbursement for any unpaid Servicing Fee or Contingency Fee and
expenses from Liquidation Proceeds, condemnation proceeds and proceeds of
insurance policies with respect to the related Mortgage Loans; (vi) all income
from any Permitted Investments held in the Distribution Account for the benefit
of the Master Servicer; and (vii) any Advances deposited in the Distribution
Account prior to the applicable Remittance Date.
The timing and amounts of distributions allocable to interest and principal
and, if applicable, Principal Prepayments and scheduled payments of principal,
to be made on any Remittance Date may vary among Classes, over time or otherwise
as specified in the Prospectus Supplement. Differing allocations of principal
and interest to different Classes of Securityholders will have the effect of
accelerating the amortization of Senior Notes or Senior Certificates, as the
case may be, while increasing the interests evidenced by the Subordinated Notes
or Senior Certificates, as the case may be, in the related Trust. Distributions
to any Class of Certificates or Notes will be made pro rata to all
Securityholders of that Class, or as otherwise described in a Prospectus
Supplement.
Summary of Auction Procedures
The following summarizes certain procedures that will be used in
determining the interest rates on any Notes or Certificates that are Auction
Rate Securities. Appendix I hereto contains a more detailed description of these
procedures. Prospective investors in the Auction Rate Securities should read
carefully the following summary, along with the more detailed description in
Appendix I.
The interest rate on each Class of Auction Rate Securities will be
determined periodically (generally, for periods ranging from 7 days to one year)
by means of a "Dutch Auction." In this Dutch Auction, investors and potential
investors submit orders through an eligible broker/dealer as to the principal
amount of Auction Rate Securities such investors wish to buy, hold or sell at
various interest rates. The broker/dealers submit their clients' orders to the
auction agent, who processes all orders submitted by all eligible broker/dealers
and determines the interest rate for the upcoming interest period. The
broker/dealers are notified by the auction agent of the interest rate for the
upcoming interest period and are provided with settlement instructions relating
to purchases and sales of Auction Rate Securities.
In the auction procedures, the following types of orders may be submitted:
(i) Bid/Hold Orders - the minimum interest rate that a current
investor is willing to accept in order to continue to hold some
----
or all of its Auction Rate Securities for the upcoming interest
period;
(ii) Sell Orders - an order by a current investor to sell a specified
----
principal amount of Auction Rate Securities, regardless of the
upcoming interest rate; and
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(iii) Potential Bid Orders - the minimum interest rate that a
potential investor (or a current investor wishing to purchase
additional Auction Rate Securities) is willing to accept in
order to buy a specified principal amount of Auction Rate
---
Securities.
If an existing investor does not submit orders with respect to all its
Auction Rate Securities of the applicable Class, the investor will be deemed to
have submitted a Hold Order at the new interest rate for that portion of the
Auction Rate Securities for which no order was received.
In connection with each auction, Auction Rate Securities will be purchased
and sold between investors and potential investors at a price equal to their
then outstanding principal balance (i.e., par) plus any accrued interest. The
----
following example helps illustrate how the above-described procedures are used
in determining the interest rate on the Auction Rate Securities.
(a) Assumptions:
1. Denominations (Units) = $100,000
2. Interest Period = 28 Days
3. Principal Amount Outstanding = $50 Million (500 Units)
(b) Summary of All Orders Received For The Auction
<TABLE>
<CAPTION>
Bid/Hold Orders Sell Orders Potential Bid Orders
--------------- ----------- --------------------
<S> <C> <C>
10 Units at 2.90% 50 Units Sell 20 Units at 2.95%
30 Units at 3.02% 50 Units Sell 30 Units at 3.00%
60 Units at 3.05% 100 Units Sell 50 Units at 3.05%
100 Units at 3.10% -------------- 50 Units at 3.10%
100 Units at 3.12% 200 Units 50 Units at 3.11%
------------------ 50 Units at 3.14%
300 Units 100 Units at 3.15%
------------------
350 Units
</TABLE>
Total units under existing Bid/Hold Orders and Sell Orders always equal issue
size (in this case 500 units).
(c) Auction Agent Organizes Orders In Ascending Order
<TABLE>
<CAPTION>
Order Number Cumulative Order Number Cumulative Total
Number of Units Total (Units) % Number of Units (Units) %
------ -------- ------------- ----- ------ ---------- ------- ---
<S> <C> <C> <C> <C> <C> <C> <C>
1 10(W) 10 2.90% 7 100(W) 300 3.10%
2 20(W) 30 2.95% 8 50(W) 350 3.10%
3 30(W) 60 3.00% 9 50(W) 400 3.11%
4 30(W) 90 3.02% 10 100(W) 500 3.12%
5 50(W) 140 3.05% 11 50(L) 3.14%
6 60(W) 200 3.05% 12 100(L) 3.15%
</TABLE>
(W) Winning Order (L) Losing Order
Order #10 is the order that clears the market of all available units. All
winning orders are awarded the winning rate (in this case, 3.12%) as the
interest rate for the next period that interest will accrue (each an "Interest
Period"), when another auction will be held. Multiple orders at the winning rate
are allocated units on a pro rata basis. Notwithstanding the foregoing, in no
event will the interest rate exceed the lesser of the Net Loan Rate or the
Maximum Auction Rate (each as described in Appendix I).
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The above example assumes that a successful auction has occurred (i.e., all
----
Sell Orders and all Bid/Hold Orders below the new interest rate were fulfilled).
In certain circumstances, there may be insufficient Potential Bid Orders to
purchase all the Auction Rate Securities offered for sale. In such
circumstances, the interest rate for the upcoming Interest Period will equal the
lesser of the Net Loan Rate and the Maximum Auction Rate. Also, if all the
Auction Rate Securities are subject to Hold Orders (i.e., each holder of Auction
----
Rate Securities wishes to continue holding its Auction Rate Securities,
regardless of the interest rate) the interest rate for the upcoming Interest
Period will equal the lesser of the Net Loan Rate and the All Hold Rate (as
defined below).
As stated above, the foregoing is only a summary of the auction procedures.
A more detailed description of these procedures is contained in Appendix I.
Monthly Advances and Compensating Interest
In order to maintain a regular flow of scheduled interest payments to
Securityholders (rather than to guarantee or insure against losses) if provided
in the related Prospectus Supplement, the Master Servicer will be required to
advance to the Trustee, on or before each Remittance Date (from its own funds),
the amount, if any, by which (a) the sum of (x) 30 days' interest at the
applicable weighted average Adjusted Mortgage Loan Remittance Rate (as defined
below) on the then outstanding principal balance of the related Series of
Securities and (y) the amount, if any, required to be deposited into the related
Reserve Account (as specified in the Prospectus Supplement) for the related
Remittance Date exceeds (b) the amount received by the Master Servicer and any
Sub-Servicers in respect of interest on the Mortgage Loans as of the related
Record Date (such excess, the "Monthly Advance"). For each Class of Securities,
the "Adjusted Mortgage Loan Remittance Rate" will equal the sum of the related
Pass-Through Rate or Interest Rate and the rate used in determining certain
expenses payable by the related Trust, as more specifically set forth in the
related Prospectus Supplement. The Master Servicer will not be required to
make any Monthly Advances which it determines, in good faith, would be
nonrecoverable from amounts received in respect of the Mortgage Loans.
If so specified in the related Prospectus Supplement, not later than the
close of business on each Determination Date, with respect to each Mortgage Loan
for which a Principal Prepayment in full or Curtailment was received during the
related Due Period, the Master Servicer will be required to remit to the Trustee
for deposit in the Distribution Account from amounts otherwise payable to it as
servicing compensation, an amount equal to the excess of (a) 30 days' interest
on the principal balance of each such Mortgage Loan as of the beginning of the
related Due Period at the applicable weighted average Adjusted Mortgage Loan
Remittance Rate, over (b) the amount of interest actually received on the
related Mortgage Loan for such Due Period (such difference, "Compensating
Interest").
Revolving Period and Amortization Period; Retained Interest
If the related Prospectus Supplement so provides, there may be a period
commencing on the date of issuance of a Class or Classes of Notes and/or
Certificates of a Series and ending on the date set forth in the related
Prospectus Supplement (each, a "Revolving Period") during which limited or no
principal payments will be made to one or more Classes of Notes or Certificates
of the related Series as are identified in such Prospectus Supplement. Some or
all collections of principal otherwise allocated to such Classes of Notes or
Certificates may be (i) utilized during the Revolving Period to acquire
additional Mortgage Assets which satisfy the criteria specified above and the
criteria set forth in the related Prospectus Supplement, (ii) held in an account
and invested in Permitted Investments for later distribution to Securityholders,
(iii) applied to those Notes or Certificates for such Series, if any, specified
in the related Prospectus Supplement as then are in amortization, or (iv)
otherwise applied as specified in the related Prospectus Supplement.
An "Amortization Period" is the period during which an amount of principal
is payable to Holders of a Series which, during the Revolving Period, were not
otherwise entitled to such payments. If so specified in the related Prospectus
Supplement, during an Amortization Period all or a portion of principal
collections on the Mortgage Loans may be applied as specified above for a
Revolving Period and, to the extent not so applied, will be
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distributed to the Classes of Notes or Certificates for such Series specified in
the related Prospectus Supplement as then being entitled to payments of
principal. In addition, if so specified in the related Prospectus Supplement,
amounts deposited in certain accounts for the benefit of one or more Classes of
Notes or Certificates for such Series may be released from time to time or on a
specified date and applied as a payment of principal on such Classes of Notes or
Certificates. The related Prospectus Supplement will set forth the circumstances
which will result in the commencement of an Amortization Period.
Each Series which has a Revolving Period may also issue to the
Representative or one of its affiliates a certificate evidencing an undivided
beneficial interest (a "Retained Interest") in such Series not represented by
the other Securities issued by the Representative. As further described in the
related Prospectus Supplement, the value of such Retained Interest will
fluctuate as the amount of Notes and Certificates of the related Series of
Securities outstanding is reduced.
Book-Entry Registration
If so specified in the related Prospectus Supplement, the Certificates
and/or Notes of a Series initially will be registered in the name of Cede, the
nominee of DTC. DTC is a limited purpose trust company organized under the laws
of the State of New York, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the Uniform Commercial Code ("UCC") and a
"clearing agency" registered pursuant to the provisions of Section 17A of the
Securities Exchange Act of 1934, as amended. DTC was created to hold securities
for its participating organizations ("Participants") and facilitate the
clearance and settlement of securities transactions between Participants through
electronic book-entry changes in their accounts, thereby eliminating the need
for physical movement of certificates. Participants include securities brokers
and dealers, banks, trust companies and clearing corporations and may include
certain other organizations. Indirect access to the DTC system also is
available to others such as brokers, dealers, banks and trust companies that
clear through or maintain a custodial relationship with a Participant, either
directly or indirectly ("Indirect Participant").
Under a book-entry format, Certificateholders and/or Noteholders, as
applicable, that are not Participants or Indirect Participants but desire to
purchase, sell or otherwise transfer ownership of Certificates and/or Notes of a
Series registered in the name of Cede, as nominee of DTC, may do so only through
Participants and Indirect Participants. In addition, such Securityholders will
receive all distributions of principal of and interest on the Securities and
reports relating to the Securities from the Trustee through DTC and its
Participants. Under a book-entry format, Securityholders will receive payments
and reports relating to the Securities after the related Remittance Date
because, while payments and such reports are required to be forwarded to Cede,
as nominee for DTC, on each such date, DTC will forward such payments and
reports to its Participants which thereafter will be required to forward them to
Indirect Participants or Securityholders. Unless and until Definitive
Securities are issued, it is anticipated that the only Securityholder will be
Cede, as nominee of DTC, and that the beneficial holders of Securities will not
be recognized by the Trustee as Securityholders under the Agreement. The
beneficial holders of such Certificates and/or Notes of a Series will only be
permitted to exercise the rights of Certificateholders and/or Noteholders, as
applicable, under the applicable Agreement indirectly through DTC and its
Participants who in turn will exercise their rights through DTC.
Under the rules, regulations and procedures creating and affecting DTC and
its operations, DTC is required to make book-entry transfers among Participants
on whose behalf it acts with respect to the Securities and is required to
receive and transmit reports and payments of principal of and interest on the
Securities. Participants and Indirect Participants with which Securityholders
have accounts with respect to the Securities similarly are required to make
book-entry transfers and receive and transmit such reports and payments on
behalf of their respective Securityholders. Accordingly, although
Securityholders will not possess Securities, the rules provide a mechanism by
which Securityholders will receive distributions and reports and will be able to
transfer their interests.
Unless and until Definitive Securities are issued, Securityholders who are
not Participants may transfer ownership of Securities only through Participants
by instructing such Participants to transfer Securities, by book-entry transfer,
through DTC for the account of the purchasers of such Securities, which account
is maintained with their respective Participants. Under the Rules and in
accordance with DTC's normal procedures, transfers of ownership of
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Securities will be executed through DTC and the accounts of the respective
Participants at DTC will be debited and credited. Similarly, the respective
Participants will make debits or credits, as the case may be, on their records
on behalf of the selling and purchasing Securityholders.
Because DTC can only act on behalf of Participants, who in turn act on
behalf of Indirect Participants and certain banks, the ability of a
Securityholder to pledge Securities to persons or entities that do not
participate in the DTC system, or otherwise take actions in respect of such
Securities may be limited due to the lack of a physical certificate for such
Securities.
DTC in general advises that it will take any action permitted to be taken
by a Securityholder under an Agreement only at the direction of one or more
Participants to whose account with DTC the Securities are credited.
Additionally, DTC in general advises that it will take such actions with respect
to specified percentages of the Securityholders only at the direction of and on
behalf of Participants whose holdings include current principal amounts of
outstanding Securities that satisfy such specified percentages. DTC may take
conflicting actions with respect to other current principal amounts of
outstanding Securities to the extent that such actions are taken on behalf of
Participants whose holdings include such current principal amounts of
outstanding Securities.
Any Notes and/or Certificates initially registered in the name of Cede, as
nominee of DTC, will be issued in fully registered, certificated form to
Securityholders or their nominees ("Definitive Securities"), rather than to DTC
or its nominee only under the events specified in the related Agreement and
described in the related Prospectus Supplement. Upon the occurrence of any of
the events specified in the related Agreement and Prospectus Supplement, DTC
will be required to notify all Participants of the availability through DTC of
Definitive Securities. Upon surrender by DTC of the certificates and/or notes
representing the Securities and instruction for re-registration, the Trustee
will issue the Notes and/or Certificates in the form of Definitive Securities,
and thereafter the Trustee will recognize the holders of such Definitive
Securities as Securityholders. Thereafter, payments of principal of and
interest on the Securities will be made by the Trustee directly to
Securityholders in accordance with the procedures set forth herein and in the
related Agreement. The final distribution of any Security (whether Definitive
Securities or Securities registered in the name of Cede), however, will be made
only upon presentation and surrender of such Securities on the final Remittance
Date at such office or agency as is specified in the notice of final payment to
Securityholders.
CREDIT ENHANCEMENT
General
Credit enhancement may be provided with respect to one or more Classes of a
Series of Securities or with respect to the Mortgage Assets in the related
Trust. Credit enhancement may be in the form of (i) the subordination of one or
more Classes of the Notes and/or Certificates of such Series, (ii) the use of a
Guaranty Insurance Policy, Spread Amount, Mortgage Pool Insurance Policy,
Special Hazard Insurance Policy, Bankruptcy Bond, Reserve Accounts, Supplemental
Interest Payments, a letter of credit, a limited financial guaranty insurance
policy, a Guaranty of The Money Store, other third party guarantees or maturity
protection, derivative instruments, another method of credit enhancement
described in the related Prospectus Supplement, or the use of a cross-support
feature, or (iii) any combination of the foregoing. Credit enhancement will not
provide protection against all risks of loss and will 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, holders of one or more Classes of Securities
will bear their allocable share of deficiencies. If a form of credit
enhancement applies to several Classes of Securities, and if principal payments
equal to the aggregate principal balances of certain Classes will be distributed
prior to such distributions to other Classes, the Classes which receive such
distributions at a later time are more likely to bear any losses which exceed
the amount covered by credit enhancement. Coverage under any credit enhancement
may be canceled or reduced by the Master Servicer or the Representative if such
cancellation or reduction would not adversely affect the rating or ratings of
the related Securities. The Trustee of the related Trust will have the right to
sue providers of credit enhancement if a default is made on a required payment.
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Subordination
All Classes of Certificates are Subordinated in right of payment to any
Class of Notes in a given Series to the extent described in the related
Prospectus Supplement. To enhance the likelihood of regular receipt by holders
of Senior Certificates or Senior Notes, as the case may be, of the full amount
of payments which they would be entitled to receive in the absence of any losses
or delinquencies, if so specified in the related Prospectus Supplement,
distributions of scheduled principal, Principal Prepayments, interest or any
combination thereof that otherwise would have been payable to one or more
Classes of Subordinated Certificates or Subordinated Notes, as the case may be,
of a Series will instead be payable to holders of one or more Classes of Senior
Certificates or Senior Notes, as the case may be, under the circumstances and to
the extent specified in the Prospectus Supplement. If specified in the related
Prospectus Supplement, the holders of Senior Certificates or Senior Notes, as
the case may be, will receive the amounts of principal and/or interest due to
them on each Remittance Date, out of the funds available for distribution on
such date in the related Distribution Account, prior to any such distribution
being made to holders of the related Subordinated Certificates or Subordinated
Notes, a the case may be, in each case under the circumstances and subject to
the limitations specified in the Prospectus Supplement. The protection afforded
to the holders of Senior Certificates or Senior Notes, as the case may be,
through subordination also may be accomplished by first allocating certain types
of losses or delinquencies to the related Subordinated Certificates or
Subordinated Notes, as the case may be, to the extent described in the related
Prospectus Supplement. If aggregate losses and delinquencies in respect of such
Mortgage Loans were to exceed the total amounts payable and available for
distribution to holders of Subordinated Certificates or Subordinated Notes, as
the case may be, or, if applicable, were to exceed the specified maximum amount,
holders of Senior Certificates or Senior Notes, as the case may be, would
experience losses on the Securities.
In addition to or in lieu of the foregoing, if so specified in the
Prospectus Supplement, all or any portion of distributions otherwise payable to
holders of Subordinated Certificates or Subordinated Notes, as the case may be,
on any Remittance Date may instead be deposited into one or more Reserve
Accounts established and maintained with the Trustee. If so specified in the
Prospectus Supplement, such deposits may be made on each Remittance Date, on
each Remittance Date for specified periods or until the balance in the Reserve
Account has reached a specified amount and, following payments from the Reserve
Account to holders of Senior Certificates or Senior Notes, as the case may be,
or otherwise, thereafter to the extent necessary to restore the balance in the
Reserve Account to required levels, in each case as specified in the Prospectus
Supplement. If so specified in the related Prospectus Supplement, amounts on
deposit in the Reserve Account may be released to the holders of the Class of
Securities specified in the Prospectus Supplement at the times and under the
circumstances specified in the Prospectus Supplement. See "--Reserve Accounts"
below.
If so specified in the related Prospectus Supplement, the same Class of
Securities may be Senior Certificates or Senior Notes, as the case may be, with
respect to certain types of payments or certain types of losses or delinquencies
and Subordinated Certificates or Subordinated Notes, as the case may be, with
respect to other types of payment or types of losses or delinquencies. If
specified in the related Prospectus Supplement, various Classes of Senior
Certificates or Senior Notes, as the case may be, and Subordinated Certificates
or Subordinated Notes, as the case may be, may themselves be subordinate in
their right to receive certain distributions to other Classes of Senior and
Subordinated Certificates or Subordinated Notes, as the case may be,
respectively, through a cross support mechanism or otherwise. As between
Classes of Senior Certificates or Senior Notes, as the case may be, and as
between Classes of Subordinated Certificates or Subordinated Notes, as the case
may be, distributions may be allocated among such Classes (i) in the order of
their scheduled final Remittance 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. The related Prospectus
Supplement will set forth information concerning the amount of subordination of
a Class or Classes of Subordinated Certificates or Subordinated Notes, as the
case may be, in a Series, the circumstances in which such subordination will be
applicable, the manner, if any, in which the amount of subordination will
decrease over time, the manner of funding any Reserve Account, and the
conditions under which amounts in any such Reserve Account will be used to make
distributions to Senior Holders of Senior Certificates or Senior Notes, as the
case may be, or released to Holder of Subordinated Certificates or Subordinated
Notes, as the case may be, from the related Trust.
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Guaranty Insurance Policies
If so specified in the related Prospectus Supplement, a Guaranty Insurance
Policy may be obtained and maintained for any Class or Series of Certificates
and/or Notes. The issuer of any Guaranty Insurance Policy (a "Security Guaranty
Insurer") will be described in the related Prospectus Supplement. A copy of any
such Guaranty Insurance Policy will be attached as an exhibit to the related
Prospectus Supplement.
If so specified in the related Prospectus Supplement, a Guaranty Insurance
Policy will unconditionally and irrevocably guarantee to Securityholders that an
amount equal to each full and complete Insured Payment will be received by an
agent of the Trustee (an "Insurance Paying Agent") on behalf of Securityholders,
for distribution by the Trustee to each Securityholder. The "Insured Payment"
will equal the full amount of the distributions of principal and interest to
which Securityholders are entitled under the related Agreement plus any other
amounts specified therein or in the related Prospectus Supplement.
The specific terms of any Guaranty Insurance Policy will be as set forth in
the related Prospectus Supplement. Guaranty Insurance Policies may have
limitations including (but not limited to) limitations on the insurer's
obligation to guarantee the Master Servicer's obligation to repurchase or
substitute for any Mortgage Loans, to guarantee any specified rate of
prepayments or to provide funds to redeem Securities on any specified date.
Subject to the terms of the related Agreement, the Security Guaranty
Insurer may be subrogated to the rights of each Securityholder to receive
payments under the Securities to the extent of any payments by such Security
Guaranty Insurer under the related Guaranty Insurance Policy.
Spread Amount
If so specified in the related Prospectus Supplement, certain Classes of
Securities may be entitled to receive limited acceleration of principal relative
to the amortization of the related Mortgage Assets. The accelerated
amortization will be achieved by applying certain excess interest collected on
the Mortgage Assets to the payment of principal on such Classes of Securities.
This acceleration feature is intended to create an amount (the "Spread Amount"),
resulting from, and generally equal to, the excess of the aggregate principal
balances of the applicable Mortgage Assets over the principal balances of the
applicable Classes of Securities. Once the required Spread Amount is reached,
and subject to the provisions described in the next sentence and in the related
Prospectus Supplement, the acceleration feature will cease, unless necessary to
maintain the required level of the Spread Amount. The applicable Agreement will
provide that, subject to certain floors, caps and triggers, the required level
of the Spread Amount may increase or decrease over time. An increase would
result in a temporary period of accelerated amortization of the applicable
Classes of Securities to increase the actual level of the Spread Amount to its
required level; a decrease would result in a temporary period of decelerated
amortization to reduce the actual level of the Spread Amount to its required
level. An Agreement also may provide that after one or more Classes of
Securities have been paid to the required level of the Spread Amount, excess
interest, together with certain other excess amounts, may be applied to make-up
shortfalls in, or accelerate the amortization of, other Classes of Securities.
Mortgage Pool Insurance Policies
If specified in the Prospectus Supplement related to any Pool of Mortgage
Loans, a Mortgage Pool Insurance Policy issued by the insurer (the "Pool
Insurer") named in such Prospectus Supplement will be obtained and maintained
for each Series pertaining to Mortgage Loans. Each Mortgage Pool Insurance
Policy will, subject to the limitations described below or in the related
Prospectus Supplement, cover loss by reason of default in payment on the related
Mortgage Loans in the Pool in an amount initially equal to a specified
percentage of the aggregate principal balance of all Mortgage Loans included in
the Pool as of the Cut-off Date or such other date as is specified in such
Prospectus Supplement. The Mortgage Pool Insurance Policies, however, are not
blanket policies against loss, since claims thereunder may only be made
respecting particular defaulted Mortgage Loans and only upon satisfaction of
certain conditions precedent described below. The Mortgage Pool Insurance
Policies generally will not cover losses due to a failure to pay or denial of a
claim under a Primary Mortgage Insurance Policy.
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A Mortgage Pool Insurance Policy generally will not insure (and many
Primary Mortgage Insurance Policies do 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, the originator 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, an
endorsement to the Mortgage Pool Insurance Policy, a bond or other credit
support may cover fraud in connection with the origination of Mortgage Loans.
If so specified in the related Prospectus Supplement, a failure of coverage
attributable to an event specified in clause (i) or (ii) above might result in a
breach of the Master Servicer's representations described above and, in such
event, might give rise to an obligation on the part of the Master Servicer to
purchase the defaulted Mortgage Loan if the breach cannot be cured by the Master
Servicer. No Mortgage Pool Insurance Policy will cover (and many Primary
Mortgage Insurance Policies do not cover) a claim in respect of a defaulted
Mortgage Loan occurring when the servicer of such Mortgage Loan, at the time of
default or thereafter, was not approved by the applicable insurer.
The original amount of coverage under each Mortgage Pool Insurance Policy
will be reduced over the life of the related 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 include certain expenses incurred by the Master Servicer as well as accrued
interest on delinquent Mortgage Loans to the date of payment of the claim.
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 the
Securityholders.
The terms of any pool insurance policy relating to a pool of Contracts will
be described in the related Prospectus Supplement.
Special Hazard Insurance Policies
If specified in the related Prospectus Supplement, a separate Special
Hazard Insurance Policy will be obtained for the Pool and will be issued by the
insurer (the "Special Hazard Insurer") named in such Prospectus Supplement.
Each Special Hazard Insurance Policy will, subject to limitations described
below, protect holders of the related Securities from (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 insured
against under the standard form of hazard insurance policy for the respective
states in which the Mortgaged Properties are located or under a flood insurance
policy if the Mortgaged Property is located in a federally designated flood
area, and (ii) loss caused by reason of the application of the coinsurance
clause contained in hazard insurance policies. See "The Agreement--Hazard
Insurance." No Special Hazard Insurance Policy will cover losses occasioned by
war, civil insurrection, certain governmental action, 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. The amount of coverage
under any Special Hazard Insurance Policy will be specified in the related
Prospectus Supplement. Each Special Hazard Insurance Policy will provide that
no claim may be paid unless hazard and, if applicable, flood insurance on the
property securing the Mortgage Loan has been kept in force and other protection
and preservation expenses have been paid.
Since each Special Hazard Insurance Policy will be designed to permit full
recovery under the Mortgage Pool Insurance Policy in circumstances in which such
recoveries would otherwise be unavailable because property has been damaged by a
cause not insured against by a standard hazard policy and thus would not be
restored, each Agreement will provide that, if the related Mortgage Pool
Insurance Policy shall have been terminated or been exhausted through payment of
claims, the Master Servicer will be under no further obligation to maintain such
Special Hazard Insurance Policy.
The terms of any Special Hazard Insurance Policy relating to a pool of
Contracts will be described in the related Prospectus Supplement.
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Bankruptcy Bonds
If specified in the related Prospectus Supplement, a Bankruptcy Bond for
proceedings under the federal Bankruptcy Code will be issued by an insurer named
in such Prospectus Supplement. Each Bankruptcy Bond will cover certain losses
resulting from a reduction by a bankruptcy court of scheduled payments of
principal 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 required amount of coverage under each Bankruptcy Bond
will be set forth in the related Prospectus Supplement. To the extent specified
in an applicable Prospectus Supplement, the Master Servicer may deposit cash, an
irrevocable letter of credit or any other instrument acceptable to each
nationally recognized rating agency rating the Securities of the related Series
in the Trust to provide protection in lieu of or in addition to that provided by
a Bankruptcy Bond. See "Certain Legal Aspects of the Mortgage Loans--Anti-
Deficiency Legislation and Other Limitations on Lenders."
The terms of any Bankruptcy Bond relating to a pool of Contracts will be
described in the related Prospectus Supplement.
Reserve Accounts
If specified in a Prospectus Supplement, cash, U.S. Treasury securities,
instruments evidencing ownership of principal or interest payments thereon,
letters of credit, demand notes, certificates of deposit or a combination
thereof in the aggregate amount specified in the Prospectus Supplement may be
deposited by the Master Servicer or Representative on the date specified in the
Prospectus Supplement in one or more Reserve Accounts established with the
Trustee. In addition to or in lieu of the foregoing, if so specified in such
Prospectus Supplement, all or any portion of distributions otherwise payable to
holders of Subordinated Certificates on any Remittance Date may instead be
deposited into such Reserve Accounts. Such deposits may be made on the date
specified in the Prospectus Supplement, which may include each Remittance Date,
each Remittance Date for specified periods or until the balance in the Reserve
Account has reached a specified amount. See "--Subordination" above.
The cash and other assets in the Reserve Accounts 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.
Any cash in a Reserve Account and the proceeds upon maturity or liquidation of
any other asset or instrument therein will be invested, to the extent acceptable
to the applicable Rating Agency, in obligations of the United States and certain
agencies thereof, certificates of deposit, certain commercial paper, time
deposits and bankers acceptances sold by eligible commercial banks, certain
repurchase agreements of United States government securities with eligible
commercial banks and certain other instruments acceptable to the applicable
Rating Agency ("Permitted Investments"). Any asset or instrument deposited in
the Reserve Account generally will name the Trustee, in its capacity as trustee
for the Securityholders, as beneficiary and will be issued by an entity
acceptable to the applicable Rating Agency. Additional information with respect
to such instruments deposited in the Reserve Accounts will be set forth in the
Prospectus Supplement.
Any amounts so deposited and payments on assets and instruments deposited
in a Reserve Account will be available for withdrawal from such Reserve Account
for distribution to Securityholders for the purposes, in the manner and at the
times specified in the Prospectus Supplement.
Supplemental Interest Payments
If so specified in the Prospectus Supplement, one or more Classes of
Securities may be entitled to receive supplemental interest payments under
specified circumstances. Supplemental interest payments will be available to
fund some or all of the difference, if any, between the interest owed to a Class
of Securities on a Remittance Date and the interest that would be available to
pay such interest assuming no defaults or delinquencies on the Mortgage Assets.
Such differences may result if the interest rates on the applicable Classes of
Securities are based upon an index that differs from the index used in
determining the interest rates on the Mortgage Assets. Except as otherwise
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provided in a Prospectus Supplement, supplemental interest payments will not be
available to fund shortfalls resulting from delinquencies or defaults on the
Mortgage Assets.
Maturity Protection
If so specified in the Prospectus Supplement, one or more Classes of
Securities may be entitled to third-party payments to help provide that the
holders of such Securities receive their unpaid principal on or prior to a
specified date.
Other Insurance, Guarantees, Swaps, and Similar Instruments or Agreements
If specified in the related Prospectus Supplement, a Trust may include in
lieu of some or all of the foregoing or in addition thereto letters of credit,
financial guaranty insurance policies, a Guaranty of The Money Store, other
third party guarantees, limited guarantees or insurance from agencies or
instrumentalities of the United States, and other arrangements for maintaining
timely payments or providing additional protection against losses on the assets
included in such Trust, paying administrative expenses, or accomplishing such
other purpose as may be described in the Prospectus Supplement. The Trust may
include a guaranteed investment contract or reinvestment agreement pursuant to
which funds held in one or more accounts will be invested at a specified rate.
If any Class of Securities has a floating interest rate, or if any of the
Mortgage Assets has a floating interest rate, the Trust may include an interest
rate swap contract, an interest rate cap agreement or similar hedge contract
providing limited protection against interest rate risks. If provided in the
related Prospectus Supplement, interest and/or principal on one or more Classes
of the Securities of a Series may be paid to Holders thereof in a currency other
than U.S. dollars. If so provided, the Trust may, in connection therewith, enter
into one or more currency rate swaps to provide limited protection against
foreign currency rate fluctuation risks. One or more Classes of Securities also
may be issued in conjunction with a put or call feature entitling (in the case
of a put) or obligating (in the case of a call) the applicable Securityholders
to sell some or all of its Securities to the party named in the applicable
Prospectus Supplement on the date or dates set forth therein. Any such
arrangements must be acceptable to each nationally recognized rating agency that
provides a rating for the related Series of Securities (the "Rating Agency").
Additionally, to the extent a significant portion of the Mortgage Loans
underlying a given Series of Securities consists of FHA Loans, the related
Prospectus Supplement will describe the features of any related credit support
including, but not limited to, that provided by the FHA, if any.
Cross Support
If specified in the related Prospectus Supplement, the beneficial ownership
of separate groups of assets included in a Trust may be evidenced by separate
Classes of the related Series of Securities. In such case, credit support may
be provided by a cross-support feature which requires that distributions be made
with respect to 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 related Prospectus
Supplement, the coverage provided by one or more forms of credit support may
apply concurrently to two or more separate Trusts. 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.
MATURITY, PREPAYMENT AND YIELD CONSIDERATIONS
The yields to maturity of the Securities will be affected by the amount and
timing of principal payments on or in respect of the Mortgage Assets included in
the related Trusts, the allocation of available funds to various Classes of
Securities, the Pass-Through Rate or Interest Rate for various Classes of
Securities and the purchase price paid for the Securities.
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The original terms to maturity of the Mortgage Loans in a given Pool will
vary depending upon the type of Mortgage Loans included therein. Each
Prospectus Supplement will contain information with respect to the type and
maturities of the Mortgage Loans in the related Pool. Single Family Loans,
Cooperative Loans and Contracts generally may be prepaid without penalty in full
or in part at any time, although a prepayment fee or penalty may be imposed in
connection therewith. Multifamily Loans may prohibit prepayment for a specified
period after origination, may prohibit partial prepayments entirely, and may
require the payment of a prepayment fee or penalty upon prepayment in full or in
part.
In general, prepayment of Mortgage Loans is likely to increase when the
level of prevailing interest rates declines significantly, although the
prepayment rate is influenced by a number of other factors, some of which are
described below. Similarly, when the level of prevailing interest rates rises,
prepayment rates may decrease. No prediction can be made as to the prepayment
rate that the Mortgage Loans will actually experience.
Generally, junior mortgage loans have smaller average principal balances
than senior or first mortgage loans and are not viewed by borrowers as permanent
financing. Accordingly, Mortgage Loans which are junior mortgage loans may
experience a higher rate of prepayment than Mortgage Loans which represent first
liens. In addition, any future limitations on the right of borrowers to deduct
interest payments on Mortgage Loans for Federal income tax purposes may result
in a higher rate of prepayment of the Mortgage Loans. The obligation of the
Master Servicer to enforce due-on-sale provisions (described below) of the
Mortgage Loans may also increase prepayments. The prepayment experience of the
Pools may be affected by a wide variety of factors, including general and local
economic conditions, mortgage market interest rates, the availability of
alternative financing and homeowner mobility. The Representative is unaware of
any reliable studies that would project the prepayment risks associated with the
Mortgage Loans based upon current interest rates and economic conditions or the
historical prepayment experience of The Money Store's and its affiliates'
portfolios of Mortgage Loans.
The secured conventional Mortgage Loans and Contracts generally will
contain due-on-sale provisions permitting the mortgagee or holder of the
Contract to accelerate the maturity of the Mortgage Loan or Contract upon sale
or certain transfers by the borrower of the underlying Mortgaged Property. The
Master Servicer generally will enforce any due-on-sale or due-on-encumbrance
clause, to the extent it has knowledge of the conveyance or further encumbrance
or the proposed conveyance or proposed further encumbrance of the Mortgaged
Property and reasonably believes that it is entitled to do so under applicable
law; provided, however, that the Master Servicer will not take any enforcement
action that would impair or threaten to impair any recovery under any related
insurance policy. See "The Agreement--Collection Procedures" and "Certain Legal
Aspects of the Mortgage Loans" for a description of certain provisions of each
Agreement and certain legal developments that may affect the prepayment
experience on the Mortgage Loans.
Greater than anticipated prepayments of principal will increase the yield
on Securities purchased at a price less than par. Similarly, greater than
anticipated prepayments of principal will decrease the yield on Securities
purchased at a price greater than par. The effect on an investor's yield of
principal prepayments on the Mortgage Loans occurring at a rate that is faster
(or slower) than the rate anticipated by the investor in the period immediately
following the issuance of the applicable Class of Securities may not be offset
by a subsequent like reduction (or increase) in the rate of principal payments.
The weighted average lives of Securities will also be affected by the
amount and timing of delinquencies and defaults on the Mortgage Loans and the
liquidations of defaulted Mortgage Loans. Delinquencies and defaults will
generally slow the rate of payment of principal to the Securityholders.
However, this effect will be offset to the extent that lump sum recoveries on
defaulted Mortgage Loans and foreclosed Mortgaged Properties result in principal
payments on the Securities faster than otherwise scheduled.
When a full prepayment or Curtailment occurs on a Mortgage Loan, the
Mortgagor will be charged interest on the principal amount of the Mortgage Loan
so prepaid only for the number of days in the month actually elapsed up to the
date of the prepayment rather than for a full month. Interest shortfalls also
could result from the application of the Soldiers' and Sailors' Civil Relief Act
of 1940, as amended (the "Relief Act"), as described under "Certain Legal
Aspects of the Mortgage Loans-- Soldiers' and Sailors' Civil Relief Act" herein.
If so specified in the related
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Prospectus Supplement, in the event that less than 30 days' interest is
collected on a Mortgage Loan during a Due Period, whether due to prepayment in
full or a Curtailment, the Master Servicer will be obligated to pay Compensating
Interest with respect thereto, but only to the extent of the aggregate Servicing
Fee and Contingency Fee for the related Remittance Date. To the extent such
shortfalls exceed the amount of Compensating Interest that the Master Servicer
is obligated to pay, and are not otherwise covered by Insured Payments, the
yield on the Securities could be adversely affected.
Under certain circumstances, the Master Servicer, certain insurers, the
holders of REMIC Residual Certificates or certain other entities specified in
the related Prospectus Supplement may have the option to purchase the Mortgage
Assets and other assets of a Trust, thereby effecting earlier retirement of the
related Series of Securities. See "The Agreement--Termination; Purchase of
Mortgage Loans."
If so specified in the related Prospectus Supplement, the effective yield
to certain Securityholders may be slightly lower than the yield otherwise
produced by the applicable Remittance Rate and purchase price, because while
interest generally will accrue on such Securities from the first day of each
month, the distribution of such interest will not be made earlier than a
specified date in the month following the month of accrual.
In addition, if so specified in the related Prospectus Supplement,
prepayments may result from amounts on deposit, if any, in the Pre-Funding
Account at the end of the Funding Period being applied to the payment of
principal of the Securities.
The Prospectus Supplement relating to a Series of Securities will discuss
in greater detail the effect of the rate and timing of principal payments
(including prepayments) on the yield, weighted average lives and maturities of
such Securities. Factors other than those identified herein and in the related
Prospectus Supplement could significantly affect principal prepayments at any
time and over the lives of the Securities.
THE AGREEMENTS
Set forth below is a summary of certain provisions of each Agreement which
are not described elsewhere in this Prospectus. The summary does not purport to
be complete and is subject to, and qualified in its entirety by reference to,
the provisions of each Agreement. Where particular provisions or terms used in
the Agreements are referred to, such provisions or terms are as specified in the
Agreements.
Sale of Mortgage Loans
Pursuant to each related Pooling and Servicing Agreement or Sale and
Servicing Agreement, as the case may be, at the time of issuance of Securities
of a Series the Originators and/or The Money Store will sell to the related
Trust, without recourse, all interest of the Originators and/or The Money Store
in each of the Mortgage Assets comprising the assets of such Trust and all
interest in all actual payments collected after the Cut-off Date with respect to
such Mortgage Assets.
In addition, to the extent specified in the related Prospectus Supplement,
the net proceeds received from the sale of the Securities of a given Series will
be applied to the deposit of the Pre-Funded Amount into the Pre-Funding Account.
The aggregate principal balance of additional Mortgage Assets to be purchased
for the related Trust generally will be equal to the Pre-Funded Amount on the
date of the issuance of the related Series. On each applicable purchase date,
the Originators and/or The Money Store will sell to the related Trust, without
recourse, the entire interest of the Originators and/or The Money Store in the
additional Mortgage Assets identified in a schedule attached to a supplemental
conveyance relating to such additional Mortgage Assets executed on such date by
the Originators and/or The Money Store. In connection with each purchase of
additional Mortgage Assets, the related Trust will be required to pay to the
Originators and/or The Money Store a cash purchase price equal to the
outstanding principal balance of each additional Mortgage Asset as of its
related Cut-off Date. The purchase price will be withdrawn from the Pre-Funding
Account and paid to the Originators and/or The Money Store so long as the
representations and warranties set forth in "--Representations and Warranties"
below apply to each additional
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Mortgage Asset to be conveyed, and the conditions set forth in the paragraph
below and in the related Agreement are satisfied. The Originators and/or The
Money Store will convey the additional Mortgage Assets to the related Trust on
the applicable purchase date pursuant to the Agreement.
Any conveyance of additional Mortgage Assets will be subject to the
following conditions, among others specified in the related Prospectus
Supplement: (i) each such additional Mortgage Asset must satisfy the
eligibility criteria specified in the preceding paragraph as of its applicable
Cut-off Date and such additional criteria as may be specified in the related
Prospectus Supplement; (ii) if and to the extent specified in the related
Prospectus Supplement, the third-party credit enhancement provider, if any,
shall have approved the transfer of such additional Mortgage Assets to the
related Trust; (iii) neither the Originator nor The Money Store will have
selected such additional Mortgage Assets in a manner that either believes is
adverse to the interests of Securityholders; and (iv) the Originator and The
Money Store will deliver certain opinions of counsel to the Trustee(s) and the
Rating Agencies with respect to the validity of the conveyance of such
additional Mortgage Assets.
In connection with such sales of the Mortgage Loans, the Representative
will be required to deliver to the Trustee certain specified items (collectively
with respect to each Mortgage Loan, the "Trustee's Mortgage File") with respect
to each Mortgage Loan. Unless otherwise specified in the related Prospectus
Supplement, each Trustee's Mortgage File will be required to include the
following, together with certain other specified items: (a) The original
Mortgage Note; (b) either: (i) the original Mortgage, with evidence of recording
thereon or (ii) a certified copy of the Mortgage where the original has been
transmitted for recording or has been lost; and (c) an assignment of the
Mortgage Loan from the applicable Originator to either the related Trustee or
Initial Co-Trustee under the Agreement with evidence of recording thereon
(unless opinions of counsel are delivered satisfactory to the Rating Agencies
and the Security Guaranty Insurer, if any, to the effect that recordation of
such assignments is not required in the relevant jurisdictions to protect the
interests of the Trustee in the Mortgage Loans).
The Trustee will be required to review each such Trustee's Mortgage File to
ascertain that all required documents have been executed and received. If the
Security Guaranty Insurer, if any, or the Trustee finds any document
constituting a part of a Trustee's Mortgage File which is not properly executed,
has not been received, is unrelated to the Mortgage Loans of the related Trust
or does not conform in a material respect to the description thereof provided on
behalf of the Representative, the Securities Guaranties Insurer, if any, or the
Trustee is required promptly to notify the Master Servicer, The Money Store, and
the Trustee or the Security Guaranty Insurer, if any, respectively. The Money
Store is required to use reasonable efforts to remedy a material defect in a
document constituting part of a Trustee's Mortgage File of which it is so
notified. If, however, within 60 days after the Trustee's notice to it
respecting such defect The Money Store has not remedied the defect and the
defect materially and adversely affects the interest of the Trust in the related
Mortgage Loan or the interests of the Security Guaranty Insurer, if any, The
Money Store is required to (i) substitute in lieu of such Mortgage Loan a
substitute Mortgage Loan which qualifies for substitution under the Agreement (a
"Qualified Substitute Mortgage Loan") and, if the then outstanding principal
balance of such Qualified Substitute Mortgage Loan is less than the principal
balance of such Mortgage Loan as of the date of such substitution, deposit in
the related Principal and Interest Account (as defined herein under "--Payments
on the Mortgage Loans") the amount of such shortfall in principal balance
arising from such substitution (the "Substitution Adjustment") or (ii) purchase
such Mortgage Loan at a price equal to the principal balance of such Mortgage
Loan as of the date of purchase, plus 30 days' interest on such principal
balance, computed at the Adjusted Mortgage Loan Remittance Rate (as defined in
the related Prospectus Supplement) as of the next succeeding Determination Date,
plus any accrued unpaid Servicing Fees and Contingency Fees (each as defined
herein under "--Servicing and Other Compensation and Payment of Expenses") and
certain other amounts advanced by and reimbursable to the Master Servicer, plus
the interest portion of any unreimbursed Insured Payments made by the Security
Guaranty Insurer, if any, related to such Mortgage Loan, which purchase price
will be deposited in the Principal and Interest Account and delivered to the
Trustee on the next succeeding Determination Date, except for the amount
described above relating to unreimbursed Insured Payments, if any, which shall
be paid directly to the Security Guaranty Insurer; provided, however, that, if a
REMIC election has been made for the related Trust, The Money Store may not take
any such action unless it has theretofore caused to be delivered to the Trustee
an opinion of counsel knowledgeable in federal income tax matters (an "Opinion
of Counsel") which states that such a purchase or substitution would not
constitute a "prohibited transaction," as defined in Section 860F of the Code (a
"Prohibited Transaction").
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Representations and Warranties
The Representative will represent, among other things, that as of the
related Cut-off Date as to each Mortgage Loan sold to the related Trust, the
information provided with respect to such Mortgage Loan was true and correct;
all of the original or certified documentation constituting the Trustee's
Mortgage Files (including all material documents related thereto) has been or
will be delivered to the Trustee or a custodian on its behalf (the "Custodian");
each Mortgage was a valid and subsisting lien of record on the Mortgaged
Property; immediately prior to such transfer and assignment, the Originators
were the sole owners of each Mortgage Loan conveyed by them; and as of the
related Cut-off Date, no Mortgage Loan will be more than 59 days delinquent in
payment, no Mortgage Loan originated within 12 months of the related Cut-off
Date will be delinquent more than 59 days as measured at the end of any month
during the 12 months immediately preceding such Cut-off Date, and with respect
to Mortgage Loans originated more than 12 months before such Cut-off Date, no
more than the percentage of Mortgage Loans specified in the related Prospectus
Supplement (measured by outstanding principal balance as of such Cut-off Date)
will have been on up to two occasions more than 59 days delinquent as measured
at the end of any month since the inception of each such Mortgage Loan.
Pursuant to the Agreement, upon the discovery by The Money Store, the
Servicer, any Subservicer, the Custodian, the Security Guaranty Insurer, if any,
or the Trustee that any of the representations and warranties contained in the
Agreement have been breached in any material respect as of the related Cut-off
Date, with the result that the interests of the related Trust in the related
Mortgage Loan or the interests of the Security Guaranty Insurer, if any, were
materially and adversely affected, notwithstanding that such representation and
warranty was made to The Money Store's best knowledge, the party discovering
such breach is required to give prompt written notice to the other parties.
Within 60 days of the earlier to occur of The Money Store's discovery or its
receipt of notice of any such breach, The Money Store will be required to cure
promptly such breach in all material respects, or (i) remove such Mortgage Loan
and substitute one or more Qualified Substitute Mortgage Loans or (ii) purchase
such Mortgage Loan, in each case on the same terms and on the same conditions as
described above under "Sale of Mortgage Loans." The obligation of The Money
Store to so substitute or purchase any Mortgage Loan will constitute the sole
remedy respecting a material breach of any such representation or warranty
available to the Securityholders or the Trustee.
Payments on the Mortgage Loans
The Agreement will require the Master Servicer to establish and maintain
one or more principal and interest accounts (each a "Principal and Interest
Account") at one or more institutions designated as a "Designated Depository
Institution" in the Agreement.
All funds in the Principal and Interest Accounts will be required to be
held (i) uninvested, up to the limits insured by the Federal Deposit Insurance
Corporation or (ii) invested in instruments designated as "Permitted
Instruments" in the Agreement. Any investment earnings on funds held in the
Principal and Interest Accounts are for the account of the Master Servicer.
The Master Servicer will be required to deposit or cause to be deposited in
the related Principal and Interest Account (within 24 hours of receipt) all
payments received after the related Cut-off Date on account of principal and
interest on the related Mortgage Loans (but net of the Servicing Fee and the
Contingency Fee with respect to each Mortgage Loan and other servicing
compensation payable to the Master Servicer as permitted by the Agreement).
Not later than the day of each month preceding a Remittance Date that is
set forth in a Prospectus Supplement (each such day a "Determination Date"), the
Master Servicer will be required to wire transfer to the Trustee the Available
Remittance Amount for deposit in the segregated trust accounts to be maintained
with the Trustee for such purpose (each a "Distribution Account").
Unless otherwise specified in the related Prospectus Supplement, the
"Available Remittance Amount" will be defined in the Agreement to include, with
respect to any Remittance Date, without duplication:
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(i) the sum of all amounts received by the Master Servicer or any Sub-
Servicer on the Mortgage Loans (including amounts paid by the Master
Servicer and the Representative and excluding amounts required to be
deposited into any related Reserve Account, amounts paid as reimbursement
to the Master Servicer of advances and amounts recovered as voidable
preferences) during the immediately preceding calendar month (the "Due
Period"), plus
(ii) the amount of any Monthly Advance and Compensating Interest
payments with respect to the Mortgage Loans remitted by the Master Servicer
for such Remittance Date.
The term Available Remittance Amounts will not include Insured Payments, if
any.
General Servicing Standards
The Master Servicer will agree to master service the Mortgage Loans in
accordance with the related Agreement and, where applicable, prudent mortgage
servicing standards. "Prudent mortgage servicing standards" generally will
require the Master Servicer to exercise collection and foreclosure procedures
with respect to the Mortgage Loans with the same degree of care and skill that
it would use in master servicing mortgage loans for its own account. Pursuant to
each Agreement, the Master Servicer will be required to make reasonable efforts
to collect all payments called for under the terms of the related Mortgage Loan.
Nonetheless, the Master Servicer, in determining the type of action that is
reasonable to pursue may consider, among other things, the unpaid principal
balance of a Mortgage Loan against the estimated cost of collection or
foreclosure action, the unpaid balance of the related prior mortgage, if any,
the condition and estimated market value ("as is" and "if repaired"), the
estimated marketability of the related Mortgaged Property and the borrower's
ability to repay.
Servicing and Other Compensation and Payment of Expenses
The Master Servicer will be entitled to a servicing fee (the "Servicing
Fee") and a contingency fee (the "Contingency Fee") equal to the percentage per
annum specified in the related Prospectus Supplement of the principal balance of
each Mortgage Loan. The Contingency Fee is meant to provide additional
servicing compensation to a successor servicer if The Money Store is replaced as
Master Servicer under the related Agreement. However, as long as The Money
Store acts as Master Servicer, it will be entitled to receive the Contingency
Fee, although such amount is not deemed servicing compensation. Unless
otherwise specified in the related Prospectus Supplement, the Servicing Fee and
Contingency Fee will each be calculated and payable monthly from the interest
portion of scheduled monthly payments, liquidation proceeds and certain other
collected proceeds. In addition, the Master Servicer will be entitled under the
Agreement to retain additional servicing compensation in the form of assumption
and other administrative fees, prepayment penalties and premiums, late payment
charges, interest paid on funds in the Principal and Interest Account, interest
paid on earnings realized on Permitted Instruments, and certain other excess
amounts.
The Master Servicer will be required to pay all reasonable and customary
"out-of-pocket" costs and expenses incurred in the performance of its
obligations under the Agreements, including, but not limited to, the cost of (i)
the preservation, restoration and protection of the Mortgaged Property, (ii) any
enforcement or judicial proceedings, including foreclosures, and (iii) the
management and liquidation of Mortgaged Property acquired in satisfaction of the
related Mortgage Loan. Such expenditures may include costs of collection
efforts, reappraisals when a loan is 90 days past due, forced placement of
hazard insurance if a borrower allows his hazard policy to lapse, legal fees in
connection with foreclosure actions, advancing payments on the related senior
mortgage, if any, advances of delinquent property taxes, upkeep and maintenance
of the property if it is acquired through foreclosure and similar types of
expenses. Each such expenditure constitutes a "Servicing Advance." The Master
Servicer will be obligated to make the Servicing Advances incurred in the
performance of its servicing obligations. The Master Servicer will be entitled
to recover Servicing Advances to the extent permitted by the Mortgage Loans or,
if not theretofore recovered from the Mortgagor on whose behalf such Servicing
Advance was made, from Liquidation Proceeds, Released Mortgaged Property
Proceeds, Insurance Proceeds and such other amounts as may be collected by the
Servicer from the Mortgagor or otherwise relating to the Mortgage Loan.
Servicing Advances will be
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reimbursable to the Servicer from the sources described above out of the funds
on deposit in the Principal and Interest Account.
Hazard Insurance
The Master Servicer will be required to cause to be maintained fire and
hazard insurance with extended coverage customary in the area where the
Mortgaged Property is located, in an amount which is at least equal to the least
of (i) the outstanding principal balance owing on the Mortgage Loan and the
related senior mortgage, if any, (ii) the full insurable value of the premises
securing the Mortgage Loan, and (iii) the minimum amount required to compensate
for damage or loss on a replacement cost basis. If the Mortgaged Property is in
an area identified in the Federal Register by the Flood Emergency Management
Agency as having special flood hazards (and such flood insurance has been made
available), the Master Servicer will be required to cause to be purchased a
flood insurance policy with a generally acceptable insurance carrier, in an
amount representing coverage not less than the least of (a) the outstanding
principal balance of the Mortgage Loan and the senior lien, if any, (b) the full
insurable value of the Mortgaged Property, or (c) the maximum amount of
insurance available under the National Flood Insurance Act of 1968, as amended.
The Master Servicer will also be required to maintain, to the extent such
insurance is available, on REO Property, fire and hazard insurance in the
applicable amounts described above, liability insurance and, to the extent
required and available under the National Flood Insurance Act of 1968, as
amended, flood insurance in an amount equal to that required above. Any amounts
collected by the Master Servicer or any Sub-Servicer under any such policies
(other than amounts to be applied to the restoration or repair of the Mortgaged
Property, or to be released to the Mortgagor in accordance with customary first
or second mortgage servicing procedures) are required to be deposited in the
Principal and Interest Account.
In the event that the Master Servicer obtains and maintains a blanket
policy insuring against fire and hazards of extended coverage on all of the
Mortgage Loans, then, to the extent such policy names the Trustee as loss payee
and provides coverage in an amount equal to the aggregate unpaid principal
balance on the Mortgage Loans without individual fire and hazard insurance, and
otherwise complies with the requirements of the preceding paragraph, the Master
Servicer will be deemed conclusively to have satisfied its obligations with
respect to fire and hazard insurance coverage.
Enforcement of Due on Sale Clauses
When a Mortgaged Property has been or is about to be conveyed by the
Mortgagor, the Master Servicer, on behalf of the Trustee, will, to the extent it
has knowledge of such conveyance or prospective conveyance, be required to
enforce the rights of the Trustee as the mortgagee of record to accelerate the
maturity of the related Mortgage Loan under any "due-on-sale" clause contained
in the related Mortgage or Mortgage Note; provided, however, that the Master
Servicer will not be required to exercise any such right if the "due-on-sale"
clause, in the reasonable belief of the Master Servicer, is not enforceable
under applicable law or if such enforcement would materially increase the risk
of default or delinquency on, or materially decrease the security for, such
Mortgage Loan. In such event, the Master Servicer will attempt to 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 and, unless prohibited by applicable law or the mortgage
documents, the Mortgagor remains liable thereon. The Master Servicer also will
be authorized with the prior approval of the Security Guaranty Insurer, if any,
to enter into a substitution of liability agreement with such person, pursuant
to which the original Mortgagor is released from liability and such person is
substituted as Mortgagor and becomes liable under the Mortgage Note.
Notwithstanding the foregoing, with respect to Mortgage Loans with Combined
Loan-to-Value Ratios exceeding 100%, the Master Servicer may, but will be under
no obligation to, permit a borrower who is selling his principal residence to
substitute the new mortgaged property as collateral for the related Mortgage
Loan. In such event, the Master Servicer may require the borrower to make a
partial prepayment in reduction of the principal balance of the Mortgage Loan.
Realization Upon Defaulted Mortgage
The Master Servicer generally will foreclose upon or otherwise comparably
convert the ownership in the name of the Trustee of Mortgaged Properties
relating to defaulted Mortgage Loans as to which no satisfactory
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arrangements can be made for collection of delinquent payments. However, the
Master Servicer will be required to take into account the existence of any
hazardous substances, hazardous wastes or solid wastes on a Mortgaged Property
in determining whether to foreclose upon or otherwise comparably convert the
ownership of such Mortgaged Property.
Waivers and Deferments of Certain Payments
The Agreement will require the Master Servicer to make reasonable efforts
to collect all payments called for under the terms and provisions of the
Mortgage Loans. Consistent with the foregoing, the Master Servicer may in its
discretion waive any late payment charge, prepayment charge, assumption fee or
any penalty interest in connection with the prepayment of a Mortgage Loan or any
other fee or charge which the Master Servicer would be entitled to retain as
servicing compensation and may waive, vary or modify any term of any Mortgage
Loan or consent to the postponement of strict compliance with any such term or
in any matter grant indulgence to any Mortgagor, subject to the limitations set
forth in the Agreement. In the event the Master Servicer consents to the
deferment of the due dates for payments due on a Mortgage Note, the Master
Servicer will nonetheless make payment of any required Monthly Advance with
respect to the payments so extended to the same extent as if such installment
were due, owing and delinquent and had not been deferred.
Sub-Servicers
The Master Servicer will be permitted under the related Agreement to enter
into sub-servicing arrangements with sub-servicers meeting the requirements of
the related Agreement (each, a "Sub-Servicer"). Such sub-servicing arrangements
will not relieve the Master Servicer of any liability it might otherwise have,
had the sub-servicing arrangement not been entered into.
Removal and Resignation of Master Servicer
With respect to each Series of Securities, the Security Guaranty Insurer,
if any, or the Holders of not less than 50 percent of each Class of Securities
of the related Series, other than the holders of residual interests (the
"Majority Securityholders"), by notice in writing to the Master Servicer and
with the prior written consent of the Security Guaranty Insurer, if any, which
consent may not be unreasonably withheld, generally may, pursuant to the related
Agreement, remove the Master Servicer upon the occurrence of any of the
following events:
(i) (A) an Event of Nonpayment (as defined below) if the Series of
Securities has the benefit of a Guaranty Insurance Policy; (B) the failure
by the Master Servicer to make any required Servicing Advance to the extent
such failure materially or adversely affects the interests of the Security
Guaranty Insurer, if any, or the Securityholders; (C) the failure by the
Master Servicer to make any required Monthly Advance; (D) the failure by
the Master Servicer to remit any Compensating Interest; or (E) any failure
by the Master Servicer to remit to the Trustee any payment required to be
made under the terms of the related Agreement, which in each case continues
unremedied (in the case of the events described in clauses (i)(A), (i)(B),
(i)(D) and (i)(E) for 30 days) after the date upon which written notice of
such failure, requiring the same to be remedied, shall have been given to
the Master Servicer by the Trustee or to the Master Servicer and the
Trustee by any Securityholder or the Security Guaranty Insurer, if any; or
(ii) failure by the Master Servicer or The Money Store (so long as The
Money Store is the Master Servicer) duly to observe or perform, in any
material respect, any other covenants, obligations or agreements of the
Master Servicer or the Representative, as set forth in the related
Agreement, which failure continues unremedied for a period of 60 days after
the date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Master Servicer or The Money Store,
as the case may be, by the Trustee or to the Master Servicer or The Money
Store, as the case may be, and the Trustee by any Securityholder or the
Security Guaranty Insurer, if any; or
(iii) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of
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assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master
Servicer and such decree or order shall have remained in force,
undischarged or unstayed for a period of 60 days; or
(iv) the Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings of or
relating to the Master Servicer or of or relating to all or substantially
all of the Master Servicer's property; or
(v) the Master Servicer shall admit in writing its inability to pay
its debts as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its
obligations.
An "Event of Nonpayment" will generally be defined in the Agreements as a
shortfall on any Remittance Date in moneys (excluding any amounts representing
Insured Payments) available to fund the full amount of the Distribution Amounts
due on such Remittance Date.
The Master Servicer may not assign its obligations under the Agreement nor
resign from the obligations and duties thereby imposed on it except by mutual
consent of the Master Servicer, the Security Guaranty Insurer, if any, the
Trustee and the Majority Securityholders, or upon the determination that the
Master Servicer's duties thereunder are no longer permissible under applicable
law and such incapacity cannot be cured by the Master Servicer. No such
resignation shall become effective until a successor has assumed the Master
Servicer's responsibilities and obligations in accordance with the Agreement.
Upon removal or resignation of the Master Servicer, the Trustee will be the
successor servicer (the "Successor Servicer"), except that the Trustee as
Successor Servicer will not be required to make Monthly Advances and certain
other advances to the extent that the Trustee determines reasonably and in good
faith that such advances would not be recoverable. If, however, the Trustee is
unwilling or unable to act as Successor Servicer, or if the Majority
Securityholders or the Security Guaranty Insurer, if any, so request, the
Trustee may appoint, or petition a court of competent jurisdiction to appoint,
any established mortgage loan servicing institution acceptable to the Security
Guaranty Insurer, if any, having a net worth of not less than $15,000,000 and
which is approved as a servicer by FNMA and FHLMC as the Successor Servicer in
the assumption of all or any part of the responsibilities, duties or liabilities
of the Master Servicer.
The Successor Servicer will be entitled to receive the Servicing Fee, the
Contingency Fee and such other compensation as is described under "--Servicing
and Other Compensation and Payment of Expenses" above.
Termination; Purchase of Mortgage Loans
Pooling and Servicing Agreement; Trust Agreement. The Trust established
under a Pooling and Servicing Agreement or a Trust Agreement will terminate upon
notice to the Trustee following the earlier to occur of (i) the final payment or
other liquidation of such last Mortgage Loan remaining in the related Trust or
the disposition of all REO Property, (ii) the optional purchase of the assets of
the Trust by the Master Servicer or the Security Guaranty Insurer, if any, as
described below, (iii) mutual consent of the Master Servicer, the Security
Guaranty Insurer, if any, and all Securityholders in writing, or (iv) if a REMIC
election has been made for the related Trust, the occurrence of a "qualified
liquidation" of the Trust, as permitted by the REMIC provisions of the Code as
described below; provided, however, that in no event will any Trust terminate
later than twenty-one years after the death of the last survivor of the person
named in the related Agreement.
Subject to provisions in an Agreement concerning adopting a plan of
complete liquidation, on any date on which the aggregate principal balances of
the Mortgage Loans are less than 10% of the Original Pool Principal Balance (or
such other percentage as may be specified in the related Prospectus Supplement),
the Master Servicer may, at its option, and in the absence of the exercise
thereof by the Master Servicer, the Security Guaranty Insurer, if any, may, at
its option, purchase, on the next succeeding Remittance Date, all of the
Mortgage Loans and any related REO Properties at a price equal to the
Termination Price. If so provided in the related Prospectus Supplement, the
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Master Servicer or another entity may purchase some or all of the Mortgage
Assets under the circumstances described in such Prospectus Supplement.
On any Remittance Date on or after the Cross-Over Date on which Mortgage
Loans with an aggregate principal balance as of the Cut-off Date that equals or
exceeds 25% of the Original Pool Principal Balance (or such other percentage as
may be specified in the related Prospectus Supplement) have become liquidated
Mortgage Loans, the Security Guaranty Insurer, if any, may determine to purchase
and may cause the purchase from the Trust of all Mortgage Loans and REO
Properties in the Pool at a price equal to the sum of the Termination Price and
the outstanding and unpaid fees and expenses of the Trustee and the Master
Servicer.
Indenture. The Indenture will be discharged with respect to a Series of
Notes (except with respect to certain continuing rights specified in the
Indenture) upon the delivery to the Trustee for cancellation of all the Notes of
such Series or, with certain limitations, upon deposit with the Trustee of funds
sufficient for the payment in full of all of the Notes of such Series.
In addition to such discharge with certain limitations, the Indenture may
provide that, if so specified with respect to the Notes of any Series, the
related Trust Fund will be discharged from any and all obligations in respect of
the Notes of such Series (except for certain obligations relating to temporary
Notes and exchange of Notes, to register the transfer of or exchange Notes of
such Series, to replace stolen, lost or mutilated Notes of such Series, to
maintain paying agencies and to hold monies for payment in trust) upon the
deposit with the Trustee, in trust, of money and/or direct obligations of or
obligations guaranteed by the United States of America which, through the
payment of interest and principal in respect thereof in accordance with their
terms, will provide money in an amount sufficient to pay the principal of and
each installment of interest on the Notes of such Series on the final scheduled
Remittance Date for such Notes and any installment of interest on such Notes in
accordance with the terms of the Indenture and the Notes of such Series. In the
event of any such defeasance and discharge of Notes of such Series, holders of
Notes of such Series would be able to look only to such money and/or direct
obligations for payment of principal and interest, if any, on their Notes until
maturity.
REMIC Considerations. If a REMIC election is made for a Series of
Securities, following a final determination by the Internal Revenue Service (the
"IRS") or by a court of competent jurisdiction, in either case from which no
appeal is taken within the permitted time for such appeal, or if any appeal is
taken, following a final determination of such appeal from which no further
appeal can be taken, to the effect that the REMIC does not and will no longer
qualify as a REMIC pursuant to Section 860D of the Code (the "Final
Determination"), at any time on or after the date which is 30 calendar days
following such Final Determination (i) the Majority Securityholders may direct
the Trustee on behalf of such Trust to adopt a "plan of complete liquidation"
(within the meaning of Section 860F(a)(4)(B)(i) of the Code) with respect to
such REMIC and (ii) the Security Guaranty Insurer, if any, may notify the
Trustee of the Security Guaranty Insurer's determination to purchase from the
Trust all Mortgage Loans and all property theretofore acquired by foreclosure,
deed in lieu of foreclosure, or otherwise in respect of any Mortgage Loan, then
remaining in such REMIC at a price (the "Termination Price") equal to the sum of
(x) 100% of the aggregate principal balances of such Mortgage Loans as of the
day of purchase minus amounts remitted from the Principal and Interest Account
to the Distribution Account representing collections of principal on such
Mortgage Loans during the current Due Period, (y) 30 days' interest on such
amount computed at the applicable weighted average of the Adjusted Mortgage Loan
Remittance Rates, and (z) the interest portion of any unreimbursed insured
payment made by the Security Guaranty Insurer, if any. Upon receipt of such
direction by the Majority Securityholders or of such notice from the Security
Guaranty Insurer, the Trustee will notify the holders of the Class R
Certificates of such election to liquidate or such determination to purchase, as
the case may be (the "Termination Notice"). The Holders of a majority of the
percentage interest of the Class R Certificates then outstanding may, within 60
days from the date of receipt of the Termination Notice (the "Purchase Option
Period"), at their option, purchase from the related Trust all Mortgage Loans
and all property theretofore acquired by foreclosure, deed in lieu of
foreclosure, or otherwise in respect of any Mortgage Loan then remaining in the
REMIC at a purchase price equal to the Termination Price.
If, during a Purchase Option Period, the holders of the Class R
Certificates have not exercised the option described in the immediately
preceding paragraph, then upon the expiration of the Purchase Option Period (i)
in the
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event that the Majority Securityholders have given the Trustee the direction
described in clause (i) above, the Trustee is required to sell the Mortgage
Loans and such other property in the REMIC and distribute the proceeds of the
liquidation of the REMIC, each in accordance with the plan of complete
liquidation, such that, if so directed, the liquidation of the REMIC and the
distribution of the proceeds of the liquidation occur no later than the close of
the 60th day, or such later day as the Majority Securityholders shall permit or
direct in writing, after the expiration of the Purchase Option Period and (ii)
in the event that the Security Guaranty Insurer has given the Trustee notice of
the Security Guaranty Insurer's determination to purchase the assets described
in clause (ii) preceding, the Security Guaranty Insurer shall so purchase such
assets within 60 days after the expiration of the Purchase Option Period.
Following a Final Determination, the holders of a majority of the
percentage interest of the Class R Certificates then outstanding may, at their
option and upon delivery to the Trustee and the Security Guaranty Insurer, if
any, of an opinion of nationally recognized tax counsel selected by the Holders
of such Class R Certificates, which opinion shall be reasonably satisfactory in
form and substance to the Majority Securityholders and the Security Guaranty
Insurer, if any, that the effect of the Final Determination is to increase
substantially the probability that the gross income of the REMIC will be subject
to federal taxation, purchase from the Trust all Mortgage Loans and all property
theretofore acquired by foreclosure, deed in lieu of foreclosure, or otherwise
in respect of any Mortgage Loan then remaining in the applicable REMIC at a
purchase price equal to the Termination Price. The foregoing opinion shall be
deemed satisfactory unless the Majority Securityholders give the holders of a
majority of percentage interests in the Class R Certificates notice that such
opinion is not satisfactory within thirty days after receipt of such opinion.
Control by Holders
Each Agreement will provide that the Majority Securityholders may exercise
any trust or power conferred on the Trustee with respect to the Securities or
the Trusts, upon satisfaction of certain conditions set forth in the Agreements;
provided, however, that with respect to any action or event affecting only one
or more Classes of Securities, only Holders of such Class or Classes may
exercise such trust or power.
Events of Default under the Indenture; Rights of Noteholders
Unless otherwise specified in the related Prospectus Supplement, Events of
Default under the Indenture for each Series of Notes include: (i) a default for
thirty (30) days or more in the payment of any principal of or interest on any
Note of such Series; (ii) failure to perform any other covenant of the
Representative or the Trust Fund in the Indenture which continues for a period
of sixty (60) days after notice thereof is given in accordance with the
procedures described in the related Prospectus Supplement; (iii) any
representation or warranty made by the Representative or the Trust Fund in the
Indenture or in any certificate or other writing delivered pursuant thereto or
in connection therewith with respect to or affecting such Series having been
incorrect in a material respect as of the time made, and such breach is not
cured within sixty (60) days after notice thereof is given in accordance with
the procedures described in the related Prospectus Supplement; (iv) certain
events of bankruptcy, insolvency, receivership or liquidation of the
Representative or the Trust Fund; or (v) any other Event of Default provided
with respect to Notes of that Series.
If an Event of Default with respect to the Notes of any Series at the time
outstanding occurs and is continuing, either the Trustee or the Holders of a
majority of the then aggregate outstanding amount of the Notes of such Series
may declare the principal amount of all the Notes of such Series to be due and
payable immediately. Such declaration may, under certain circumstances, be
rescinded and annulled by the Holders of a majority in aggregate outstanding
amount of the Notes of such Series.
If, following an Event of Default with respect to any Series of Notes, the
Notes of such Series have been declared to be due and payable, the Trustee may,
in its discretion, notwithstanding such acceleration, elect to maintain
possession of the collateral securing the Notes of such Series and to continue
to apply distributions on such collateral as if there had been no declaration of
acceleration if such collateral continues to provide sufficient funds for the
payment of principal of and interest on the Notes of such Series as they would
have become due if there had not been such a declaration. In addition, the
Trustee may not sell or otherwise liquidate the collateral securing the Notes of
a
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Series following an Event of Default other than a default in the payment of
any principal or interest on any Note of such Series for thirty (30) days or
more, unless (a) the Holders of 100% of the then aggregate outstanding amount of
the Notes of such Series consent to such sale, (b) the proceeds of such sale or
liquidation are sufficient to pay in full the principal of and accrued interest
due and unpaid on the outstanding Notes of such Series at the date of such sale
or (c) the Trustee determines that such collateral would not be sufficient on an
ongoing basis to make all payments on such Notes as such payments would have
become due if such Notes had not been declared due and payable, and the Trustee
obtains the consent of the Holders of 66% of the then aggregate outstanding
amount of the Notes of such Series.
In the event that the Trustee liquidates the collateral in connection with
an Event of Default involving a default for thirty (30) days or more in the
payment of principal of or interest on the Notes of a Series, the Indenture
provides that the Trustee will have a prior lien on the proceeds of any such
liquidation for unpaid fees and expenses. As a result, upon the occurrence of
such an Event of Default, the amount available for distribution to the
Noteholders may be less than would otherwise be the case. However, the Trustee
may not institute a proceeding for the enforcement of its lien except in
connection with a proceeding for the enforcement of the lien of the Indenture
for the benefit of the Noteholders after the occurrence of such an Event of
Default.
Unless otherwise specified in the related Prospectus Supplement, in the
event the principal of the Note of a Series is declared due and payable, as
described above, the Holders of any such Notes issued at a discount from par may
be entitled to receive no more than an amount equal to the unpaid principal
amount thereof less the amount of such discount which is unamortized.
Subject to the provisions of the Indenture relating to the duties of the
Trustee, in case an Event of Default shall occur and be continuing with respect
to a Series of Notes, the Trustee will be under no obligation to exercise any of
the rights or powers under the Indenture at the request or direction of any of
the Holders of Notes of such Series, unless such Holders offered to the Trustee
security or indemnity satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in complying with such request or
direction. Subject to such provisions for indemnification and certain
limitations contained in the Indenture, the Holders of a majority of the then
aggregate outstanding amount of the Notes of such Series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to the Notes of such Series, and the Holders of a majority
of the then aggregate outstanding amount of the Notes of such Series may, in
certain cases, waive any default with respect thereto, except a default in the
payment of principal or interest or a default in respect of a covenant or
provision of the Indenture that cannot be modified without the waiver or consent
of all the Holders of the outstanding Notes of such Series affected thereby.
Amendment
Each Agreement may be amended from time to time by the Master Servicer and
the Trustee by written agreement, upon the prior written consent of the Security
Guaranty Insurer, if any, without the notice to, or consent of, the
Securityholders, to cure any ambiguity, to correct or supplement any provisions
therein, to comply with any changes in the Code, or to make any other provisions
with respect to matters or questions arising under the Agreement which are not
inconsistent with the provisions of such Agreement, or any agreement for the
retention of each Trustee's Mortgage File; provided, however, that such action
shall not, as evidenced by an Opinion of Counsel delivered to the Trustee,
adversely affect the interest of any Securityholder or any other party and
further provided that no such amendment shall reduce in any manner the amount
of, or delay the timing of, any amounts which are required to be distributed on
any Security without the consent of the Holder of such Security, or change the
rights or obligations of any other party thereto without the consent of such
party.
Each Agreement may be amended from time to time by The Money Store, the
Master Servicer and the Trustee with the consent of the Security Guaranty
Insurer, if any, and the Holders of the majority of the percentage interest in
each Class of Securities affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
such Agreement or of modifying in any manner any provisions thereof; provided,
however, that if a REMIC election is made for the applicable Trust, no such
amendment shall be made unless the Trustee receives an Opinion of Counsel, at
the expense of the party requesting the change, that such
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change will not adversely affect the status of the Trust as a REMIC or cause a
tax to be imposed on the REMIC, and provided further, that no such amendment
shall reduce in any manner the amount of, or delay the timing of, any amounts
which are required to be distributed on any Securities without the consent of
the Holders of 100% of each Class of Securities affected thereby.
Each Agreement may be amended from time to time by the Master Servicer, The
Money Store and the Trustee by written agreement, upon the prior written consent
of the Security Guaranty Insurer, if any, without the notice to or consent of
the Securityholders, in connection with the substitution of cash, a letter of
credit or any other collateral deposited in a Reserve Account.
It will not be necessary for the consent of holders to approve the
particular form of any proposed amendment, but it will be sufficient if such
consent shall approve the substance thereof.
The Trustee
Each Prospectus Supplement will name the Trustee under the related
Agreement. The Agreement will provide that the Trustee may resign at any time,
in which event the Representative will be obligated to appoint a successor
Trustee. The Representative may also remove the Trustee if the Trustee ceases
to be eligible to continue as such under the Agreement, if the Trustee becomes
insolvent or, if the Trustee enters into certain business combinations. 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.
CERTAIN LEGAL ASPECTS OF THE MORTGAGE LOANS
General
The following discussion contains summaries, which are general in nature,
of certain legal matters relating to the Mortgage Loans. Laws and practices
relating to the legal effects and enforcement of mortgages and deeds of trust
vary somewhat from state to state. In general, however, the most significant
applicable legal principles are similar in all states. The following discussion
addresses the more significant legal principles applicable to mortgages and
deeds of trust in all states. It should be noted that some of the Mortgage
Loans may relate to Mortgaged Properties located in California, which has
enacted various laws, not common to most other states, which impose special
limitations on the remedies available to the holders of mortgages and deeds of
trust. These laws, called "anti-deficiency laws," are discussed below.
Nature of the Mortgage Assets
Single Family Loans, FHA Loans, Secured Conventional Home Improvement Loans
and Multifamily Loans. The Single Family Loans, FHA Loans, Secured Conventional
Home Improvement Loans and Multifamily Loans generally will be secured by
mortgages, deeds of trust, security deeds or deeds to secure debt, depending
upon the prevailing practice in the state in which the property subject to the
loan is located. A mortgage creates a lien upon the real property encumbered by
the mortgage, which lien is generally not prior to the lien for real estate
taxes and assessments. Priority between mortgages depends on their terms and
generally on the order of recording with a state or county office. There are
two parties to a mortgage, the mortgagor, who is the borrower and owner of the
mortgaged property, and the mortgagee, who is the lender. 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-property owner called the trustor (similar to a mortgagor), 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, generally with a power of sale, to
the trustee to secure payment of the obligation. A security deed and a deed to
secure debt are special types of deeds which indicate on their face that they
are granted to secure an underlying debt. By executing a security deed or deed
to secure debt, the grantor conveys title to, as opposed to merely creating a
lien upon, the subject property to the grantee until such time as the underlying
debt is repaid. The mortgagee's authority under a mortgage, the trustee's
authority under a deed of trust and the
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grantee's authority under a security deed or deed to secure debt are governed by
law and, with respect to some deeds of trust, the directions of the beneficiary.
Condominiums. Certain of the Mortgage Loans may be loans secured by
condominium units. The condominium building may be a multi-unit building or
buildings, or a group of buildings whether or not attached to each other,
located on property subject to condominium ownership. Condominium ownership is
a form of ownership of real property wherein each owner is entitled to the
exclusive ownership and possession of his or her individual condominium unit and
also owns a proportionate undivided interest in all parts of the condominium
building (other than the individual condominium units) and all areas or
facilities, if any, for the common use of the condominium units. The
condominium unit owners appoint or elect the condominium association to govern
the affairs of the condominium.
Cooperatives. Certain of the Mortgage Loans may be Cooperative Loans. The
Cooperative (i) owns all the real property that comprises the project, including
the land and the apartment building comprised of separate dwelling units and
common areas or (ii) leases the land generally by a long-term ground lease and
owns the apartment building. 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
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 occupants under proprietary leases or occupancy agreements to
which the 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 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 lender's 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.
Contracts. Each Contract evidences both (a) the obligation of the obligor
to repay the loan evidenced thereby, and (b) the grant of a security interest in
the Manufactured Home to secure repayment of such loan. The Contracts generally
are "chattel paper" as defined in the UCC in effect in the states in which the
Manufactured Homes initially were registered. Pursuant to the UCC, the rules
governing the sale of chattel paper are similar to those governing the
perfection of a security interest in chattel paper. Unless otherwise specified
in the Prospectus Supplement, under the Agreement, the Representative will
transfer or cause the transfer of physical possession of the Contracts to the
Trustee or its custodian. In addition, the Representative will make or cause to
be made an appropriate
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filing of a UCC-1 financing statement in the appropriate states to give notice
of the Trustee's ownership of the Contracts.
Under the laws of most states, manufactured housing constitutes personal
property and is subject to the motor vehicle registration laws of the state or
other jurisdiction in which the unit is located. In a few states, where
certificates of title are not required for Manufactured Homes, security
interests are perfected by the filing of a financing statement under Article 9
of the UCC. Such financing statements are effective for five years and must be
renewed at the end of each five years. The certificate of title laws adopted by
the majority of states provide that ownership of motor vehicles and manufactured
housing shall be evidenced by a certificate of title issued by the motor
vehicles department (or a similar entity) of such state. In the states which
have enacted certificate of title laws, a security interest in a unit of
manufactured housing, so long as it is not attached to land in so permanent a
fashion as to become a fixture, is generally perfected by the recording of such
interest on the certificate of title to the unit in the appropriate motor
vehicle registration office or by delivery of the required documents and payment
of a fee to such office, depending on state law. Unless otherwise specified in
the related Prospectus Supplement, the Master Servicer will be required to
effect such notation or delivery of the required documents and fees, and to
obtain possession of the certificate of title, as appropriate under the laws of
the state in which any Manufactured Home is registered. If the Master Servicer
fails, due to clerical errors or otherwise, to effect such notation or delivery,
or files the security interest under the wrong law (for example, under a motor
vehicle title statute rather than under the UCC, in a few states), the Trustee
may not have a first priority security interest in the Manufactured Home
securing a Contract.
As manufactured homes have become larger and often have been attached to
their sites without any apparent intention to move them, courts in many states
have held that manufactured homes may, under certain circumstances, become
subject to real estate title and recording laws. As a result, a security
interest in a manufactured home could be rendered subordinate to the interests
of other parties claiming an interest in the home under applicable state real
estate law. In order to perfect a security interest in a Manufactured Home under
real estate laws, the holder of the security interest must file either a
"fixture filing" under the provisions of the UCC or a real estate mortgage under
the real estate laws of the state where the home is located. These filings must
be made in the real estate records office of the county where the home is
located. Generally, Contracts will contain provisions prohibiting the obligor
from permanently attaching the Manufactured Home to its site. So long as the
obligor does not violate this agreement, a security interest in the Manufactured
Home will be governed by the certificate of title laws or the UCC, and the
notation of the security interest on the certificate of title or the filing of a
UCC financing statement will be effective to maintain the priority of the
security interest in the Manufactured Home. If, however, a Manufactured Home is
permanently attached to its site, other parties could obtain an interest in the
Manufactured Home which is prior to the security interest originally retained by
the Seller and transferred to the Representative.
The Representative will assign or cause to be assigned a security interest
in the Manufactured Homes to the Trustee, on behalf of the Securityholders.
Unless otherwise specified in the related Prospectus Supplement, neither the
Representative, the Master Servicer nor the Trustee will amend the certificates
of title to identify the Trustee, on behalf of the Securityholders, as the new
secured party and, accordingly, the Representative or the Seller will continue
to be named as the secured party on the certificates of title relating to the
Manufactured Homes. In most states, such assignment is an effective conveyance
of such security interest without amendment of any lien noted on the related
Certificate of title and the new secured party succeeds to the Representative's
rights as the secured party. However, in some states there exists a risk that,
in the absence of an amendment to the certificate of title, such assignment of
the security interest might not be held effective against creditors of the
Representative or Seller.
In the absence of fraud, forgery or permanent affixation of the
Manufactured Home to its site by the Manufactured Home owner, or administrative
error by state recording officials, the notation of the lien of the Trustee on
the certificate of title or delivery of the required documents and fees should
be sufficient to protect the Trustee against the rights of subsequent purchasers
of a Manufactured Home or subsequent lenders who take a security interest in the
Manufactured Home. If there are any Manufactured Homes as to which the security
interest assigned to the Representative and the Trustee is not perfected, such
security interest would be subordinate to, among others, subsequent purchasers
for value of Manufactured Homes and holders of perfected security interests.
There also exists a risk in not identifying the Trustee, on behalf of the
Securityholders as the new secured party on the certificate of title that,
through fraud or negligence, the security interest of the Trustee could be
released.
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If the owner of a Manufactured Home moves it to a state other than the
state in which such Manufactured Home initially is registered, under the laws of
most states the perfected security interest in the Manufactured Home would
continue for four months after such relocation and thereafter until the owner
re-registers the Manufactured Home in such state. If the owner were to relocate
a Manufactured Home to another state and re-register the Manufactured Home in
such state, and if steps are not taken to re-perfect the Trustee's security
interest in such state, the security interest in the Manufactured Home would
cease to be perfected. A majority of states generally require surrender of a
certificate of title to re-register a Manufactured Home; accordingly, the
Trustee must surrender possession if it holds the certificate of title to such
Manufactured Home or, in the case of Manufactured Homes registered in states
which provide for notation of lien, the Master Servicer would receive notice of
surrender if the security interest in the Manufactured Home is noted on the
certificate of title. Accordingly, the Trustee would have the opportunity to
re-perfect its security interest in the Manufactured Home in the state of
relocation. In states which do not require a certificate of title for
registration of a Manufactured Home, re-registration could defeat perfection.
Similarly, when an obligor under a manufactured housing conditional sales
contract sells a Manufactured Home, the obligee must surrender possession of the
certificate of title or it will receive notice as a result of its lien noted
thereon and accordingly will have an opportunity to require satisfaction of the
related manufactured housing conditional sales contract before release of the
lien. The Master Servicer will be obligated to take such steps, at the Master
Servicer's expense, as are necessary to maintain perfection of security
interests in the Manufactured Homes.
Under the laws of most states, liens for repairs performed on a
Manufactured Home take priority even over a perfected security interest. The
Representative will represent that it has no knowledge of any such liens with
respect to any Manufactured Home securing a Contract. However, such liens could
arise at any time during the term of a Contract. No notice will be given to the
Trustee or Securityholders in the event such a lien arises.
Foreclosure/Repossession
Single Family Loans, FHA Loans, Secured Conventional Home Improvement Loans
and Multifamily Loans. Foreclosure of a deed of trust is generally accomplished
by a non-judicial sale under a specific provision in the deed of trust which
authorizes the trustee to sell the property at public auction 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, to any person who has recorded a request for a copy of any notice of
default and notice of sale, to any successor in interest to the borrower-
trustor, to the beneficiary of any junior deed of trust and to certain other
persons. Before such non-judicial sales take place, typically a notice of sale
must be posted in a public place and published during a specific period of time
in one or more newspapers, posted on the property, and sent to parties having an
interest of record in the 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. When the mortgagee's right to foreclosure is contested, the legal
proceedings necessary to resolve the issue can be time-consuming. After the
completion of a judicial foreclosure proceeding, the court generally issues a
judgment of foreclosure and appoints a referee or other court officer to conduct
the sale of the property. In general, the borrower, or any other person having
a junior encumbrance on the real estate, may, during a statutorily prescribed
reinstatement period, cure a monetary default by paying the entire amount in
arrears plus other designated 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. After
the reinstatement period has expired without the default having been cured, the
borrower or junior lienholder no longer has the right to reinstate the loan and
must pay the loan in full to prevent the scheduled foreclosure sale. If the
mortgage 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.
Although foreclosure sales are typically public sales, frequently no third
party purchaser bids in excess of the lender's lien because of the difficulty of
determining the exact status of title to the property, the possible
deterioration of the property during the foreclosure proceedings and a
requirement that the purchaser pay for the property in cash or
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by cashier's check. Thus the foreclosing lender often purchases the property
from the trustee or referee for an amount equal to the principal amount
outstanding under the loan, accrued and unpaid interest and the expenses of
foreclosure. Thereafter, the lender will assume the burden of ownership,
including obtaining hazard 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.
Courts have imposed general equitable principles upon foreclosure, which
are generally designed to mitigate the legal consequences to the borrower of the
borrower's defaults under the loan documents. Some courts have been faced with
the issue of whether federal or state constitutional provisions reflecting due
process concerns for fair notice require that borrowers under deeds of trust
receive notice longer than that prescribed by statute. 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 does not involve sufficient state
action to afford constitutional protection to the borrower.
In the case of foreclosure on a building which was converted from a rental
building to a building owned by a Cooperative under a non-eviction plan, some
states require that a purchaser at a foreclosure sale take the property subject
to rent control and rent stabilization laws which apply to certain tenants who
elected to remain in the building but who did not purchase shares in the
Cooperative when the building was so converted.
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 owed 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 the 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.
In some states, foreclosure on the Cooperative shares is accomplished by a
sale in accordance with the provisions of Article 9 of 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.
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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 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.
Contracts. The Master Servicer on behalf of the Trustee, to the extent
required by the related Agreement, may take action to enforce the Trustee's
security interest with respect to Contracts in default by repossession and
resale of the Manufactured Homes securing such Contracts in default. So long as
the Manufactured Home has not become subject to the real estate law, a creditor
can repossess a Manufactured Home securing a Contract by voluntary surrender, by
"self-help" repossession that is "peaceful" (i.e., without breach of the peace)
or, in the absence of voluntary surrender and the ability to repossess without
breach of the peace, by judicial process. The holder of a Contract must give
the debtor a number of days' notice, generally varying from 10 to 30 days
depending on the state, prior to commencement of any repossession. The UCC and
consumer protection laws in most states place restrictions on repossession
sales, including requiring prior notice to the debtor and commercial
reasonableness in effecting such a sale. The law in most states also requires
that the debtor be given notice of any sale prior to resale of the unit so that
the debtor may redeem at or before such resale. In the event of such
repossession and resale of a Manufactured Home, the Trustee would be entitled to
be paid out of the sale proceeds before such proceeds could be applied to the
payment of the claims of unsecured creditors or the holders of subsequently
perfected security interests or, thereafter, to the debtor.
Under the laws applicable in most states, a creditor is entitled to obtain
a deficiency judgment from a debtor for any deficiency on repossession and
resale of the Manufactured Home securing such a debtor's loan. However, some
states impose prohibitions or limitations on deficiency judgments.
Certain other statutory provisions, including federal and state bankruptcy
and insolvency laws and general equitable principles, may limit or delay the
ability of a lender to repossess and resell collateral.
Rights of Redemption
Single Family Loans, FHA Loans, Secured Conventional Home Improvement Loans
and Multifamily Loans. 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 from the foreclosure
sale. In some states, redemption may occur only upon payment of the entire
principal balance of the loan, accrued interest and expenses of foreclosure. In
other states, redemption may be authorized if the former borrower pays only a
portion of the sums due. The effect of a statutory right of redemption is to
diminish the ability of the lender to sell the foreclosed property. The 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.
Contracts. While state laws do not usually require notice to be given
debtors prior to repossession, many states do require delivery of a notice of
default and of the debtor's right to cure defaults before repossession. The law
in most states also requires that the debtor be given notice of sale prior to
the resale of the home so that the owner may redeem at or before resale. In
addition, the sale must comply with the requirements of the UCC. Manufactured
Homes are most often resold through private sale.
Foreclosure in California
It is expected that a significant portion of the Mortgage Assets (by
principal balance) will be secured by properties located in California.
Foreclosure of a deed of trust in California may be effected by a judicial or
nonjudicial foreclosure proceeding, with the choice of remedy depending on the
circumstances. Where the likelihood of a large recoverable deficiency is
present, a judicial foreclosure action may be preferred. The discussion above
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under the heading "Foreclosure/Repossession" and "Rights of Redemption" are
generally accurate with respect to foreclosure of a deed of trust in California.
Generally, upon the completion of a non-judicial foreclosure sale in
California, the foreclosing lender is prohibited from obtaining a deficiency
judgment against the borrower. A deficiency judgment is available following a
judicial foreclosure, subject to the limitation of the excess of the outstanding
debt over the fair market value of the property at the time of sale, and in no
event may the deficiency exceed the difference between the outstanding debt and
the purchase price at the foreclosure sale. However, in the case of certain
purchase money mortgage loans, a lender may be prohibited by statute from
obtaining a deficiency judgment. California law also requires the deed of trust
beneficiary to exhaust all real property security in a single action (i.e. in a
judicial foreclosure) before a deficiency judgment may be sought against the
borrower.
Anti-Deficiency Legislation and Other Limitations on Lenders
Certain states (including California) have imposed statutory prohibitions
which limit the remedies of a beneficiary under a deed of trust or a mortgagee
under a mortgage. In some states, statutes limit the right of the beneficiary
or mortgagee to obtain a deficiency judgment against the borrower following
foreclosure or sale under a deed of trust. A deficiency judgment would be a
personal judgment against the former borrower equal in most cases to the
difference between the amount due to the lender and the fair market value of the
real property sold at the foreclosure sale. As a result of these prohibitions,
it is anticipated that in many instances the Master Servicer will not seek
deficiency judgments against defaulting mortgagors. Under the laws applicable in
most states, a creditor is entitled to obtain a deficiency judgment for any
deficiency following possession and resale of a Manufactured Home. However, some
states impose prohibitions or limitations on deficiency judgments in such cases.
In addition to anti-deficiency and related legislation, numerous other
federal and state statutory provisions, including the federal bankruptcy laws
and state laws (including California law) 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, in a
proceeding under the federal Bankruptcy Code, a lender may not foreclose on the
Mortgaged Property without the permission of the bankruptcy court. The
rehabilitation plan proposed by the debtor may provide, if the court determines
that the value of the Mortgaged Property is less than the principal balance of
the mortgage loan, for the reduction of the secured indebtedness to the value of
the Mortgaged Property as of the date of the commencement of the bankruptcy,
rendering the lender a general unsecured creditor for the difference, and also
may reduce the monthly payments due under such mortgage loan, change the rate of
interest and alter the mortgage loan repayment schedule. The effect of any such
proceedings under the federal Bankruptcy Code, including but not limited to any
automatic stay, could result in delays in receiving payments on the Mortgage
Loans underlying a Series of Securities and possible reductions in the aggregate
amount of such payments. Some states also have homestead exemption laws which
would protect a principal residence from a liquidation in bankruptcy.
Federal and local real estate tax laws provide priority to certain tax
liens over the lien of a mortgage or secured party. Numerous federal and state
consumer protection laws impose substantive requirements upon mortgage lenders
and manufactured housing lenders in connection with the origination, servicing
and enforcement of Single Family Loans, Cooperative Loans and Contracts. 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 and regulations. These federal and state
laws impose specific statutory liabilities upon lenders who fail to comply with
the provisions of the law. In some cases, this liability may affect assignees
of the loans or contracts.
The so-called "Holder-in-Due-Course" Rule of the Federal Trade Commission
(the "FTC Rule") has the effect of subjecting a seller (and certain related
creditors and their assignees) in a consumer credit transaction and any assignee
of the creditor to all claims and defenses which the debtor in the transaction
could assert against the seller of the goods. Liability under the FTC Rule is
limited to the amounts paid by a debtor on the contract, and the holder of the
contract may also be unable to collect amounts still due thereunder.
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Most of the Contracts in a Mortgage Pool will be subject to the
requirements of the FTC Rule. Accordingly, the Trustee, as holder of the
Contracts, will be subject to any claims or defenses that the purchaser of the
related Manufactured Home may assert against the seller of the Manufactured
Home, subject to a maximum liability equal to the amounts paid by the obligor on
the Contract. If an obligor is successful in asserting any such claim or
defense, and if the seller of such Contract had or should have had knowledge of
such claim or defense, the Master Servicer will have the right to require the
seller to repurchase the Contract because of a breach of such seller's
representation and warranty that no claims or defenses exist which would affect
the obligor's obligation to make the required payments under the Contract.
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
Due-on-Sale Clauses
Unless otherwise provided in the related Prospectus Supplement, each
Mortgage Loan may contain a due-on-sale clause which will generally provide that
if the mortgagor or obligor sells, transfers or conveys the Mortgaged Property,
the loan or contract may be accelerated by the mortgagor or secured party. The
Garn-St. Germain Depository Institutions Act of 1982 (the "Garn-St. Germain
Act"), subject to certain exceptions, preempts state constitutional, statutory
and case law prohibiting the enforcement of due-on-sale clauses. As to loans
secured by an owner-occupied residence (which would include a Manufactured
Home), the Garn-St. Germain Act sets forth nine specific instances in which a
mortgagee covered by the Act may not exercise its rights under a due-on-sale
clause, notwithstanding the fact that a transfer of the property may have
occurred. The inability to enforce a due-on-sale clause may result in transfer
of the related Mortgaged Property to an uncreditworthy person, which could
increase the likelihood of default.
Prepayment Charges
Under certain state laws, prepayment charges may not be imposed after a
certain period of time following origination of mortgage loans with respect to
prepayments on loans secured by liens encumbering owner-occupied residential
properties. Since many of the Mortgaged Properties will be owner-occupied, it
is anticipated that prepayment charges may not be imposed with respect to many
of the Mortgage Loans. The absence of such a restraint on prepayment,
particularly with respect to fixed rate Mortgage Loans having higher Mortgage
Rates or APR's, may increase the likelihood of refinancing or other early
retirement of such loans or contracts. Legal restrictions, if any, on
prepayment of Multifamily Loans will be described in the related Prospectus
Supplement.
Applicability of Usury Laws
Title V of the Depository Institutions Deregulation and Monetary Control
Act of 1980, enacted in March 1980 ("Title V"), provides that state usury
limitations shall not apply to certain types of residential first mortgage loans
originated by certain lenders after March 31, 1980. The Office of Thrift
Supervision, as successor to the Federal Home Loan Bank Board, is authorized to
issue rules and regulations and to publish interpretations governing
implementation of Title V. The statute authorized the states to reimpose
interest rate limits by adopting, before April 1, 1983, a law or constitutional
provision which expressly rejects an application of the federal law. In
addition, even where Title V is not so rejected, any state is authorized by the
law to adopt a provision limiting discount points or other charges on mortgage
loans covered by Title V. Certain states have taken action to reimpose interest
rate limits and/or to limit discount points or other charges.
Title V also provides that, subject to the following conditions, state
usury limitations will not apply to any loan which is secured by a first lien on
certain kinds of manufactured housing. The Contracts would be covered if they
satisfy certain conditions, among other things, governing the terms of any
prepayment, late charges and deferral fees and requiring a 30-day notice period
prior to instituting any action leading to repossession of or foreclosure with
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respect to the related unit. Title V authorized any state to reimpose
limitations on interest rates and finance charges by adopting before April 1,
1983 a law or constitutional provision which expressly rejects application of
the federal law. Fifteen states adopted such a law prior to the April 1, 1983
deadline. In addition, even where Title V was not so rejected, any state is
authorized by the law to adopt a provision limiting discount points or other
charges on loans covered by Title V. In any state in which application of Title
V was expressly rejected or a provision limiting discount points or other
charges has been adopted, no Contract which imposes finance charges or provides
for discount points or charges in excess of permitted levels will be included in
any Trust Fund.
Soldiers' and Sailors' Civil Relief Act
Generally, under the terms of the Soldiers' and Sailors' Civil Relief Act
of 1940, as amended (the "Relief Act"), a borrower who enters military service
after the origination of such borrower's Mortgage Loan (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 could have an effect,
for an indeterminate period of time, on the ability of the Master Servicer to
collect full amounts of interest on certain of the Mortgage Loans. Unless
otherwise provided in the applicable Prospectus Supplement, any shortfall in
interest collections resulting from the application of the Relief Act could
result in losses to the holders of the Securities. In addition, the Relief Act
imposes limitations which would impair the ability of the Master 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.
Product Liability and Related Litigation
Certain environmental and product liability claims may be asserted alleging
personal injury or property damage from the existence of certain chemical
substances which may be present in building materials. For example,
formaldehyde and asbestos have been and in some cases are incorporated into many
building materials utilized in manufactured and other housing. As a
consequence, lawsuits may arise from time to time asserting claims against
manufacturers or builders of the housing, suppliers of component parts, and
related persons in the distribution process. Plaintiffs have won such judgments
in certain such lawsuits.
Under the FTC Rule described above, the holder of any Contract secured by a
Manufactured Home with respect to which a product liability claim has been
successfully asserted may be liable to the obligor for the amount paid by the
obligor on the related Contract and may be unable to collect amounts still due
under the Contract. Unless otherwise described in the related Prospectus
Supplement, the successful assertion of such claim constitutes a breach of a
representation or warranty of the Seller, and the Securityholders would suffer a
loss only to the extent that (i) the Seller breached its obligation to
repurchase the Contract in the event an obligor is successful in asserting such
a claim, and (ii) the Seller, the Representative or the Trustee were
unsuccessful in asserting any claim of contribution or subrogation on behalf of
the Securityholders against the manufacturer or other persons who were directly
liable to the plaintiff for the damages. Typical products liability insurance
policies held by manufacturers and component suppliers of manufactured homes may
not cover liabilities arising from formaldehyde and certain other chemicals in
manufactured housing, with the result that recoveries from such manufacturers,
suppliers or other persons may be limited to their corporate assets without the
benefit of insurance.
To the extent described in the Prospectus Supplement, the Mortgage Loans
may include installment sales contracts entered into with the builders of the
homes located on the Mortgaged Properties. The Mortgagors in some instances may
have claims and defenses against the builders which could be asserted against a
Trust.
Environmental Considerations
Environmental conditions may diminish the value of the Mortgage Assets and
give rise to liability of various parties. There are many federal and state
environmental laws concerning hazardous waste, hazardous substances, gasoline,
radon and other materials which may affect the property securing the Mortgage
Assets. For example, under
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the federal Comprehensive Environmental Response Compensation and Liability Act,
as amended, and possibly under state law in certain states, a secured party
which takes a deed in lieu of foreclosure or purchases a mortgaged property at a
foreclosure sale may become liable in certain circumstances for the costs of a
remedial action ("Cleanup Costs") if hazardous wastes or hazardous substances
have been released or disposed of on the property. Such Cleanup Costs may be
substantial. It is possible that such costs could become a liability of a Trust
and reduce the amounts otherwise distributable to the Securityholders if a
Mortgaged Property securing a Mortgage Loan became the property of such Trust in
certain circumstances and if such Cleanup Costs were incurred. Moreover, certain
states by statute impose a lien for any Cleanup Costs incurred by such state on
the property that is the subject of such Cleanup Costs (a "Superlien"). All
subsequent liens on such property are subordinated to such Superlien and, in
some states, even prior recorded liens are subordinated to such Superliens. In
the latter states, the security interest of the Trustee in a property that is
subject to such a Superlien could be adversely affected.
FEDERAL INCOME TAX CONSEQUENCES
In the opinion of Stroock & Stroock & Lavan LLP, special Federal tax
counsel, ("Federal Tax Counsel"), the following are the material federal income
tax consequences of the purchase, ownership and disposition of the Certificates
or Notes offered hereby. The discussion, and the opinions referred to below,
are based on laws, regulations, rulings and decisions now in effect (or, in the
case of certain regulations, proposed), all of which are subject to change or
possibly differing interpretations. Because tax consequences may vary based on
the status or tax attributes of the owner of a Certificate, prospective
investors should consult their own tax advisors in determining the federal,
state, local and other tax consequences to them of the purchase, ownership and
disposition of Certificates or Notes. For purposes of this tax discussion
(except with respect to information reporting, or where the context indicates
otherwise), the terms "Certificateholder" and "holder" mean the beneficial owner
of a Certificate.
REMIC Elections
Under the Internal Revenue Code of 1986, as amended (the "Code"), an
election may be made with respect to each Trust related to a series of
Certificates to treat such Trust or certain assets of such Trust as a "real
estate mortgage investment conduit" ("REMIC"). The Prospectus Supplement for
each series of Certificates will indicate whether a REMIC election will be made
with respect to the related Trust. In addition, if the related Prospectus
Supplement so provides, the transaction documents for a Trust may provide that
an election will be made on or after September 1, 1997 to qualify such trust as
a Financial Asset Securitization Investment Trust ("FASIT") pursuant to new
provisions of the Code which will be effective as of such date. To the extent
provided in the Prospectus Supplement for a series, Certificateholders may also
have the benefit of a Reserve Account and of certain agreements (each, a "Yield
Supplement Agreement") under which payment will be made from the Reserve Account
in the event that interest accrued on the Mortgage Loans at their Mortgage
Interest Rates is insufficient to pay interest on the Certificates of such
Series (a "Basis Risk Shortfall"). If a REMIC election is to be made, the
Prospectus Supplement will designate the Certificates of such series as "regular
interests" ("REMIC Regular Certificates") in the REMIC (within the meaning of
Section 860G(a)(1) of the Code) or as the "residual interest" ("REMIC Residual
Certificates") in the REMIC (within the meaning of Section 860G(a)(2) of the
Code). The terms "REMIC Certificates" and "Non-REMIC Certificates" denote,
respectively, Certificates of a series with respect to which a REMIC election
will, or will not, be made.
REMIC Certificates
With respect to each series of REMIC Certificates, the Trustee will agree
in the Agreement to elect to treat the related Trust or certain assets of such
Trust as a REMIC. Qualification as a REMIC requires ongoing compliance with
certain conditions. Upon the issuance of each series of REMIC Certificates,
Federal Tax Counsel will deliver its opinion generally to the effect that, with
respect to each series of REMIC Certificates for which a REMIC election is to be
made, under then existing law and assuming a proper and timely REMIC election
and ongoing compliance with the provisions of the Agreement and applicable
provisions of the Code and applicable Treasury regulations, the related Trust or
certain assets of such Trust will be a REMIC and the REMIC Certificates will be
considered to
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evidence ownership of "regular interests" or "residual interests" within the
meaning of the REMIC provisions of the Code.
To the extent provided in the Prospectus Supplement for a series, REMIC
Regular Certificateholders who are entitled to payments from the Reserve Account
in the event of a Basis Risk Shortfall will be required to allocate their
purchase price between their beneficial ownership interests in the related REMIC
regular interests and Yield Supplement Agreements, and will be required to
report their income realized with respect to each, calculated taking into
account such allocation. In general, such allocation would be based on the
respective fair market values of the REMIC regular interests and the related
Yield Supplement Agreements on the date of purchase of the related REMIC Regular
Certificate. However, a portion of the purchase price of a REMIC Regular
Certificate should be allocated to accrued but unpaid interest. No
representation is or will be made as to the fair market value of the Yield
Supplement Agreements or the relative values of the REMIC regular interests and
the Yield Supplement Agreements, upon initial issuance of the related REMIC
Regular Certificates or at any time thereafter. REMIC Regular
Certificateholders are advised to consult their own tax advisors concerning the
determination of such fair market values. Under the Agreement, holders of
applicable classes of REMIC Regular Certificates will agree that, for federal
income tax purposes, they will be treated as owners of the respective class of
regular interests and of the corresponding Yield Supplement Agreement.
Status of REMIC Certificates. The REMIC Certificates will be "real estate
assets" for purposes of Section 856(c)(5)(A) of the Code and assets described in
Section 7701(a)(19)(C) of the Code (assets qualifying under one or both of those
sections, applying each section separately, "qualifying assets") to the extent
that the REMIC's assets are qualifying assets, but not to the extent that the
REMIC's assets consist of Yield Supplement Agreements. However, if at least 95
percent of the REMIC's assets are qualifying assets, then 100 percent of the
REMIC Certificates will be qualifying assets. Similarly, income on the REMIC
Certificates will be treated as "interest on obligations secured by
mortgages on real property" within the meaning of Section 856(c)(3)(B) of the
Code, subject to the limitations of the preceding two sentences. In addition to
Mortgage Assets, the REMIC's assets will include payments on Mortgage Assets
held pending distribution to holders of REMIC Certificates, amounts in reserve
accounts (if any), other credit enhancements (if any) and possibly buydown funds
("Buydown Funds"). The Mortgage Assets generally will be qualifying assets
under the foregoing sections of the Code except to the extent provided in the
Prospectus Supplement. However, Mortgage Assets that are not secured by
residential real property or real property used primarily for church purposes
may not constitute qualifying assets under Section 7701(a)(19)(C)(v) of the
Code. In addition, to the extent that the principal amount of a Mortgage Asset
exceeds the value of the property securing the Mortgage Asset, it is unclear and
Federal Tax Counsel is unable to opine whether the loans will be qualifying
assets. The regulations under Sections 860A through 860G of the Code (the
"REMIC Regulations") treat credit enhancements as part of the mortgage or pool
of mortgages to which they relate, and therefore credit enhancements generally
should be qualifying assets. Regulations issued in conjunction with the REMIC
Regulations provide that amounts paid on Mortgage Assets and held pending
distribution to holders of Certificates ("cash flow investments") will be
treated as qualifying assets. It is unclear whether amounts in a Reserve
Account or Buydown Funds would also constitute qualifying assets under any of
those provisions. The Prospectus Supplement for each series will indicate (if
applicable) that it has Buydown Funds. The REMIC Certificates will not be
"residential loans" for the purposes of the residential loan requirement of
Section 593(g)(4)(B) of the Code.
Tiered REMIC Structures
For certain series of Certificates, two or more separate elections may be
made to treat designated portions of the related Trust as REMICs ("Tiered
REMICs") for federal income tax purposes. Upon the issuance of any such series
of Certificates, Federal Tax Counsel will deliver its opinion generally to the
effect that, assuming compliance with all provisions of the related Pooling and
Servicing Agreement and applicable provisions of the Code and applicable
Treasury regulations and rulings, the Tiered REMICs will each qualify under then
existing law as a REMIC and the REMIC Certificates issued by the Tiered REMICs,
respectively, will be considered to evidence ownership of "regular interests" or
"residual interests" in the related REMIC within the meaning of the REMIC
provisions of the Code.
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Solely for purposes of determining whether the REMIC Certificates will be
"real estate assets" within the meaning of Section 856(c)(5)(A) of the Code and
assets described in Section 7701(a)(19)(C) of the Code, and whether the income
on such Certificates is interest described in Section 856(c)(3)(B) of the Code,
the Tiered REMICs will be treated as one REMIC.
REMIC Regular Certificates
Current Income on REMIC Regular Certificates--General. Except as otherwise
indicated herein, the REMIC Regular Certificates will be treated for federal
income tax purposes (but not necessarily for accounting or other purposes) as
debt instruments that are issued by the REMIC on the date of issuance of the
REMIC Regular Certificates and not as ownership interests in the REMIC or the
REMIC's assets. Holders of REMIC Regular Certificates who would otherwise
report income under a cash method of accounting will be required to report
income with respect to REMIC Regular Certificates under an accrual method.
Payments of interest on REMIC Regular Certificates may be based on a fixed
rate, a variable rate as permitted by the REMIC Regulations, or may consist of a
specified portion of the interest payments on qualified mortgages where such
portion does not vary during the period the REMIC Regular Certificate is
outstanding. The definition of a variable rate for purposes of the REMIC
Regulations is based on the definition of a qualified floating rate for purposes
of the rules governing original issue discount set forth in Sections 1271
through 1275 of the Code and the regulations thereunder (the "OID Regulations")
with certain modifications and permissible variations. See "REMIC Regular
Certificates-Current Income on REMIC Regular Certificates--Original Issue
Discount---Variable Rate REMIC Regular Certificates," below, for a discussion of
the definition of a qualified floating rate for purposes of the OID Regulations.
In contrast to the OID Regulations, for purposes of the REMIC Regulations, a
qualified floating rate does not include any multiple of a qualified floating
rate (also excluding multiples of qualified floating rates that themselves would
constitute qualified floating rates under the OID Regulations), and the
characterization of a variable rate that is subject to a cap, floor or similar
restriction as a qualified floating rate for purposes of the REMIC Regulations
will not depend upon the OID Regulations relating to caps, floors, and similar
restrictions. See "REMIC Regular Certificates-Current Income on REMIC Regular
Certificates--Original Issue Discount---Variable Rate REMIC Regular
Certificates," below, for a discussion of the OID Regulations relating to caps,
floors and similar restrictions. A qualified floating rate, as defined above for
purposes of the REMIC Regulations (a "REMIC qualified floating rate"), qualifies
as a variable rate for purposes of the REMIC Regulations if such REMIC qualified
floating rate is set at a "current rate" as defined in the OID Regulations. In
addition, a rate equal to the highest, lowest or an average of two or more REMIC
qualified floating rates qualifies as a variable rate for REMIC purposes. A
REMIC Regular Certificate also may have a variable rate based on a weighted
average of the interest rates on some or all of the qualified mortgages held by
the REMIC where each qualified mortgage taken into account has a fixed rate or a
variable rate that is permissible under the REMIC Regulations. Further, a REMIC
Regular Certificate may have a rate that is the product of a REMIC qualified
floating rate or a weighted average rate and a fixed multiplier, is a constant
number of basis points more or less than a REMIC qualified floating rate or a
weighted average rate, or is the product, plus or minus a constant number of
basis points, of a REMIC qualified floating rate or a weighted average rate and
a fixed multiplier. An otherwise permissible variable rate for a REMIC Regular
Certificate, described above, will not lose its character as such because it is
subject to a floor or a cap, including a "funds available cap" as that term is
defined in the REMIC Regulations. Lastly, a REMIC Regular Certificate will be
considered as having a permissible variable rate if it has a fixed or otherwise
permissible variable rate during one or more payment or accrual periods and
different fixed or otherwise permissible variable rates during other payment or
accrual periods.
Original Issue Discount. REMIC Regular Certificates of certain series may
be issued with "original issue discount" within the meaning of Section 1273(a)
of the Code. Holders of REMIC Regular Certificates issued with original issue
discount generally must include original issue discount in gross income for
federal income tax purposes as it accrues, in advance of receipt of the cash
attributable to such income, under a method that takes account of the
compounding of interest. The Code requires that information with respect to the
original issue discount accruing on any REMIC Regular Certificate be reported
periodically to the Internal Revenue Service and to certain categories of
holders of such REMIC Regular Certificates.
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Each Trust will report original issue discount, if any, to the holders of
REMIC Regular Certificates based on the OID Regulations. OID Regulations
concerning contingent payment debt instruments do not apply to the REMIC Regular
Certificates.
The OID Regulations provide that, in the case of a debt instrument such as
a REMIC Regular Certificate, (i) the amount and rate of accrual of original
issue discount will be calculated based on a reasonable assumed prepayment rate
(the "Prepayment Assumption"), and (ii) adjustments will be made in the amount
and rate of accrual of such discount to reflect differences between the actual
prepayment rate and the Prepayment Assumption. The method for determining the
appropriate assumed prepayment rate will eventually be set forth in Treasury
regulations, but those regulations have not yet been issued. The applicable
legislative history indicates, however, that such regulations will provide that
the assumed prepayment rate for securities such as the REMIC Regular
Certificates will be the rate used in pricing the initial offering of the
securities. The Prospectus Supplement for each series of REMIC Regular
Certificates will specify the Prepayment Assumption, but no representation is
made that the REMIC Regular Certificates will, in fact, prepay at a rate based
on the Prepayment Assumption or at any other rate.
In general, a REMIC Regular Certificate will be considered to be issued
with original issue discount if its stated redemption price at maturity exceeds
its issue price. Except as discussed below under "Payment Lag REMIC Regular
Certificates; Initial Period Considerations" and "Qualified Stated Interest,"
and in the case of certain Variable Rate REMIC Regular Certificates (as defined
below) and accrual certificates, the stated redemption price at maturity of a
REMIC Regular Certificate is its principal amount. The issue price of a REMIC
Regular Certificate is the initial offering price to the public (excluding bond
houses and brokers) at which a substantial amount of the class of REMIC Regular
Certificates was sold. The issue price will be reduced if any portion of such
price is allocable to a related Yield Supplement Agreement. Notwithstanding the
general definition of original issue discount, such discount will be considered
to be zero for any REMIC Regular Certificate on which such discount is less than
0.25% of its stated redemption price at maturity multiplied by its weighted
average life. The weighted average life of a REMIC Regular Certificate
apparently is computed for purposes of this de minimis rule as the sum, for all
distributions included in the stated redemption price at maturity of the REMIC
Regular Certificate, of the amounts determined by multiplying (i) the number of
complete years (rounding down for partial years) from the Closing Date to the
date on which each such distribution is expected to be made, determined under
the Prepayment Assumption, by (ii) a fraction, the numerator of which is the
amount of such distribution and the denominator of which is the REMIC Regular
Certificate's stated redemption price at maturity. The OID Regulations provide
that holders will include any de minimis original issue discount ratably as
payments of stated principal are made on the REMIC Regular Certificates.
The holder of a REMIC Regular Certificate issued with original issue
discount must include in gross income the sum of the "daily portions" of such
original issue discount for each day during its taxable year on which it held
such REMIC Regular Certificate. In the case of an original holder of a REMIC
Regular Certificate, the daily portions of original issue discount are
determined first by calculating the portion of the original issue discount that
accrued during each period (an "accrual period") that begins on the day
following a Remittance Date (or in the case of the first such period, begins on
the Closing Date) and ends on the next succeeding Remittance Date. The original
issue discount accruing during each accrual period is then allocated ratably to
each day during such period to determine the daily portion of original issue
discount for that day.
The portion of the original issue discount that accrues in any accrual
period will equal the excess, if any, of (i) the sum of (A) the present value,
as of the end of the accrual period, of all of the distributions to be made on
the REMIC Regular Certificate, if any, in future periods and (B) the
distributions made on the REMIC Regular Certificate during the accrual period
that are included in such REMIC Regular Certificate's stated redemption price at
maturity, over (ii) the adjusted issue price of such REMIC Regular Certificate
at the beginning of the accrual period. The present value of the remaining
distributions referred to in the preceding sentence will be calculated (i)
assuming that the REMIC Regular Certificates will be prepaid in future periods
at a rate computed in accordance with the Prepayment Assumption and (ii) using a
discount rate equal to the original yield to maturity of the REMIC Regular
Certificates. For these purposes, the original yield to maturity of the REMIC
Regular Certificates will be calculated based on their issue price and assuming
that the REMIC Regular Certificates will be prepaid in accordance with the
Prepayment Assumption. The adjusted issue price of a REMIC Regular Certificate
at the beginning of any accrual period will equal the issue price of such REMIC
Regular Certificate, increased by the portion of the original issue
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discount that has accrued during prior accrual periods, and reduced by the
amount of any distributions made on such REMIC Regular Certificate in prior
accrual periods that were included in such REMIC Regular Certificate's stated
redemption price at maturity.
The daily portions of original issue discount may increase or decrease
depending on the extent to which the actual rate of prepayments diverges from
the Prepayment Assumption. If original issue discount accruing during any
accrual period computed as described above is negative, it is likely that a
holder will be entitled to offset such amount only against positive original
issue discount accruing on such REMIC Regular Certificate in future accrual
periods. Although Federal Tax Counsel is unable to opine with respect to this
matter, such a holder may be entitled to deduct a loss to the extent that its
remaining basis would exceed the maximum amount of future payments to which such
holder is entitled. It is unclear whether the Prepayment Assumption is taken
into account for this purpose.
A subsequent holder that purchases a REMIC Regular Certificate issued with
original issue discount at a cost less than its remaining stated redemption
price at maturity will also generally be required to include in gross income,
for each day on which it holds such REMIC Regular Certificate, the daily
portions of original issue discount with respect to the REMIC Regular
Certificate, calculated as described above. However, if (i) the excess of the
remaining stated redemption price at maturity over such cost is less than (ii)
the aggregate amount of such daily portions for all days after the date of
purchase until final retirement of such REMIC Regular Certificate, then such
daily portions will be reduced proportionately in determining the income of such
holder.
Qualified Stated Interest. Interest payable on a REMIC Regular Certificate
which qualifies as "qualified stated interest" for purposes of the OID
Regulations will not be includible in the stated redemption price at maturity of
the REMIC Regular Certificate. Accordingly, if the interest on a REMIC Regular
Certificate does not constitute "qualified stated interest," the REMIC Regular
Certificate will have original issue discount. Interest payments will not
qualify as qualified stated interest unless the interest payments are
"unconditionally payable." The OID Regulations state that interest is
unconditionally payable 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 of interest a remote
contingency, as defined in the OID Regulations. It is unclear whether the terms
and conditions of the Mortgage Assets underlying the REMIC Regular Certificates
or the terms and conditions of the REMIC Regular Certificates are considered
when determining whether the likelihood of late payment or nonpayment of
interest is a remote contingency. Any terms or conditions that do not reflect
arm's length dealing or that the holder does not intend to enforce are not
considered. Accordingly, Federal Tax Counsel is unable to opine whether interest
payments on REMIC Regular Certificates that otherwise would not be treated as
having original issue discount would be considered to have original issue
discount because there are not reasonable remedies to compel timely payment of
interest or terms or conditions that would make the likelihood of late payment
or nonpayment remote.
Premium. A purchaser of a REMIC Regular Certificate that purchases such
REMIC Regular Certificate at a cost greater than its remaining stated redemption
price at maturity will be considered to have purchased such REMIC Regular
Certificate at a premium, and may, under Section 171 of the Code, elect to
amortize such premium under a constant yield method over the life of the REMIC
Regular Certificate. The Prepayment Assumption is probably taken into account
in determining the life of the REMIC Regular Certificate for this purpose.
Except as provided in regulations, amortizable premium will be treated as an
offset to interest income on the REMIC Regular Certificate.
Payment Lag REMIC Regular Certificates; Initial Period Considerations.
Certain REMIC Regular Certificates will provide for distributions of interest
based on a period that is the same length as the interval between Remittance
Dates but ends prior to each Remittance Date. Any interest that accrues prior
to the Closing Date may be treated under the OID Regulations either (i) as part
of the issue price and the stated redemption price at maturity of the REMIC
Regular Certificates or (ii) as not included in the issue price or the stated
redemption price. The OID Regulations provide a special application of the de
minimis rule for debt instruments with long first accrual periods where the
interest payable for the first period is at a rate which is effectively less
than that which applies in all other periods. In such cases, for the sole
purpose of determining whether original issue discount is de minimis, the OID
Regulations provide that the stated redemption price is equal to the
instrument's issue price plus the greater of the amount of foregone interest or
the excess (if any) of the instrument's stated principal amount over its issue
price.
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Variable Rate REMIC Regular Certificates. Under the OID Regulations, REMIC
Regular Certificates paying interest at a variable rate (a "Variable Rate REMIC
Regular Certificate") are subject to special rules. A Variable Rate REMIC
Regular Certificate will qualify as a "variable rate debt instrument" if (i) its
issue price does not exceed the total noncontingent principal payments due under
the Variable Rate REMIC Regular Certificate by more than a specified de minimis
amount; (ii) it provides for stated interest, paid or compounded at least
annually, at (a) one or more qualified floating rates, (b) a single fixed rate
and one or more qualified floating rates, (c) a single objective rate or (d) a
single fixed rate and a single objective rate that is a qualified inverse
floating rate; and (iii) it does not provide for any principal payments that are
contingent, as defined in the OID Regulations, except as provided in (i), above.
Because the OID Regulations relating to contingent payment debt instruments do
not apply to REMIC regular interests, principal payments on the REMIC Regular
Certificates should not be considered contingent for this purpose.
A "qualified floating rate" is any variable rate where variations in the
value of such rate can reasonably be expected to measure contemporaneous
variations in the cost of newly borrowed funds in the currency in which the
Variable Rate REMIC Regular Certificate is denominated. A multiple of a
qualified floating rate will generally not itself constitute a qualified
floating rate for purposes of the OID Regulations. However, a variable rate
equal to (i) the product of a qualified floating rate and a fixed multiple that
is greater than 0.65 but not more than 1.35 or (ii) the product of a qualified
floating rate and a fixed multiple that is greater than 0.65 but not more than
1.35, increased or decreased by a fixed rate will constitute a qualified
floating rate for purposes of the OID Regulations. In addition, under the OID
Regulations, two or more qualified floating rates that can reasonably be
expected to have approximately the same values throughout the term of the
Variable Rate REMIC Regular Certificate will be treated as a single qualified
floating rate (a "Presumed Single Qualified Floating Rate"). Two or more
qualified floating rates with values within 25 basis points of each other as
determined on the Variable Rate REMIC Regular Certificate's issue date will be
conclusively presumed to be a Presumed Single Qualified Floating Rate.
Notwithstanding the foregoing, a variable rate that would otherwise constitute a
qualified floating rate but which is subject to one or more restrictions such as
a cap or floor, will not be a qualified floating rate for purposes of the OID
Regulations unless the restriction is fixed throughout the term of the Variable
Rate REMIC Regular Certificate or the restriction is not reasonably expected as
of the issue date to significantly affect the yield of the Variable Rate REMIC
Regular Certificate.
An "objective rate" is a rate that is not itself a qualified floating rate
but which is determined using a single fixed formula and which is based upon
objective financial or economic information. The OID Regulations also provide
that other variable rates may be treated as objective rates if so designated by
the Internal Revenue Service in the future. An interest rate on a REMIC Regular
Certificate that is the weighted average of the interest rates on some or all of
the qualified mortgages held by the REMIC should constitute an objective rate.
Despite the foregoing, a variable rate of interest on a Variable Rate REMIC
Regular Certificate will not constitute an objective rate if it is reasonably
expected that the average value of such rate during the first half of the
Variable Rate REMIC Regular Certificate's term will be either significantly less
than or significantly greater than the average value of the rate during the
final half of the Variable Rate REMIC Regular Certificate's term. Further, an
objective rate does not include a rate that is based on information that is
within the control of the issuer (or a party related to the issuer) or that is
unique to the circumstances of the issuer (or a party related to the issuer).
An objective rate will qualify as a "qualified inverse floating rate" if such
rate is equal to a fixed rate minus a qualified floating rate and variations in
the rate can reasonably be expected to inversely reflect contemporaneous
variations in the qualified floating rate. The OID Regulations also provide
that if a Variable Rate REMIC Regular Certificate provides for stated interest
at a fixed rate for an initial period of less than one year followed by a
variable rate that is either a qualified floating rate or an objective rate and
if the variable rate on the Variable Rate REMIC Regular Certificate's issue date
is intended to approximate the fixed rate, then the fixed rate and the variable
rate together will constitute either a single qualified floating rate or
objective rate, as the case may be (a "Presumed Single Variable Rate"). If the
value of the variable rate and the initial fixed rate are within 25 basis points
of each other as determined on the Variable Rate REMIC Regular Certificate's
issue date, the variable rate will be conclusively presumed to approximate the
fixed rate.
For Variable Rate REMIC Regular Certificates that qualify as a "variable
rate debt instrument" under the OID Regulations and provide for interest at
either a single qualified floating rate, a single objective rate, a Presumed
Single Qualified Floating Rate or a Presumed Single Variable Rate throughout the
term (a "Single Variable Rate
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REMIC Regular Certificate"), original issue discount is computed as described in
"REMIC Regular Certificates-Current Income on REMIC Regular Certificates--
Original Issue Discount" based on the following: (i) stated interest on the
Single Variable Rate REMIC Regular Certificate which is unconditionally payable
in cash or property (other than debt instruments of the issuer) at least
annually will constitute qualified stated interest; (ii) by assuming that the
variable rate on the Single Variable Rate REMIC Certificate is a fixed rate
equal to: (a) in the case of a Single Variable Rate REMIC Regular Certificate
with a qualified floating rate or a qualified inverse floating rate, the value
of, as of the issue date, of the qualified floating rate or the qualified
inverse floating rate or (b) in the case of a Single Variable Rate REMIC Regular
Certificate with an objective rate (other than a qualified inverse floating
rate), a fixed rate which reflects the reasonably expected yield for such Single
Variable Rate REMIC Regular Certificate; and (iii) the qualified stated interest
allocable to an accrual period is increased (or decreased) if the interest
actually paid during an accrual period exceeds (or is less than) the interest
assumed to be paid under the assumed fixed rate described in (ii), above.
In general, any Variable Rate REMIC Regular Certificate other than a Single
Variable Rate REMIC Regular Certificate (a "Multiple Variable Rate REMIC Regular
Certificate") that qualifies as a "variable rate debt instrument" will be
converted into an "equivalent" fixed rate debt instrument for purposes of
determining the amount and accrual of original issue discount and qualified
stated interest on the Multiple Variable Rate REMIC Regular Certificate. The
OID Regulations generally require that such a Multiple Variable Rate REMIC
Regular Certificate be converted into an "equivalent" fixed rate debt instrument
by substituting any qualified floating rate or qualified inverse floating rate
provided for under the terms of the Multiple Variable Rate REMIC Regular
Certificate with a fixed rate equal to the value of the qualified floating rate
or qualified inverse floating rate, as the case may be, as of the Multiple
Variable Rate REMIC Regular Certificate's issue date. Any objective rate (other
than a qualified inverse floating rate) provided for under the terms of the
Multiple Variable Rate REMIC Regular Certificate is converted into a fixed rate
that reflects the yield that is reasonably expected for the Multiple Variable
Rate REMIC Regular Certificate. In the case of a Multiple Variable Rate REMIC
Regular Certificate that qualifies as a "variable rate debt instrument" and
provides for stated interest at a fixed rate in addition to either one or more
qualified floating rates or a qualified inverse floating rate, the fixed rate is
initially converted into a qualified floating rate (or a qualified inverse
floating rate, if the Multiple Variable Rate REMIC Regular Certificate provides
for a qualified inverse floating rate). Under such circumstances, the qualified
floating rate or qualified inverse floating rate that replaces the fixed rate
must be such that the fair market value of the Multiple Variable Rate REMIC
Regular Certificate as of the Multiple Variable Rate REMIC Regular Certificate's
issue date is approximately the same as the fair market value of an otherwise
identical debt instrument that provides for either the qualified floating rate
or qualified inverse floating rate rather than the fixed rate. Subsequent to
converting the fixed rate into either a qualified floating rate or a qualified
inverse floating rate, the Multiple Variable Rate REMIC Regular Certificate is
then converted into an "equivalent" fixed rate debt instrument in the manner
described above.
Once the Multiple Variable Rate REMIC Regular Certificate is converted into
an "equivalent" fixed rate debt instrument pursuant to the foregoing rules, the
amount of original issue discount and qualified stated interest, if any, are
determined for the "equivalent" fixed rate debt instrument by applying the
original issue discount rules to the "equivalent" fixed rate debt instrument in
the manner described in "REMIC Regular Certificates-Current Income on REMIC
Regular Certificates--Original Issue Discount". A holder of the Multiple
Variable Rate REMIC Regular Certificate will account for such original issue
discount and qualified stated interest as if the holder held the "equivalent"
fixed rate debt instrument. In each accrual period, appropriate adjustments
will be made to the amount of qualified stated interest or original issue
discount assumed to have been accrued or paid with respect to the "equivalent"
fixed rate debt instrument in the event that such amounts differ from the actual
amount of interest accrued or paid on the Multiple Variable Rate REMIC Regular
Certificate during the accrual period.
If a Variable Rate REMIC Regular Certificate does not qualify as a
"variable rate debt instrument" under the OID Regulations, then the Variable
Rate REMIC Regular Certificate would be treated as a contingent payment debt
obligation. Federal Tax Counsel is unable to opine how a Variable Rate REMIC
Regular Certificate would be taxed if such REMIC Regular Certificate were
treated as a contingent payment debt obligation, since the OID Regulations
relating to contingent payment debt obligations do not apply to REMIC regular
interests.
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Interest-Only REMIC Regular Certificates. The Trust intends to report
income from interest-only classes of REMIC Regular Certificates to the Internal
Revenue Service and to holders of interest-only REMIC Regular Certificates based
on the assumption that the stated redemption price at maturity is equal to the
sum of all payments determined under the Prepayment Assumption. As a result,
such interest-only REMIC Regular Certificates will be treated as having original
issue discount.
Market Discount. A holder that acquires a REMIC Regular Certificate at a
market discount (that is, a discount that exceeds any unaccrued original issue
discount) will recognize gain upon receipt of a principal distribution,
regardless of whether the distribution is scheduled or is a prepayment. In
particular, the REMIC Regular Certificateholder will be required to allocate
that principal distribution first to the portion of the market discount on such
REMIC Regular Certificate that has accrued but has not previously been
includible in income, and will recognize ordinary income to that extent. In
general terms, unless Treasury regulations when issued state otherwise, market
discount on a REMIC Regular Certificate may be treated, at the REMIC
Certificateholder's election, as accruing either (i) under a constant yield
method, taking into account the Prepayment Assumption, or (ii) in proportion to
accruals of original issue discount (or, if there is no original issue discount,
in proportion to stated interest at the Pass Through Rate or Interest Rate).
In addition, a holder may be required to defer deductions for a portion of
the holder's interest expense on any debt incurred or continued to purchase or
carry a REMIC Regular Certificate purchased with market discount. The deferred
portion of any interest deduction would not exceed the portion of the market
discount on the REMIC Regular Certificate that accrues during the taxable year
in which such interest would otherwise be deductible and, in general, would be
deductible when such market discount is included in income upon receipt of a
principal distribution on, or upon the sale of, the REMIC Regular Certificate.
The Code requires that information necessary to compute accruals of market
discount be reported periodically to the Internal Revenue Service and to certain
categories of holders of REMIC Regular Certificates.
Notwithstanding the above rules, market discount on a REMIC Regular
Certificate will be considered to be zero if such discount is less than 0.25% of
the remaining stated redemption price at maturity of such REMIC Regular
Certificate multiplied by its weighted average remaining life. Weighted average
remaining life presumably is calculated in a manner similar to weighted average
life (described above under "Current Income on REMIC Regular Certificates-
Original Issue Discount"), taking into account distributions (including
prepayments) prior to the date of acquisition of such REMIC Regular Certificate
by the subsequent purchaser. If market discount on a REMIC Regular Certificate
is treated as zero under this rule, the actual amount of such discount must be
allocated to the remaining principal distributions on the REMIC Regular
Certificate, and when each such distribution is made, gain equal to the
discount, if any, allocated to the distribution will be recognized.
Election to Treat All Interest Under the Constant Yield Rules. The OID
Regulations provide that all holders may elect to include in gross income all
interest that accrues on a debt instrument issued after April 4, 1994 by using
the constant yield method. For purposes of this election, interest includes
stated interest, original issue discount, and market discount, as adjusted to
account for any premium. Holders should consult their own tax advisors
regarding the availability or advisability of such an election.
Sales of REMIC Regular Certificates. If a REMIC Regular Certificate is
sold, the seller will recognize gain or loss equal to the difference between the
amount realized on the sale and its adjusted basis in the REMIC Regular
Certificate. A holder's adjusted basis in a REMIC Regular Certificate generally
equals the cost of the REMIC Regular Certificate to the holder, increased by
income reported by the holder with respect to the REMIC Regular Certificate and
reduced (but not below zero) by distributions on the REMIC Regular Certificate
received by the holder and by amortized premium. Except as indicated in the
next two paragraphs, any such gain or loss generally will be capital gain or
loss provided the REMIC Regular Certificate is held as a capital asset.
Gain from the sale of a REMIC Regular Certificate that might otherwise be
capital gain will be treated as ordinary income to the extent that such gain
does not exceed the excess, if any, of (i) the amount that would have been
includible in the seller's income with respect to the REMIC Regular Certificate
had income accrued thereon at a rate equal to 110% of "the applicable Federal
rate" (generally, an average of current yields on Treasury securities),
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determined as of the date of purchase of the REMIC Regular Certificate, over
(ii) the amount actually includible in the seller's income. In addition, gain
recognized on the sale of a REMIC Regular Certificate by a seller who purchased
the REMIC Regular Certificate at a market discount would be taxable as ordinary
income in an amount not exceeding the portion of such discount that accrued
during the period the REMIC Regular Certificate was held by such seller, reduced
by any market discount includible in income under the rules described above
under "Current Income on REMIC Regular Certificates--Market Discount."
REMIC Regular Certificates will be "evidences of indebtedness" within the
meaning of Section 582(c)(1) of the Code, so that gain or loss recognized from a
sale of a REMIC Regular Certificate by a bank or other financial institution to
which such section applies would be ordinary income or loss.
Termination. The REMIC will terminate shortly following the REMIC's
receipt of the final payment in respect of the Mortgage Assets. The last
distribution on a REMIC Regular Certificate should be treated as a payment in
full retirement of a debt instrument.
Tax Treatment of Yield Supplement Agreements
Whether a REMIC Regular Certificateholder of a series will have a separate
contractual right to payments under a Yield Supplement Agreement, and the tax
treatment of such payments, if any, will be addressed in the related Prospectus
Supplement.
REMIC Residual Certificates
Because the REMIC Residual Certificates will be treated as "residual
interests" in the REMIC, each holder of a REMIC Residual Certificate will be
required to take into account its daily portion of the taxable income or net
loss of the REMIC for each day during the calendar year on which it holds its
REMIC Residual Certificate. The daily portion is determined by allocating to
each day in a calendar quarter a ratable portion of the taxable income or net
loss of the REMIC for that quarter and allocating such daily amounts among the
holders on such day in proportion to their holdings. All income or loss of the
REMIC taken into account by a REMIC Residual Certificateholder must be treated
as ordinary income or loss as the case may be. Income from residual interests
is "portfolio income" which cannot be offset by "passive activity losses" in the
hands of individuals or other persons subject to the passive loss rules. The
Code also provides that all residual interests must be issued on the REMIC's
startup day and designated as such. For this purpose, "startup day" means the
day on which the REMIC issues all of its regular and residual interests, and
under the REMIC Regulations may, in the case of a REMIC to which property is
contributed over a period of up to ten consecutive days, be any day designated
by the REMIC within such period.
The taxable income of the REMIC, for purposes of determining the amounts
taken into account by holders of REMIC Residual Certificates, is determined in
the same manner as in the case of an individual, with certain exceptions. The
accrual method of accounting must be used and the taxable year of the REMIC must
be the calendar year. The basis of property contributed to the REMIC in
exchange for regular or residual interests is its fair market value immediately
after the transfer. The REMIC Regulations determine the fair market value of
the contributed property by deeming it equal to the aggregate issue prices of
all regular and residual interests in the REMIC.
A REMIC Regular Certificate will be considered indebtedness of the REMIC.
Market discount on any of the Mortgage Assets held by the REMIC must be included
in the income of the REMIC as it accrues, rather than being included in income
only upon sale of the Mortgage Assets or as principal on the Mortgage Assets is
paid. The REMIC is not entitled to any personal exemptions or to deductions for
taxes paid to foreign countries and U.S. possessions, charitable contributions
or net operating losses, or to certain other deductions to which individuals are
generally entitled. Income or loss in connection with a "prohibited
transaction" is disregarded. See "Prohibited Transactions."
As previously discussed, the timing of recognition of negative original
issue discount, if any, on a REMIC Regular Certificate is uncertain. As a
result, the timing of recognition of the REMIC taxable income related to a REMIC
Residual Certificate is also uncertain. Although Federal Tax Counsel is unable
to opine as to this matter, the
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related REMIC taxable income may be recognized when the adjusted issue price of
such REMIC Regular Certificate would exceed the maximum amount of future
payments with respect to such REMIC Regular Certificate. It is unclear whether
the Prepayment Assumption is taken into account for this purpose.
A REMIC Residual Certificate has a tax basis in its holder's hands that is
distinct from the REMIC's basis in its assets. The tax basis of a REMIC
Residual Certificate in its holder's hands will be its cost (i.e., the purchase
price of the REMIC Residual Certificate), and will be reduced (but not below
zero) by the holder's share of cash distributions and losses and increased by
its share of taxable income from the REMIC.
If, in any year, cash distributions to a holder of a REMIC Residual
Certificate exceed its share of the REMIC's taxable income, the excess will
constitute a return of capital to the extent of the holder's basis in its REMIC
Residual Certificate. A return of capital is not treated as income for federal
income tax purposes, but will reduce the tax basis of the holder in its REMIC
Residual Certificate (but not below zero). If a REMIC Residual Certificate's
basis is reduced to zero, any cash distributions with respect to that REMIC
Residual Certificate in any taxable year in excess of its share of the REMIC's
income would be taxable to the holder as gain on the sale or exchange of its
interest in the REMIC.
The losses of the REMIC taken into account by a holder of a REMIC Residual
Certificate in any quarter may not exceed the holder's basis in its REMIC
Residual Certificate. Any excess losses may be carried forward indefinitely to
future quarters subject to the same limitation.
There is no REMIC counterpart to the partnership election under Code
Section 754 to increase or decrease the partnership's basis in its assets by
reference to the adjusted basis to subsequent partners of their partnership
interest. Consequently, a subsequent purchaser of a REMIC Residual Certificate
at a premium will not be able to use the premium to reduce his share of the
REMIC's taxable income.
Mismatching of Income and Deductions; Excess Inclusions. The taxable income
recognized by the holder of a REMIC Residual Certificate in any taxable year
will be affected by, among other factors, the relationship between the timing of
recognition of interest and discount income (or deductions for amortization of
premium) with respect to Mortgage Assets, on the one hand, and the timing of
deductions for interest (including original issue discount) on the REMIC Regular
Certificates, on the other. In the case of multiple classes of REMIC Regular
Certificates issued at different yields, and having different weighted average
lives, taxable income recognized by the holders of REMIC Residual Certificates
may be greater than cash flow in earlier years of the REMIC (with a
corresponding taxable loss or less taxable income than cash flow in later
years). This may result from the fact that interest expense deductions,
expressed as a percentage of the outstanding principal amount of the REMIC
Regular Certificates, will increase over time as the shorter term, lower
yielding classes of REMIC Regular Certificates are paid, whereas interest income
from the Mortgage Assets may not increase over time as a percentage of the
outstanding principal amount of the Mortgage Assets.
In the case of Tiered REMICs, the OID Regulations provide that the regular
interests in the REMIC which directly owns the Mortgage Assets (the "Lower Tier
REMIC") will be treated as a single debt instrument for purposes of the original
issue discount provisions. Therefore, the Trust will calculate the taxable
income of Tiered REMICs by treating the Lower Tier REMIC regular interests as a
single debt instrument.
Any "excess inclusions" with respect to a REMIC Residual Certificate will
be subject to certain special rules. The excess inclusions with respect to a
REMIC Residual Certificate are equal to the excess, if any, of its share of
REMIC taxable income for the quarterly period over the sum of the daily accruals
for such quarterly period. The daily accrual for any day on which the REMIC
Residual Certificate is held is determined by allocating to each day in a
quarter its allocable share of the product of (A) 120% of the long-term
applicable Federal rate (for quarterly compounding) that would have applied to
the REMIC Residual Certificates (if they were debt instruments) on the closing
date under Code Section 1274(d)(1) and (B) the adjusted issue price of such
REMIC Residual Certificates at the beginning of a quarterly period. For this
purpose, the adjusted issue price of such REMIC Residual Certificate at the
beginning of a quarterly period is the issue price of such Certificates plus the
amount of the daily accruals of
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REMIC taxable income for all prior quarters, decreased by any distributions made
with respect to such Certificates prior to the beginning of such quarterly
period.
The excess inclusions of a REMIC Residual Certificate may not be offset by
other deductions, including net operating loss carryforwards, on a holder's
return.
Recently enacted provisions governing the relationship between excess
inclusions and the alternative minimum tax provide that (i) the alternative
minimum taxable income of a taxpayer is based on the taxpayer's regular taxable
income computed without regard to the rule that taxable income cannot be less
than the amount of excess inclusions, (ii) the alternative minimum taxable
income of a taxpayer for a taxable year cannot be less than the amount of excess
inclusions for that year, and (iii) the amount of any alternative minimum tax
net operating loss is computed without regard to any excess inclusions. While
these provisions are generally effective for tax years beginning after December
31, 1986, a taxpayer may elect to have these provisions apply only with respect
to tax years beginning after August 20, 1996.
If the holder of a REMIC Residual Certificate is an organization subject to
the tax on unrelated business income imposed by Code Section 511, the excess
inclusions will be treated as unrelated business taxable income of such holder
for purposes of Code Section 511. In addition, the Code provides that under
Treasury regulations, if a real estate investment trust ("REIT") owns a REMIC
Residual Certificate, to the extent excess inclusions of the REIT exceed its
real estate investment trust taxable income (excluding net capital gains), the
excess inclusions would be allocated among the shareholders of the REIT in
proportion to the dividends received by the shareholders from the REIT. Excess
inclusions derived by regulated investment companies ("RICs"), common trust
funds, and subchapter T cooperatives must be allocated to the shareholders of
such entities using rules similar to those applicable to REITs. The Internal
Revenue Service has not yet adopted or proposed such regulations as to REITs,
RICs, or similar entities. A life insurance company cannot adjust its reserve
with respect to variable contracts to the extent of any excess inclusion, except
as provided in regulations.
The Internal Revenue Service has authority to promulgate regulations
providing that if the aggregate value of the REMIC Residual Certificates is not
considered to be "significant," then the entire share of REMIC taxable income of
a holder of a REMIC Residual Certificate may be treated as excess inclusions
subject to the foregoing limitations. This authority has not been exercised to
date.
The REMIC is subject to tax at a rate of 100 percent on any net income it
derives from "prohibited transactions." In general, "prohibited transaction"
means the disposition of a Mortgage Asset other than pursuant to specified
exceptions, the receipt of income as compensation for services, the receipt of
income from a source other than a Mortgage Loan or certain other permitted
investments, or gain from the disposition of an asset representing a temporary
investment of payments on the Mortgage Assets pending distribution on the REMIC
Certificates. In addition, a tax is imposed on the REMIC equal to 100 percent
of the value of certain property contributed to the REMIC after its "startup
day." No REMIC in which interests are offered hereunder will accept
contributions that would cause it to be subject to such tax. This provision
will not affect the REMIC's ability to accept substitute Mortgage Loans or to
sell defective Mortgage Loans in accordance with the Agreement.
A REMIC is subject to a tax (deductible from its income) on any "net income
from foreclosure property" (determined in accordance with Section 857(b)(4)(B)
of the Code as if the REMIC were a REIT).
Any tax described in the two preceding paragraphs that may be imposed on
the Trust initially would be borne by the REMIC Residual Certificates in the
related REMIC rather than by the REMIC Regular Certificateholders, unless
otherwise specified in the Prospectus Supplement.
Dealers' Ability to Mark-to-Market REMIC Residual Certificates. Treasury
regulations provide that all REMIC Residual Certificates acquired on or after
January 4, 1995, and similar interests or arrangements acquired on or after
January 4, 1995 that are determined by the Commissioner to have substantially
the same economic effect as a REMIC Residual Certificate, are not securities and
cannot be marked to market pursuant to Section 475 of the Code.
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Transfers of REMIC Residual Certificates
Tax on Disposition of REMIC Residual Certificates. The sale of a REMIC
Residual Certificate by a holder will result in gain or loss equal to the
difference between the amount realized on the sale and the adjusted basis of the
REMIC Residual Certificate.
If the seller of a REMIC Residual Certificate held the REMIC Residual
Certificate as a capital asset, the gain or loss generally will be capital gain
or loss. However, under Code Section 582(c), the sale of a REMIC Residual
Certificate by certain banks and other financial institutions will be considered
a sale of property other than a capital asset, resulting in ordinary income or
loss. Although Federal Tax Counsel is unable to opine with respect to the tax
treatment of a REMIC Residual Certificate that has unrecovered basis after all
funds of the Trust have been distributed, the holder may be entitled to claim a
loss in the amount of the unrecovered basis.
The Code provides that, except as provided in Treasury regulations (which
have not yet been issued), if a holder sells a REMIC Residual Certificate and
acquires the same or other REMIC Residual Certificates, residual interests in
another REMIC, or any similar interests in a "taxable mortgage pool" (as defined
in Section 7701(i) of the Code) during the period beginning six months before,
and ending six months after, the date of such sale, such sale will be subject to
the "wash sale" rules of Section 1091 of the Code. In that event, any loss
realized by the seller on the sale generally will not be currently deductible.
A tax is imposed on the transfer of any residual interest in a REMIC to a
"disqualified organization." The tax is imposed on the transferor, or, where
the transfer is made through an agent of the disqualified organization, on the
agent. "Disqualified organizations" include for this purpose the United States,
any State or political subdivision thereof, any foreign government, any
international organization or agency or instrumentality of the foregoing (with
an exception for certain taxable instrumentalities of the United States, of a
State or of a political subdivision thereof), any rural electrical and telephone
cooperative, and any tax-exempt entity (other than certain farmers'
cooperatives) not subject to the tax on unrelated business income.
The amount of tax to be paid by the transferor on a transfer to a
disqualified organization is equal to the present value of the total anticipated
excess inclusions with respect to the interest transferred for periods after
such transfer multiplied by the highest corporate rate of tax. The transferor
(or agent, as the case may be) will be relieved of liability so long as the
transferee furnishes an affidavit that it is not a disqualified organization and
the transferor or agent does not have actual knowledge that the affidavit is
false. Under the REMIC Regulations, an affidavit will be sufficient if the
transferee furnishes (A) a social security number, and states under penalties of
perjury that the social security number is that of the transferee, or (B) a
statement under penalties of perjury that it is not a disqualified organization.
Treatment of Payments to a Transferee in Consideration of Transfer of a
REMIC Residual Certificate. The federal income tax consequences of any
consideration paid to a transferee on a transfer of an interest in a REMIC
Residual Certificate are unclear and Federal Tax Counsel is unable to opine with
respect to this issue. The preamble to the REMIC Regulations indicates that the
Internal Revenue Service is considering the tax treatment of these types of
residual interests. A transferee of such an interest should consult its own tax
advisors.
Restrictions on Transfer; Holding by Pass-Through Entities. An entity
cannot qualify as a REMIC absent reasonable arrangements designed to ensure that
(1) residual interests in such entity are not held by disqualified organizations
and (2) information necessary to calculate the tax due on transfers to
disqualified organizations (i.e., a computation of the present value of the
excess inclusions) is made available by the REMIC. The governing instruments of
a Trust will contain provisions designed to ensure the foregoing, and any
transferee of a REMIC Residual Certificate must execute and deliver an affidavit
stating that neither the transferee nor any person for whose account such
transferee is acquiring the REMIC Residual Certificate is a disqualified
organization. In addition, as to the requirement that reasonable arrangements
be made to ensure that disqualified organizations do not hold a residual
interest in the REMIC, the REMIC Regulations require that notice of the
prohibition be provided either through a legend on the certificate that
evidences ownership, or through a conspicuous statement in the prospectus or
other offering document used to offer the residual interest for sale. As to the
requirement that sufficient information be
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made available to calculate the tax on transfers to disqualified organizations
(or the tax, discussed below, on pass-through entities, interests in which are
held by disqualified organizations), the REMIC Regulations further require that
such information also be provided to the Internal Revenue Service.
A tax is imposed on "pass-through entities" holding residual interests
where a disqualified organization is a record holder of an interest in the pass-
through entity. "Pass-through entity" is defined for this purpose to include
RICs, REITs, common trust funds, partnerships, trusts, estates and subchapter T
cooperatives. Except as provided in regulations, nominees holding interests in a
"pass-through entity" for another person will also be treated as "pass-through
entities" for this purpose. The tax is equal to the amount of excess inclusions
allocable to the disqualified organization for the taxable year multiplied by
the highest corporate rate of tax, and is deductible by the "pass-through
entity" against the gross amount of ordinary income of the entity.
The Agreement provides that any attempted transfer of a beneficial or
record interest in a REMIC Residual Certificate will be null and void unless the
proposed transferee provides to the Trustee an affidavit that such transferee is
not a disqualified organization.
Legislation has been introduced which would provide that partners of
certain partnerships having a large number of partners will be treated as
disqualified organizations for purposes of the tax imposed on pass-through
entities if such partnerships hold residual interests in a REMIC. When
applicable, the legislation would disallow 70 percent of a large partnership's
miscellaneous itemized deductions, including deductions for servicing and
guaranty fees and any expenses of the REMIC, although the remaining deductions
would not be subject to the 2 percent floor applicable to individual partners.
See "Deductibility of Trust Expenses" below. No prediction can be made
regarding whether such legislation will be enacted.
The REMIC Regulations provide that a transfer of a "noneconomic residual
interest" will be disregarded for all federal income tax purposes unless
impeding the assessment or collection of tax was not a significant purpose of
the transfer. A residual interest will be treated as a "noneconomic residual
interest" unless, at the time of the transfer (1) the present value of the
expected future distributions on the residual interest at least equals the
product of (x) the present value of all anticipated excess inclusions with
respect to the residual interest and (y) the highest corporate tax rate,
currently 35 percent, and (2) the transferor reasonably expects that for each
anticipated excess inclusion, the transferee will receive distributions from the
REMIC, at or after the time at which taxes on such excess inclusion accrue,
sufficient to pay the taxes thereon. A significant purpose to impede the
assessment or collection of tax exists if the transferor, at the time of the
transfer, either knew or should have known (had "improper knowledge") that the
transferee would be unwilling or unable to pay taxes due on its share of the
taxable income of the REMIC. A transferor will be presumed not to have improper
knowledge if (i) the transferor conducts, at the time of the transfer, a
reasonable investigation of the financial condition of the transferee and, as a
result of the investigation, the transferor finds that the transferee has
historically paid its debts as they came due and finds no significant evidence
to indicate that the transferee will not continue to pay its debts as they come
due in the future, and (ii) the transferee represents to the transferor that (A)
the transferee understands that it might incur tax liabilities in excess of any
cash received with respect to the residual interest and (B) the transferee
intends to pay the taxes associated with owning the residual interest as they
come due. A different formulation of this rule applies to transfers of REMIC
Residual Certificates by or to foreign transferees. See "Foreign Investors"
below.
Deductibility of Trust Expenses
A holder that is an individual, estate or trust will be subject to the
limitation with respect to certain itemized deductions described in Code Section
67, to the extent that such deductions, in the aggregate, do not exceed two
percent of the holder's adjusted gross income, and such holder may not be able
to deduct such fees and expenses to any extent in computing such holder's
alternative minimum tax liability. In addition, the amount of itemized
deductions otherwise allowable for the taxable year for an individual whose
adjusted gross income exceeds the applicable amount (which amount will be
adjusted for inflation for taxable years beginning after 1990) will be reduced
by the lesser of (i) 3 percent of the excess of adjusted gross income over the
applicable amount, or (ii) 80 percent of the amount of itemized deductions
otherwise allowable for such taxable year. Such deductions will include
servicing, guarantee, and administrative fees paid to the servicer of the
Mortgage Loans. These deductions will be
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allocated entirely to the holders of the REMIC Residual Certificates in the case
of REMIC Trusts with multiple classes of REMIC Regular Certificates that do not
pay their principal amounts ratably. As a result, the REMIC will report
additional taxable income to holders of REMIC Residual Certificates in an amount
equal to their allocable share of such deductions, and individuals, estates, or
trusts holding an interest in such REMIC Residual Certificates may have taxable
income in excess of the cash received. In the case of a "single-class REMIC,"
the expenses will be allocated, under Treasury regulations, among the holders of
the REMIC Regular Certificates and the REMIC Residual Certificates on a daily
basis in proportion to the relative amounts of income accruing to each
Certificateholder on that day. In the case of a holder of a REMIC Regular
Certificate who is an individual or a "pass-through interest holder" (including
certain pass-through entities, but not including real estate investment trusts),
the deductibility of such expenses will be subject to the limitations described
above. The reduction or disallowance of these deductions may have a significant
impact on the yield of REMIC Regular Certificates to such a holder. In general
terms, a single-class REMIC is one that either (i) would qualify, under existing
Treasury regulations, as a grantor trust if it were not a REMIC (treating all
interests as ownership interests, even if they would be classified as debt for
federal income tax purposes) or (ii) is similar to such a trust and which is
structured with the principal purpose of avoiding the single-class REMIC rules.
Foreign Investors
REMIC Regular Certificates. Except as discussed below, a holder of a REMIC
Regular Certificate who is not a "United States person" (as defined below)
generally will not be subject to United States income or withholding tax in
respect of a distribution on a REMIC Regular Certificate, provided that (i) the
holder complies to the extent necessary with certain identification
requirements, including timely delivery of a statement, signed by the holder of
the REMIC Regular Certificate under penalties of perjury, certifying that the
holder of the REMIC Regular Certificate is not a United States person and
providing the name and address of the holder, (ii) the holder is not a "10-
percent shareholder" within the meaning of Code Section 871(h)(3)(B), which
could be interpreted to apply to a holder of a REMIC Regular Certificate who
holds a direct or indirect 10 percent interest in the REMIC Residual
Certificates, (iii) the holder is not a "controlled foreign corporation" (as
defined in the Code) related to the REMIC or related to a 10 percent holder of a
residual interest in the REMIC, and (iv) the holder is not engaged in a United
States trade or business, or otherwise subject to federal income tax as a result
of any direct or indirect connection to the United States other than through its
ownership of a REMIC Regular Certificate. For these purposes, the term "United
States person" means (a) a citizen or resident of the United States, (b) a
corporation, partnership or other entity created or organized in or under the
laws of the United States or any political subdivision thereof, (c) an estate
whose income is includible in gross income for United States federal income
taxation regardless of its source, and (d) a trust for which one or more United
States fiduciaries have the authority to control all substantial decisions and
for which a court of the United States can exercise primary supervision over the
trust's administration. For years beginning before January 1, 1997, the term
"United States person" shall include a trust whose income is includible in gross
income for United States federal income taxation regardless of source, in lieu
of trusts described in (d), above, unless the trust elects to have its United
States status determined under the criteria set forth in (d) above for tax years
ending after August 20, 1996. Proposed Treasury regulations, which would be
effective with respect to payments made after December 31, 1997 if adopted in
their current form, would provide alternative certification requirements and
means by which a holder of REMIC Certificates could claim the exemption from
federal income and withholding tax.
REMIC Residual Certificates. The Conference Report to the Tax Reform Act
of 1986 states that amounts paid to foreign persons with respect to residual
interests should be considered interest for purposes of the withholding rules.
Interest paid to a foreign person which is not effectively connected with a
trade or business of the foreign person in the United States is subject to a 30%
withholding tax. The withholding tax on interest does not apply, however, to
"portfolio interest" (if certain certifications as to beneficial ownership are
made, as discussed above under "Foreign Investors--Regular Certificates") or to
the extent a tax treaty reduces or eliminates the tax. Treasury regulations
provide that amounts paid with respect to residual interests qualify as
portfolio interest only if interest on the qualified mortgages held by the REMIC
qualifies as portfolio interest. Generally, interest on Mortgage Loans held by
a Trust will not qualify as portfolio interest, although interest on the Private
Mortgage-Backed Securities, other pass-through certificates, or REMIC regular
interests held by a Trust may qualify. In any case, a holder of a REMIC
Residual Certificate will not be entitled to the portfolio interest exception
from the 30% withholding tax (or to any treaty exemption or rate reduction) for
that portion of a payment that constitutes excess inclusions. Generally,
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the withholding tax will be imposed when REMIC gross income is paid or
distributed to the holder of a residual interest or there is a disposition of
the residual interest.
The REMIC Regulations provide that a transfer of a REMIC Residual
Certificate to a foreign transferee will be disregarded for all federal income
tax purposes if the transfer has "tax avoidance potential." A transfer to a
foreign transferee will be considered to have tax avoidance potential unless at
the time of the transfer, the transferor reasonably expects that (1) the future
distributions on the REMIC Residual Certificate will equal at least 30 percent
of the anticipated excess inclusions and (2) such amounts will be distributed at
or after the time at which the excess inclusion accrues, but not later than the
close of the calendar year following the calendar year of accrual. A safe
harbor in the REMIC Regulations provides that the reasonable expectation
requirement will be satisfied if the above test would be met at all assumed
prepayment rates for the Mortgage Assets from 50 percent of the Prepayment
Assumption to 200 percent of the Prepayment Assumption. A transfer by a foreign
transferor to a domestic transferee will likewise be disregarded under the REMIC
Regulations if the transfer would have the effect of allowing the foreign
transferor to avoid the tax on accrued excess inclusions.
Gain on Transfers of Certificates. A Certificateholder that is a
nonresident alien or foreign corporation will not be subject to United States
federal income tax on gain realized on the sale, exchange, or redemption of a
REMIC Certificate, provided that (i) such gain is not effectively connected with
a trade or business carried on by the Certificateholder in the United States,
(ii) in the case of a Certificateholder that is an individual, such
Certificateholder is not present in the United States for 183 days or more
during the taxable year in which such sale, exchange or redemption occurs and
(iii) in the case of gain representing accrued interest, the Certificateholder
complies to the extent necessary with certain identification requirements,
including timely delivery of a statement, signed by the Certificateholder under
penalties of perjury, certifying that such Certificateholder is not a United
States person and providing the name and address of such holder.
Backup Withholding
Distributions made on the REMIC Certificates and proceeds from the sale of
REMIC Certificates to or through certain brokers may be subject to a "backup"
withholding tax of 31 percent of "reportable payments" (including interest
accruals, original issue discount, and, under certain circumstances,
distributions in reduction of principal amount) unless, in general, the holder
of the REMIC Certificate complies with certain procedures or is an exempt
recipient. Any amounts so withheld from distributions on the REMIC Certificates
would be refunded by the Internal Revenue Service or allowed as a credit against
the holder's federal income tax.
REMIC Administrative Matters
The federal information returns for a Trust (Form 1066 and Schedules Q
thereto) must be filed as if the Trust were a partnership for federal income tax
purposes. Information on Schedule Q must be provided to holders of REMIC
Residual Certificates with respect to every calendar quarter. Each holder of a
REMIC Residual Certificate will be required to treat items on its federal income
tax returns consistently with their treatment on the Trust's information returns
unless the holder either files a statement identifying the inconsistency or
establishes that the inconsistency resulted from an incorrect schedule received
from the Trust. The Trust also will be subject to the procedural and
administrative rules of the Code applicable to partnerships, including the
determination of any adjustments to, among other things, items of REMIC taxable
income by the Internal Revenue Service. (Treasury regulations exempt from
certain of these procedural rules REMICs having no more than one residual
interest holder.) Holders of REMIC Residual Certificates will have certain
rights and obligations with respect to any administrative or judicial
proceedings involving the Internal Revenue Service. Under the Code and
Regulations, a REMIC generally is required to designate a tax matters person.
Generally, subject to various limitations, the tax matters person has authority
to act on behalf of the REMIC and the holders of the REMIC Residual Certificates
in connection with administrative determinations and judicial review respecting
returns of taxable income of the REMIC.
Unless otherwise indicated in the Prospectus Supplement, and to the extent
allowable, the Representative or its designee will act as the tax matters person
for each REMIC. Each holder of a REMIC Residual Certificate, by the acceptance
of its interest in the REMIC Residual Certificate, agrees that the
Representative or its designee will act as
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the holder's fiduciary in the performance of any duties required of the holder
in the event that the holder is the tax matters person.
Non-REMIC Certificates Issued by a Grantor Trust
The discussion under this heading applies only to a series of Certificates
with respect to which a REMIC election is not made and for which the Trust is
classified as a grantor trust for federal income tax purposes.
Tax Status of the Trust. Upon the issuance of each series of Non-REMIC
Certificates, Federal Tax Counsel, will deliver its opinion to the effect that,
under then current law, assuming compliance with the Agreement, the related
Trust will be classified for federal income tax purposes as a grantor trust and
not as an association taxable as a corporation or a taxable mortgage pool.
Accordingly, each holder of a Non-REMIC Certificate will be treated for federal
income tax purposes as the owner of an undivided interest in the Mortgage Assets
included in the Trust. As further described below, each holder of a Non-REMIC
Certificate therefore must report on its federal income tax return the gross
income from the portion of the Mortgage Assets that is allocable to such Non-
REMIC Certificate and may deduct the portion of the expenses incurred by the
Trust that is allocable to such Non-REMIC Certificate, at the same time and to
the same extent as such items would be reported by such holder if it had
purchased and held directly such interest in the Mortgage Assets and received
directly its share of the payments on the Mortgage Assets and incurred directly
its share of expenses incurred by the Trust when those amounts are received or
incurred by the Trust.
A holder of a Non-REMIC Certificate that is an individual, estate, or trust
will be allowed deductions for such expenses only to the extent that the sum of
those expenses and the holder's other miscellaneous itemized deductions exceeds
two percent of such holder's adjusted gross income. In addition, the amount of
itemized deductions otherwise allowable for the taxable year for an individual
whose adjusted gross income exceeds the "applicable amount" ($100,000 (or
$50,000 in the case of a separate return by a married individual), adjusted for
changes in the cost of living subsequent to 1990) will be reduced by the lesser
of (i) 3 percent of the excess of adjusted gross income over the applicable
amount, or (ii) 80 percent of the amount of itemized deductions otherwise
allowable for such taxable year. Moreover, a holder of a Non-REMIC Certificate
that is not a corporation cannot deduct such expenses for purposes of the
alternative minimum tax (if applicable). Such deductions will include
servicing, guarantee and administrative fees paid to the servicer of the
Mortgage Loans. As a result, individuals, estates, or trusts holding Non-REMIC
Certificates may have taxable income in excess of the cash received.
Status of the Non-REMIC Certificates. The Non-REMIC Certificates generally
will be "real estate assets" for purposes of Section 856(c)(5)(A) of the Code
and "loans . . . secured by an interest in real property" within the meaning of
Section 7701(a)(19)(C)(v) of the Code, and interest income on the Non-REMIC
Certificates generally will be "interest on obligations secured by mortgages on
real property" within the meaning of Section 856(c)(3)(B) of the Code. However,
the Non-REMIC Certificates may not be qualifying assets under any of the
foregoing sections of the Code to the extent that the Trust's assets include
Buydown Funds, amounts in a Reserve Account, or payments on mortgages held
pending distribution to Certificateholders. Further, the Non-REMIC Certificates
may not be "real estate assets" to the extent loans held by the trust are not
secured by real property, and may not be "loans . . . secured by an interest in
real property" to the extent loans held by the trust are not secured by
residential real property or real property used primarily for church purposes.
In addition, to the extent that the principal amount of a loan exceeds the value
of the property securing the loan, it is unclear and Federal Tax Counsel is
unable to opine whether the loan will be a qualifying asset. The Non-REMIC
Certificates should not be "residential loans made by the taxpayer" for purposes
of the residential loan requirement of Section 593(g)(4)(B) of the Code.
Taxation of Non-REMIC Certificates Under Stripped Bond Rules. The federal
income tax treatment of the Non-REMIC Certificates will depend on whether they
are subject to the rules of section 1286 of the Code (the "stripped bond
rules"). The Non-REMIC Certificates will be subject to those rules if stripped
interest-only Certificates are issued. In addition, whether or not stripped
interest-only Certificates are issued, the Internal Revenue Service may contend
that the stripped bond rules apply on the ground that the Servicer's servicing
fee, or other amounts, if any, paid to (or retained by) the Servicer or its
affiliates, as specified in the applicable Prospectus Supplement, represent
greater than an arm's length consideration for servicing the Mortgage Loans and
should be characterized for federal income tax purposes as an ownership interest
in the Mortgage Loans. The Internal Revenue
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Service has taken the position in Revenue Ruling 91-46 that retained interest in
excess of reasonable compensation for servicing is treated as a "stripped
coupon" under the rules of Code Section 1286.
If interest retained for the Servicer's servicing fee or other interest is
treated as a "stripped coupon," the Non-REMIC Certificates will either be
subject to the original issue discount rules or the market discount rules. A
holder of a Non-REMIC Certificate will account for any discount on the Non-REMIC
Certificate (other than an interest treated as a "stripped coupon") as market
discount rather than original issue discount if either (i) the amount of
original issue discount with respect to the Non-REMIC Certificate was treated as
zero under the original issue discount de minimis rule when the Non-REMIC
Certificate was stripped or (ii) no more than 100 basis points (including any
amount of servicing in excess of reasonable servicing) is stripped off from the
Mortgage Loans. If neither of the above exceptions applies, the original issue
discount rules will apply to the Non-REMIC Certificates.
If the original issue discount rules apply, the holder of a Non-REMIC
Certificate (whether a cash or accrual method taxpayer) will be required to
report interest income from the Non-REMIC Certificate in each taxable year equal
to the income that accrues on the Non-REMIC Certificate in that year calculated
under a constant yield method based on the yield of the Non-REMIC Certificate
(or, possibly, the yield of each Mortgage Asset underlying such Non-REMIC
Certificate) to such holder. Such yield would be computed at the rate that, if
used in discounting the holder's share of the payments on the Mortgage Assets,
would cause the present value of those payments to equal the price at which the
holder purchased the Non-REMIC Certificate. With respect to certain categories
of debt instruments, Section 1272(a)(6) of the Code requires that original issue
discount be accrued based on a prepayment assumption determined in a manner
prescribed by forthcoming regulations. It is unclear whether such regulations
would apply this rule to the Non-REMIC Certificates, whether Section 1272(a)(6)
might apply to the Non-REMIC Certificates in the absence of such regulations, or
whether the Internal Revenue Service could require use of a reasonable
prepayment assumption based on other tax law principles and Federal Tax Counsel
is unable to opine with respect to these issues. If required to report interest
income on the Non-REMIC Certificates to the Internal Revenue Service under the
stripped bond rules, it is anticipated that the Trustee will calculate the yield
of the Non-REMIC Certificates based on a representative initial offering price
of the Non-REMIC Certificates and a reasonable assumed rate of prepayment of the
Mortgage Assets (although such yield may differ from the yield to any particular
holder that would be used in calculating the interest income of such holder).
The Prospectus Supplement for each series of Non-REMIC Certificates will
describe the prepayment assumption that will be used for this purpose, but no
representation is made that the Mortgage Assets will prepay at that rate or at
any other rate.
In the case of a Non-REMIC Certificate acquired at a price equal to the
principal amount of the Mortgage Assets allocable to the Non-REMIC Certificate,
the use of a reasonable prepayment assumption would not have any significant
effect on the yield used in calculating accruals of interest income. In the
case, however, of a Non-REMIC Certificate acquired at a discount or premium
(that is, at a price less than or greater than such principal amount,
respectively), the use of a reasonable prepayment assumption would increase or
decrease such yield, and thus accelerate or decelerate the reporting of interest
income, respectively.
If a Mortgage Loan is prepaid in full, the holder of a Non-REMIC
Certificate acquired at a discount or premium generally will recognize ordinary
income or loss equal to the difference between the portion of the prepaid
principal amount of the Mortgage Loan that is allocable to the Non-REMIC
Certificate and the portion of the adjusted basis of the Non-REMIC Certificate
(see "Sales of Non-REMIC Certificates" below) that is allocable to the Mortgage
Loan. The method of allocating such basis among the Mortgage Loans may differ
depending on whether a reasonable prepayment assumption is used in calculating
the yield of the Non-REMIC Certificates for purposes of accruing original issue
discount. It is not clear whether any other adjustments would be required to
reflect differences between the prepayment rate that was assumed in calculating
yield and the actual rate of prepayments.
Non-REMIC Certificates of certain series ("Variable Rate Non-REMIC
Certificates") may provide for a Pass-Through Rate based on the weighted average
of the interest rates of the Mortgage Assets held by the Trust, which interest
rates may be fixed or variable. In the case of a Variable Rate Non-REMIC
Certificate that is subject to the original issue discount rules, the daily
portions of original issue discount generally will be calculated under the
principles discussed in "REMIC Regular Certificates-Current Income on REMIC
Regular Certificates--Original Issue Discount--Variable Rate REMIC Regular
Certificates."
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Taxation of Non-REMIC Certificates If Stripped Bond Rules Do Not Apply. If
the stripped bond rules do not apply to a Non-REMIC Certificate, then the holder
will be required to include in income its share of the interest payments on the
Mortgage Assets in accordance with its tax accounting method. In addition, if
the holder purchased the Non-REMIC Certificate at a discount or premium, the
holder will be required to account for such discount or premium in the manner
described below. The treatment of any discount will depend on whether the
discount is original issue discount as defined in the Code and, in the case of
discount other than original issue discount, whether such other discount exceeds
a de minimis amount. In the case of original issue discount, the holder
(whether a cash or accrual method taxpayer) will be required to report as
additional interest income in each month the portion of such discount that
accrues in that month, calculated based on a constant yield method. In general
it is not anticipated that the amount of original issue discount to be accrued
in each month, if any, will be significant relative to the interest paid
currently on the Mortgage Assets. However, original issue discount could arise
with respect to a Mortgage Loan ("ARM") that provides for interest at a rate
equal to the sum of an index of market interest rates and a fixed number. The
original issue discount for ARMs generally will be determined under the
principles discussed in "REMIC Regular Certificates-Current Income on REMIC
Regular Certificates--Original Issue Discount---Variable Rate REMIC Regular
Certificates."
If discount other than original issue discount exceeds a de minimis amount
(described below), the holder will also generally be required to include in
income in each month the amount of such discount accrued through such month and
not previously included in income, but limited, with respect to the portion of
such discount allocable to any Mortgage Asset, to the amount of principal on
such Mortgage Asset received by the Trust in that month. Because the Mortgage
Assets will provide for monthly principal payments, such discount may be
required to be included in income at a rate that is not significantly slower
than the rate at which such discount accrues (and therefore at a rate not
significantly slower than the rate at which such discount would be included in
income if it were original issue discount). The holder may elect to accrue such
discount under a constant yield method based on the yield of the Non-REMIC
Certificate to such holder. In the absence of such an election, it may be
necessary to accrue such discount under a more rapid straight-line method.
Under the de minimis rule, market discount with respect to a Non-REMIC
Certificate will be considered to be zero if it is less than the product of (i)
0.25% of the principal amount of the Mortgage Assets allocable to the Non-REMIC
Certificate and (ii) the weighted average life (in complete years) of the
Mortgage Assets remaining at the time of purchase of the Non-REMIC Certificate.
If a holder purchases a Non-REMIC Certificate at a premium, such holder may
elect under Section 171 of the Code to amortize the portion of such premium that
is allocable to a Mortgage Loan under a constant yield method based on the yield
of the Mortgage Loan to such holder, provided that such Mortgage Loan was
originated after September 27, 1985. Premium allocable to a Mortgage Loan
originated on or before that date should be allocated among the principal
payments on the Mortgage Loan and allowed as an ordinary deduction as principal
payments are made or, perhaps, upon termination.
It is not clear whether the foregoing adjustments for discount or premium
would be made based on the scheduled payments on the Mortgage Loans or taking
account of a reasonable prepayment assumption, and Federal Tax Counsel is unable
to opine on this issue.
If a Mortgage Loan is prepaid in full, the holder of a Non-REMIC
Certificate acquired at a discount or premium will recognize ordinary income or
loss equal to the difference between the portion of the prepaid principal amount
of the Mortgage Loan that is allocable to the Non-REMIC Certificate and the
portion of the adjusted basis of the Non-REMIC Certificate (see "Sales of Non-
REMIC Certificates" below) that is allocable to the Mortgage Loan. The method
of allocating such basis among the Mortgage Loans may differ depending on
whether a reasonable prepayment assumption is used in calculating the yield of
the Non-REMIC Certificates for purposes of accruing original issue discount.
Other adjustments might be required to reflect differences between the
prepayment rate that was assumed in accounting for discount or premium and the
actual rate of prepayments.
Sales of Non-REMIC Certificates. A holder that sells a Non-REMIC
Certificate will recognize gain or loss equal to the difference between the
amount realized in the sale and its adjusted basis in the Non-REMIC Certificate.
In general, such adjusted basis will equal the holder's cost for the Non-REMIC
Certificate, increased by the amount of
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any income previously reported with respect to the Non-REMIC Certificate and
decreased by the amount of any losses previously reported with respect to the
Non-REMIC Certificate and the amount of any distributions received thereon. Any
such gain or loss generally will be capital gain or loss if the assets
underlying the Non-REMIC Certificate were held as capital assets, except that,
for a Non-REMIC Certificate to which the stripped bond rules do not apply and
that was acquired with more than a de minimis amount of discount other than
original issue discount (see "Taxation of Non-REMIC Certificates if Stripped
Bond Rules Do Not Apply" above), such gain will be treated as ordinary interest
income to the extent of the portion of such discount that accrued during the
period in which the seller held the Non-REMIC Certificate and that was not
previously included in income.
Foreign Investors. A holder of a Non-REMIC Certificate who is not a
"United States person" (as defined below) and is not subject to federal income
tax as a result of any direct or indirect connection to the United States other
than its ownership of a Non-REMIC Certificate generally will not be subject to
United States income or withholding tax in respect of payments of interest or
original issue discount on a Non-REMIC Certificate to the extent attributable to
Mortgage Loans that were originated after July 18, 1984, provided that the
holder complies to the extent necessary with certain identification requirements
(including delivery of a statement, signed by the holder of the Non-REMIC
Certificate under penalties of perjury, certifying that such holder is not a
United States person and providing the name and address of such holder).
Proposed Treasury Regulations, which would be effective with respect to payments
made after December 31, 1997 if adopted in their current form, would provide
alternative certification requirements and means by which a holder of Non-REMIC
Certificates could claim an exemption from federal income and withholding tax.
Interest or original issue discount on a Non-REMIC Certificate attributable to
Mortgage Loans that were originated prior to July 19, 1984 will be subject to a
30% withholding tax (unless such tax is reduced or eliminated by an applicable
tax treaty). For these purposes, the term "United States person" means a
citizen or a 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, an estate the income of which is subject to
United States federal income taxation regardless of its source, and a trust for
which one or more United States fiduciaries have the authority to control all
substantial decisions and for which a court of the United States can exercise
primary supervision over the trust's administration. For years beginning before
January 1, 1997, the term "United States person" shall include a trust whose
income is includible in gross income for United States federal income taxation
regardless of source, in lieu of trusts just described, unless the trust elects
to have its United States status determined under the criteria described in the
previous sentence for tax years ending after August 20, 1996.
Taxable Mortgage Pools
Effective January 1, 1992, certain entities classified as "taxable mortgage
pools" are subject to corporate level tax on their net income. A "taxable
mortgage pool" is generally defined as an entity that meets the following
requirements: (i) the entity is not a REMIC (or, after September 1, 1997, a
FASIT) (ii) substantially all of the assets of the entity are debt obligations,
and more than 50 percent of such debt obligations consist of real estate
mortgages (or interests therein), (iii) the entity is the obligor under debt
obligations with two or more maturities, and (iv) payments on the debt
obligations on which the entity is the obligor bear a relationship to the
payments on the debt obligations which the entity holds as assets. With respect
to requirement (iii), the Code authorizes the Internal Revenue Service to
provide by regulations that equity interests may be treated as debt for purposes
of determining whether there are two or more maturities. If a Series of Non-
REMIC Certificates were treated as obligations of a taxable mortgage pool, the
Trust would be ineligible to file consolidated returns with any other
corporation and could be liable for corporate tax. Treasury regulations do not
provide for the recharacterization of equity as debt for purposes of determining
whether an entity has issued debt with two maturities, except in the case of
transactions structured to avoid the taxable mortgage pool rules.
Non-REMIC Certificates and Notes of a Trust Intended to be Characterized as a
Partnership
The discussion under this heading applies only to a series of Certificates
and Notes with respect to which a REMIC election is not made and for which the
Trust is intended to be classified as a partnership for federal income tax
purposes.
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Federal Tax Counsel will deliver its opinion for a Trust which is intended
to be a partnership for federal income tax purposes, as specified in the related
Prospectus Supplement, generally to the effect that the Trust will not be an
association (or publicly traded partnership) taxable as a corporation for
federal income tax purposes. This opinion will be based on the assumption that
the terms of the Agreements and related documents will be complied with, such
that an election has not been and will not be made to treat the Trust as an
association taxable as a corporation, and on counsel's conclusion that the
nature of the income of the Trust will exempt it from the rule that certain
publicly traded partnerships are taxable as corporations or such rule is
otherwise inapplicable to the Trust, so that the Trust will not be characterized
as a publicly traded partnership taxable as a corporation.
Certain entities classified as "taxable mortgage pools" are subject to
corporate level tax on their net income. A "taxable mortgage pool" is generally
defined as an entity that meets the following requirements: (i) the entity is
not a REMIC (or, after September 1, 1997, a FASIT), (ii) substantially all of
the assets of the entity are debt obligations, and more than 50 percent of such
debt obligations consists of real estate mortgages (or interests therein), (iii)
the entity is the obligor under debt obligations with two or more maturities,
and (iv) payments on the debt obligations on which the entity is the obligor
bear a relationship to the payments on the debt obligations which the entity
holds as assets. With respect to requirement (iii), the Code authorizes the
Internal Revenue Service to provide by regulations that equity interests may be
treated as debt for purposes of determining whether there are two or more
maturities. If the Trust were treated as a taxable mortgage pool, it would be
ineligible to file consolidated returns with any other corporation and could be
liable for corporate tax. Treasury regulations do not provide for the
recharacterization of equity as debt for purposes of determining whether an
entity has issued debt with two maturities, except in the case of transactions
structured to avoid the taxable mortgage pool rules. Federal Tax Counsel will
deliver its opinion for a Trust which is intended to be a partnership for
federal income tax purposes, as specified in the related Prospectus Supplement,
generally to the effect that the Trust will not be a taxable mortgage pool.
This opinion will be based on the assumption that the terms of the Agreements
and related documents will be complied with, and on counsel's conclusion that
either the number of classes of debt obligations issued be the Trust, or the
nature of the assets held by the Trust, will exempt the Trust from treatment as
a taxable mortgage pool.
If the Trust were taxable as a corporation for federal income tax purposes,
the Trust would be subject to corporate income tax on its taxable income. The
Trust's taxable income would include all its income, possibly reduced by its
interest expense on the Notes. Any such corporate income tax could materially
reduce cash available to make payments on the Notes and distributions on the
Certificates, and Certificateholders could be liable for any such tax that is
unpaid by the Trust. In additions, all distributions to the Certificateholders
would be taxable as dividends.
Tax Consequences to Holders of the Notes Issued by a Partnership
Treatment Of The Notes As Indebtedness. The Trust will agree, and the
Noteholders will agree by their purchase of Notes, to treat the Notes as debt
for federal income tax purposes. Except as otherwise provided in the related
Prospectus Supplement, Federal Tax Counsel will advise the Representative that
in its opinion the Notes will be classified as debt for federal income tax
purposes.
Possible Alternative Treatments Of The Notes. If, contrary to the opinion
of counsel, the IRS successfully asserted that one or more of the Notes did not
represent debt for federal income tax purposes, the Notes might be treated as
equity interests in the Trust. If so treated, the Trust might be taxable as a
corporation with the adverse consequences described above (and the taxable
corporation would not be able to reduce its taxable income by deductions for
interest expense on Notes recharacterized as equity). Alternatively, the Trust
might be treated as a publicly traded partnership that would not be taxable as a
corporation because it would meet certain qualifying income tests. Nonetheless,
treatment of the Notes as equity interests in such a publicly traded partnership
could have adverse tax consequences to certain holders. For example, income to
foreign holders generally would be subject to United States federal income tax
and United States federal income tax return filing and withholding requirements,
and individual holders might be subject to certain limitations on their ability
to deduct their share of the Trust's expenses.
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Interest Income On The Notes. The stated interest on the Notes will be
taxable to a Noteholder as ordinary income when received or accrued in
accordance with such Noteholder's method of tax accounting. It is not
anticipated that the Notes will be issued with original issue discount within
the meaning of Section 1273 of the Code. A subsequent holder who purchases a
Note at a discount that exceeds a statutorily defined de minimis amount will be
subject to the "market discount" rules of the Code, and a holder who purchases a
Note at a premium will be subject to the premium amortization rules of the Code.
Sale Or Other Disposition. If a Noteholder sells a Note, the holder will
recognize gain or loss in an amount equal to the difference between the amount
realized on the sale and the holder's adjusted tax basis in the Note. The
adjusted tax basis of a Note to a particular Noteholder will equal the holder's
cost for the Note, increased by any original issue discount (if any), market
discount and gain previously included by such Noteholder in income with respect
to the Note and decreased by the amount of bond premium (if any) previously
amortized and by the amount of principal payments previously received by such
Noteholder with respect to such Note. Subject to the rules of the Code
concerning market discount on the Notes, any such gain or loss generally will be
capital gain or loss if the Note was held as a capital asset. Capital losses
generally may be deducted only to the extent the Noteholder has capital gains
for the taxable year, although under certain circumstances non-corporate
Noteholders can deduct losses in excess of available capital gains.
Foreign Holders. If interest paid (or accrued) to a Noteholder who is a
nonresident alien, foreign corporation or other non-United States person (a
"foreign person") is not effectively connected with the conduct of a trade or
business within the United States by the foreign person, the interest generally
will be considered "portfolio interest," and generally will not be subject to
United States Federal income tax and withholding tax, if the foreign person (i)
is not actually or constructively a "10 percent shareholder" of the Trust or
the Representative (including a holder of 10% of the outstanding Certificates)
or a "controlled foreign corporation" with respect to which the Trust or the
Representative is a "related person" within the meaning of the Code and (ii)
provides the person otherwise required to withhold United States tax with an
appropriate statement, signed under penalties of perjury, certifying that the
beneficial owner of the Note is a foreign person and providing the foreign
person's name and address. If the information provided in the statement
changes, the foreign person must so inform the person otherwise required to
withhold United States tax within 30 days of such change. The statement
generally must be provided in the year a payment occurs (prior to such payment)
or in either of the two preceding years. If a Note is held through a securities
clearing organization or certain other financial institutions, the organization
or institution may provide a signed statement to the withholding agent.
However, in that case, the signed statement must be accompanies by a Form W-8 or
substitute form provided by the foreign person that owns the Note. If such
interest in not portfolio interest, then it will be subject to United States
federal income and withholding tax at a rate of 30%, unless reduced or
eliminated pursuant to an applicable tax treaty.
Any capital gain realized on the sale, redemption, retirement or other
taxable disposition of a Note by a foreign person will be exempt from United
States federal income and withholding tax, provided that (i) the gain is not
effectively connected with the conduct of a trade or business in the United
States by the foreign person and (ii) in the case of an individual foreign
person, the foreign individual is not present in the United States for 183 days
or more in the taxable year.
If the interest, gain or income on a Note held by a foreign person is
effectively connected with the conduct of a trade or business in the United
States by the foreign person (although exempt from the withholding tax
previously discussed if the holder provides an appropriate statement), the
holder generally will be subject to United States federal income tax on the
interest, gain or income at regular federal income tax rates. In addition, if
the foreign person is a foreign corporation, it may be subject to a branch
profits tax equal to 30% of its "effectively connected earnings and profits"
within the meaning of the Code for the taxable year, as adjusted for certain
items, unless it qualifies for a lower rate under an applicable tax treaty (as
modified by the branch profits tax rules).
Proposed Treasury regulations, which would be effective with respect to
payments made after December 31, 1997 if adopted in their current form, would
provide alternative certification requirements and means for obtaining the
exemption from federal income and withholding tax.
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Information Reporting And Backup Withholding. The Trust will be required to
report annually to the IRS, and to each Noteholder of record, the amount of
interest paid on the Notes (and the amount of interest withheld for federal
income taxes, if any) for each calendar year, except as to exempt holders
(generally, holders that are corporations, tax-exempt organizations, qualified
pension and profit-sharing trusts, individual retirement accounts, or
nonresident aliens who provide certification as to their status as
nonresidents). Accordingly, each holder (other than exempt holders who are not
subject to the reporting requirements) will be required to provide, under
penalties of perjury, a certificate containing the holder's name, address,
correct federal taxpayer identification number and a statement that the holder
is not subject to backup withholding. Should a nonexempt Noteholder fail to
provide the required certification, the Trust will be required to withhold 31%
of the amount otherwise payable to the holder, and remit the withheld amount to
the IRS, as a credit against the holder's federal income tax liability.
Tax Consequences to Holders of Certificates Issued by a Partnership
Treatment Of The Issuer As A Partnership. In the case of a Trust intended
to qualify as a partnership for federal income tax purposes, the Trust and the
Representative will agree, and the Certificateholders will agree by their
purchase of Certificates, to treat the Trust as a partnership for purposes of
United States federal and state income tax, franchise tax and any other tax
measured in whole or in part by income, with the assets of the partnership being
the assets held by the Trust, the partners of the partnership being the
Certificateholders, and the Notes, if any, being debt of the partnership.
However, the proper characterization of the arrangement involving the Trust, the
Certificates, the Notes, and the Master Servicer is not clear because there is
no authority on transactions closely comparable to that contemplated herein.
A variety of alternative characterizations are possible. For example,
because the Certificates have certain features characteristic of debt, the
Certificates might be considered debt of the Trust. Generally, provided the
Certificates are issued at or close to face value, any such characterization
should not result in materially adverse tax consequences to Certificateholders
as compared to the consequences from treatment of the Certificates as equity in
a partnership, described below. The following discussion assumes that the
Certificates represent equity interests in a partnership.
Partnership Taxation. As a partnership, the Trust will not be subject to
federal income tax. Rather, each Certificateholder will be required to
separately take into account such holder's allocated share of income, gains,
losses, deductions and credits of the Trust. The Trust's income will consist
primarily of interest and finance charges earned on the Mortgage Loans
(including appropriate adjustments for market discount, original issue discount
and bond premium) and any gain upon collection or disposition of Mortgage Loans.
The Trust's deductions will consist primarily of interest and original issue
discount accruing with respect to the Notes, servicing and other fees, and
losses or deductions upon collection or disposition of Mortgage Loans.
The tax items of a partnership are allocable to the partners in accordance
with the Code, Treasury regulations and the partnership agreement (here, the
Trust Agreement and related documents). The Trust Agreement will provide, in
general, that the Certificateholders will be allocated taxable income of the
Trust for each month equal to the sum of (i) the interest that accrues on the
Certificates in accordance with their terms for such month, including interest
accruing at the Pass-Through Rate for such month and interest on amounts
previously due on the Certificates but not yet distributed; (ii) any Trust
income attributable to discount on the Mortgage Loans that corresponds to any
excess of the principal amount of the Certificates over their initial issue
price; (iii) prepayment premium payable to the Certificateholders for such
month; and (iv) any other amounts of income payable to the Certificateholders
for such month. Such allocation will be reduced by any amortization by the
Trust of premium on Mortgage Loans that corresponds to any excess of the issue
price of Certificates over their principal amount. All remaining taxable income
of the Trust will be allocated to the Representative. Based on the economic
arrangement of the parties, this approach for allocating Trust income should be
permissible under applicable Treasury regulations, although no assurance can be
given that the IRS would not require a greater amount of income to be allocated
to Certificateholders. Moreover, even under the foregoing method of allocation,
Certificateholders may be allocated income equal to the entire Pass-Through Rate
plus the other items described above even though the Trust might not have
sufficient cash to make current cash distributions of such amount. Thus, cash
basis holders will in effect be required to report income from the Certificates
on the accrual basis and Certificateholders may become liable for taxes on Trust
income even if they
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have not received cash from the Trust to pay such taxes. In addition, because
tax allocations and tax reporting will be done on a uniform basis for all
Certificateholders but Certificateholders may be purchasing Certificates at
different times and at different prices, Certificateholders may be required to
report on their tax returns taxable income that is greater or less than the
amount reported to them by the Trust.
If Notes are also issued, some or all of the taxable income allocated to a
Certificateholder that is a pension, profit sharing or employee benefit plan or
other tax-exempt entity (including an individual retirement account) will
constitute "unrelated business taxable income" generally taxable to such a
holder under the Code.
An individual taxpayer's share of expenses of the Trust (including fees to
the Servicer but not interest expense) would be miscellaneous itemized
deductions. Such deductions might be disallowed to the individual in whole or in
part and might result in such holder being taxed on an amount of income that
exceeds the amount of cash actually distributed to such holder over the life of
the Trust.
The Trust intends to make all tax calculations relating to income and
allocations to Certificateholders on an aggregate basis. If the IRS were to
require that such calculations be made separately for each Mortgage Loan, the
Trust might be required to incur additional expense but it is believed that
there would not be a material adverse effect on Certificateholders.
Discount And Premium. It is believed that the Mortgage Loans were not
issued with original issue discount and, therefore, the Trust should not have
original issue discount income. However, the purchase price paid by the Trust
for the Mortgage Loans may be greater or less than the remaining principal
balance of the Mortgage Loans at the time of purchase. If so, the Mortgage Loan
will have been acquired at a premium or discount, as the case may be. (As
indicated above, the Trust will make this calculation on an aggregate basis, but
might be required to recompute it on a Mortgage Loan by Mortgage Loan basis.)
If the Trust acquires the Mortgage Loans at a market discount or premium,
the Trust will elect to include any such discount in income currently as it
accrues over the life of the Mortgage Loans or to offset any such premium
against interest income on the Mortgage Loans. As indicated above, a portion of
such market discount income or premium deduction may be allocated to
Certificateholders.
Section 708 Termination. Under Section 708 of the Code, the Trust will be
deemed to terminate for federal income tax purposes if 50% or more of the
capital and profits interests in the Trust are sold or exchanged within a 12-
month period. If such a termination occurs, the partnership will be considered
to transfer its assets and liabilities to a new partnership in exchange for
interests in that new partnership, which it would then be treated as
transferring to its partners. The Trust will not comply with certain technical
requirements that might apply when such a constructive termination occurs. As a
result, the Trust may be subject to certain tax penalties and may incur
additional expenses if it is required to comply with those requirements.
Furthermore, the Trust might not be able to comply due to lack of data.
Disposition Of Certificates. Generally, capital gain or loss will be
recognized on a sale of Certificates in an amount equal to the difference
between the amount realized and the seller's tax basis in the Certificates sold.
A Certificateholder's tax basis in a Certificate will generally equal the
holder's cost increased by the holder's share of Trust income (includible in
income) and decreased by any distributions received with respect to such
Certificate. In addition, both the tax basis in the Certificates and the amount
realized on a sale of a Certificate would include the holder's share of the
Notes and other liabilities of the Trust. A holder acquiring Certificates at
different prices may be required to maintain a single aggregate adjusted tax
basis in such Certificates, and, upon sale or other disposition of some of the
Certificates, allocate a portion of such aggregate tax basis to the Certificates
sold (rather than maintaining a separate tax basis in each Certificate for
purposes of computing gain or loss on a sale of that Certificate).
Any gain on the sale of a Certificate attributable to the holder's share of
unrecognized accrued market discount on the Mortgage Loans would generally be
treated as ordinary income to the holder and would give rise to special tax
reporting requirements. The Trust does not expect to have any other assets that
would give rise to such
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special reporting requirements. Thus, to avoid those special reporting
requirements, the Trust will elect to include market discount in income as it
accrues.
If a Certificateholder is required to recognize an aggregate amount of
income (not including income attributable to disallowed itemized deductions
described above) over the life of the Certificates that exceeds the aggregate
cash distributions with respect thereto, such excess will generally give rise to
a capital loss upon the retirement of the Certificates.
Allocations Between Representative And Transferees. In general, the Trust's
taxable income and losses will be determined monthly and the tax items for a
particular calendar month will be apportioned among the Certificateholders in
proportion to the principal amount of Certificates owned by them as of the close
of the last day of such month. As a result, a holder purchasing Certificates may
be allocated tax items (which will affect its tax liability and tax basis)
attributable to periods before the actual transaction.
The use of such a monthly convention may not be permitted by existing
regulations and federal tax counsel is unable to opine on the matter. If a
monthly convention is not allowed (or only applies to transfers of less than all
of the partner's interest), taxable income or losses of the Trust might be
reallocated among the Certificateholders. The Trust's method of allocation
between transferors and transferees may be revised to conform to a method
permitted by future regulations.
Section 754 Election. In the event that a Certificateholder sells its
Certificates at a profit (loss), the purchasing Certificateholder will have a
higher (lower) basis in the Certificates than the selling Certificateholder had.
The tax basis of the Trust's assets will not be adjusted to reflect that higher
(or lower) basis unless the Trust were to file an election under Section 754 of
the Code. In order to avoid the administrative complexities that would be
involved in keeping accurate accounting records, as well as potentially onerous
information reporting requirements, the Trust currently does not intend to make
such election. As a result, Certificateholders might be allocated a greater or
lesser amount of Trust income than would be appropriate based on their own
purchase price for Certificates.
Administrative Matters. The Trustee is required to keep or have kept
complete and accurate books of the Trust. Such books will be maintained for
financial reporting and tax purposes on an accrual basis and the fiscal year of
the Trust will be the calendar year. The Trustee will file a partnership
information return (IRS Form 1065) with the IRS for each taxable year of the
Trust and will report each Certificateholder's allocable share of items of Trust
income and expense to holders and the IRS on Schedule K-1. The Trust will
provide the Schedule K-1 information to nominees that fail to provide the Trust
with the information statement described below and such nominees will be
required to forward such information to the beneficial owners of the
Certificates. Generally, holders must file tax returns that are consistent with
the information return filed by the Trust or be subject to penalties unless the
holder notifies the IRS of all such inconsistencies.
Under Section 6031 of the Code, any person that holds Certificates as a
nominee at any time during a calendar year is required to furnish the Trust with
a statement containing certain information on the nominee, the beneficial owners
and the Certificates so held. Such information includes (i) the name, address
and taxpayer identification number of the nominee and (ii) as to each beneficial
owner (x) the name, address and identification number of such person, (y)
whether such person is a United States person, a tax-exempt entity or a foreign
government, an international organization, or any wholly owned agency or
instrumentality of either of the foregoing, and (z) certain information on
Certificates that were held, bought or sold on behalf of such person throughout
the year. In addition, brokers and financial institutions that hold
Certificates through a nominee are required to furnish directly to the Trust
information as to themselves and their ownership of Certificates. A clearing
agency registered under Section 17A of the Exchange Act is not required to
furnish any such information statement to the Trust. The information referred
to above for any calendar year must be furnished to the Trust on or before the
following January 31. Nominees, brokers and financial institutions that fail to
provide the Trust with the information described above may be subject to
penalties.
The Representative will be designated as the tax matters partner in the
related Trust Agreement and, as such, will be responsible for representing the
Certificateholders in any dispute with the IRS. The Code provides for
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administrative examination of a partnership as if the partnership were a
separate and distinct taxpayer. Generally, the statute of limitations for
partnership items does not expire before three years after the date on which the
partnership information return is filed. Any adverse determination following an
audit of the return of the Trust by the appropriate taxing authorities could
result in an adjustment of the returns of the Certificateholders, and, under
certain circumstances, a Certificateholder may be precluded from separately
litigating a proposed adjustment to the items of the Trust. An adjustment could
also result in an audit of a Certificateholder's returns and adjustments of
items not related to the income and losses of the Trust.
Tax Consequences To Foreign Certificateholders. It is not clear and federal
tax counsel is unable to opine whether the Trust would be considered to be
engaged in a trade or business in the United States for purposes of federal
withholding taxes with respect to non-United States persons because there is no
clear authority dealing with that issue under facts substantially similar to
those described herein. Although it is not expected that the Trust would be
engaged in a trade or business in the United States for such purposes, the Trust
will withhold as if it were so engaged in order to protect the Trust from
possible adverse consequences of a failure to withhold. The Trust expects to
withhold on the portion of its taxable income that is allocable to foreign
Certificateholders pursuant to Section 1446 of the Code, as if such income were
effectively connected to a United States trade or business, at a rate of 35% for
foreign holders that are taxable as corporations and 39.6% for all other foreign
holders. Subsequent adoption of Treasury regulations or the issuance of other
administrative pronouncements may require the Trust to change its withholding
procedures.
If the trust is engaged in a United States trade or business, each foreign
holder might be required to file a United States individual or corporate income
tax return (including, in the case of a corporation, the branch profits tax) on
its share of the Trust's income. A foreign holder generally would be entitled
to file with the IRS a claim for refund with respect to taxes withheld by the
Trust taking the position that no taxes were due because the Trust was not
engaged in a United States trade or business. However, interest payments made
(or accrued) to a Certificateholder who is a foreign person generally will be
considered guaranteed payments to the extent such payments are determined
without regard to the income of the Trust, and for that reason or because of the
nature of the assets of the Trust probably will not be considered "portfolio
interest." As a result, even if the Trust was not considered to be engaged in a
United States trade or business, Certificateholders will be subject to United
States federal income tax which must be withheld at a rate of 30%, unless
reduced or eliminated pursuant to an applicable treaty. A foreign holder would
be entitled to claim a refund for such withheld tax, taking the position that
the interest was portfolio interest and therefore not subject to United States
tax. However, the IRS may disagree and no assurance can be given as to the
appropriate amount of tax liability. As a result, each potential foreign
Certificateholder should consult its tax advisor as to whether an interest in a
Certificate is an unsuitable investment.
Backup Withholding. Distributions made on the Certificates and proceeds
from the sale of the Certificates will be subject to a "backup" withholding tax
of 31% if, in general, the Certificateholder fails to comply with certain
identification procedures, unless the holder is an exempt recipient under
applicable provisions of the Code.
ERISA CONSIDERATIONS
ERISA imposes certain requirements on employee benefit plans and collective
investment funds, separate accounts and insurance company general accounts in
which such plans or arrangements are invested to which it applies and on those
persons who are fiduciaries with respect to such benefit plans. Certain
employee benefit plans, such as governmental plans (as defined in Section 3(32)
of ERISA) and certain church plans (as defined in Section 3(33) of ERISA), are
not subject to ERISA. In accordance with ERISA's general fiduciary standards,
before investing in a Security a benefit plan fiduciary should determine whether
such an investment is permitted under the governing benefit plan instruments and
is appropriate for the benefit plan in view of its overall investment policy and
the composition and diversification of its portfolio and is prudent.
In addition, benefit plans subject to ERISA and individual retirement
accounts or certain types of Keogh plans not subject to ERISA but subject to
Section 4975 of the Code (each a "Plan") are prohibited from engaging in a broad
range of transactions involving Plan assets and persons having certain specified
relationships to a Plan ("parties
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in interest" and "disqualified persons"). Such transactions are treated as
"prohibited transactions" under Sections 406 and 407 of ERISA and excise taxes
are imposed upon such persons by Section 4975 of the Code. The Representative,
the Originators, the Security Guaranty Insurer, the Underwriter and the Trustee
and certain of their affiliates might be considered "parties in interest" or
"disqualified persons" with respect to a Plan. If so, the acquisition or holding
or transfer of Securities by or on behalf of such Plan could be considered to
give rise to a "prohibited transaction" within the meaning of ERISA and the Code
unless an exemption is available. In addition, the U.S. Department of Labor
("DOL") has issued a regulation (29 C.F.R. Section 2510.3-101) concerning the
definition of what constitutes the assets of a Plan (the "Plan Asset
Regulations"), which provides that, as a general rule, the underlying assets and
properties of corporations, partnerships, trusts and certain other entities in
which a Plan makes an "equity" investment will be deemed for purposes of ERISA
to be assets of the investing Plan unless certain exceptions apply. If an
investing Plan's assets were deemed to include an interest in the Mortgage Loans
and any other assets of the Trust and not merely an interest in the Securities,
the assets of the Trust would become subject to the fiduciary investment
standards of ERISA, and transactions occurring between the Representative, the
Trustee, the Servicer, the Security Guaranty Insurer or any of their affiliates
might constitute prohibited transactions, unless an administrative exemption
applies. Certain such exemptions which may be applicable to the acquisition and
holding of the Securities or to the servicing of the Mortgage Loans are noted
below.
Regardless of whether the Securities are treated as debt or equity for
purposes of ERISA, the acquisition or holding of Securities which are Notes by
or behalf of a Plan could still be considered to give rise to a prohibited
transaction if the Trust is or becomes a party in interest or disqualified
person with respect to such Plan or in the event that a subsequent transfer of a
Note is made between a Plan and such party in interest or disqualified person.
However, one or more Investor Based Exemptions referred to below may be
applicable to exempt such prohibited transaction.
The DOL has issued an administrative exemption, Prohibited Transaction
Class Exemption 83-1 ("PTCE 83-1"), which, under certain conditions, exempts
from the application of the prohibited transaction rules of ERISA and the excise
tax provisions of Section 4975 of the Code transactions involving a Plan in
connection with the operation of a "mortgage pool" and the purchase, sale and
holding of "mortgage pool pass-through certificates." A "mortgage pool" is
defined as an investment pool, consisting solely of interest bearing obligations
secured by first or second mortgages or deeds of trust on single-family
residential property, property acquired in foreclosure and undistributed cash.
A "mortgage pool pass-through certificate" is defined as a certificate which
represents a beneficial undivided interest in a mortgage pool which entitles the
holder to pass-through payments of principal and interest from the mortgage
loans.
For the exemption to apply, PTCE 83-1 requires that (i) the Representative
and the Trustee maintain a system of insurance or other protection for the
Mortgage Loans and the property securing such Mortgage Loans, and for
indemnifying Certificateholders (except holders of the Class R Certificates)
against reductions in pass-through payments due to defaults in loan payments or
property damage in an amount at least equal to the greater of 1% of the
aggregate principal balance of the Mortgage Loans, or 1% of the principal
balance of the largest covered pooled Mortgage Loan; (ii) the Trustee may not be
an affiliate of the Representative; and (iii) the payments made to and retained
by the Representative in connection with the Trust, together with all funds
inuring to its benefit for administering the Trust, represent no more than
"adequate consideration" for selling the Mortgage Loans, plus reasonable
compensation for services provided to the Trust.
In addition, PTCE 83-1 exempts the initial sale of Securities to a Plan
with respect to which the Representative, the Security Guaranty Insurer, the
Servicer, or the Trustee is a party in interest if the Plan does not pay more
than fair market value for such Securities and the rights and interests
evidenced by such Securities are not subordinated to the rights and interests
evidenced by other Securities of the same pool. PTCE 83-1 also exempts from the
prohibited transaction rules and transactions in connection with the servicing
and operation of the Pool, provided that any payments made to the Servicer in
connection with the servicing of the Trust are made in accordance with a binding
agreement, copies of which must be made available to prospective investors.
In the case of any Plan with respect to which the Representative, the
Servicer, the Security Guaranty Insurer, or the Trustee is a fiduciary, PTCE 83-
1 will only apply if, in addition to the other requirements: (i) the initial
sale,
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exchange or transfer of Securities is expressly approved by an independent
fiduciary who has authority to manage and control those plan assets being
invested in Securities; (ii) the Plan pays no more for the Securities than would
be paid in an arm's length transaction; (iii) no investment management, advisory
or underwriting fee, sale commission, or similar compensation is paid to the
Representative with regard to the sale, exchange or transfer of Securities to
the Plan; (iv) the total value of the Securities purchased by such Plan does not
exceed 25% of the amount issued; and (v) at least 50% of the aggregate amount of
Securities is acquired by persons independent of the Representative, the
Trustee, the Servicer, and the Security Guaranty Insurer.
Before purchasing Securities, a fiduciary of a Plan should confirm that the
Trust is a "mortgage pool," that the Securities constitute "mortgage pool pass-
through certificates," and that the conditions set forth in PTCE 83-1 would be
satisfied. In addition to making its own determination as to the availability
of the exemptive relief provided in PTCE 83-1, the Plan fiduciary should
consider the availability of any other prohibited transaction exemptions. The
Plan fiduciary also should consider its general fiduciary obligations under
ERISA in determining whether to purchase any Securities on behalf of a Plan.
In addition, the DOL has granted to certain underwriters and/or placement
agents individual prohibited transaction exemptions (each an "Underwriter
Exemption") which may be applicable to avoid certain of the prohibited
transaction rules of ERISA with respect to the initial purchase, the holding and
the subsequent resale in the secondary market by Plans of pass-through
certificates representing a beneficial undivided ownership interest in the
assets of a trust that consist of certain receivables, loans and other
obligations that meet the conditions and requirements of the Underwriter
Exemption which may be applicable to the Securities. The conditions of
Underwriter Exemption, if applicable, will be set forth in "ERISA
Considerations" in the Prospectus Supplement.
One or more other prohibited transaction exemptions issued by the DOL may
be available to a Plan investing in Securities, depending in part upon the type
of Plan fiduciary making the decision to acquire a Security and the
circumstances under which such decision is made, including but not limited to:
PTCE 90-1, regarding investments by insurance company pooled separate accounts,
PTCE 91-38, regarding investments by bank collective investment funds, PTCE 84-
14, regarding investments effectuated by "qualified plan asset managers", PTCE
96-23, regarding investments effectuated by "in-house asset managers" and PTCE
95-60, regarding investments by insurance company general accounts ("Investor
Based Exemptions"). However, even if the conditions specified in an Underwriter
Exemption or one or more of these other exemptions are met, the scope of the
relief provided might or might not cover all acts which might be construed as
prohibited transactions.
Any Plan fiduciary considering the purchase of a Security should consult
with its counsel with respect to the potential applicability of ERISA and the
Code to such investment. Moreover, each Plan fiduciary should 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.
LEGAL INVESTMENT CONSIDERATIONS
Each Prospectus Supplement will describe the extent, if any, to which the
Classes of Securities offered thereby will constitute "mortgage related
securities" for purposes of SMMEA. No representation is made herein as to
whether the Securities will constitute legal investments for any entity under
any applicable statute, law, rule, regulation or order. Prospective purchasers
are urged to consult with their counsel concerning the status of the Securities
as legal investments for such purchasers prior to investing in any Class of
Securities.
PLAN OF DISTRIBUTION
The Securities offered hereby will be offered in Series, either directly by
the Representative or through one or more underwriters or underwriting
syndicates ("Underwriters"). The Prospectus Supplement for each Series will set
forth the terms of the offering of such Series and of each Class within such
Series, including the name or names of
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the Underwriters, the proceeds to and their use by the Representative and the
Originators, and either the initial public offering price, the discounts and
commissions to the Underwriters and any discounts or concessions allowed or
reallowed to certain dealers, or the method by which the price at which the
Underwriters will sell the Securities will be determined.
The Securities in a Series may be acquired by Underwriters for their own
account and may be resold from time to time in one or more transactions,
including negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of sale. The obligations of any
Underwriters will be subject to certain conditions precedent, and such
Underwriters will be severally obligated to purchase all of a Series of
Securities described in the related Prospectus Supplement, if they are
purchased. If Securities of a Series are offered other than through
Underwriters, the related Prospectus Supplement will contain information
regarding the nature of such offering and any agreements to be entered into
between the seller and purchasers of Securities of such Series.
The place and time of delivery for the Securities of a Series in respect of
which this Prospectus is delivered will be set forth in the related Prospectus
Supplement.
LEGAL MATTERS
Certain legal matters relating to the validly of the issuance of the
Securities of each Series will be passed upon for the Representative by Eric R.
Elwin, Esq., Corporate Counsel of the Representative and certain legal matters
relating to the validity of the issuance of the Securities of each Series will
be passed upon for the Underwriters of the Securities of each Series by Stroock
& Stroock & Lavan LLP, New York, New York. Stroock & Stroock & Lavan LLP has
performed legal services for the Representative and it is expected that it will
continue to perform such services in the future.
EXPERTS
The consolidated financial statements of The Money Store Inc. as of
December 31, 1996 and 1995 and for each of the three years in the period ended
December 31, 1996 incorporated by reference herein have been audited by KPMG
Peat Marwick LLP, independent accountants, as stated in their opinion given upon
their authority as experts in accounting and auditing.
FINANCIAL INFORMATION
A new Trust will be formed to own the Mortgage Assets and to issue each
Series of Securities. Each such Trust will have no assets or obligations prior
to the issuance of the Securities and will not engage in any activities other
than those described herein. Accordingly, no financial statements with respect
to such Trusts are included in this Prospectus.
RATING
It is a condition to the issuance of the Securities of each Series offered
hereby and by the Prospectus Supplement that they shall have been rated in one
of the four highest rating categories by the nationally recognized statistical
rating agency or agencies specified in the related Prospectus Supplement.
Ratings on mortgage pass-through securities address the likelihood of
receipt by securityholders of all distributions on the underlying mortgage
loans. These ratings address the structural, legal and issuer-related aspects
associated with such securities, the nature of the underlying mortgage loans and
the credit quality of the guarantor, if any. Ratings on mortgage pass-through
securities do not represent any assessment of the likelihood of principal
prepayments by mortgagors or of the degree by which such prepayments might
differ from those originally
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anticipated. As a result, securityholders might suffer a lower than anticipated
yield, and, in addition, holders of stripped pass-through securities in extreme
cases might fail to recoup their underlying investments.
A rating of a security is not a recommendation to buy, sell or hold
securities and may be subject to revision or withdrawal at any time by the
assigning rating organization. Each security rating should be evaluated
independently of any other security rating.
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INDEX OF PRINCIPAL TERMS
Unless the context indicates otherwise, the following terms shall have the
meanings set forth on the page indicated below:
<TABLE>
<S> <C>
Adjustable Rate............................................................ 6
Adjusted Mortgage Loan Remittance Rate..................................... 48
Agency Securities.......................................................... 6
Agreement.................................................................. 5
APR........................................................................ 8
ARM........................................................................ 93
Auction Rate Securities.................................................... 2
Available Remittance Amount................................................ 60
Balloon Loans.............................................................. 21
Bankruptcy Bond............................................................ 15
Basis Risk Shortfall....................................................... 76
Buydown Funds.............................................................. 77
Cede....................................................................... 4
Certificate................................................................ 1
Certificateholders......................................................... 1
Class...................................................................... 1
Cleanup Costs.............................................................. 76
CMOs....................................................................... 9
Code....................................................................... 18
Commission................................................................. 3
Compensating Interest...................................................... 18
Contingency Fee............................................................ 60
Contracts.................................................................. 6
Conventional Loans......................................................... 6
Cooperative Loans.......................................................... 6
Cooperatives............................................................... 6
Curtailment................................................................ 18
Custodian.................................................................. 59
Cut-off Date............................................................... 43
Designated Depository Institution.......................................... 59
Detailed Description....................................................... 26
Determination Date......................................................... 17
Distribution Account....................................................... 59
DTC........................................................................ 4
Due Period................................................................. 60
ERISA...................................................................... 20
Event of Nonpayment........................................................ 63
Federal Tax Counsel........................................................ 18
FHA........................................................................ 6
FHA Loans.................................................................. 6
FHLMC...................................................................... 9
FHLMC Act.................................................................. 9
FHLMC Certificate Group.................................................... 35
FHLMC Certificates......................................................... 9
FHLMC Project Certificates................................................. 37
Final Determination........................................................ 64
Fixed Rate................................................................. 6
FNMA....................................................................... 6
FTC Rule................................................................... 73
</TABLE>
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<TABLE>
<S> <C>
Funding Period............................................................ 10
Garn-St. Germain Act...................................................... 74
GNMA...................................................................... 6
Guaranty Insurance Policy................................................. 14
Home Equity Loans......................................................... 29
HUD....................................................................... 7
Indirect Participant...................................................... 49
Insurance Proceeds........................................................ 17
Insurance Paying Agent.................................................... 52
Insured Payment........................................................... 52
Interest Period........................................................... 47
Interest Rate............................................................. 2
IRS....................................................................... 64
LIBOR..................................................................... 2
Liquidation Proceeds...................................................... 17
Loan-to-Value Ratio....................................................... 28
Lockout Periods........................................................... 7
Lower Tier REMIC.......................................................... 85
Majority Securityholders.................................................. 62
Manufactured Homes........................................................ 31
Manufacturer's Invoice Price.............................................. 28
Master Servicer........................................................... 1
Monthly Advance........................................................... 17
Mortgage Asset Schedule................................................... 26
Mortgage Assets........................................................... 1
Mortgage Interest Rate.................................................... 6
Mortgage Loans............................................................ 6
Mortgage Pool Insurance Policy............................................ 15
Mortgaged Properties...................................................... 7
Multifamily Loans......................................................... 6
NHA Act................................................................... 31
1933 Act.................................................................. 3
Non-REMIC Certificates.................................................... 19
Noteholders............................................................... 1
Notes..................................................................... 1
Opinion of Counsel........................................................ 58
Originators............................................................... 1
Participants.............................................................. 49
Pass-Through Rate......................................................... 2
Permitted Instruments..................................................... 59
Permitted Investments..................................................... 54
Plan...................................................................... 100
PMBS...................................................................... 6
PMBS Agreement............................................................ 37
PMBS Issuer............................................................... 9
PMBS Servicer............................................................. 10
PMBS Trustee.............................................................. 10
Pool...................................................................... 1
Pool Insurer.............................................................. 52
Pre-Funding Account....................................................... 10
Prepayment Assumption..................................................... 79
Principal and Interest Account............................................ 59
Principal Prepayment Period............................................... 46
Principal Prepayment...................................................... 17
</TABLE>
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<TABLE>
<S> <C>
Qualified Substitute Mortgage Loan........................................ 58
Rating Agency............................................................. 17
REIT...................................................................... 86
Relief Act................................................................ 25
REMIC..................................................................... 2
REMIC Certificates........................................................ 76
REMIC Regular Certificates................................................ 18
REMIC Residual Certificates............................................... 18
REMIC Regulations......................................................... 77
Remittance Date........................................................... 2
Representative............................................................ 1
Reserve Account........................................................... 14
Secured Conventional Home Improvement Loans............................... 6
Security Guaranty Insurer................................................. 52
Security Register......................................................... 45
Senior Certificates....................................................... 11
Senior Notes.............................................................. 13
Servicing Advance......................................................... 60
Servicing Fee............................................................. 60
Single Family Loans....................................................... 6
Single Variable Rate REMIC Regular Certificate............................ 81
SMMEA..................................................................... 20
Special Hazard Insurance Policy........................................... 15
Special Hazard Insurer.................................................... 53
Spread Amount............................................................. 15
Standard Hazard Insurance Policies........................................ 7
Subordinated Certificates................................................. 11
Subordinated Notes........................................................ 13
Sub-Servicer.............................................................. 62
Substitution Adjustment................................................... 58
Successor Servicer........................................................ 63
Superlien................................................................. 76
Supplemental Interest Payments............................................ 54
T-Bill Rate............................................................... 2
Termination Notice........................................................ 64
Termination Price......................................................... 64
Tiered REMICs............................................................. 77
Title I Loan Program...................................................... 8
Title I Property Improvement Loans........................................ 31
Title V................................................................... 74
Trust..................................................................... 1
Trustee................................................................... 18
Trustee's Mortgage File................................................... 58
UCC....................................................................... 49
Underwriter Exemption..................................................... 102
Underwriters.............................................................. 102
United States person...................................................... 89
Unsecured Home Improvement Loans.......................................... 6
VA........................................................................ 6
Variable Rate Non-REMIC Certificates...................................... 92
Variable Rate REMIC Regular Certificate................................... 81
Yield Supplement Agreement................................................ 76
</TABLE>
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Appendix I
AUCTION PROCEDURES
The following description of the Auction Procedures applies to each Class
of Auction Rate Securities (and may be different if otherwise set forth in a
related Prospectus Supplement). The term "Security," as used in this Appendix,
refers to each Class of Auction Rate Securities that are either Notes or
Certificates and the term "Securityholder" refers to Holders of Auction Rate
Securities.
Definitions
Capitalized terms used herein and not otherwise defined have the meanings
ascribed in the accompanying Prospectus and Prospectus Supplement.
Additionally, the following terms have the meanings ascribed to them:
"All Hold Rate" means ninety percent (90%) of One-Month LIBOR or such other
rate as may be set forth in the related Prospectus Supplement.
"Auction" means the implementation of the Auction Procedures on an Auction
Date.
"Auction Agent" means the initial auction agent under the initial Auction
Agent Agreement unless and until a substitute Auction Agent Agreement becomes
effective, after which "Auction Agent" shall mean the substitute auction agent.
"Auction Agent Agreement" means the initial Auction Agent Agreement unless
and until a substitute Auction Agent Agreement is entered into, after which
"Auction Agent Agreement" shall mean such substitute Auction Agent Agreement.
"Auction Agent Fee" has the meaning set forth in the Auction Agent
Agreement.
"Auction Agent Fee Rate" has the meaning set forth in the Auction Agent
Agreement.
"Auction Date" means, with respect to the Initial Period for each Class of
Securities, the date set forth in the related Prospectus Supplement and
thereafter, the Business Day immediately preceding the first day of each Auction
Period for each Security, other than:
(A) each Auction Period commencing after the ownership of the Securities is
no longer maintained in Book-Entry Form by DTC;
(B) each Auction Period commencing after and during the continuance of an
Event of Default; or
(C) each Auction Period commencing less than two Business Days after the
cure or waiver of an Event of Default.
Notwithstanding the foregoing, the Auction Date for one or more Auction Periods
may be changed pursuant to the related Agreement and the related Terms
Supplement, as described herein.
"Auction Period" means, with respect to each Security, the Interest Period
applicable to such Security during which time the applicable Security Interest
Rate is determined pursuant to the related Agreement and the related Terms
Supplement, which Auction Period (after the Initial Period for such Security)
initially shall consist of between 7 days and one year (as set forth in the
related Prospectus Supplement), as the same may be adjusted pursuant to such
related Agreement and the related Terms Supplement.
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"Auction Period Adjustment" means an adjustment to the Auction Period as
provided in the related Terms Supplement, as described herein.
"Auction Procedures" means the procedures set forth in the related Terms
Supplement and described herein by which the Auction Rate applicable to a
Security is determined.
"Auction Rate" means, with respect to any Security, the rate of interest
per annum that results from the implementation of the Auction Procedures and is
determined as described in the related Agreement and the related Terms
Supplement and this Appendix I.
"Authorized Denominations" means, the dollar amount set forth in the
related Prospectus Supplement and any integral multiple in excess thereof.
"Broker-Dealer" means the initial broker-dealer under the initial Broker-
Dealer Agreement or any other broker or dealer (each as defined in the
Securities Exchange Act of 1934, as amended), commercial bank or other entity
permitted by law to perform the functions required of a Broker-Dealer set forth
in the Auction Procedures that (a) is a Participant (or an affiliate of a
Participant), (b) has been appointed as such by the Representative and the
Trustee pursuant to the related Agreement and (c) has entered into a Broker-
Dealer Agreement that is in effect on the date of reference.
"Broker-Dealer Agreement" means each agreement between the Auction Agent
and a Broker-Dealer, and approved by Representative and the Trust, pursuant to
which the Broker-Dealer agrees to participate in Auctions as set forth in the
Auction Procedures, as from time to time amended or supplemented.
"Broker-Dealer Fee" has the meaning set forth in the Auction Agent
Agreement.
"Broker-Dealer Fee Rate" has the meaning set forth in the Auction Agent
Agreement.
"Effective Interest Rate" means, for any Mortgage Loan and any collection
period, the per annum rate at which such Mortgage Loan accrues interest during
such collection period.
"Existing Securityholder" means (i) with respect to and for the purpose of
dealing with the Auction Agent in connection with an Auction, a Person who is a
Broker-Dealer listed in the Existing Securityholder Registry at the close of
business on the Business Day immediately preceding such Auction and (ii) with
respect to and for the purpose of dealing with the Broker-Dealer in connection
with an Auction, a Person who is a beneficial owner of any Security.
"Existing Securityholder Registry" means the registry of Persons who are
owners of the Securities, maintained by the Auction Agent as provided in the
Auction Agent Agreement.
"Federal Funds Rate" means, for any date of determination, the federal
funds (effective) rate as published on page 118 of the Dow Jones Telerate
Service (or such other page as may replace that page on that service for the
purpose of displaying comparable rates or prices) on the immediately preceding
Business Day. If no such rate is published on such page on such date, "Federal
Funds Rate" shall mean for any date of determination, the Federal funds
(effective) rate as published by the Federal Reserve Board in the most recent
edition of Federal Reserve Statistical Release No. H.15 (519) that is available
on the Business Day immediately preceding such date.
"Initial Period" means, as to any Security, the period commencing on the
Closing Date of such Security and continuing through the day immediately
preceding the Security Initial Rate Adjustment Date for such Security.
"Interest Period" means, with respect to a Security, the Initial Period for
such Security and each period commencing on the Rate Adjustment Date for such
Security and ending on the day before (i) the next Rate Adjustment Date for such
Security or (ii) the final maturity date of such Security, as applicable.
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"Market Agent" means the entity named as market agent under the related
Agreement, or any successor to it in such capacity thereunder.
"Maximum Auction Rate" generally means (i) for Auction Periods of 34 days
or less, either (A) the greater of (1) One-Month LIBOR plus 0.60% or (2) the
Federal Funds Rate plus 0.60% (if both ratings assigned by the Rating Agencies
to the applicable Security are "Aa3" or "AA-" or better) or (B) One-Month LIBOR
plus 1.50% (if any one of the ratings assigned by the Rating Agencies to the
Security is less than "Aa3" or "AA-") or (ii) for Auction Periods of greater
than or equal to 35 days, either (A) the greater of One-Month LIBOR or Three-
Month LIBOR, plus in either case, 0.60% (if both of the ratings assigned by the
Rating Agencies to the applicable Security are "Aa3" or "AA-" or better) or (B)
the greater of One-Month LIBOR or Three-Month LIBOR, plus in either case, 1.50%
(if any one of the ratings assigned by the Rating Agencies to the applicable
Security is less than "Aa3" or "AA-") or such other rate as may be set forth in
the related Prospectus Supplement. For purposes of the Auction Agent and the
Auction Procedures, the ratings referred to in this definition shall be the last
ratings of which the Auction Agent has been given notice pursuant to the Auction
Agent Agreement.
"Net Loan Rate" for any Interest Period will equal the weighted average
Effective Interest Rate for the Collection Period immediately preceding such
Interest Period less the amount set forth in the related Prospectus Supplement.
"Non-Payment Rate" means One-Month LIBOR plus 1.50%, as the same may be
adjusted pursuant to a Terms Supplement or such other rate as may be set forth
in the related Prospectus Supplement.
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, trust (including any beneficiary
thereof), unincorporated organization or government or any agency or political
subdivision thereof.
"Potential Securityholder" means any Person (including an Existing
Securityholder that is (i) a Broker-Dealer when dealing with the Auction Agent
and (ii) a potential beneficial owner when dealing with a Broker-Dealer) who may
be interested in acquiring Securities (or, in the case of an Existing
Securityholder thereof, an additional principal amount of Securities).
"Rate Adjustment Date" means, with respect to each Security, the date on
which the applicable Security Interest Rate is effective and means, with respect
to each such Security, the date of commencement of each Auction Period.
"Rate Determination Date" means, with respect to any Security, the Auction
Date, or if no Auction Date is applicable to such Series, the Business Day
immediately preceding the date of commencement of an Auction Period.
"Security Initial Rate" means, with respect to any Class of Notes or
Certificates, the rate identified as such in the related Prospectus Supplement.
"Security Initial Rate Adjustment Date" means, with respect to any Class of
Notes, the date identified as such in the related Prospectus Supplement and,
with respect to any Class of Certificates, the date set forth in the related
Agreement or the related Terms Supplement.
"Three-Month LIBOR" means the London interbank offered rate for deposits in
U.S. dollars having a maturity of three months commencing on the related LIBOR
Determination Date (the "Three-Month Index Maturity") which appears on Telerate
Page 3750 as of 11:00 a.m., London time, on such LIBOR Determination Date. If
such rate does not appear on Telerate Page 3750, the rate for that day will be
determined on the basis of the rates at which deposits in U.S. dollars, having
the Three Month Index Maturity and in a principal amount of not less than U.S.
$1,000,000, are offered at approximately 11:00 a.m., London time, on such LIBOR
Determination Date to prime banks in the London interbank market by the
Reference Banks. The Auction Agent will request the principal London office
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of each of such Reference Banks to provide a quotation of its rate. If at least
two such quotations are provided, the rate for that day will be the arithmetic
mean of the quotations. If fewer than two quotations are provided, the rate for
that day will be the arithmetic mean of the rates quoted by major banks in New
York City, selected by the Auction Agent, at approximately 11:00 a.m., New York
City time, on such LIBOR Determination Date for loans in U.S. dollars to leading
European banks having the Three Month Index Maturity and in a principal amount
equal to an amount of not less than U.S. $1,000,000; provided that if the banks
selected as aforesaid are not quoting as mentioned in this sentence, Three-Month
LIBOR in effect for the applicable Interest Period will be Three-Month LIBOR in
effect for the previous Interest Period.
Existing Securityholders and Potential Securityholders
Participants in each Auction will include: (1) "Existing Securityholders,"
which shall mean any Securityholder according to the records of the Auction
Agent at the close of business on the Business Day preceding each Auction Date;
and (ii) "Potential Securityholders," which shall mean any person, including any
Existing Securityholder or a Broker/Dealer, who may be interested in acquiring
Securities (or, in the case of an Existing Securityholder, an additional
principal amount of the Security such Securityholder then holds). See "--
Broker-Dealer."
By purchasing a Security, whether in an Auction or otherwise, each
prospective purchaser of Securities or its Broker-Dealer must agree and will be
deemed to have agreed: (i) to participate in Auctions on the terms described
herein; (ii) so long as the beneficial ownership of the Securities is maintained
in Book-Entry Form to sell, transfer or otherwise dispose of the Securities only
pursuant to a Bid (as defined below) or a Sell Order (as defined below) in an
Auction, or to or through a Broker-Dealer, provided that in the case of all
transfers other than those pursuant to an Auction, the Existing Securityholder
of the Securities so transferred, its Participant or Broker-Dealer advises the
Auction Agent of such transfer; (iii) to have its beneficial ownership of
Securities maintained at all times in Book-Entry Form for the account of its
Participant, which in turn will maintain records of such beneficial ownership,
and to authorize such Participant to disclose to the Auction Agent such
information with respect to such beneficial ownership as the Auction Agent may
request; (iv) that a Sell Order placed by an Existing Securityholder will
constitute an irrevocable offer to sell the principal amount of the Security
specified in such Sell Order; (v) that a Bid placed by an Existing
Securityholder will constitute an irrevocable offer to sell the principal amount
of the Security specified in such Bid if the rate specified in such Bid is
greater than, or in some cases equal to, the Security Interest Rate of such
Security, determined as described herein; and (vi) that a Bid placed by a
Potential Securityholder will constitute an irrevocable offer to purchase the
amount, or a lesser principal amount, of the Security specified in such Bid if
the rate specified in such Bid is, respectively, less than or equal to the
Security Interest Rate of the specified Security, determined as described
herein.
The principal amount of the Securities purchased or sold may be subject to
probation procedures on the Auction Date. Each purchase or sale of Securities on
the Auction Date will be made for settlement on the first day of the Interest
Period immediately following such Auction Date at a price equal to 100% of the
principal amount thereof, plus accrued but unpaid interest thereon. The Auction
Agent is entitled to rely upon the terms of any Order submitted to it by a
Broker-Dealer.
Auction Agent
The entity named in the related Prospectus Supplement, will be appointed as
Auction Agent to serve as agent for a Trust in connection with Auctions. The
Trustee and the Representative will enter into the Auction Agreement with the
Auction Agent. Any Auction Agent or Substitute Auction Agent will be (i) a
bank, national banking association or trust company duly organized under the
laws of the United States of America or any state or territory thereof having
its principal place of business in the Borough of Manhattan, New York, or such
other location as approved by the Trustee and the Market Agent in writing and
having a combined capital stock or surplus of at least $50,000,000, or (ii) a
member of the National Association of Securities Dealers, Inc. having a
capitalization of at least $50,000,000, and, in either case, authorized by law
to perform all the duties imposed upon it under the related Agreement and under
the Auction Agent Agreement. The Auction Agent may at any time resign and be
discharged of the duties and obligations created by the related Agreement by
giving at least 90 days notice to the Trustee, the Trust,
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the Representative and the Market Agent. The Auction Agent may be removed at any
time by the Trustee upon the written direction of the Security Guaranty Insurer,
if applicable, or, with the consent of the Security Guaranty Insurer, if
applicable, the Securityholders of 66 2/3% of the aggregate principal amount of
the Securities then outstanding, by an instrument signed by the Security
Guaranty Insurer, if applicable, or such Securityholders or their attorneys and
filed with the Auction Agent, the Representative, the Trustee and the Market
Agent upon at least 90 days' notice. Neither resignation nor removal of the
Auction Agent pursuant to the preceding two sentences will be effective until
and unless a Substitute Auction Agent has been appointed and has accepted such
appointment. If required by the Trust or the Representative or by the Market
Agent, with the Trust's and the Representative's consent, a Substitute Auction
Agent Agreement shall be entered into with a Substitute Auction Agent.
Notwithstanding the foregoing, the Auction Agent may terminate the Auction Agent
Agreement if, within 25 days after notifying the Trustee, the Trust, the
Representative, the Security Guaranty Insurer, if applicable, and the Market
Agent in writing that it has not received payment of any Auction Agent Fee due
it in accordance with the terms of the Auction Agent Agreement, the Auction
Agent does not receive such payment.
If the Auction Agent should resign or be removed or be dissolved, or if the
property or affairs of the Auction Agent shall be taken under the control of any
state or federal court or administrative body because of bankruptcy or
insolvency, or for any other reason, the Trustee, at the direction of the
Representative (after receipt of a certificate from the Market Agent confirming
that any proposed Substitute Auction Agent meets the requirements described in
the immediately preceding paragraph above), shall use its best efforts to
appoint a Substitute Auction Agent.
The Auction Agent is acting as agent for the Trust in connection with
Auctions. In the absence of bad, faith, negligent failure to act or negligence
on its part, the Auction Agent will not be liable for any action taken, suffered
or omitted or any error of judgment made by it in the performance of its duties
under the Auction Agent Agreement and will not be liable for any error of
judgment made in good faith unless the Auction Agent will have been negligent in
ascertaining (or failing to ascertain) the pertinent facts.
The Trustee will pay the Auction Agent the Auction Agent Fee on the Note
Remittance Date or Certificate Remittance Date set forth in the related
Prospectus Supplement, and will reimburse the Auction Agent upon its request for
all reasonable expenses, disbursements and advances incurred or made by the
Auction Agent in accordance with any provision of the Auction Agent Agreement or
the Broker-Dealer Agreements (including the reasonable compensation and the
expenses and disbursements of its agents and counsel). The Trust will indemnify
and hold harmless the Auction Agent for and against any loss, liability or
expense incurred without negligence or bad faith on the Auction Agent's part,
arising out of or in connection with the acceptance or administration of its
agency under the Auction Agent Agreement and the Broker-Dealer Agreements
including the reasonable costs and expenses (including the reasonable fees and
expenses of its counsel) of defending itself against any such claim or liability
in connection with its exercise or performance of any of its respective duties
thereunder and of enforcing this indemnification provision; provided that the
Trust will not indemnify the Auction Agent as described in this paragraph for
any fees and expenses incurred by the Auction Agent in the normal course of
performing its duties under the Auction Agent Agreement and under the Broker-
Dealer Agreements, such fees and expenses being payable as described above.
Broker-Dealer
Existing Securityholders and Potential Securityholders may participate in
Auctions only by submitting orders (in the manner described below) through a
"Broker-Dealer," including the Broker-Dealer, as the sole Broker-Dealer or any
other broker or dealer (each as defined in the Securities Exchange Act of 1934,
as amended), commercial bank or other entity permitted by law to perform the
functions required of a Broker-Dealer set forth below which (i) is a Participant
or an affiliate of a Participant, (ii) has been selected by the Trust and (iii)
has entered into a Broker-Dealer Agreement with the Auction Agent that remains
effective, in which the Broker-Dealer agrees to participate in Auctions as
described in the Auction Procedures, as from time to time amended or
supplemented.
The Broker-Dealers are entitled to a Broker-Dealer Fee, which is payable by
the Auction Agent from monies received from the Trustee, on the Note Remittance
Date or Certificate Remittance Date set forth in the related Prospectus
Supplement.
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Market Agent
In connection with each Series of Notes and the Certificates, the "Market
Agent," will act solely as agent of the Trust and will not assume any obligation
or relationship of agency or trust for or with any of the Securityholders.
Auction Procedures
General
Pursuant to the related Agreement and the related Terms Supplement,
Auctions to establish the Auction Rate for each Security issued by the Trust
will be held on each applicable Auction Date, except as described below, by
application of the Auction Procedures described herein. Such procedures are to
be applicable separately to each Class of Notes and each Class of Certificates.
The Auction Agent will calculate the Maximum Auction Rate, the All Hold
Rate and One-Month LIBOR or Three-Month LIBOR, as the case may be, on each
Auction Date. The Administrator will calculate and, no later than the Business
Day preceding each Auction Date, will report to the Auction Agent in writing,
the Net Loan Rate. If the ownership of a Security is no longer maintained in
Book-Entry Form, the Trustee will calculate the Maximum Auction Rate, and
Administrator will report to the Trustee in writing the Net Loan Rate, on the
Business Day immediately preceding the first day of each Interest Period
commencing after delivery of such Security. If an Event of Default has occurred,
under the Indenture or the Pooling and Servicing Agreement, as applicable, the
Trustee will calculate the Non-Payment Rate on the Rate Determination Date for
(i) each Interest Period commencing after the occurrence and during the
continuance of such Payment Default and (ii) any Interest Period commencing less
than two Business Days after the cure of any Event of Default. The Auction Agent
will determine One-Month LIBOR or the Three-Month LIBOR, as applicable, for each
Interest Period other than the Initial Period for a Security; provided, that if
the ownership of the Securities is no longer maintained in Book-Entry Form, or
if an Event of Default has occurred, then the Trustee will determine the One-
Month LIBOR or the Three-Month LIBOR, as applicable, for each such Interest
Period. The determination by the Trustee or the Auction Agent, as the case may
be, of the One-Month LIBOR or the Three-Month LIBOR, as applicable, will (in the
absence of manifest error) be final and binding upon the Securityholders and all
other parties. If calculated or determined by the Auction Agent, the Auction
Agent will promptly advise the Trustee of the One- Month LIBOR or the Three-
Month LIBOR, as applicable.
Submission of Orders
So long as the ownership of the Securities is maintained in Book-Entry
Form, an Existing Securityholder may sell, transfer or otherwise dispose of
Securities only pursuant to a Bid or Sell Order (as hereinafter defined) placed
in an Auction or through a Broker-Dealer, provided that, in the case of all
transfers other than pursuant to Auctions, such Existing Securityholder, its
Broker-Dealer or its Participant advises the Auction Agent of such transfer.
Auctions for each Class of Notes and each Class of Certificates will be
conducted on each applicable Auction Date, if there is an Auction Agent on such
Auction Date, in the following manner (such procedures to be applicable
separately to each Class of Notes and each Class of Certificates).
Prior to the Submission Deadline (defined as 1:00 p.m., eastern time, on
any Auction Date or such other time on any Auction Date by which Broker-Dealers
are required to submit Orders to the Auction Agent as specified by the Auction
Agent from time to time) on each Auction Date relating to a Security:
(a) each Existing Securityholder of the applicable Security may submit
to a Broker-Dealer by telephone or otherwise information as to: (i) the
principal amount and Class of outstanding Securities, if any, held by such
Existing Securityholder which such Existing Securityholder desires to continue
to hold without regard to the Security Interest Rate for such Securities for the
next succeeding Auction Period (a "Hold Order"); (ii) the principal amount and
Class of outstanding Securities, if any, which such Existing Securityholder
offers to sell if the Security Interest Rate for such Securities for the next
succeeding Auction Period will be less than the rate per annum specified
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<PAGE>
by such Existing Securityholder (a "Bid"); and/or (iii) the principal amount and
Class of outstanding Securities, if any, held by such Existing Securityholder
which such Existing Securityholder offers to sell without regard to the Security
Interest Rate for such Securities for the next succeeding Auction Period (a
"Sell Order"); and
(b) one or more Broker-Dealers may contact Potential Securityholders to
determine the principal amount and Class of Securities which each such Potential
Securityholder offers to purchase, if the Security Interest Rate for such
Securities for the next succeeding Auction Period will not be less than the rate
per annum specified by such Potential Securityholder (also a "Bid").
Each Hold Order, Bid and Sell Order will be an "Order." Each Existing
Securityholder and each Potential Securityholder placing an Order is referred to
as a "Bidder."
Subject to the provisions described below under "Validity of Orders," a Bid
by an Existing Securityholder will constitute an irrevocable offer to sell: (i)
the principal amount and Class of the outstanding Securities specified in such
Bid if the Security Interest Rate for such Securities will be less than the rate
specified in such Bid, (ii) such principal amount or a lesser principal amount
and Class of the outstanding Securities to be determined as described below in
"Acceptance and Rejection of Orders," if the Security Interest Rate for such
Securities will be equal to the rate specified in such Bid or (iii) such
principal amount or a lesser principal amount of the then outstanding Securities
to be determined as described below under "Acceptance and Rejection of Orders,"
if the rate specified therein will be higher than the Security Interest Rate for
such Securities and Sufficient Bids (as defined below) have not been made.
Subject to the provisions described below under "Validity of Orders," a
Sell Order by an Existing Securityholder will constitute an irrevocable offer to
sell: (i) the principal amount of the Security specified in such Sell Order or
(ii) such principal amount or a lesser principal amount of outstanding
Securities of the specified Security as described below under "Acceptance and
Rejection of Orders," if Sufficient Bids have not been made.
Subject to the provisions described below under "Validity of Orders," a Bid
by a Potential Securityholder will constitute an irrevocable offer to purchase:
(i) the principal amount of the Security specified in such Bid if the Security
Interest Rate for such Securities will be higher than the rate specified in such
Bid or (ii) such principal amount or a lesser principal amount of such
Securities as described below in "Acceptance and Rejection of Orders," if the
Security Interest Rate is equal to the rate specified in such Bid.
Each Broker-Dealer will submit in writing to the Auction Agent prior to the
Submission Deadline on each Auction Date all Orders obtained by such Broker-
Dealer and will specify with respect to each such Order: (i) the name of the
Bidder placing such Order; (ii) the aggregate principal amount and Class of
Security that are the subject of such Order; (iii) to the extent that such
Bidder is an Existing Securityholder: (a) the principal amount and Class of
Securities, if any, subject to any Hold Order placed by such Existing
Securityholder; (b) the principal amount, and Class of Securities, if any,
subject to any Bid placed by such Existing Securityholder and the rate specified
in such Bid; and (c) the principal amount, and Class of Securities, if any,
subject to any Sell Order placed by such Existing Securityholder, and (iv) to
the extent such Bidder is a Potential Securityholder, the rate specified in such
Potential Securityholder's Bid.
If any rate specified in any Bid contains more than three figures to the
right of the decimal point, the Auction Agent will round such rate up to the
next highest one-thousandth (.001) of one percent.
If an Order or Orders covering all Securities of the applicable Class held
by any Existing Securityholder are not submitted to the Auction Agent prior to
the Submission Deadline, the Auction Agent will deem a Hold Order to have been
submitted on behalf of such Existing Securityholder covering the principal
amount of Securities held by such Existing Securityholder and not subject to an
Order submitted to the Auction Agent.
Neither the Trust, the Representative, the Trustee nor the Auction Agent
will be responsible for any failure of a Broker-Dealer to submit an Order to the
Auction Agent on behalf of any Existing Securityholder or Potential
Securityholder.
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<PAGE>
An Existing Securityholder may submit multiple Orders, of different types
and specifying different rates, in an Auction with respect to Securities then
held by such Existing Securityholder. An Existing Securityholder that offers to
purchase additional Securities is, for purposes of such offer, treated as a
Potential Securityholder.
Any Bid specifying a rate higher than the Maximum Auction Rate will (i) be
treated as a Sell Order if submitted by a Existing Securityholder and (ii) not
be accepted if submitted by a Potential Securityholder.
Validity of Orders
If any Existing Securityholder submits through a Broker-Dealer to the
Auction Agent one or more Orders covering in the aggregate more than the
principal amount of the Class of Securities held by such Existing
Securityholder, such Orders will be considered valid as follows and in the order
of priority described below.
Hold Orders. All Hold Orders will be considered valid, but only up to the
-----------
aggregate principal amount of the Class of Securities held by such Existing
Securityholder, and if the aggregate principal amount of the Class of Securities
subject to such Hold Orders exceeds the aggregate principal amount of the Class
of Securities held by such Existing Securityholder, the aggregate principal
amount of the Class of Securities subject to each such Hold Order will be
reduced pro rata so that the aggregate principal amount of the Class of
Securities subject to all such Hold Orders equals the aggregate principal amount
of the Class of Securities held by such Existing Securityholder.
Bids. Any Bid will be considered valid up to an amount equal to the excess
----
of the principal amount of the Class of Securities held by such Existing
Securityholder over the aggregate principal amount of such Security, subject to
any Hold Orders referred to above. Subject to the preceding sentence, if
multiple Bids with the same rate are submitted on behalf of such Existing
Securityholder and the aggregate principal amount of Securities subject to such
Bids is greater than such excess, such Bids will be considered valid up to an
amount equal to such excess. Subject to the two preceding sentences, if more
than one Bid with different rates are submitted on behalf of such Existing
Securityholder, such Bids will be considered valid first in the ascending order
of their respective rates until the highest rate is reached at which such excess
exists and then at such rate up to the amount of such excess. In any event, the
aggregate principal amount of Securities, if any, subject to Bids not valid
under the provisions described above will be treated as the subject of a Bid by
a Potential Securityholder at the rate therein specified.
Sell Orders. All Sell Orders will be considered valid up to an amount
-----------
equal to the excess of the principal amount of Securities of the Class held by
such Existing Securityholder over the aggregate principal amount of Securities
subject to valid Hold Orders and valid Bids as referred to above.
If more than one Bid for a Class of Security is submitted on behalf of any
Potential Securityholder, each Bid submitted will be a separate Bid with the
rate and principal amount therein specified. Any Bid or Sell Order submitted by
an Existing Securityholder covering an aggregate principal amount of Securities
not equal to an Authorized Denomination or an integral multiple thereof will be
rejected and will be deemed a Hold Order. Any Bid submitted by a Potential
Securityholder covering an aggregate principal amount of Securities not equal to
an Authorized Denomination or an integral multiple thereof will be rejected. Any
Order submitted in an Auction by a Broker-Dealer to the Auction Agent prior to
the Submission Deadline on any Auction Date will be irrevocable.
A Hold Order, a Bid or a Sell Order that has been determined valid pursuant
to the procedures described above is referred to as a "Submitted Hold Order," a
"Submitted Bid" and a "Submitted Sell Order," respectively (collectively,
"Submitted Orders").
Determination of Sufficient Bid and Bid Auction Rate
Not earlier than the Submission Deadline on each Auction Date, the Auction
Agent will assemble all valid Submitted Orders and will determine:
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<PAGE>
(a) for the applicable Security, the excess of the total principal
amount of such Securities over the sum of the aggregate principal amount of such
Securities subject to Submitted Hold Orders (such excess being hereinafter
referred to as the "Available Securities"); and
(b) from such Submitted Orders whether the aggregate principal amount
of Securities of such Class subject to Submitted Bids by Potential
Securityholders specifying one or more rates equal to or lower than the Maximum
Auction Rate exceeds or is equal to the sum of (i) the aggregate principal
amount of Securities of such Class subject to Submitted Bids by Existing
Securityholders specifying one or more rates higher than the Maximum Auction
Rate and (ii) the aggregate principal amount of Securities of such Class subject
to Submitted Sell Orders (in the event such excess or such equality exists other
than because all of the Securities are subject to Submitted Hold Orders, such
Submitted Bids by Potential Securityholders above will be hereinafter referred
to collectively as "Sufficient Bids"); and
(c) if Sufficient Bids exist, the "Bid Auction Rate," which will be
the lowest rate specified in such Submitted Bids such that if:
(i) each such Submitted Bid from Existing Securityholders of
such Security specifying such lowest rate and all other Submitted Bids
from Existing Securityholders of such Security specifying lower rates
were rejected (thus entitling such Existing Securityholders to continue
to hold the principal amount of Securities subject to such Submitted
Bids); and
(ii) each such Submitted Bid from Potential Securityholders of
such Security specifying such lowest rate and all other Submitted Bids
from Potential Securityholders specifying lower rates, were accepted,
the result would be that such Existing Securityholders described in
subparagraph (c)(i) above would continue to hold an aggregate principal
amount of Securities which, when added to the aggregate principal
amount of Securities to be purchased by such Potential Securityholders
described in this subparagraph (ii) would equal not less than the
Available Securities.
Determination of Auction Rate and Security Interest Rate, Notice
Promptly after the Auction Agent has made the determinations described
above, the Auction Agent is to advise the Trustee of the Net Loan Rate, the
Maximum Auction Rate, the All Hold Rate and the components thereof on the
Auction Date, and based on such determinations, the Auction Rate for the next
succeeding Interest Period for the applicable Security as follows:
(a) if Sufficient Bids exist, that the Auction Rate for the next
succeeding Interest Period will be equal to the Bid Auction Rate so determined;
(b) if Sufficient Bids do not exist (other than because all of the
Securities of the applicable Security are subject to Submitted Hold Orders),
that the Auction Rate for the next succeeding Interest Period will be equal to
the Maximum Auction Rate; or
(c) if all Securities of the applicable Security are subject to
Submitted Hold Orders, that the Auction Rate for the next succeeding Interest
Period will be equal to the All Hold Rate.
Promptly after the Auction Agent has determined the Auction Rate, the
Auction Agent will determine and advise the Trustee of the Security Interest
Rate for each applicable Security, which rate will be the lesser of (a) the
Auction Rate for each such Security and (b) the Net Loan Rate. In no event
shall a Security Interest Rate exceed the rate (the "Security Interest Rate
Limitation") set forth in the related Prospectus Supplement.
Acceptance and Rejection of Orders
Existing Securityholders of the applicable Security will continue to hold
the principal amount of Securities of such Class that are subject to Submitted
Hold Orders. If, with respect to a Security, the Net Loan Rate is equal to or
greater than the Bid Auction Rate and if Sufficient Bids, as described above
under "Determination of Sufficient Bids
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<PAGE>
and Bid Auction Rate," have been received by the Auction Agent, the Bid Auction
Rate will be the Security Interest Rate, and Submitted Bids and Submitted Sell
Orders will be accepted or rejected and the Auction Agent will take such other
action as provided in the related Agreement and described below under
"Sufficient Bids."
If the Net Loan Rate is less than the Auction Rate, the Security Interest
Rate will be the Net Loan Rate. If the Auction Rate and the Net Loan Rate are
both greater than the Security Interest Rate Limitation, the Security Interest
Rate for each series shall be equal to the Security Interest Rate Limitation. If
the Auction Agent has not received Sufficient Bids as described above under
"Determination of Sufficient Bids and Bid Auction Rate" (other than because all
of the Securities are subject to Submitted Holds Orders), the Security Interest
Rate will be the lesser of the Maximum Auction Rate or the Net Loan Rate. In
any of the cases described above in this paragraph, Submitted Orders will be
accepted or rejected and the Auction Agent will take such other action as
described below under "Insufficient Bids."
Sufficient Bids. If Sufficient Bids have been made with a respect to a
---------------
Security and the Net Loan Rate is equal to or greater than the Bid Auction Rate
(in which case the Interest Rate shall be the Bid Auction Rate), all Submitted
Sell Orders will be accepted and, subject to the denomination requirements
described below, Submitted Bids will be accepted or rejected as follows in the
following order of priority and all other Submitted Bids will be rejected:
(a) Existing Securityholders' Submitted Bids specifying any rate that
is higher than the Security Interest Rate will be accepted, thus requiring each
such Existing Securityholder to sell the aggregate principal amount of
Securities subject to such Submitted Bids;
(b) Existing Securityholders' Submitted Bids specifying any rate that
is lower than the Security Interest Rate will be rejected, thus entitling each
such Existing Securityholder to continue to hold the aggregate principal amount
of Securities subject to such Submitted Bids;
(c) Potential Securityholders' Submitted Bids specifying any rate that
is lower than the Security Interest Rate will be accepted;
(d) Each Existing Securityholder's Submitted Bid specifying a rate that
is equal to the Security Interest Rate will be rejected, thus entitling such
Existing Securityholder to continue to hold the aggregate principal amount of
Securities subject to such Submitted Bid, unless the aggregate principal amount
of Securities subject to such Submitted Bids will be greater than the principal
amount of Securities (the "remaining principal amount") equal to the excess of
the Available Securities over the aggregate principal amount of Securities
subject to Submitted Bids described in subparagraphs (b) and (c) above, in which
event such Submitted Bid of such Existing Securityholder will be rejected in
part and such Existing Securityholder will be entitled to continue to hold the
principal amount of Securities subject to such Submitted Bid, but only in an
amount equal to the aggregate principal amount of Securities obtained by
multiplying the remaining principal amount by a fraction, the numerator of which
will be the principal amount of Securities held by such Existing Securityholder
subject to such Submitted Bid and the denominator of which will be the sum of
the principal amount of Securities subject to such Submitted Bids made by all
such Existing Securityholders that specified a rate equal to the Security
Interest Rate; and
(e) Each Potential Securityholder's Submitted Bid specifying a rate
that is equal to the Security Interest Rate will be accepted, but only in an
amount equal to the principal amount of Securities obtained by multiplying the
excess of the aggregate principal amount of Available Securities over the
aggregate principal amount of Securities subject to Submitted Bids described in
subparagraphs (b), (c) and (d) above by a fraction, the numerator of which will
be the aggregate principal amount of Securities subject to such Submitted Bid
and the denominator of which will be the sum of the principal amount of
Securities subject to Submitted Bids made by all such Potential Securityholders
that specified a rate equal to the Security Interest Rate.
Insufficient Bids. If Sufficient Bids have not been made with respect to a
-----------------
Security (other than because all of the Securities of such Class are subject to
Submitted Hold Orders) or if the Net Loan Rate is less than the Bid Auction Rate
(in which case the Security Interest Rate shall be the Net Loan Rate) or if the
Security Interest Rate Limitation
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<PAGE>
applies, subject to the denomination requirements described below, Submitted
Orders will be accepted or rejected as follows in the following order of
priority and all other Submitted Bids will be rejected:
(a) Existing Securityholders' Submitted Bids specifying any rate that
is equal to or lower than the Security Interest Rate will be rejected, thus
entitling such Existing Securityholders to continue to hold the aggregate
principal amount of Securities subject to such Submitted Bids;
(b) Potential Securityholders' Submitted Bids specifying any rate that
is equal to or lower than the Security Interest Rate will be accepted, and
specifying any rate that is higher than the Security Interest Rate will be
rejected; and
(c) each Existing Securityholder's Submitted Bid specifying any rate
that is higher than the Security Interest Rate and the Submitted Sell Order of
each Existing Securityholder will be accepted, thus entitling each Existing
Securityholder that submitted any such Submitted Bid or Submitted Sell Order to
sell the Securities subject to such Submitted Bid or Submitted Sell Order, but
in both cases only in an amount equal to the aggregate principal amount of
Securities obtained by multiplying the aggregate principal amount of Securities
subject to Submitted Bids described in subparagraph (b) above by a fraction, the
numerator of which will be the aggregate principal amount of Securities held by
such Existing Securityholder subject to such Submitted Bid or Submitted Sell
Order and the denominator of which will be the aggregate principal amount of
Securities subject to all such Submitted Bids and Submitted Sell Orders.
All Hold Orders. If all Securities of a Class are subject to Submitted
---------------
Hold Orders, all Submitted Bids will be rejected.
Authorized Denominations Requirement. If, as a result of the procedures
------------------------------------
described above regarding Sufficient Bids and Insufficient Bids, any Existing
Securityholder would be entitled or required to sell, or any Potential
Securityholder would be entitled or required to purchase, a principal amount of
Securities that is not equal to an Authorized Denomination or an integral
multiple thereof, the Auction Agent will, in such manner as in its sole
discretion it will determine, round up or down the principal amount of
Securities to be purchased or sold by any Existing Securityholder or Potential
Securityholder so that the principal amount of Securities purchased or sold by
each Existing Securityholder or Potential Securityholder will be equal to an
Authorized Denomination or an integral multiple in excess thereof. If, as a
result of the procedures described above regarding Insufficient Bids, any
Potential Securityholder would be entitled or required to purchase less than a
principal amount of Securities equal to an Authorized Denomination or any
integral multiple thereof, the Auction Agent will, in such manner as in its sole
discretion it will determine, allocate Securities for purchase among Potential
Securityholders so that only Securities in an Authorized Denomination or any
integral multiples in excess thereof are purchased by any Potential
Securityholder, even if such allocation results in one or more of such Potential
Securityholders not purchasing any Securities.
Based on the results of each Auction, the Auction Agent is to determine the
aggregate principal amount of Securities of each Class to be purchased and the
aggregate principal amount of Securities of each Class to be sold by Potential
Securityholders and Existing Securityholders on whose behalf each Broker-Dealer
submitted Bids or Sell Orders and, with respect to each Broker-Dealer, to the
extent that such aggregate principal amount of Securities to be sold differs
from such aggregate principal amount of Securities to be purchased, determine to
which other Broker-Dealer or Broker-Dealers acting for one or more purchasers
such Broker-Dealer will deliver, or from which Broker-Dealers acting for one or
more sellers such Broker-Dealer will receive, as the case may be, Securities.
Any calculation by the Auction Agent (or the Trustee, if applicable) of the
Security Interest Rate, One-Month LIBOR, Three-Month LIBOR, the Maximum Auction
Rate, the All Hold Rate, the Net Loan Rate and the Non-Payment Rate will, in the
absence of manifest error, be binding on all other parties.
Notwithstanding anything in any related Agreement or, a related Terms
Supplement to the contrary, no Auction is to be held on any Auction Date on
which there are insufficient moneys held by the Trustee under the related
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Agreement and available to pay the principal of and interest due on the
applicable Security on the Note Remittance Date or Certificate Remittance Date
immediately following such Auction Date.
Settlement Procedures
The Auction Agent is required to advise each Broker-Dealer that submitted
an Order in an Auction of the Security Interest Rate for a Security for the next
Interest Period and, if such Order was a Bid or Sell Order, whether such Bid or
Sell Order was accepted or rejected, in whole or in part, by telephone not later
than 3:00 p.m., eastern time, on the Auction Date if the Interest Rate is the
Auction Rate and not later than 4:00 p.m. eastern time on the Auction Date if
the Interest Rate is the Net Loan Rate. Each Broker-Dealer that submitted an
Order on behalf of a Bidder is required to then advise such Bidder of the
applicable Security Interest Rate for the next Interest Period and, if such
Order was a Bid or a Sell Order, whether such Bid or Sell Order was accepted or
rejected, in whole or in part, confirm purchases and sales with each Bidder
purchasing or selling Securities as a result of the Auction and advise each
Bidder purchasing or selling Securities as a result of the Auction to give
instructions to its Participant to pay the purchase price against delivery of
such Securities or to deliver such Securities against payment therefor, as
appropriate. Pursuant to the Auction Agent Agreement, the Auction Agent is to
record each transfer of Securities on the Existing Securityholders Registry to
be maintained by the Auction Agent.
In accordance with DTC's normal procedures, on the Business Day after the
Auction Date, the transactions described above will be executed through DTC, so
long as DTC is the depository, and the accounts of the respective Participants
at DTC will be debited and credited and Securities delivered as necessary to
effect the purchases and sales of Securities as determined in the Auction.
Purchasers are required to make payment through their Participants in same-day
funds to DTC against delivery through their Participants. DTC will make payment
in accordance with its normal procedures, which now provide for payment
against delivery by its Participants in immediately available funds.
If any Existing Securityholder selling Securities in an Auction fails to
deliver such Securities, the Broker-Dealer of any person that was to have
purchased Securities in such Auction may deliver to such person a principal
amount of Securities that is less than the principal amount of Securities that
otherwise was to be purchased by such person but in any event equal to an
Authorized Denomination or any integral multiple thereof. In such event, the
principal amount of Securities to be delivered will be determined by such
Broker-Dealer. Delivery of such lesser principal amount of Securities will
constitute good delivery. Neither the Trustee nor the Auction Agent will have
any responsibility or liability with respect to the failure of a Potential
Securityholder, Existing Securityholder or their respective Broker-Dealer or
Participant to deliver the principal amount of Securities or to pay for the
Securities purchased or sold pursuant to an Auction or otherwise. For a further
description of the settlement procedures, see "SETTLEMENT PROCEDURES."
Trustee Not Responsible for Auction Agent, Market Agent and Broker-Dealers
The Trustee shall not be liable or responsible for the actions of or
failure to act by the Auction Agent, Market Agent or any Broker-Dealer under the
related Agreement, the related Terms Supplement or under the Auction Agent
Agreement, the Market Agent Agreement or any Broker-Dealer Agreement. The
Trustee may conclusively rely upon any information required to be furnished by
the Auction Agent, the Market Agent or any Broker-Dealer without undertaking any
independent review or investigation of the truth or accuracy of such
information.
Changes in Auction Terms
Changes in Auction Period or Periods
While any of the Securities are outstanding, the Administrator, may, from
time to time, change the length of the one or more Auction Periods in order to
conform with then current market practice with respect to similar securities or
to accommodate economic and financial factors that may affect or be relevant to
the length of the Auction Period and the interest rate borne by the Securities
(an "Auction Period Adjustment"). The Administrator will not initiate such
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<PAGE>
change in the length of the Auction Period unless it shall have received the
written consent from the Market Agent, which consent will not be unreasonably
withheld, not less than three days nor more than 20 days prior to the effective
date of an Auction Period Adjustment. The Administrator will initiate an
Auction Period Adjustment by giving written notice to the Trustee, the Auction
Agent, the Market Agent, the Security Guaranty Insurer and DTC in substantially
the form of, or containing substantially the information contained in, the
related Agreement at least 10 days prior to the Auction Date for such Auction
Period.
Any such Auction Period Adjustment shall not result in an Auction Period of
less than 7 days nor more than 91 days. If any such Auction Period Adjustment
will result in an Auction Period of less than the number of days in the then
current Auction Period, the notice described above will be effective only if it
is accompanied by a written statement of the Trustee, the Auction Agent and DTC
to the effect that they are capable of performing their duties, if any, under
the related Agreement, the Auction Agent Agreement and any Broker-Dealer
Agreement with respect to such changed Auction Period.
An Auction Period Adjustment will take effect only if (A) the Trustee and
the Auction Agent receive, by 11:00 a.m., eastern time, on the Business Day
before the Auction Date for the first such Auction Period, a certificate from
the Representative authorizing an Auction Period Adjustment specified in such
certificate, the certificate of the Market Agent described above and the written
statement of the Trustee, the Auction Agent DTC described above and (B)
Sufficient Bids exist at the Auction on the Auction Date for such first Auction
Period. If the condition referred to in (A) is not met, the Security Interest
Rate applicable for the next Auction Period will be determined pursuant to the
Auction Procedures and the Auction Period will be the Auction Period determined
without reference to the proposed change. If the condition referred to in (A) is
met, but the condition referred to in (B) above is not met, the Security
Interest Rate applicable for the next Auction Period will be the lesser of the
Maximum Auction Rate and the Net Loan Rate and the Auction Period will be the
Auction Period determined without reference to the proposed change.
Changes in the Auction Date
The Market Agent, at the written direction of the Representative, may
specify an earlier Auction Date (but in no event more than five Business Days
earlier) than the Auction Date that would otherwise be determined in accordance
with the definition of "Auction Date" with respect to one or more specified
Auction Periods in order to conform with then current market practice with
respect to similar securities or to accommodate economic and financial factors
that may affect or be relevant to the day of the week constituting an Auction
Date and the interest rate borne on the Securities. The Representative will not
consent to such change in the Auction Date unless the Representative will have
received from the Market Agent not less than three days nor more than 20 days
prior to the effective date of such change a written request for consent
together with a certificate demonstrating the need for change in reliance on
such factors. The Market Agent will provide notice of its determination to
specify an earlier Auction Date for one or more Auction Periods by means of a
written notice delivered at least 10 days prior to the proposed changed Auction
Date to the Trustee, the Auction Agent, the Trust, the Representative, and DTC.
The changes in Auction terms described above may be made with respect to
any Class of the Securities. In connection with any change in Auction Terms
described above, the Auction Agent is to provide such further notice to such
parties as is specified in the Auction Agent Agreement.
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<PAGE>
Appendix II
SETTLEMENT PROCEDURES
These Settlement Procedures apply separately to each Class of Securities and may
be different if specified in the related Prospectus Supplement.
(e) Not later than (i) 3:00 p.m. if the Security Interest Rate is the
Auction Rate or (2) 4:00 p.m. if the Security Interest Rate is the Net Loan
Rate, the Auction Agent is to notify by telephone each Broker-Dealer that
participated in the Auction held on such Auction Date and submitted an Order on
behalf of an Existing Securityholder or Potential Securityholder of:
(i) the Security Interest Rate fixed for the next Interest Period;
(ii) whether there were Sufficient Bids in such Auction;
(iii) if such Broker-Dealer (a "Seller's Broker-Dealer") submitted
Bids or Sell Orders on behalf of an Existing Securityholder, whether such
Bid or Sell Order was accepted or rejected, in whole or in part, and the
principal amount of Securities, if any, to be sold by such Existing
Securityholder;
(iv) if such Broker-Dealer (a "Buyer's Broker-Dealer") submitted a Bid
on behalf of a Potential Securityholder, whether such Bid was accepted or
rejected, in whole or in part, and the principal amount of Securities, if
any, to be purchased by such Potential Securityholder;
(v) if the aggregate amount of Securities to be sold by all Existing
Securityholders on whose behalf such Seller's Broker-Dealer submitted Bids
or Sell Orders exceeds the aggregate principal amount of Securities to be
purchased by all Potential Securityholders on whose behalf such Buyer's
Broker-Dealer submitted a Bid, the name or names of one or more Buyer's
Broker-Dealers and the name of the Participant, if any, of each such
Buyer's Broker-Dealer (a "Participant") acting for one or more purchasers
of such excess principal amount of Securities and the principal amount of
Securities to be purchased from one or more Existing Securityholders on
whose behalf such Seller's Broker-Dealer acted by one or more Potential
Securityholders on whose behalf each of such Buyer's Broker-Dealers acted;
(vi) if the principal amount of Securities to be purchased by all
Potential Securityholders on whose behalf such Buyer's Broker-Dealer
submitted a Bid exceeds the amount of Securities to be sold by all Existing
Securityholders on whose behalf such Seller's Broker-Dealer submitted a Bid
or a Sell Order, the name or names of one or more Seller's Broker-Dealers
(and the name of the Participant, if any, of each such Seller's Broker-
Dealer) acting for one or more sellers of such excess principal amount of
Securities and the principal amount of Securities to be sold to one or more
Potential Securityholders on whose behalf such Buyer's Broker-Dealer acted
by one or more Existing Securityholder on whose behalf each of such
Seller's Broker-Dealers acted; and
(vii) the Auction Date for the next succeeding Auction.
(f) On each Auction Date, each Broker-Dealer that submitted an Order on
behalf of any Existing Securityholder or Potential Securityholder is to:
(i) advise each Existing Securityholder and Potential Securityholder
on whose behalf such Broker-Dealer submitted a Bid or Sell Order in the
Auction on such Auction Date whether such Bid or Sell Order was accepted or
rejected, in whole or in part;
(ii) in the case of a Broker-Dealer that is a Buyer's Broker-Dealer,
advise each Potential Securityholder on whose behalf such Buyer's Broker-
Dealer submitted a Bid that was accepted, in whole or in
II-1
<PAGE>
part, to instruct such Potential Securityholder's Participant to pay to
such Buyer's Broker-Dealer (or its Participant) through DTC the amount
necessary to purchase the principal amount of the Securities to be
purchased pursuant to such Bid against receipt of such Securities together
with accrued interest;
(iii) in the case of a Broker-Dealer that is a Seller's Broker-Dealer,
instruct each Existing Securityholder on whose behalf such Seller's Broker-
Dealer submitted a Sell Order that was accepted, in whole or in part, or a
Bid that was accepted, in whole or in part, to instruct such Existing
Securityholder's Participant to deliver to such Seller's Broker-Dealer (or
its Participant) through DTC the principal amount of the Securities to be
sold pursuant to such Order against payment therefor;
(iv) advise each Existing Securityholder on whose behalf such Broker-
Dealer submitted an Order and each Potential Securityholder on whose behalf
such Broker-Dealer submitted a Bid of the Security Interest Rate for the
next Interest Period;
(v) advise each Existing Securityholder on whose behalf such Broker-
Dealer submitted an Order of the next Auction Date; and
(vi) advise each Potential Securityholder on whose behalf such Broker-
Dealer submitted a Bid that was accepted, in whole or in part, of the next
Auction Date.
(g) On the basis of the information provided to it pursuant to paragraph
(a) above, each Broker-Dealer that submitted a Bid or Sell Order in an Auction
is required to allocate any funds received by it in connection with such Auction
pursuant to paragraph (b)(ii) above, and any Securities received by it in
connection with such Auction pursuant to paragraph (b)(iii) above, among the
Potential Securityholders, if any, on whose behalf such Broker-Dealer submitted
Bids, the Existing Securityholder, if any, on whose behalf such Broker-Dealer
submitted Bids or Sell Orders in such Auction, and any Broker-Dealers identified
to it by the Auction Agent following such Auction pursuant to paragraph (a)(v)
or (a)(vi) above.
(h) On each Auction Date:
(i) each Potential Securityholder and Existing Securityholder with an
Order in the Auction on such Auction Date will instruct its Participant as
provided in (b)(ii) or (b)(iii) above, as the case may be:
(ii) each Seller's Broker-Dealer that is not a Participant in DTC's
system will instruct its Participant to deliver such Securities through DTC
to a Buyer's Broker-Dealer (or its Participant) identified to such Seller's
Broker-Dealer pursuant to (a)(v) above against payment therefor; and
(iii) each Buyer's Broker-Dealer that is not a Participant in DTC's
system will instruct its Participant to pay through DTC to Seller's Broker-
Dealer (or its Participant) identified following such Auction pursuant to
(a)(vi) above the amount necessary to purchase the Securities to be
purchased pursuant to (b)(ii) above against receipt of such Securities.
(i) On the Business Day following each Auction Date;
(i) each Participant for a Bidder in the Auction on such Auction Date
referred to in (d)(i) above will instruct DTC to execute the transactions
described under (b)(ii) or (b)(iii) above for such Auction, and DTC will
execute such transactions;
(ii) each Seller's Broker-Dealer or its Participant will instruct DTC
to execute the transactions described in (d)(ii) above for such Auction,
and DTC will execute such transactions; and
(iii) each Buyer's Broker-Dealer or its Participant will instruct DTC
to execute the transactions described in (d)(iii) above for such Auction,
and DTC will execute such transactions.
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<PAGE>
(j) If an Existing Securityholder selling Securities in an Auction fails
to deliver such Securities (by authorized book-entry), a Broker-Dealer may
deliver to the Potential Securityholder on behalf of which it submitted a Bid
that was accepted a principal amount of Securities that is less than the
principal amount of Securities that otherwise was to be purchased by such
Potential Securityholder. In such event, the principal amount of Securities to
be so delivered will be determined solely by such Broker-Dealer (but only in
Authorized Denominations). Delivery of such lesser principal amount of
Securities will constitute good delivery. Notwithstanding the foregoing terms
of this paragraph (f), any delivery or nondelivery of Securities which will
represent any departure from the results of an Auction, as determined by the
Auction Agent, will be of no effect unless and until the Auction Agent will have
been notified of such delivery or nondelivery in accordance with the provisions
of the Auction Agent Agreement and the Broker-Dealer Agreements. Neither the
Trustee nor the Auction Agent will have any responsibility or liability with
respect to the failure of a Potential Securityholder, Existing Securityholder or
their Respective Broker-Dealer or Participant to take delivery of or deliver, as
the case may be, the principal amount of the Securities purchased or sold
pursuant to an Auction or otherwise.
II-3
<PAGE>
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No dealer, salesperson or other individual has been authorized to give any
information or to make any representations other than those contained in this
Prospectus Supplement and the accompanying Prospectus in connection with the
offer made by this Prospectus Supplement and the accompanying Prospectus and, if
given or made, such information or representations must not be relied upon as
having been authorized by the Representative or the Underwriters. This
Prospectus Supplement and the accompanying Prospectus do not constitute an offer
to sell, or a solicitation of an offer to buy, the Notes in any jurisdiction
where, or to any person to whom, it is unlawful to make such offer or
solicitation.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
PROSPECTUS SUPPLEMENT
<S> <C>
Summary of Terms......................................................... S-4
Risk Factors............................................................. S-22
Home Improvement Lending Programs........................................ S-24
The Trust................................................................ S-28
The Representative and the Originators................................... S-28
The Loan Pool............................................................ S-33
Maturity, Prepayment and Yield Considerations............................ S-35
Description of the Notes................................................. S-41
The Transfer and Servicing Agreements ................................... S-57
Federal Income Tax Considerations........................................ S-66
State Tax Considerations................................................. S-66
ERISA Considerations..................................................... S-66
Legal Investment Considerations.......................................... S-67
Underwriting............................................................. S-68
Legal Matters............................................................ S-68
Rating of the Notes...................................................... S-68
Financial Information ................................................... S-69
Index of Principal Terms................................................. S-70
Annex I-Global Clearance, Settlement and Tax Documentation Procedures.... I-1
PROSPECTUS
Prospectus Supplement ................................................... 3
Available Information ................................................... 3
Reports to Securityholders............................................... 4
Incorporation of Certain Documents by Reference......................... 4
Summary of Terms ........................................................ 5
Risk Factors............................................................. 21
The Trusts............................................................... 26
Use of Proceeds ......................................................... 39
The Representative and the Originators................................... 39
The Single Family Loan Lending Program .................................. 39
Description of the Securities ........................................... 43
Credit Enhancement ...................................................... 50
Maturity, Prepayment and Yield Considerations ........................... 55
The Agreements .......................................................... 57
Certain Legal Aspects of the Mortgage Loans ............................. 67
Federal Income Tax Consequences.......................................... 76
ERISA Considerations .................................................... 100
Legal Investment Considerations.......................................... 102
Plan of Distribution .................................................... 102
Legal Matters............................................................ 103
Experts ................................................................. 103
Financial Information ................................................... 103
Rating................................................................... 103
Index of Principal Terms ................................................ 105
Appendix I-Auction Procedures............................................ I-1
Appendix II-Settlement Procedures........................................ II-1
</TABLE>
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$300,000,000
[LOGO OF THE MONEY STORE APPEARS HERE]
The Money Store
Residential Trust 1997-I
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PROSPECTUS SUPPLEMENT
-------------------
LEHMAN BROTHERS
BEAR, STEARNS & CO. INC.
September 26, 1997
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