Prospectus Supplement dated March 11, 1999
(To Prospectus dated March 11, 1999)
$115,000,000
FIRST ALLIANCE MORTGAGE LOAN TRUST 1999-1
[GRAPHIC OMITTED]
Seller and Servicer
- ----------------------- The trust will issue two classes of Class A
| Consider | Certificates. The Class A Certificates identified
| carefully the risk | below are being offered by this prospectus supplement
| factors beginning | and accompanying prospectus.
| on page S-7 of |
| this prospectus | The Certificates
| supplement and |
| on page 14 of the | Initial
| prospectus. | Certificate Interest Rate
| | Principal
| The Class A | Balance
| Certificates | Class A-1 $85,000,000 6.68% annual pass-
| represent interests | through rate
| in the Trust only |
| and will not | Class A-2 $30,000,000 variable pass-through
| represent interests | rate equal to one-month
| in or obligations of| LIBOR plus 0.32%
| any other entity. |
| | o Distributions will be made monthly, commencing
| This prospectus | April 20, 1999.
| supplement may be |
| used to offer and | o Each class of Class A Certificates represents an
| sell the Class A | undivided ownership interest in the related group
| Certificates only if| of mortgage loans.
| accompanied by |
| the prospectus. | o The Trust will make a REMIC election.
- -----------------------
Credit Enhancement
o The certificate insurance policy, issued by MBIA
Insurance Corporation, guarantees payment of
interest and principal on the Class A Certificates
at the times and to the extent described herein.
[MBIA LOGO]
o Excess interest received on the mortgage loans
will be applied as a payment of principal on the
Class A Certificates to establish and maintain
required levels of overcollateralization.
o The Trust is also issuing one or more classes of
certificates that are subordinated to the Class A
Certificates. Subordination of these certificates
provides credit enhancement for the Class A
Certificates.
Neither the Securities and Exchange Commission nor any state securities
commission has approved the Class A Certificates or determined that this
prospectus supplement or the prospectus is accurate or complete. Any
representation to the contrary is a criminal offense.
The Underwriter listed below will offer the Class A Certificates from time to
time in negotiated transactions or otherwise, at varying prices to be determined
at the time of sale. We expect to receive proceeds, including accrued interest,
of approximately 99.835% of the aggregate principal balance of the Class A
Certificates, before deducting our issuance expenses, estimated to be
approximately $300,000. The Class A Certificates will not be listed on any
national securities exchange or any automated quotation system of any registered
securities association such as NASDAQ. See "Underwriting" herein.
We expect to deliver the Class A Certificates to the Underwriter on or about the
closing date of March 19, 1999, in book entry form through The Depository Trust
Company, Cedelbank and the Euroclear System.
Lehman Brothers
Important Notice about Information Presented in
this Prospectus Supplement and the Accompanying Prospectus
We provide information to you about the Class A Certificates in two
separate documents that progressively provide more detail:
o the accompanying prospectus, which provides general information, some of
which may not apply to the Class A Certificates, and
o this prospectus supplement, which describes the specific terms of your
Class A Certificates.
If the description of any matter varies between this prospectus
supplement and the prospectus, you should rely on the information in this
prospectus supplement.
This prospectus supplement begins with a summary of terms to give you
an initial overview. The summary of terms does not contain all the information
that you need to consider in making your investment decision.
We include cross-references in this prospectus supplement and the
accompanying prospectus to captions in these documents where you can find
further related information. The following Table of Contents and the Table of
Contents included in the accompanying prospectus provide page references for the
captions.
You can find a listing of the pages where capitalized terms used in
this prospectus supplement and the accompanying prospectus are first defined
under the caption "Index to Location of Principal Defined Terms" beginning on
page A-1 of this prospectus supplement and on page A-1 of the accompanying
prospectus.
All statistical data with respect to the mortgage loans are
approximate and are based on the scheduled principal balances of the mortgage
loans included in the Trust as of the close of business on March 1, 1999, except
where otherwise noted.
This prospectus supplement includes some "forward looking" statements
that contain projections of various financial items. You should carefully review
"Risk Factors" and "Prepayment and Yield Considerations" in this prospectus
supplement. These sections discuss the risks that may cause actual yields and
distributions on the Class A Certificates to differ significantly from the
projections in the forward looking statements.
You should rely only on the information contained or incorporated by
reference in this prospectus supplement and the accompanying prospectus. We have
not authorized anyone to provide you with different information.
We are not offering the Class A Certificates in any state where the
offer is not permitted.
We do not claim that the information in this prospectus supplement and
prospectus is accurate as of any date other than the dates stated on the
respective covers.
Dealers will deliver a prospectus supplement and prospectus when acting
as underwriters of the Class A Certificates and with respect to their unsold
allotments or subscriptions. In addition, all dealers selling Class A
Certificates will be required to deliver a prospectus supplement and prospectus
for ninety days following the date of this prospectus supplement.
TABLE OF CONTENTS
Prospectus Supplement
Summary of Terms............................................................S-1
Risk Factors................................................................S-7
The Portfolio of Mortgage Loans............................................S-13
Use of Proceeds............................................................S-14
The Mortgage Loan Pool.....................................................S-15
Prepayment And Yield Considerations........................................S-27
Additional Information.....................................................S-31
Description of the Class A Certificates....................................S-32
The Seller.................................................................S-44
The Certificate Insurance Policies and the
Certificate Insurer..................................................S-45
The Pooling and Servicing Agreement........................................S-49
Certain Federal Income Tax Consequences....................................S-55
ERISA Considerations.......................................................S-57
Ratings....................................................................S-60
Legal Investment Considerations............................................S-60
Underwriting...............................................................S-60
Experts....................................................................S-61
Certain Legal Matters......................................................S-61
Global Clearance, Settlement and Tax
Documentation Procedures..............................................I-1
Index to Location of Principal Defined Terms................................A-1
Prospectus
Available Information.........................................................3
Reports to Owners.............................................................3
Incorporation of Certain Documents by Reference...............................3
Prospectus Supplement.........................................................3
Summary of Prospectus.........................................................5
Risk Factors.................................................................14
The Trusts...................................................................19
The Mortgage Pools...........................................................22
Mortgage Loan Program........................................................24
Description of the Securities................................................30
Subordination................................................................43
Description of Credit Enhancement............................................44
Hazard Insurance; Claims Thereunder..........................................48
The Company..................................................................49
The Servicer.................................................................49
The Master Servicer..........................................................49
The Pooling and Servicing Agreement..........................................49
Yield Considerations.........................................................53
Maturity and Prepayment Considerations.......................................55
Certain Legal Aspects of Mortgage Loans
and Related Matters....................................................56
Certain Federal Income Tax Consequences......................................60
ERISA Considerations.........................................................70
Legal Investment Matters.....................................................73
Use of Proceeds..............................................................73
Methods of Distribution......................................................74
Legal Matters................................................................74
Financial Information........................................................75
Rating.......................................................................75
Index of Principal Definitions...............................................76
SUMMARY OF TERMS
This summary provides an overview. It does not contain all of the information
that you need to consider in making your investment decision. To understand all
of the terms of the Class A Certificates and the characteristics of the mortgage
loans, read carefully the entire prospectus supplement and the accompanying
prospectus.
Securities Offered
On the closing date, the Trust will issue two classes of Class A Certificates.
The Class A Certificates represent undivided ownership interests in the assets
of the Trust and are not the obligation of any other entity.
The assets of the Trust are separated into two groups each containing mortgage
loans secured by residential properties.
o The fixed rate group consists of fixed-rate first, second or third lien
mortgage loans.
o The variable rate group consists of variable-rate first lien mortgage
loans.
The Class A Certificates are also separated into two groups. In general, the
Trust will distribute collections on the fixed rate mortgage loans to the Class
A-1 Certificates and collections on the variable rate mortgage loans to the
Class A-2 Certificates.
You will receive payments of interest and principal on your Class A Certificates
as provided in this prospectus supplement.
The Class A Certificates will be issued in book-entry form, in denominations of
$25,000 and integral multiples of $1,000 in excess thereof. You will not receive
a definitive certificate representing your Class A Certificates except in the
limited circumstances described in this prospectus supplement and the
accompanying prospectus.
See "Global Clearance, Settlement and Tax Documentation Procedures" in Annex I
attached to this prospectus supplement, "Description of the Class A Certificates
- -- Book Entry Registration of the Class A Certificates" in this prospectus
supplement and "Description of the Securities -- Form of the Securities" in the
accompanying prospectus for more detail.
The Seller, the Trust and the Trustee
o The Seller, First Alliance Mortgage Company, maintains its corporate
headquarters at 17305 Von Karman Avenue, Irvine, California 92614-6203.
You can reach the Seller by telephone at (949) 224-8500.
o The Seller, First Alliance Mortgage Company, is forming First Alliance
Mortgage Loan Trust 1999-1 to own the two groups of mortgage loans and
certain other assets. The Seller originated or acquired the mortgage loans
in accordance with its credit and underwriting guidelines.
o The Trustee is Norwest Bank Minnesota, National Association and its
corporate trust office is located in Minneapolis, Minnesota.
See "The Seller" and "The Pooling and Servicing Agreement -- The Trustee" in
this prospectus supplement and "Mortgage Loan Program" in the accompanying
prospectus for more detail.
The Servicer and the Oversight Agent
First Alliance Mortgage Company will be the initial Servicer for a term lasting
until June 30, 1999. Thereafter, First Alliance may be rehired for consecutive
terms of two months by the Certificate Insurer in its sole discretion. The
Servicer will retain a fee equal to 0.50% per annum. The servicing fee will be
payable monthly and will be based on the outstanding principal balance of the
mortgage loans. Each month the Servicer will advance to the Trust out of its own
funds an amount equal to all delinquent payments of interest and scheduled
principal on the mortgage loans, but only to the extent it determines, in its
reasonable business judgment, that such advance will be recoverable from the
related mortgage loan.
See "The Pooling and Servicing Agreement -- Delinquency Advances and
Compensating Interest" in this prospectus supplement and "Description of the
Securities -- Advances" in the accompanying prospectus for more detail.
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Norwest Bank Minnesota, National Association, will be the Oversight Agent. The
Oversight Agent will receive a fee equal to 0.03% per annum. The oversight agent
fee will be payable monthly and will be based on the outstanding principal
balance of the Class A Certificates. The Oversight Agent will supervise, monitor
and oversee the obligations of the Servicer.
Property of the Trust
Payments on the Class A Certificates will be made only from proceeds of the
assets of the Trust. The Trust's assets include:
o the mortgage loans;
o all payments of principal and interest on the mortgage loans other than
payments of principal and interest due on the mortgage loans on or before
March 1, 1999, as further described in this prospectus supplement;
o two certificate insurance policies issued by MBIA Insurance Corporation;
and
o certain other property.
See "The Pooling and Servicing Agreement -- Formation of the Trust" in this
prospectus supplement for more detail.
Payment Dates
You will be entitled to receive payments of principal and interest on your Class
A Certificates on the 20th day of each calendar month or, if the 20th is not a
business day, the next business day, beginning April 20, 1999 (each a "Payment
Date").
Interest Rates
The annual interest rate on the Class A-1 Certificates is 6.68%, except that the
annual interest rate for the Class A-1 Certificates will increase to 7.18% after
the clean-up call date.
The annual interest rate on the Class A-2 Certificates is a variable rate. On
each Payment Date, the interest payable on the Class A-2 Certificates will equal
the lesser of the formula rate and the available funds cap described in this
prospectus supplement.
o The formula rate is equal to the lesser of (i) (A) LIBOR plus 0.32% on or
before the clean-up call date or (B) LIBOR plus 0.64% after the clean-up
call date and (ii) 15%.
o If the formula rate on the Class A-2 Certificates is limited by the
available funds cap, the Trustee will keep track of the amount of the
shortfall in interest. If funds are available on future Payment Dates, the
Trustee will distribute all or part of such funds to the owners of the
Class A- 2 Certificates to make up for such shortfalls.
See "Description of the Class A Certificates -- Payment Dates,"
" -- Distributions of Interest" and " -- Calculation of LIBOR" in this
prospectus supplement for more detail.
Interest Payments
On each Payment Date, you will be entitled to receive payments of interest on
your Class A Certificates equal to:
o interest accrued at the interest rate specified for your class of Class A
Certificates during the related accrual period on the outstanding principal
balance of your Class A Certificates; and
o any interest that was due on a prior Payment Date but was not paid (as well
as, to the extent permitted by applicable law, interest on such shortfall
at the interest rate for your Class A Certificates).
Interest on the Class A-1 Certificates will be calculated on the basis of a
360-day year consisting of twelve 30-day months. Interest on the Class A-2
Certificates will be calculated on the basis of the actual number of days and a
year of 360 days.
See "Description of the Class A Certificates -- Distributions" in this
prospectus supplement for more detail.
Principal Payments
On each Payment Date, you may be entitled to receive payments of principal on
the Class A Certificates. The amount that you will be entitled to receive is the
Class A Principal Distribution Amount (an amount that is determined in this
prospectus supplement under the caption "Description of the Class A Certificates
- -- Distributions"). Generally, the Class A Principal Distribution Amount for
each class of the Class A Certificates consists of:
S-2
o unscheduled payments of principal received during the prior calendar
month, scheduled payments of principal received during the related due
period and delinquent payments of scheduled principal advanced by the
Servicer; and
o certain amounts of excess interest on the mortgage loans.
The above amounts relating to the fixed rate mortgage loans are used to make
payments on the Class A-1 Certificates. The above amounts relating to the
variable rate mortgage loans are used to make payments on the Class A-2
Certificates.
See "Description of the Class A Certificates -- Distributions" in this
prospectus supplement for more detail.
Credit Enhancement
The Class A Certificates benefit from three forms of credit enhancement --
overcollateralization, crosscollateralization and the certificate insurance
policies.
Overcollateralization. Interest collected on each group of mortgage loans in
excess of the amount needed to pay interest on the related Class A Certificates
and certain expenses of the Trust will be applied to accelerate the reduction of
the principal balance of the related Class A Certificates. This feature is known
as overcollateralization (i.e., the outstanding principal balance of the related
mortgage loans exceeds the outstanding principal balance of the related Class A
Certificates). Once overcollateralization reaches a target level, the
acceleration mechanism stops.
The target level of overcollateralization for a group of mortgage loans may
increase or decrease over time. If the target level increases, amortization of
the related Class A Certificates will accelerate until the actual
overcollateralization reaches the new target level. If the target level
decreases, amortization of the related Class A Certificates will decelerate
until overcollateralization reaches the new target level.
See "Prepayment and Yield Considerations," "Description of the Class A
Certificates -- Overcollateralization Provisions" in this prospectus supplement
and "Description of Credit Enhancement" in the accompanying prospectus for more
detail.
Crosscollateralization. Excess interest generated by one group of mortgage loans
may be used to fund shortfalls in available funds in the other mortgage loan
group or accelerate the amortization of the Class A Certificates related to the
other mortgage loan group.
See "Description of the Class A Certificates -- Crosscollateralization
Provisions" in this prospectus supplement for more detail.
Certificate Insurance Policies. Payments on your Class A Certificates will be
insured by MBIA Insurance Corporation (the "Certificate Insurer"). In return for
an insurance premium, the Certificate Insurer will issue two financial guaranty
insurance policies that unconditionally guarantee certain payments for the
benefit of the owners of the Class A Certificates.
Before each Payment Date, the Trustee will determine whether funds available to
make the required payments of principal and interest on the Class A Certificates
are sufficient. If a deficiency exists that is covered by a certificate
insurance policy, then the Trustee will make a claim under the related
certificate insurance policy.
See "The Certificate Insurance Policies and the Certificate Insurer" in this
prospectus supplement for more detail.
The effect of each certificate insurance policy is to guaranty the timely
payment of interest and the ultimate payment of principal on the Class A
Certificates. The certificate insurance policies
cannot be canceled for any reason.
Unless it defaults on its obligations under the certificate insurance policies
or becomes bankrupt or insolvent, the Certificate Insurer can exercise certain
rights of the owners of the Class A Certificates, without obtaining their
consent. In addition, owners of the Class A Certificates must generally obtain
the Certificate Insurer's written consent before exercising certain rights.
When the Certificate Insurer makes an insured payment on a Class A Certificate,
the Trustee, as attorney-in-fact for the owners, will receive the insured
payment and disburse it to the owners. The Certificate Insurer will then become
entitled to
S-3
receive reimbursement amounts to the extent of the insured payment.
See "The Certificate Insurance Policies and the Certificate Insurer" in this
prospectus supplement for more detail.
Other Securities
The Trust is also issuing a class of residual certificates that represent the
most junior ownership interests in the Trust.
The residual certificates are not being offered by this prospectus supplement
and the accompanying prospectus.
Final Payment Dates
The final scheduled Payment Date for each class of the Class A Certificates is
as follows:
o Class A-1 -- June 20, 2030
o Class A-2 -- June 20, 2030
The actual final Payment Date for each class of the Class A Certificates is
expected to occur much earlier for each class.
See "Prepayment and Yield Considerations -- Prepayments and Yield Scenarios for
Class A Certificates" in this prospectus supplement for more detail.
Information About the Initial Mortgage Loans
On March 1, 1999, there were 1,012 initial mortgage loans designated for
inclusion in the Trust secured by mortgages on residential properties including
investment properties, which may be detached, attached, one-to-four family
dwellings, condominium units or units in a planned unit development. The
information provided below is as of March 1, 1999.
Initial Mortgage Loans in Fixed Rate Group
Number of Loans 798
Aggregate Loan Balance $65,528,894.36
Average Loan Balance $82,116.41
Range of Loan Balances $3,457.91 - $341,954.00
Range of Mortgage Rates 6.00% - 17.95%
Weighted Average Mortgage Rate 9.49%
Weighted Average Combined Original
Loan-to-Value Ratio 60.89%
Weighted Average Remaining
Term to Stated Maturity 320 Months
Range of Remaining Terms to
Stated Maturity 39 - 360 Months
Percentage of:
First Lien Mortgage Loans 97.69%
Second Lien Mortgage Loans 1.98%
Third Lien Mortgage Loans 0.32%
Percentage of Balloon Mortgage Loans 0.87%
Properties
Single-family dwellings 90.08%
Planned unit developments 0.48%
Condominiums 2.03%
Two- to Four- family 7.42%
Initial Mortgage Loans in Variable Rate Group
Number of Loans 214
Aggregate Loan Balance $24,505,006.73
Average Loan Balance $114,509.38
Range of Loan Balances $24,253.00 - $361,839.97
Product Type:
Six Month LIBOR 93.55%
2/28 LIBOR 6.45%
Gross Margin Range:
Six Month LIBOR 4.49% - 8.79%
2/28 LIBOR 5.50% - 6.25%
Current Weighted Average Mortgage Rate 8.43%
Range of Current Mortgage Rates 6.99% - 11.99%
Weighted Average Maximum Lifetime
Mortgage Rate 15.43%
Range of Maximum Lifetime
Mortgage Rates 13.99% - 18.99%
Weighted Average Lifetime Minimum
Mortgage Rate 8.43%
Range of Minimum Lifetime
Mortgage Rates 6.99% - 11.99%
Weighted Average Original
Loan-to-Value Ratio 66.54%
Weighted Average Remaining
Term to Stated Maturity 344 Months
Range of Remaining Terms to
Stated Maturity 120 - 360 Months
Percentage of:
First Lien Mortgage Loans 100%
Properties
Single-family dwellings 92.43%
Condominiums 5.19%
Two- to Four- family 2.39%
Subsequent Mortgage Loans
On the closing date, we will deposit a cash amount of up to $24,966,099 in a
pre-funding account. During the period from the closing date through April 30,
1999, the Trust will use funds in this account to purchase additional mortgage
loans from the Seller.
As new mortgage loans are purchased and added to the pool, the aggregate
principal balance of the mortgage loans will increase and the funds in the
pre-funding account will decrease by the same amount.
S-4
See "Description of the Class A Certificates -- Pre-Funding Account," "The
Mortgage Loan Pool -- Conveyance of Subsequent Mortgage Loans -- Fixed Rate
Group" and " -- Variable Rate Group" in this prospectus supplement for more
detail.
Capitalized Interest Account
On the closing date, we will deposit a cash amount in the capitalized interest
account to cover shortfalls in interest, if any, accruing on (i) the Class A-1
Certificates through April 30, 1999 and (ii) the Class A-2 Certificates through
May 19, 1999 as a result of the Class A Certificate principal balance exceeding
the principal balance of the initial mortgage loans. On the April 1999 and May
1999 Payment Dates, the Trustee will use the funds in the capitalized interest
account to pay you such shortfalls in interest.
See "Description of the Class A Certificates -- Capitalized Interest Account" in
this prospectus supplement for more detail.
Mandatory Prepayment of the Class A Certificates
We expect to use nearly all the amounts that we will deposit in the pre-funding
account to purchase additional mortgage loans. Therefore, you will probably not
receive any significant prepayments of principal from the pre-funding account.
However, any amount remaining in the pre-funding account on April 30, 1999 will
be paid to you on the Payment Date in May 1999 as a principal prepayment on the
related Class A Certificates.
See "Risk Factors -- Risks of Prepayments from Pre-Funding Account" and
"Description of the Class A Certificates -- Distributions" in this prospectus
supplement for more detail.
Optional Termination
The Servicer has the right to purchase all the mortgage loans and other property
in the Trust on any Payment Date when the aggregate principal balance of the
mortgage loans has declined to less than $11,500,000. Any such repurchase will
result in the early retirement of the Class A Certificates.
In the event the Servicer does not exercise its right to purchase all of the
mortgage loans and other property in the Trust, the Oversight Agent will have
such right.
See "The Pooling and Servicing Agreement -- Optional Termination" in this
prospectus supplement for more detail.
Ratings
The Class A Certificates will not be issued unless they are rated "Aaa" by
Moody's Investors Service, Inc. and "AAA" by Standard & Poor's Ratings Services,
a division of The McGraw-Hill Companies, Inc. A security rating is not a
recommendation to buy, sell or hold securities, and may be revised or withdrawn
at any time by the assigning rating agency.
See "Ratings" in this prospectus supplement and the accompanying prospectus for
more detail.
Tax Aspects
We will elect to treat certain portions of the Trust as a "real estate mortgage
investment conduit" or REMIC. The Class A Certificates will be designated as
"regular interests" in a REMIC and will be treated as debt instruments of the
Trust for federal income tax purposes. You should consult with your tax advisors
as to the consequences of owning the Class A Certificates.
See "Certain Federal Income Tax Consequences" in this prospectus supplement and
in the accompanying prospectus for more detail.
Legal Investment
You should consult with your legal advisor to see if you are permitted to buy
the Class A Certificates since the legal investment rules vary depending on what
kind of entity you are and who regulates you. The Class A Certificates will not
constitute "mortgage related securities" for purposes of the Secondary Mortgage
Market Enhancement Act of 1984, as amended.
See "Legal Investment Considerations" in this prospectus supplement and "Legal
Investment Matters" in the accompanying prospectus for more detail.
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ERISA
Subject to important considerations discussed under "ERISA Considerations" in
this prospectus supplement and the accompanying prospectus, we believe that the
Class A Certificates will be eligible for purchase by employee benefit plans.
You should carefully review with your legal advisor whether the purchase or
holding of the Class A Certificates could give rise to a prohibited transaction.
See "ERISA Considerations" in this prospectus supplement and in the accompanying
prospectus for more detail.
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RISK FACTORS
Before deciding whether to purchase the Class A Certificates, you should
consider the following risk factors (as well as the factors discussed under
"Risk Factors" in the prospectus). If any of the following risks are realized,
your investment could be materially and adversely affected.
Risk of Limitations to The calculation of the interest rate on the Class A-2
Adjustments of the Certificates is based upon the value of an index that
Class A-2 Interest is different from the index applicable to the variable
Rate rate mortgage loans. Differences may also result from
the use of a different rate determination date or a
different rate adjustment date. Since the mortgage
loan index may respond to different economic and
market factors than the Class A-2 index, there is not
necessarily a correlation in movement between them.
For example, it is possible that the index on certain
of the mortgage loans may decline while the Class A-2
index is stable or rising. It is also possible that
both the mortgage index and the Class A-2 index may
decline or increase during the same period, but that
the mortgage index on certain of the mortgage loans
may decline more rapidly or increase more slowly than
the Class A-2 index.
This absence of a correlation between movement in the
mortgage loan index and the Class A-2 index may reduce
the interest payable on the Class A-2 Certificates
because the Class A-2 Certificates are subject to an
interest rate cap. If the amount of interest that
would accrue on the Class A-2 Certificates at the
formula rate is greater than the available funds cap,
then a deficiency in interest paid to the owners of
the Class A-2 Certificates will occur. Although owners
of the Class A-2 Certificates will be entitled to
receive such deficiency from excess available funds on
future payment dates, there is no assurance that
excess funds will be available for such purpose. The
ratings of the Class A-2 Certificates do not address
the likelihood of the payment of any such deficiency,
nor will the Certificate Insurer be liable for the
payment of any such deficiency.
Sensitivity The rate and timing of payments of principal of the
to Prepayments mortgage loans (i.e., the prepayment experience),
among other factors, will affect the rate of principal
payments and the yield to maturity of the Class A
Certificates. Because the prepayment experience will
depend on future events and a variety of factors, the
prepayment experience is uncertain and, in all
likelihood, will not conform to any projected rates of
prepayment. Generally, in a declining interest rate
environment, mortgage loans are more likely to
experience prepayments than if prevailing interest
rates remain constant or rise above the interest rates
on the mortgage loans. Conversely, in an increasing
interest rate environment, prepayments on mortgage
loans are likely to decrease.
The borrowers can prepay the mortgage loans, in whole
or in part, at any time. However, approximately 47.15%
and 46.74%, of the mortgage loans (by principal
balance) in the fixed rate group and the variable rate
group, respectively, as of March 1, 1999 require the
borrower to pay a fee in connection with certain
prepayments. The requirement to pay such a fee may
result in rates of prepayment that are lower than
comparable pools of mortgage loans that do not have
such a requirement. Also, many of the mortgage loans
have due-on-sale provisions which, if enforced by the
Servicer, will result in prepayment of the mortgage
loans.
See "Prepayment and Yield Considerations" in this
prospectus supplement and "Certain Legal Aspects of
the Mortgage Loans and Related Matters
-- Enforceability of Certain Provisions" in the
accompanying prospectus for more detail.
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The mortgage loans in the variable rate group are
variable rate mortgage loans. Variable rate mortgage
loans, like fixed rate mortgage loans, are more likely
to experience principal prepayments in a low interest
rate environment. For example, if prevailing interest
rates were to fall, borrowers with variable rate
mortgage loans may be willing to refinance the
mortgage loans with a fixed rate loan to "lock in" a
lower interest rate. Since the variable rate mortgage
loans also have periodic rate caps, and maximum and
minimum interest rates, these caps can also affect the
likelihood of prepayments resulting from refinancings.
In addition, the delinquency and loss experience on
variable rate mortgage loans may differ from that on
fixed rate mortgage loans because the amount of the
monthly payments on variable rate mortgage loans are
subject to adjustment on each payment change date.
Approximately 6.45% of the initial mortgage loans in
the variable rate group by aggregate principal balance
as of March 1, 1999 are 2/28 Loans, as defined herein,
that bear interest at a fixed rate for two years after
origination and thereafter have periodic adjustments
in the same manner as the remaining initial mortgage
loans in the variable rate group. As with all mortgage
loans, the rate of prepayments on mortgage loans that
are 2/28 Loans and are in the initial fixed rate
period is sensitive to prevailing interest rates. The
prepayment behavior of the 2/28 Loans may differ from
that of the other mortgage loans. As a 2/28 Loan
approaches its initial adjustment date, the borrower
may become more likely to refinance such loan to avoid
an increase in the loan rate, even if fixed rate loans
are only available at rates that are slightly lower or
higher than the loan rate before adjustment.
The average life of the Class A Certificates, and, if
purchased at other than par, the yields realized by
owners of the Class A Certificates will be sensitive
to levels of payment (including any payments of
principal received before the scheduled due date) on
the mortgage loans. In general, the yield on the Class
A Certificates if purchased at a premium from the
outstanding principal amount thereof will be adversely
affected by a higher than anticipated level of
prepayments and enhanced by a lower than anticipated
level. Conversely, the yield on Class A Certificates
if purchased at a discount from the outstanding
principal amount thereof will be adversely affected by
a lower than anticipated level of prepayments.
See "Prepayment and Yield Considerations" in this
prospectus supplement for more detail.
The following
Characteristics
of the Mortgage
Loans may increase
risk of loss:
Non-Conforming The Seller originated or purchased all the mortgage
Underwriting loans in accordance with its mortgage loan program for
Standards loans in accordance with its mortgage loan program for
non-conforming credits. A non-conforming credit means
a mortgage loan which may be ineligible for purchase
by Fannie Mae or Freddie Mac due to credit
characteristics that may not meet Fannie Mae or
Freddie Mac guidelines.
Mortgage loans originated under the Seller's mortgage
loan program are likely to experience rates of
delinquency, bankruptcy and loss that are higher
(perhaps significantly) than mortgage loans originated
under Fannie Mae or Freddie Mac guidelines.
As of March 1, 1999, 1.46% and 0.46% of the fixed rate
mortgage loans and the variable rate mortgage loans,
respectively, were delinquent more than 30 but less
than 60 days.
S-8
Junior Liens 1.98% and 0.32% of the aggregate principal balance of
the mortgage loans in the fixed rate group as of March
1, 1999 are secured by second liens and third liens,
respectively. The second liens are subordinate to the
rights of the mortgagee under the related first
mortgages, and the third liens are subordinate to the
rights of the mortgagees under the related first and
second mortgages. The Trust will have no source of
funds to satisfy the first and second mortgages or
make payments due to the mortgagees of the prior liens
and, accordingly, the Trust's ability to realize on
its second or third lien may be limited.
See "Risk Factors -- Risks Related to the Mortgage
Loans" in the accompanying prospectus for more detail.
Geographic As of March 1, 1999, mortgaged properties located in
Concentration the state of California secure approximately 34.53%
and 37.21% of the mortgage loans in the fixed rate
group and the variable rate group (by aggregate
principal balance), respectively. This geographic
concentration might magnify the effect on the Trust of
adverse economic conditions in California and might
increase the rate of delinquencies, defaults and
losses on the mortgage loans more than would be the
case if the mortgaged properties were more
geographically diversified. Additionally, mortgaged
properties in California may be particularly
susceptible to certain types of uninsurable hazards,
such as earthquakes, floods, mudslides and other
natural disasters.
See "Risk Factors -- Geographic Concentration of the
Mortgaged Properties" in the accompanying prospectus
for more detail.
Other Legal Federal and state laws, public policy and general
Considerations principles of equity relating to the protection of
consumers, unfair and deceptive practices and debt
collection practices, among other factors:
o regulate interest rates and other charges on
mortgage loans
o require certain disclosures to borrowers
o require licensing of the Seller and other
originators
o regulate generally the origination, servicing and
collection process for the mortgage loans.
Depending on the specific facts and circumstances
involved, violations may limit the ability of the
Trust to collect on the mortgage loans, may entitle
the borrower to a refund of amounts previously paid
and could result in liability for damages and
administrative enforcement. In addition, there may be
circumstances in which the Trust, as owner of the
mortgage loans, would be subject to all of the claims
and defenses that a borrower could assert against the
original lender. As a result, the Trust may be subject
to damages and administrative penalties arising out of
unlawful lending practices if it is determined that a
violation has occurred. The Seller has represented
that all applicable federal and state laws were
complied with in connection with the origination of
the mortgage loans. If there is a material and adverse
breach of such representation, the Seller will be
obligated to repurchase any affected mortgage loan or
to substitute a new mortgage loan.
See "Certain Legal Aspects of the Mortgage Loans and
Related Matters" in the accompanying prospectus for
more detail.
Risk Associated with If the protection created by overcollateralization and
the Certificate Insurer crosscollateralization is insufficient and the
Certificate Insurer is unable to meet its obligations
under the
S-9
certificate insurance policies, then you will
experience a loss of some or all of your investment.
In addition, any reduction in a rating of the
claims-paying ability of the Certificate Insurer may
result in a reduction of the rating of the Class A
Certificates.
Inability to If the Seller fails to cure a breach of its loan
Repurchase or representations and warranties with respect to any
Replace Defective loan in a timely manner, then the Seller is required
Loans to repurchase or replace such defective loan. The
Seller may not be capable of repurchasing or replacing
any defective loans for financial or other reasons.
The Seller's inability to repurchase or replace
defective loans would likely cause the loans to
experience higher rates of delinquencies, defaults and
losses.
Risk of Prepayments Any amounts on deposit in the pre-funding account that
from Pre-Funding have not been used to purchase additional mortgage
Account loans by the end of the pre-funding period are
required to be paid to the owners of the related class
of Class A Certificates on the Payment Date in May
1999. If this occurs, the owners of the Class A
Certificates will receive a prepayment of principal in
an amount equal to the amount remaining in the
pre-funding account. Although we expect that
substantially all amounts in the pre-funding account
will be used to purchase additional mortgage loans and
that there will be no material principal prepayment,
we cannot be certain that this will occur.
See "Prepayment and Yield Considerations," "The
Mortgage Loan Pool -- Conveyance of Subsequent
Mortgage Loans -- Fixed Rate Group" and " -- Variable
Rate Group" in this prospectus supplement.
Litigation The Seller has been named as a party in a number of
lawsuits or governmental investigations including the
following:
o The Seller is a wholly owned subsidiary of First
Alliance Corporation ("FACO"). In June 1998, Leon
Rasachack and Philip A. Ettedgui filed a class
action suit on behalf of all purchasers of FACO's
Class A common stock between April 24, 1997 through
May 15, 1998. The suit was filed in the Superior
Court of California in the County of Orange against
FACO and certain present and former officers and
directors of FACO. The complaint alleges that FACO
conspired against purchasers of the stock during the
class period by failing to disclose known material
adverse conditions in making public statements about
FACO's growth prospects for the future. The
plaintiffs in this class action suit are seeking an
unspecified amount for damages. This action is
presently in the discovery stage.
o On December 3, 1998, the American Association of
Retired Persons ("AARP") filed a suit against the
Seller and against certain officers and directors of
the Seller in Santa Clara County, California. The
suit alleges unfair, unlawful, fraudulent and
deceptive business practices and conspiracy. AARP
seeks injunctive relief, revocation of business
licenses, restitution and attorneys' fees and costs.
On February 11, 1999, a motion to strike and a
demurrer were filed seeking dismissal of this
action.
o In September 1998, the Seller was informed by the
United States Department of Justice that it and the
Attorneys General of seven states had initiated a
joint investigation into the lending practices of
the Seller. Currently the Department of Justice is
investigating whether the Seller has engaged in any
violations of the Fair Housing Act or the Equal
Credit Opportunity Act. The Seller has provided the
loan data requested by the Department of Justice for
its review.
S-10
o Recently, the Attorneys General of Massachusetts,
Minnesota and Illinois have filed actions against
the Seller. The Minnesota and Illinois actions are
challenging the Seller's lending practices as
unconscionable or unlawful. The Massachusetts suit
seeks to enjoin the Seller from charging rates,
points and other terms which significantly deviate
from industry-wide standards or which are otherwise
unconscionable or unlawful. The Attorneys General
seek injunctive relief and also seek restitution for
all consumers, civil penalties, and the costs of
investigating and prosecuting the action, including
attorneys' fees. In November of 1998, a
Massachusetts court granted a preliminary injunction
enjoining the Seller from charging more than five
points on any loan made in the state and from
initiating foreclosure proceedings without first
providing written notice to the commonwealth of
Massachusetts.
o The Seller and FACO are also a party to various
legal proceedings arising out of the ordinary course
of business, including 15 lawsuits alleging
misleading lending practices, some of which have
been filed as a class action or under private
attorney general statutes.
An adverse determination in one or more of these
matters may adversely affect the Seller and the
Servicer's financial condition and, in turn the
Seller's ability to repurchase or replace any
defective mortgage loans, and the Servicer's ability
to service the mortgage loans. Revocation of one or
more of the Seller's business licenses, particularly
in the state of California, may also adversely affect
the mortgage lending operations of the Seller.
Liquidity of the Seller The Seller requires substantial capital to fund its
operations. Currently, the Seller funds substantially
all of its operations, including its loan production,
from borrowings under its lending arrangements with
certain third parties (including an affiliate of the
Underwriter). As its existing lending arrangements
mature, the Seller may not be able to access the
financing necessary for its operations. Recently,
lenders have been less willing to extend credit on
mortgage loans. In addition, lenders who are willing
to extend credit on mortgage loans are doing so on
terms that are less favorable than have recently been
available.
The Seller's inability to arrange for new or
alternative methods of financing on favorable terms
may curtail its loan production activities, which may
adversely affect its financial condition and, in turn,
the Seller's ability to repurchase or replace any
defective mortgage loans. In addition, such
curtailment of production may adversely affect the
Servicer's ability to service the mortgage loans.
Risks Associated with The Seller is aware of the issues associated with the
Year 2000 Compliance programming code in existing computer systems as the
year 2000 approaches. The "year 2000 problem" is
pervasive and complex; virtually every computer
operation will be affected in some way by the rollover
of the two-digit year value to 00. The issue is
whether the computer systems will properly recognize
date-sensitive information when the year changes to
2000. Systems that do not properly recognize such
information could generate erroneous data or cause a
system to fail.
It is a condition of closing that the Servicer and the
Oversight Agent each certify that they are committed
either to (i) implement modifications to their
respective existing systems to the extent required to
cause them to be year 2000 ready or (ii) acquire
computer systems that are year 2000 ready in each case
prior to January 1, 2000. In the event that computer
problems arise out of a failure of such efforts to be
completed on time, or in the event that the computer
systems of the Oversight Agent or the Servicer are not
fully year 2000 ready, the resulting disruptions in
the collection or distribution of receipts on the
loans could materially and adversely affect your
investment. The Seller has implemented a formal
five-step plan, which
S-11
is outlined herein, to address the year 2000 issue.
See "The Seller" in this prospectus supplement for
more detail.
Limited Resale The Underwriter intends to make a market for resales
of the Class A Certificates but has no obligation to
do so. There is no assurance that such a market will
develop or, if it develops, that it will continue.
Consequently, you may not be able to sell your Class A
Certificates readily or at prices that will enable you
to realize your desired yield. The market values of
the Class A Certificates are likely to fluctuate;
these fluctuations may be significant and could result
in significant losses to you.
The secondary markets for mortgage backed securities
have experienced periods of illiquidity and can be
expected to do so in the future. Illiquidity can have
a severely adverse effect on the prices of securities
that are especially sensitive to prepayment, credit,
or interest rate risk, or that have been structured to
meet the investment requirements of limited categories
of investors.
Insolvency of Seller The Seller believes that the transfer of the mortgage
could cause payment loans from the Seller to the Trust constitutes a sale
delays and, accordingly, that the mortgage loans will not be
a part of the assets of the Seller in the event of the
Seller's insolvency and will not be available to
creditors of the Seller. Nevertheless, in the event of
an insolvency, a bankruptcy trustee or a creditor may
argue that the transaction between the Seller and the
Trust was a pledge of such mortgage loans in
connection with a borrowing rather than a true sale.
Such an attempt, even if unsuccessful, could result in
delays in distributions on the Class A Certificates.
The Seller will deliver an opinion of its counsel,
Arter & Hadden LLP, with respect to the true sale of
the mortgage loans from the Seller to the Trust, in
form and substance satisfactory to the rating agencies
and the Certificate Insurer.
Servicing transfer The mortgage loans are currently being serviced by the
could cause higher Servicer. The Certificate Insurer has the right,
delinquencies however, to refuse to extend the term of the Servicer
beyond any two-month period. Servicing transfers can
result in an increase in delinquencies on the
transferred loans.
S-12
THE PORTFOLIO OF MORTGAGE LOANS
General
The assets of the Trust initially will include two pools (each, a "Mortgage
Loan Group" or "Group") of closed-end mortgage loans (the "Initial Mortgage
Loans") secured by mortgages or deeds of trust (the "Mortgages") primarily on
one-to-four family residential properties (the "Mortgaged Properties") to be
conveyed to the Trust on the Closing Date. The Class A-1 Certificates will
represent undivided ownership interests in a pool of fixed-rate Mortgage Loans
(the "Fixed Rate Group") secured by Mortgages which may be either in a first or
junior lien position. The Class A-2 Certificates will represent undivided
ownership interests in a pool of variable-rate Mortgage Loans (the "Variable
Rate Group") secured by Mortgages which are in a first lien position.
The Mortgage Loan Pool includes newly-originated and seasoned fixed and
variable rate loans which were originated directly by the Seller or one or more
unrelated third party entities (the "Originators").
Substantially all of the Initial Mortgage Loans in the Variable Rate Group
adjust based on the London interbank offered rate for six-month United States
Dollar deposits in the London Market based on quotations of major banks
published in The Wall Street Journal and have a periodic semi-annual rate
adjustment cap of 1.00% per annum to 1.50% per annum and a lifetime cap of 7.00%
per annum above the initial mortgage rate for the Initial Mortgage Loans in the
Variable Rate Group. Furthermore, all mortgage loans originated under the retail
adjustable rate program are in a first lien position and generally do not allow
for balloon payments. Such retail adjustable rate mortgage loans are originated
in accordance with the Seller's Guidelines. See "Mortgage Loan Program --
Underwriting Guidelines" in the Prospectus.
Acquisitions and Originations
Fixed Rate Group. All of the Initial Mortgage Loans in the Fixed Rate Group
were originated by the Seller pursuant to the Seller's Guidelines or acquired by
the Seller from an Originator based on Approved Guidelines or Bulk Guidelines as
described in the Prospectus. See "Mortgage Loan Program" in the Prospectus. As
of March 1, 1999, Initial Mortgage Loans representing an aggregate principal
balance of $9,720,360.88 or 14.83% of the Initial Mortgage Loans in the Fixed
Rate Group by aggregate principal balance were acquired from an Originator other
than the Seller. The Seller has reviewed 100% of the acquisitions included in
the Trust.
Variable Rate Group. All of the Initial Mortgage Loans in the Variable Rate
Group were originated by the Seller and were underwritten pursuant to the
Seller's Guidelines or acquired by the Seller from an Originator based on
Approved Guidelines or Bulk Guidelines as described in the Prospectus. See
"Mortgage Loan Program" in the Prospectus. As of March 1, 1999, Initial Mortgage
Loans representing an aggregate principal balance of $2,494,497.09 or
approximately 10.18% of the Initial Mortgage Loans in the Variable Rate Group by
aggregate principal balance were acquired from an Originator other than the
Seller. All of the 2/28 Loans were acquired by the Seller from the Originators.
The Seller has reviewed 100% of the acquisitions included in the Trust.
On November 4, 1998, the Seller instituted new underwriting guidelines, as
set forth in the Prospectus under the caption "MORTGAGE LOAN
PROGRAM--Underwriting Guidelines." As of March 1, 1999, 57.17% and 91.00% of the
Initial Mortgage Loans in the Fixed Rate Group and the Variable Rate Group,
respectively, by aggregate principal balance, were originated under the new
underwriting guidelines. The remaining Initial Mortgage Loans were originated
under the then existing guidelines, which are not materially different from the
new underwriting guidelines described in the Prospectus. Accordingly, the credit
scoring method presented in the Prospectus may not necessarily reflect the
credit scoring method used at origination for Mortgage Loans originated prior to
November 4, 1998. Furthermore, from time to time, exceptions are made to the
underwriting guidelines and it is possible that exceptions may have been made
for a substantial number of the Mortgage Loans based on compensating factors.
Management permits deviations from the specific criteria to reflect local
economic trends and real estate valuations, as well as other mitigating factors
specific to each applicant. Such deviations are monitored and regularly reviewed
by the Seller's credit committee. The Seller strives to maintain the overall
integrity of its credit and underwriting policies and simultaneously provide its
lending officers with the flexibility to consider the specific circumstances of
the mortgage loan application.
S-13
Delinquencies
The following tables provide data on loan delinquency and REO for the
Servicer's United States servicing portfolio. The Servicer is not an approved
seller/servicer by Fannie Mae.
United States Servicing Portfolio
As of December 31,
(Dollars in Thousands)
-------------------------------------------------------------------------
1998 1997 1996
---- ---- ----
Total Servicing Portfolio................... $802,034 $769,733 $637,903
30-59 days delinquent............... 9,144 7,718 9,359
60-89 days delinquent............... 6,097 7,521 6,704
90 days or more delinquent.......... 18,449 16,935 19,081
-------- -------- --------
Total delinquencies(1)..... $ 33,690 $ 32,174 $ 35,144
-------- ======== ========
Total Delinquency Percentage................ 4.2% 4.2% 5.5%
REO Properties(2)........................... $2,063 $1,668 $3,951
(1) The period of delinquency is based on the number of days payments are
contractually past due and includes all loans in foreclosure.
(2) Includes REO Properties owned by the Seller as well as REO Properties
owned by REMIC Trusts and serviced by the Seller; however, excludes
private investor REO Properties not serviced by the Seller.
Losses
The following table provides data on net losses for the Servicer's
United States servicing portfolio.
For the Years Ended December 31,
(Dollars in Thousands)
------------------------------------------------------------------------
1998 1997 1996
---- ---- ----
Average servicing portfolio (1)............. $799,979 $695,858 $614,982
Net losses (2).............................. 983 1,705 2,160
Percentage of average
servicing portfolio............. 0.12% 0.25% 0.35%
- -----------------------
(1) Average servicing portfolio equals the quarterly average of the servicing
portfolio computed as the average of the balance at the beginning and end
of each quarter.
(2) "Net Losses" represent losses realized with respect to disposition of REO
properties.
USE OF PROCEEDS
The Seller will sell the Initial Mortgage Loans to the Trust
concurrently with the delivery of the Class A Certificates. Net proceeds from
the sale of the Class A Certificates will be applied by the Trust to the
purchase of the Initial Mortgage Loans from the Seller. Such net proceeds, less
the Pre-Funded Amount and the amount deposited in the Capitalized Interest
Account, will (together with the Class R Certificates retained by the Seller or
its affiliates) represent the purchase price to be paid by the Trust to the
Seller for the Initial Mortgage Loans.
S-14
THE MORTGAGE LOAN POOL
General
Unless otherwise noted, all references to statistical percentages in
this Prospectus Supplement appearing "as of the Cut-Off Date," together with all
dollar amount references herein to aggregate principal balances appearing "as of
the Cut-Off Date" have been calculated using the aggregate scheduled principal
balances of the Initial Mortgage Loans as of the close of business on March 1,
1999 (the "Cut-Off Date"). It is intended that additional Mortgage Loans (the
"Subsequent Mortgage Loans") satisfying the criteria set out in the Pooling and
Servicing Agreement will be purchased by the Trust from the Seller for inclusion
in the Fixed Rate Group and the Variable Rate Group from time to time on or
before April 30, 1999 from funds on deposit in the Pre-Funding Account. The
Subsequent Mortgage Loans, if available, will be sold by the Seller to the
Trust. The Initial Mortgage Loans and the Subsequent Mortgage Loans are
collectively referred to herein as the "Mortgage Loans".
This subsection describes generally certain characteristics of the
Initial Mortgage Loans. Unless otherwise specified herein, references herein to
percentages of Initial Mortgage Loans refer in each case to the approximate
percentage of the aggregate principal balance of the Initial Mortgage Loans as
of the Cut-Off Date, based on the outstanding principal balances of the Initial
Mortgage Loans in the Fixed Rate Group or the Initial Mortgage Loans in the
Variable Rate Group, in each case as of the Cut-Off Date, and giving effect to
all payments due on or prior to the Cut-Off Date whether or not received. The
Mortgage Loan Pool will initially consist of 1,012 fixed rate loans and
adjustable rate loans evidenced by promissory notes (the "Notes") secured by
deeds of trust, security deeds or mortgages on the Mortgaged Properties, which
are located in 19 states and the District of Columbia. The Mortgaged Properties
securing the Mortgage Loans consist of single-family residences (which may be
detached, part of a two-to-four family dwelling, a condominium unit or a unit in
a planned unit development). The Mortgaged Properties may be owner-occupied
(which includes second and vacation homes) or non-owner occupied investment
properties. The Initial Mortgage Loans consist of 98.32% of loans secured by
first lien mortgages on the related Mortgaged Properties, 1.44% of loans secured
by second liens on the related Mortgaged Properties and 0.24% of loans secured
by third liens on the related Mortgage Properties.
The Initial Mortgage Loans were required to satisfy the following
criteria as of the Cut-Off Date; remaining terms to stated maturity of no
greater than 360 months; a Mortgage Rate as of the Cut-Off Date of at least
6.00% with respect to the Fixed Rate Group and at least 6.99% with respect to
the Variable Rate Group; and a CLTV not in excess of 85.00% with respect to the
Fixed Rate Group and a LTV not in excess of 85.91% with respect to the Variable
Rate Group.
The Combined Loan-to-Value Ratio ("CLTV") of a Mortgage Loan is equal
to the ratio (expressed as a percentage) of (x) the sum of the (i) original
principal balance of the Mortgage Loan and (ii) the outstanding principal
balances of any senior mortgage loans (computed at the date of origination of
the Mortgage Loan) and (y) the appraised value of the Mortgaged Property at the
time of origination. The Loan-to-Value Ratio ("LTV") of a Mortgage Loan is equal
to the ratio (expressed as a percentage) of the original principal balance of
the Mortgage Loan and the appraised value of the Mortgaged Property at the time
of origination.
Each Mortgage Loan in the Trust will be assigned to one of the two
Mortgage Loan Groups comprised of Mortgage Loans which bear a fixed interest
rate only, in the case of the Fixed Rate Group, and Mortgage Loans which bear an
adjustable interest rate only, in the case of the Variable Rate Group; provided,
however, that the 2/28 Loans included in the Variable Rate Group bear interest
at a fixed rate of interest for two years after origination and thereafter bear
an adjustable interest rate. Each of the Mortgage Loans contained in the Fixed
Rate Group will be secured by a Mortgage having either a first or junior lien
position with respect to the related Mortgaged Property. Each of the Mortgage
Loans contained in the Variable Rate Group will be secured by Mortgages which
are in a first lien position. 69.80% of the Initial Mortgage Loans were
originated less than seven months prior to the Cut-Off Date. The Class A-1
Certificates represent undivided ownership interests in all Mortgage Loans
contained in the Fixed Rate Group, and the Class A-2 Certificates represent
undivided ownership interests in all Mortgage Loans contained in the Variable
Rate Group.
S-15
Fixed Rate Group - Initial Mortgage Loans
All of the Initial Mortgage Loans in the Fixed Rate Group are
Actuarial Loans. 99.13% of the Initial Mortgage Loans in the Fixed Rate Group as
of the Cut-Off Date require monthly payments of principal that will fully
amortize the Initial Mortgage Loans by their respective stated maturity dates.
0.87% of the Initial Mortgage Loans in the Fixed Rate Group are "balloon loans"
that provide for the payment of the unamortized principal balance in a single
payment at maturity. No Initial Mortgage Loan in the Fixed Rate Group had a
stated maturity date later than May 1, 2029. As of the Cut-Off Date, the
aggregate principal balance of all Initial Mortgage Loans in the Fixed Rate
Group was 98.49% of the aggregate principal balance of such Initial Mortgage
Loans at the times of their origination.
The Initial Mortgage Loans in the Fixed Rate Group had the following
aggregate characteristics as of the Cut-Off Date:
Aggregate Number of Initial Mortgage Loans............................. 798
Principal Balance
Aggregate..................................................... $65,528,894.36
Average....................................................... $82,116.41
Range......................................................... $3,457.91 - $341,954.00
Mortgage Rates
Weighted Average.............................................. 9.49%
Range......................................................... 6.00% - 17.95%
Original Term to Stated Maturity
Weighted Average.............................................. 333 months
Range......................................................... 84 - 360 months
Remaining Term to Stated Maturity
Weighted Average.............................................. 320 months
Range......................................................... 39 - 360 months
CLTV
Weighted Average.............................................. 60.89%
Range......................................................... 9.30% - 85.00%
Weighted Average Junior Lien Ratio..................................... 53.13%
Percentage of First Lien Mortgage Loans................................ 97.69%
Percentage of Second Lien Mortgage Loans............................... 1.98%
Percentage of Third Lien Mortgage Loans................................ 0.32%
Some of the aggregate percentages in the following tables may not total
100% due to rounding.
S-16
DISTRIBUTION OF CLTV'S
Fixed Rate Group
Number of Aggregate % of Aggregate
Initial Unpaid Unpaid
Range of CLTV's Mortgage Loans Principal Balance Principal Balance
5.0 - 10.00%..................................... 2 $ 35,156.00 0.05%
10.0 - 15.00...................................... 4 78,421.23 0.12
15.0 - 20.00...................................... 15 454,620.89 0.69
20.0 - 25.00...................................... 17 543,242.28 0.83
25.0 - 30.00...................................... 30 1,486,711.37 2.27
30.0 - 35.00...................................... 42 2,248,713.01 3.43
35.0 - 40.00...................................... 31 1,773,115.18 2.71
40.0 - 45.00...................................... 53 3,167,007.68 4.83
45.0 - 50.00...................................... 66 4,183,305.20 6.38
50.0 - 55.00...................................... 66 4,827,008.78 7.37
55.0 - 60.00...................................... 80 6,634,515.57 10.12
60.0 - 65.00...................................... 124 12,272,438.69 18.73
65.0 - 70.00...................................... 115 11,367,302.83 17.35
70.0 - 75.00...................................... 99 10,355,073.77 15.80
75.0 - 80.00...................................... 44 4,920,832.30 7.51
80.0 - 85.00...................................... 10 1,181,429.58 1.80
--- -------------- ------
Total........................................... 798 $65,528,894.36 100.00%
=== ============== ======
The CLTV's shown above were calculated based upon the appraised values
of the Mortgaged Properties at the time of origination (the "Appraised Values").
No assurance can be given that such Appraised Values have remained or will
remain at their levels on the dates of origination of the related Initial
Mortgage Loans. If property values decline such that the outstanding balances of
the Mortgage Loans, together with the outstanding balances of any senior
Mortgage Loans, become equal to or greater than the value of the Mortgaged
Properties, the actual rates of delinquencies, foreclosures and losses could be
higher than those heretofore experienced by the Servicer, as set forth above
under "The Portfolio of Mortgage Loans," and by the mortgage lending industry in
general.
DISTRIBUTION OF JUNIOR LIEN RATIOS
Fixed Rate Group
Aggregate % of Aggregate
Range of Number of Initial Unpaid Unpaid
Junior Lien Ratios Mortgage Loans Principal Balance Principal Balance
10.01 - 15.00%.................................... 1 $ 15,172.68 1.00%
15.01 - 20.00..................................... 4 49,135.00 3.25
20.01 - 25.00..................................... 6 139,368.23 9.22
25.01 - 30.00..................................... 7 160,212.98 10.60
30.01 - 35.00..................................... 6 148,209.17 9.80
35.01 - 40.00..................................... 2 47,357.50 3.13
40.01 - 45.00..................................... 2 88,389.20 5.85
45.01 - 50.00..................................... 3 110,106.06 7.28
50.01 - 55.00..................................... 1 9,752.44 0.65
55.01 - 60.00..................................... 2 66,976.29 4.43
60.01 - 65.00..................................... 4 107,817.28 7.13
65.01 - 70.00..................................... 1 51,491.91 3.41
70.01 - 75.00..................................... 3 170,712.07 11.29
80.01 - 85.00..................................... 3 158,305.03 10.47
85.01 - 90.00..................................... 3 188,635.55 12.48
-- ------------- ------
Total.................................... 48 $1,511,641.39 100.00%
== ============= ======
S-17
The "Junior Lien Ratio" of a Mortgage Loan is equal to the ratio
(expressed as a percentage) of the original principal balance of such Mortgage
Loan to the sum of (i) the original principal balance of such Mortgage Loan and
(ii) the outstanding principal balances of any senior mortgage loans (computed
at the date of origination of the Mortgage Loan).
DISTRIBUTION OF MORTGAGE RATES
Fixed Rate Group
Aggregate % of Aggregate
Range of Number of Initial Unpaid Unpaid
Mortgage Rates Mortgage Loans Principal Balance Principal Balance
5.501 - 6.000%................................ 1 $ 44,944.87 0.07%
7.001 - 7.500................................. 1 192,604.58 0.29
7.501 - 8.000................................. 4 463,295.18 0.71
8.001 - 8.500................................. 158 12,644,490.18 19.30
8.501 - 9.000................................. 151 12,312,586.36 18.79
9.001 - 9.500................................. 179 16,260,221.14 24.81
9.501 - 10.000................................. 159 13,921,453.22 21.24
10.001 - 10.500................................. 43 3,864,661.90 5.90
10.501 - 11.000................................. 31 2,271,007.62 3.47
11.001 - 11.500................................. 14 1,261,295.32 1.92
11.501 - 12.000................................. 6 578,436.32 0.88
12.001 - 12.500................................. 8 357,737.53 0.55
12.501 - 13.000................................. 8 403,171.51 0.62
13.001 - 13.500................................. 5 203,164.06 0.31
13.501 - 14.000................................. 6 240,544.45 0.37
14.001 - 14.500................................. 1 11,512.83 0.02
14.501 - 15.000................................. 5 117,134.31 0.18
15.001 - 15.500................................. 7 173,751.80 0.27
15.501 - 16.000................................. 8 157,935.36 0.24
16.501 - 17.000................................. 2 39,664.96 0.06
17.501 - 18.000................................. 1 9,280.86 0.01
--- -------------- ------
Total........................................ 798 $65,528,894.36 100.00%
=== ============== ======
S-18
GEOGRAPHIC DISTRIBUTION OF MORTGAGED PROPERTIES
Fixed Rate Group
Aggregate % of Aggregate
Number of Initial Unpaid Unpaid
State Mortgage Loans Principal Balance Principal Balance
Arizona......................................... 23 $ 1,478,554.08 2.26%
California...................................... 253 22,629,578.44 34.53
Colorado........................................ 20 1,509,681.78 2.30
Connecticut..................................... 4 366,731.00 0.56
District of Columbia............................ 3 272,228.49 0.42
Florida......................................... 31 2,393,967.32 3.65
Georgia......................................... 13 911,765.55 1.39
Idaho........................................... 1 54,852.78 0.08
Illinois........................................ 67 4,583,955.21 7.00
Maryland........................................ 26 1,800,989.83 2.75
Massachusetts................................... 5 446,559.40 0.68
Minnesota....................................... 13 934,872.64 1.43
New Jersey...................................... 104 8,538,102.84 13.03
New York........................................ 107 9,341,720.91 14.26
Ohio............................................ 21 1,578,785.04 2.41
Oregon.......................................... 25 2,305,511.28 3.52
Pennsylvania.................................... 26 1,679,745.92 2.56
Utah............................................ 22 1,713,429.39 2.61
Virginia........................................ 7 830,834.24 1.27
Washington...................................... 27 2,157,028.22 3.29
--- -------------- ------
Total.................................... 798 $65,528,894.36 100.00%
=== ============== ======
DISTRIBUTION OF REMAINING TERMS TO STATED MATURITY
Fixed Rate Group
Aggregate % of Aggregate
Range of Number of Initial Unpaid Unpaid
Months Mortgage Loans Principal Balance Principal Balance
39 - 60 .................................... 3 $ 25,220.30 0.04%
61 - 120 .................................... 51 1,648,679.68 2.52
121 - 180 .................................... 129 7,937,731.68 12.11
181 - 240 .................................... 9 847,428.47 1.29
241 - 300 .................................... 24 2,545,490.73 3.88
301 - 360 .................................... 582 52,524,343.50 80.15
--- ------------- -----
Total 798 $65,528,894.36 100.00%
=== ============== ======
S-19
DISTRIBUTION OF PRINCIPAL BALANCES
Fixed Rate Group
Aggregate % of Aggregate
Range of Number of Initial Unpaid Unpaid
Principal Balances Mortgage Loans Principal Balance Principal Balance
$3,000.01 - 25,000.00......................... 44 $ 764,998.08 1.17%
25,000.01 - 50,000.00......................... 136 5,321,119.03 8.12
50,000.01 - 75,000.00......................... 214 13,594,048.48 20.75
75,000.01 - 100,000.00......................... 207 17,941,200.81 27.38
100,000.01 - 125,000.00......................... 99 11,001,621.98 16.79
125,000.01 - 150,000.00......................... 42 5,716,828.64 8.72
150,000.01 - 175,000.00......................... 20 3,210,240.29 4.90
175,000.01 - 200,000.00......................... 12 2,220,226.67 3.39
200,000.01 - 225,000.00......................... 12 2,554,102.44 3.90
225,000.01 - 250,000.00......................... 4 930,624.30 1.42
250,000.01 - 275,000.00......................... 5 1,332,401.51 2.03
275,000.01 - 300,000.00......................... 1 278,067.66 0.42
300,000.01 - 325,000.00......................... 1 321,460.47 0.49
325,000.01 - 350,000.00......................... 1 341,954.00 0.52
--- -------------- ------
Total................................... 798 $65,528,894.36 100.00%
=== ============== ======
DISTRIBUTION OF PROPERTY TYPES
Fixed Rate Group
Aggregate % of Aggregate
Number of Initial Unpaid Unpaid
Property Type Mortgage Loans Principal Balance Principal Balance
Single Family................................... 720 $59,028,959.48 90.08%
Two-to-Four Family.............................. 58 4,859,644.37 7.42
Condominium..................................... 14 1,327,482.68 2.03
Planned Unit Development........................ 6 312,807.83 0.48
--- -------------- ------
Total.................................. 798 $65,528,894.36 100.00%
=== ============== ======
DISTRIBUTION OF OCCUPANCY STATUS*
Fixed Rate Group
Aggregate % of Aggregate
Number of Initial Unpaid Unpaid
Occupancy Status Mortgage Loans Principal Balance Principal Balance
Owner Occupied..................................... 772 $63,533,845.94 96.96%
Investor Property ................................. 26 1,995,048.42 3.04
--- ------------- ------
Total...................................... 798 $65,528,894.36 100.00%
=== ============== ======
- --------------------------
* Based on representations of the Mortgagors at origination of the Mortgage
Loans.
Conveyance of Subsequent Mortgage Loans - Fixed Rate Group
The Pooling and Servicing Agreement permits the Trust to acquire
$19,471,106 in aggregate principal balance of Subsequent Mortgage Loans for
addition to the Fixed Rate Group. Accordingly, the statistical characteristics
of the Mortgage Loan Pool and the Fixed Rate Group will vary as of any
Subsequent Cut-Off Date upon the acquisition of Subsequent Mortgage Loans.
Pursuant to the Pooling and Servicing Agreement, however, the Seller has
covenanted to deliver Subsequent Mortgage Loans for inclusion in the Fixed Rate
Group that will not materially change the statistical characteristics of the
Mortgage Loan Pool and the Fixed Rate Group. Each Subsequent Mortgage Loan will
meet the requirements specified by the Certificate Insurer for Subsequent
Mortgage Loans.
S-20
The obligation of the Trust to purchase Subsequent Mortgage Loans for
addition to the Fixed Rate Group on a Subsequent Transfer Date is subject to the
satisfaction of the requirements as set forth in the Pooling and Servicing
Agreement.
Variable Rate Group - Initial Mortgage Loans
All of the Initial Mortgage Loans in the Variable Rate Group are
Actuarial Loans and are secured by first mortgages. All of the Initial Mortgage
Loans in the Variable Rate Group require monthly payments of principal that will
fully amortize such Initial Mortgage Loans by their respective stated maturity
dates. No Initial Mortgage Loan in the Variable Rate Group had a stated maturity
date later than May 1, 2029. As of the Cut-Off Date, the aggregate principal
balance of the Initial Mortgage Loans in the Variable Rate Group was 99.94% of
the aggregate principal balance of such Initial Mortgage Loans at the times of
their origination. As of the Cut-Off Date, substantially all of the Initial
Mortgage Loans in the Variable Rate Group had interest rates which were not
fully indexed (i.e., the interest rate does not equal the sum of the entire
gross margin and the applicable index).
All of the Initial Mortgage Loans in the Variable Rate Group bear
interest at rates that adjust, along with the related monthly payments,
semiannually based on the London interbank offered rate for six-month United
States Dollar deposits in the London market based on quotations of major banks
published in The Wall Street Journal (the "Six-Month LIBOR Loans"). The
Six-Month LIBOR Loans have periodic reset caps ranging from 1.00% per annum to
1.50% per annum.
Approximately $1,581,409.19 or 6.45% of the Initial Mortgage Loans in
the Variable Rate Group by aggregate principal balance as of the Cut-Off Date
bear interest at a fixed rate for two years after origination and thereafter
have periodic adjustments at frequencies in the same manner as the Six-Month
LIBOR Loans (as described above) (the "2/28 Loans"). All of the 2/28 Loans have
a first adjustment date that will occur in January, February or March of 2001,
and have an initial periodic reset cap of 3.00%. After the first adjustment, the
2/28 Loans have a periodic reset cap of 1.00% per annum.
S-21
The Initial Mortgage Loans in the Variable Rate Group had the following
aggregate characteristics as of the Cut-Off Date:
Aggregate Number of Initial Mortgage Loans............................ 214
Principal Balance
Aggregate.................................................... $24,505,006.73
Average...................................................... $114,509.38
Range........................................................ $24,253.00 - $361,839.97
Current Mortgage Rate
Weighted Average............................................. 8.43%
Range........................................................ 6.99% - 11.99%
Original Term to Stated Maturity
Weighted Average............................................. 345 months
Range........................................................ 120 - 360 months
Remaining Term to Stated Maturity
Weighted Average............................................. 344 months
Range........................................................ 120 - 360 months
LTV
Weighted Average ............................................ 66.54%
Range........................................................ 14.03% - 85.91%
Percentage of First Lien Mortgage Loans 100%
Gross Margin
Weighted Average ............................................ 5.60%
Range........................................................ 4.49% - 8.79%
Semi-Annual Rate Adjustment Cap Range................................. 1.00% - 1.50%
Maximum Mortgage Rate
Weighted Average ............................................ 15.43%
Range........................................................ 13.99% - 18.99%
Minimum Mortgage Rate
Weighted Average ............................................ 8.43%
Range ....................................................... 6.99% - 11.99%
DISTRIBUTION OF LTV's
Variable Rate Group
Aggregate % of Aggregate
Number of Initial Unpaid Unpaid
Range of LTV's Mortgage Loans Principal Balance Principal Balance
10.01 - 15.00%..................................... 1 $ 51,085.00 0.21%
15.01 - 20.00...................................... 3 170,250.18 0.69
25.01 - 30.00...................................... 5 247,951.46 1.01
30.01 - 35.00...................................... 4 293,702.25 1.20
35.01 - 40.00...................................... 6 473,062.80 1.93
40.01 - 45.00...................................... 5 442,905.83 1.81
45.01 - 50.00...................................... 10 1,137,784.04 4.64
50.01 - 55.00...................................... 26 2,586,771.33 10.56
55.01 - 60.00...................................... 14 1,747,402.18 7.13
60.01 - 65.00...................................... 24 2,696,102.22 11.00
65.01 - 70.00...................................... 34 4,113,307.90 16.79
70.01 - 75.00...................................... 31 4,139,626.44 16.89
75.01 - 80.00...................................... 30 3,946,856.97 16.11
80.01 - 85.00...................................... 20 2,364,007.30 9.65
85.01 - 90.00...................................... 1 94,190.83 0.38
--- -------------- ------
Total..................................... 214 $24,505,006.73 100.00%
=== ============== ======
S-22
The LTV's shown above were calculated based upon the Appraised Values
of the Mortgaged Properties. No assurance can be given that Appraised Values of
the Mortgaged Properties have remained or will remain at their levels on the
dates of origination of the related Initial Mortgage Loans. If property values
decline such that the outstanding balances of the Initial Mortgage Loans become
equal to or greater than the value of the Mortgaged Properties, the actual rates
of delinquencies, foreclosures and losses could be higher than those heretofore
experienced by the Servicer, as set forth above under "The Portfolio of Mortgage
Loans," and by the mortgage lending industry in general.
DISTRIBUTION OF REMAINING TERMS TO STATED MATURITY
Variable Rate Group
Aggregate % of Aggregate
Range of Number of Initial Unpaid Unpaid
Months Mortgage Loans Principal Balance Principal Balance
120............................................. 3 $ 159,633.00 0.65%
121 - 180....................................... 21 1,839,819.75 7.51
181 - 240....................................... 1 68,829.00 0.28
301 - 360....................................... 189 22,436,724.98 91.56
--- -------------- ------
Total..................................... 214 $24,505,006.73 100.00%
=== ============== ======
DISTRIBUTION OF PRINCIPAL BALANCES
Variable Rate Group
Aggregate % of Aggregate
Range of Number of Initial Unpaid Unpaid
Principal Balances Mortgage Loans Principal Balance Principal Balance
$24,000.01 - 25,000.00 ................ 1 $ 24,253.00 0.10%
25,000.01 - 50,000.00 ................ 11 457,448.31 1.87
50,000.01 - 75,000.00 ................ 36 2,281,542.36 9.31
75,000.01 - 100,000.00 ................ 57 4,954,511.10 20.22
100,000.01 - 125,000.00 ................ 43 4,790,185.69 19.55
125,000.01 - 150,000.00 ................ 21 2,885,061.52 11.77
150,000.01 - 175,000.00 ................ 17 2,718,285.34 11.09
175,000.01 - 200,000.00 ................ 12 2,264,995.48 9.24
200,000.01 - 225,000.00 ................ 4 843,570.03 3.44
225,000.01 - 250,000.00 ................ 4 956,853.84 3.90
250,000.01 - 275,000.00 ................ 5 1,323,316.76 5.40
300,000.01 - 325,000.00 ................ 1 311,579.06 1.27
325,000.01 - 350,000.00 ................ 1 331,564.27 1.35
350,000.01 - 375,000.00 ................ 1 361,839.97 1.48
--- -------------- ------
Total.................................... 214 $24,505,006.73 100.00%
=== ============== ======
DISTRIBUTION OF PROPERTY TYPES
Variable Rate Group
Aggregate % of Aggregate
Number of Initial Unpaid Unpaid
Property Type Mortgage Loans Principal Balance Principal Balance
Single Family................................... 195 $22,649,021.27 92.43%
Condominium..................................... 11 1,270,900.31 5.19
Two-to-Four Family.............................. 8 585,085.15 2.39
--- -------------- ------
Total.................................... 214 $24,505,006.73 100.00%
=== ============== ======
S-23
DISTRIBUTION OF OCCUPANCY STATUS
Variable Rate Group
Aggregate % of Aggregate
Number of Initial Unpaid Unpaid
Occupancy Status Mortgage Loans Principal Balance Principal Balance
Owner Occupied.................................. 209 $24,080,611.08 98.27%
Investor Property............................... 5 424,395.65 1.73
--- -------------- ------
Total.................................. 214 $24,505,006.73 100.00%
=== ============== ======
DISTRIBUTION OF CURRENT MORTGAGE RATES
Variable Rate Group
Aggregate % of Aggregate
Range of Current Number of Initial Unpaid Unpaid
Mortgage Rates Mortgage Loans Principal Balance Principal Balance
6.501 - 7.000%............................. 25 $ 2,048,046.56 8.36%
7.001 - 7.500.............................. 14 1,554,848.47 6.35
7.501 - 8.000.............................. 61 7,358,892.94 30.03
8.001 - 8.500.............................. 45 5,604,636.24 22.87
8.501 - 9.000.............................. 36 4,029,695.45 16.44
9.001 - 9.500.............................. 4 486,647.11 1.99
9.501 - 10.000.............................. 10 1,186,027.74 4.84
10.001 - 10.500.............................. 9 1,122,827.41 4.58
10.501 - 11.000.............................. 6 738,602.89 3.01
11.001 - 11.500.............................. 2 177,921.50 0.73
11.501 - 12.000.............................. 2 196,860.42 0.80
--- -------------- ------
Total.................................. 214 $24,505,006.73 100.00%
=== ============== ======
DISTRIBUTION OF MAXIMUM MORTGAGE RATES
Variable Rate Group
Range of Aggregate % of Aggregate
Maximum Number of Initial Unpaid Unpaid
Mortgage Rates Mortgage Loans Principal Balance Principal Balance
13.501 - 14.000%............................ 25 $ 2,048,046.56 8.36%
14.001 - 14.500............................. 14 1,554,848.47 6.35
14.501 - 15.000............................. 61 7,358,892.94 30.03
15.001 - 15.500............................. 45 5,604,636.24 22.87
15.501 - 16.000............................. 36 4,029,695.45 16.44
16.001 - 16.500............................. 4 486,647.11 1.99
16.501 - 17.000............................. 12 1,327,247.63 5.42
17.001 - 17.500............................. 9 1,122,827.41 4.58
17.501 - 18.000............................. 4 597,383.00 2.44
18.001 - 18.500............................. 2 177,921.50 0.73
18.501 - 19.000............................. 2 196,860.42 0.80
--- -------------- ------
Total................................. 214 $24,505,006.73 100.00%
=== ============== ======
S-24
DISTRIBUTION OF MINIMUM MORTGAGE RATES
Variable Rate Group
Range of Aggregate % of Aggregate
Minimum Number of Initial Unpaid Unpaid
Mortgage Rates Mortgage Loans Principal Balance Principal Balance
6.501 - 7.000%........................... 25 $ 2,048,046.56 8.36%
7.001 - 7.500............................ 14 1,554,848.47 6.35
7.501 - 8.000............................ 61 7,358,892.94 30.03
8.001 - 8.500............................ 45 5,604,636.24 22.87
8.501 - 9.000............................ 36 4,029,695.45 16.44
9.001 - 9.500............................ 4 486,647.11 1.99
9.501 - 10.000............................. 12 1,327,247.63 5.42
10.001 - 10.500............................. 9 1,122,827.41 4.58
10.501 - 11.000............................. 4 597,383.00 2.44
11.000 - 11.500............................. 2 177,921.50 0.73
11.501 - 12.000............................. 2 196,860.42 0.80
--- -------------- ------
Total.................................... 214 $24,505,006.73 100.00%
--- -------------- ======
DISTRIBUTION OF MARGINS
Variable Rate Group
Aggregate % of Aggregate
Range of Number of Initial Unpaid Unpaid
Margins Mortgage Loans Principal Balance Principal Balance
4.001 - 4.500%............................. 1 $ 102,659.03 0.42%
4.501 - 5.000.............................. 73 7,229,053.75 29.50
5.001 - 5.500.............................. 58 7,022,535.55 28.66
5.501 - 6.000.............................. 39 5,091,149.29 20.78
6.001 - 6.500.............................. 15 2,082,460.54 8.50
6.501 - 7.000.............................. 17 1,763,166.90 7.20
7.001 - 7.500.............................. 9 1,006,923.21 4.11
7.501 - 8.000.............................. 1 153,335.19 0.63
8.501 - 9.000.............................. 1 53,723.27 0.22
--- -------------- ------
Total.................................. 214 $24,505,006.73 100.00%
=== ============== =======
S-25
GEOGRAPHIC DISTRIBUTION OF MORTGAGED PROPERTIES
Variable Rate Group
Aggregate % of Aggregate
Number of Initial Unpaid Unpaid
State Mortgage Loans Principal Balance Principal Balance
Arizona......................................... 3 $ 246,340.00 1.01%
California...................................... 59 9,119,246.50 37.21
Colorado........................................ 14 1,428,211.89 5.83
Connecticut..................................... 2 278,728.00 1.14
Florida......................................... 5 506,720.62 2.07
Georgia......................................... 2 198,270.29 0.81
Illinois........................................ 13 1,185,942.44 4.84
Maryland........................................ 4 337,816.56 1.38
Massachusetts................................... 1 55,316.22 0.23
Minnesota....................................... 1 53,723.27 0.22
New Jersey...................................... 24 2,448,226.99 9.99
New York........................................ 17 1,965,610.91 8.02
Ohio............................................ 11 897,130.51 3.66
Oregon.......................................... 10 1,304,828.40 5.32
Pennsylvania.................................... 14 1,271,041.70 5.19
Utah............................................ 16 1,123,564.27 4.59
Virginia........................................ 4 576,422.86 2.35
Washington...................................... 14 1,507,865.30 6.15
--- -------------- ------
Total.................................. 214 $24,505,006.73 100.00%
=== ============== ======
Conveyance of Subsequent Mortgage Loans - Variable Rate Group
The Pooling and Servicing Agreement permits the Trust to acquire
$5,494,993 in aggregate principal balance of Subsequent Mortgage Loans for
addition to the Variable Rate Group. Accordingly, the statistical
characteristics of the Mortgage Loan Pool and the Variable Rate Group will vary
as of any Subsequent Cut-Off Date upon the acquisition of Subsequent Mortgage
Loans. Pursuant to the Pooling and Servicing Agreement, however, the Seller has
covenanted to deliver Subsequent Mortgage Loans for inclusion in the Variable
Rate Group that will not materially change the statistical characteristics of
the Mortgage Loan Pool and the Variable Rate Group. Each Subsequent Mortgage
Loan will meet the requirements specified by the Certificate Insurer for
Subsequent Mortgage Loans.
The obligation of the Trust to purchase Subsequent Mortgage Loans for
addition to the Variable Rate Group on a Subsequent Transfer Date is subject to
the satisfaction of the requirements as set forth in the Pooling and Servicing
Agreement.
Interest Payments on the Mortgage Loans
Each Mortgage Loan provides for monthly payments by the obligor on the
related Note (the "Mortgagor") according to the actuarial method ("Actuarial
Loans"). Actuarial Loans provide that interest is charged to the Mortgagors
thereunder, and payments are due from such Mortgagors, as of a scheduled day of
each month which is fixed at the time of origination. Scheduled monthly payments
made by the Mortgagors on the Actuarial Loans either earlier or later than the
scheduled due dates thereof will not affect the amortization schedule or the
relative application of such payments to principal and interest.
S-26
PREPAYMENT AND YIELD CONSIDERATIONS
The weighted average life of, and, if purchased at other than par
(disregarding, for purposes of this discussion, the effects on the yield on the
Class A-1 Certificates resulting from the timing of the settlement date and
those considerations discussed below under "Payment Delay Feature of Class A-1
Certificates"), the yield to maturity on a Class A Certificate will be directly
related to the rate of payment of principal of the Mortgage Loans in the related
Mortgage Loan Group, including for this purpose voluntary payment in full of
Mortgage Loans in the related Mortgage Loan Group prior to stated maturity (a
"Prepayment"), liquidations due to defaults, casualties and condemnations, and
repurchases of Mortgage Loans in the related Mortgage Loan Group by the Seller
or by the Certificate Insurer. The Mortgage Loans may be prepaid by the related
Mortgagors, in whole or in part, at any time. However, as of the Cut-Off Date,
approximately 47.15% and 46.74% (by aggregate Loan Balance) of the Initial
Mortgage Loans in the Fixed Rate Group and the Variable Rate Group,
respectively, require the payment of a fee in connection with certain
prepayments of the Mortgage Loans. The actual rate of principal prepayments on
pools of mortgage loans is influenced by a variety of economic, tax, geographic,
demographic, social, legal and other factors and has fluctuated considerably in
recent years. In addition, the rate of principal prepayments may differ among
pools of mortgage loans at any time because of specific factors relating to the
mortgage loans in the particular pool, including, among other things, the age of
the mortgage loans, the geographic locations of the properties securing the
loans, the extent of the mortgagors' equity in such properties, and changes in
the mortgagors' housing needs, job transfers and unemployment.
The timing of changes in the rate of prepayments may significantly
affect the actual yield to investors, even if the average rate of principal
prepayments is consistent with the expectations of investors. In general, the
earlier the payment of principal of the Mortgage Loans the greater the effect on
an investor's yield to maturity. As a result, the effect on an investor's yield
of principal prepayments occurring at a rate higher (or lower) than the rate
anticipated by the investor during the period immediately following the issuance
of the Class A Certificates will not be offset by a subsequent like reduction
(or increase) in the rate of principal prepayments. Investors must make their
own decisions as to the appropriate prepayment assumptions to be used in
deciding whether to purchase any of the Class A Certificates. The Seller does
not make any representations or warranties as to the rate of prepayment or the
factors to be considered in connection with such determination.
Mandatory Prepayment
In the event that at the end of the Funding Period, not all of the
Original Pre-Funded Amount has been used to acquire Subsequent Mortgage Loans
for inclusion in the Fixed Rate Group or the Variable Rate Group, then the
Owners of the Class A-1 Certificates and/or Class A-2 Certificates will receive
a partial prepayment on the Payment Date in May 1999 equal to the related amount
remaining in the Pre-Funding Account.
Although no assurances can be given, the Seller expects that the
principal amount of Subsequent Mortgage Loans sold to the Trust for inclusion in
the Fixed Rate Group and the Variable Rate Group will require the application of
substantially all the amount on deposit in the Pre-Funding Account and that
there should be no material principal prepaid to the Owners of the Class A-1
Certificates or the Class A-2 Certificates.
Prepayment and Yield Scenarios for Class A Certificates
If purchased at other than par, the yield to maturity on a Class A
Certificate will be affected by the rate of the payment of principal of the
Mortgage Loans in the related Mortgage Loan Group. If the actual rate of
payments on the Mortgage Loans in a Mortgage Loan Group is slower than the rate
anticipated by an investor who purchases a Class A Certificate related to such
Mortgage Loan Group at a discount, the actual yield to such investor will be
lower than such investor's anticipated yield. If the actual rate of payments on
the Mortgage Loans in a Mortgage Loan Group is faster than the rate anticipated
by an investor who purchases a Class A Certificate related to such Mortgage Loan
Group at a premium, the actual yield to such investor will be lower than such
investor's anticipated yield.
All of the Mortgage Loans in the Fixed Rate Group are fixed rate
mortgage loans. The rate of prepayments with respect to conventional fixed rate
mortgage loans has fluctuated significantly in recent years. In general, if
prevailing interest rates fall significantly below the interest rates on fixed
rate mortgage loans, such mortgage loans are likely to be subject to higher
prepayment rates than if prevailing rates remain at or above the interest rates
on such mortgage loans. However, the monthly payment on a home equity or home
improvement loan is often smaller than the monthly payment on a purchase money
first mortgage loan. Because of the smaller loan balance often associated with
S-27
a home equity or home improvement loan, a decrease in the interest rate payable
results in a smaller reduction in the amount of the Mortgagor's monthly payment.
Conversely, if prevailing interest rates rise appreciably above the interest
rates on fixed rate mortgage loans, such mortgage loans are likely to experience
a lower prepayment rate than if prevailing rates remain at or below the interest
rates on such mortgage loans.
All of the Mortgage Loans in the Variable Rate Group are either
adjustable rate mortgage loans or 2/28 Loans. As is the case with conventional
fixed rate mortgage loans, adjustable rate mortgage loans may be subject to a
greater rate of principal prepayments in a declining interest rate environment.
For example, if prevailing interest rates fall significantly, adjustable rate
mortgage loans could be subject to higher prepayment rates than if prevailing
interest rates remain constant because the availability of fixed rate mortgage
loans at competitive interest rates may encourage mortgagors to refinance their
adjustable rate mortgage loans to a lower fixed interest rate. However, no
assurance can be given as to the level of prepayments that the Mortgage Loans
will experience. The Seller does not believe that data compiled by the Federal
National Mortgage Association ("Fannie Mae") or the Federal Home Loan Mortgage
Corporation ("Freddie Mac") is representative of the types of borrowers included
in the Seller's lending program and cannot assure that such prepayment
experience is relevant to the Mortgage Loans contained in either Mortgage Loan
Group.
As described under "Mortgage Loan Program" in the Prospectus, in
addition to direct origination, the Seller also purchases pools of Mortgage
Loans from Originators. The Seller has a policy of soliciting certain of the
Mortgagors from time to time with respect to such purchased Mortgage Loans for
refinancing. If any such Mortgage Loans are refinanced as a result, the
prepayment level of the related Mortgage Loan Group may be increased over the
level which such Mortgage Loan Group would experience in the absence of such
solicitations. In addition, if a Mortgagor indicates that he or she plans on
refinancing a Mortgage Loan, the Seller has a program that allows it to offer to
refinance such Mortgage Loan. Such refinancing will result in a prepayment on
such Mortgage Loan.
The prepayment behavior of the 2/28 Loans may differ from that of the
other Mortgage Loans in the Variable Rate Group. As a 2/28 Loan approaches its
initial adjustment date, the borrower may become more likely to refinance such
loan to avoid an increase in the coupon rate, even if fixed rate loans are only
available at rates that are slightly lower or higher than the coupon rate before
adjustment. The existence of the applicable periodic rate cap, lifetime cap and
lifetime floor also may affect the likelihood of prepayments resulting from
refinancings. In addition, the delinquency and loss experience on the Mortgage
Loans in the Variable Rate Group may differ from that on the Mortgage Loans in
the Fixed Rate Group because the amount of the monthly payments on the Mortgage
Loans in the Variable Rate Group are subject to adjustment on each adjustment
date.
The "Last Scheduled Payment Date" for the Class A-1 Certificates and
the Class A-2 Certificates is June 20, 2030 which is the Payment Date in the
month following the calendar month of the maturity of the latest possible
maturing Initial Mortgage Loan, plus 12 months. The weighted average life of
each Class of Class A Certificates is likely to be shorter, and the actual final
Payment Date with respect to each Class of Class A Certificates could occur
significantly earlier than the Last Scheduled Payment Date because (i)
Prepayments are likely to occur which shall be applied to the payment of the
Class A Principal Balances, (ii) Net Monthly Excess Spread to the extent
available will be applied as an accelerated payment of principal on the Class A
Certificates up to the Specified Subordinated Amount for each Mortgage Loan
Group and (iii) the Servicer or, in limited circumstances, the Oversight Agent,
may cause a termination of the Trust when the aggregate outstanding principal
balance of the Mortgage Loans has declined to less than $11,500,000 as described
under "The Pooling and Servicing Agreement -- Optional Termination" herein.
Prepayments on Mortgage Loans are commonly measured relative to a
prepayment standard or model. The model used in this Prospectus Supplement (the
"Prepayment Assumption") represents an assumed rate of prepayment each month
relative to the then outstanding principal balance of the pool of mortgage loans
for the life of such mortgage loans. With respect to the Class A-1 Certificates,
a 100% Prepayment Assumption (100% PPC) assumes a constant prepayment rate
("CPR") of 4% per annum of the outstanding principal balance of such mortgage
loans in the Fixed Rate Group in the first month of the life of the mortgage
loans and an additional amount of approximately 1.454545% (precisely 16/11
percent per annum) in each month thereafter until the twelfth month; beginning
in the twelfth month and in each month thereafter during the life of the
mortgage loans, a constant prepayment rate of 20% per annum each month is
assumed. With respect to the Class A-2 Certificates, the Prepayment Assumption
assumes a constant prepayment rate of the applicable per annum CPR percentage of
the outstanding principal balances of the mortgage loans in the Variable Rate
Group. As used in the tables below entitled "Prepayment Assumptions" and
"Weighted Average Lives", 0% Prepayment Assumption (0% PPC) assumes a constant
prepayment rate equal to 0% of the
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applicable Prepayment Assumption, i.e., no prepayments. Correspondingly, 125%
Prepayment Assumption (125% PPC) assumes prepayment rates equal to 125% of the
applicable Prepayment Assumption, and so forth. The Prepayment Assumption does
not purport to be an historical description of prepayment experience or a
prediction of the anticipated rate of prepayment of any pool of mortgage loans,
including the Mortgage Loans. The Seller believes that no existing statistics of
which it is aware provide a reliable basis for Owners of the Certificates to
predict the amount or the timing of receipt of prepayments on the Mortgage
Loans.
The tables entitled "Weighted Average Lives" have been prepared on the
basis of the following assumptions (collectively, the "Modeling Assumptions"):
(i) the Mortgage Loans of the related Mortgage Loan Groups prepay at the
indicated constant percentages of PPC or CPR; (ii) distributions on the Class A
Certificates are received, in cash, on the 20th day of each month, commencing in
April 1999; (iii) no defaults or delinquencies in, or modifications, waivers or
amendments respecting, the payment by the Mortgagors of principal and interest
on the Mortgage Loans occur; (iv) scheduled payments are assumed to be received
on the first day of each month commencing in April 1999 and prepayments
represent payment in full of individual Mortgage Loans and are assumed to be
received on the last day of each month, commencing in March 1999 and include 30
days' interest thereon; (v) the level of Six-Month LIBOR remains constant at
5.128%; (vi) the Class A-2 Pass-Through Rate remains constant at 5.285% per
annum; (vii) the Class A Certificates are purchased on March 19, 1999 (the
"Closing Date"); (viii) the Mortgage Rate for each Mortgage Loan in the Variable
Rate Group is adjusted on its next Mortgage Rate change date (and on subsequent
Mortgage Rate change dates, if necessary) to equal the sum of (a) the assumed
level of the Six-Month LIBOR index and (b) the respective gross margin (such sum
being subject to the respective periodic adjustment, as applicable); (ix) on
March 19, 1999, all amounts on deposit in the Pre-Funding Account are used to
acquire Subsequent Mortgage Loans; and (x) each Mortgage Loan Group consists of
Mortgage Loans having the following characteristics:
FIXED RATE GROUP
Initial and Subsequent Mortgage Loans
Remaining
Mortgage Term to
Principal Mortgage Rate Net of Stated Maturity Seasoning
Balance Rate Servicing Fee Rate (in months) (in months)
------- ---- ------------------ ----------- -----------
$ 572,510.70 12.895% 12.395% 97(1) 83
349,409.51 9.230 8.730 115 0
8,300,089.95 9.102 8.602 180 0
1,277,236.33 9.174 8.674 240 0
47,934,475.32 9.250 8.750 360 0
869,560.95 13.577 13.077 96 78
2,430,737.92 9.467 8.967 161 19
2,545,490.73 10.405 9.905 290 70
20,720,488.59 9.616 9.116 340 20
- --------------------------------
(1) Amortization term for the Balloon Loans is 277 months.
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VARIABLE RATE GROUP
Initial and Subsequent Mortgage Loans
Current Remaining Number of
Mortgage Rate Term to Months to Initial
Current Net of Stated Next Mortgage Periodic Periodic
Principal Mortgage Servicing Fee Maturity Seasoning Gross Rate Change Adjustment Adjustment
Balance Rate Rate (in months) (in months) Margin (in months) Cap Cap
------- ---- ---- ----------- ----------- ------ ----------- --- ---
$1,434,211.88 8.688% 8.188% 357 3 5.983% 3 1.074% 1.074%
2,716,643.64 8.926 8.426 346 2 6.186 4 1.000 1.000
7,651,467.05 8.321 7.821 354 1 5.539 5 1.000 1.000
7,303,401.49 8.401 7.901 335 0 5.476 6 1.000 1.000
7,863,893.36 8.316 7.816 334 0 5.400 7 1.000 1.000
1,094,358.81 9.113 8.613 360 0 5.821 8 1.000 1.000
1,936,023.78 8.190 7.690 353 1 5.866 23 1.000 1.000
"Weighted average life" refers to the average amount of time that will
elapse from the date of issuance of a Certificate until each dollar of principal
of such Certificate will be repaid to the investor. The weighted average life of
the Class A Certificates will be influenced by the rate at which principal
payments on the Mortgage Loans in the related Mortgage Loan Group are paid,
which may be in the form of scheduled amortization or prepayments (for this
purpose, the term "prepayment" includes prepayments, liquidations due to default
or early termination of a Mortgage Loan Group). The weighted average lives of
the Class A Certificates also will be influenced by the overcollateralization of
the Class A Certificates because collections otherwise payable to the Class R
Certificates are applied as principal prepayments to the Class A Certificates
until the outstanding aggregate principal balance of the Class A Certificates is
less than the aggregate outstanding principal balance of the Mortgage Loans in
each Mortgage Loan Group by the related Specified Subordinated Amount for such
Group. These prepayments have the effect of accelerating the amortization of the
Class A Certificates, thereby shortening their respective weighted average
lives.
Based on the foregoing Modeling Assumptions, the tables below indicate
the weighted average life of each Class of the Class A Certificates, assuming
that the Mortgage Loans in the related Mortgage Loan Group prepay according to
the indicated percentages of the related Prepayment Assumption:
PREPAYMENT ASSUMPTIONS
Assumption I Assumption II Assumption III Assumption IV Assumption V Assumption VI
------------ ------------- -------------- ------------- ------------ -------------
Fixed Rate Group (PPC): 0% 75% 100% 125% 175% 200%
Variable Rate Group (CPR): 0% 15% 20% 30% 35% 40%
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WEIGHTED AVERAGE LIVES
Class A-1
Weighted
Prepayment Average Life Earliest Retirement
Assumption (years)(1) Date(1)
- ---------- ---------- -------
I ............................... 18.30 April 20, 2027
II ............................... 5.16 January 20, 2012
III ............................... 3.98 January 20, 2009
IV ............................... 3.18 September 20, 2006
V ............................... 2.29 August 20, 2004
VI ............................... 1.99 November 20, 2003
Class A-2
Weighted
Prepayment Average Life Earliest Retirement
Assumption (years)(1) Date(1)
- ---------- ---------- -------
I .............................. 19.80 April 20, 2027
II .............................. 4.97 January 20, 2012
III .............................. 3.73 January 20, 2009
IV .............................. 2.49 September 20, 2006
V .............................. 2.01 August 20, 2004
VI .............................. 1.71 November 20, 2003
(1) Assuming early termination of the Trust at the Clean-Up Call Date.
There is no assurance that prepayments will occur, or, if they do
occur, that they will occur at any constant percentage or in accordance with any
of the aforementioned Prepayment Assumptions.
Payment Delay Feature of Class A-1 Certificates
The effective yield to the Owners of the Class A-1 Certificates will be
lower than the yield otherwise produced by the Class A-1 Certificate
Pass-Through Rate and the purchase price of such Certificates because principal
and interest distributions will not be payable to such holders until at least
the twentieth day of the month following the month of accrual (without any
additional distributions of interest or earnings thereon in respect of such
delay).
ADDITIONAL INFORMATION
The description in this Prospectus Supplement of the mortgage pool, the
Fixed Rate Group, the Variable Rate Group and the Mortgaged Properties is based
upon the pool of Initial Mortgage Loans as constituted at the close of business
on the Cut-Off Date, as adjusted for the scheduled principal payments due on or
before such date. Prior to the issuance of the Class A Certificates, Initial
Mortgage Loans may be removed from the mortgage pool as a result of incomplete
documentation or non-compliance with representations and warranties set forth in
the Pooling and Servicing Agreement, if the Seller deems such removal necessary
or appropriate. A limited number of other mortgage loans may be included in the
mortgage pool prior to the issuance of the Class A Certificates.
A current report on Form 8-K will be available to purchasers of the
Class A Certificates and will be filed, together with the Pooling and Servicing
Agreement, with the Commission within fifteen days after the initial issuance of
the Class A Certificates and incorporated by reference to the Registration
Statement. In the event Initial Mortgage Loans are removed from or added to the
mortgage pool as set forth in the preceding paragraph, such removal or addition
will be noted in the current report on Form 8-K. Also, the Seller has filed
certain additional yield tables and other computational materials with respect
to the Class A-1 Certificates and the Class A-2 Certificates with the Commission
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in a report on Form 8-K. Such tables and materials were prepared at the request
of certain prospective investors, based on assumptions provided by, and
satisfying the special requirements of, such prospective investors. Such tables
and assumptions may be based on assumptions that differ from the Modeling
Assumptions. Accordingly, such tables and other materials may not be relevant to
or appropriate for investors other than those specifically requesting them.
DESCRIPTION OF THE CLASS A CERTIFICATES
General
The Certificates will consist of the Class A-1 Certificates, the Class
A-2 Certificates and the Class R Certificates. The Certificates will be issued
by First Alliance Mortgage Loan Trust 1999-1 a trust to be organized under the
laws of the State of New York. Only the Class A Certificates are offered hereby.
The Class A Certificates together with the Class R Certificates retained by the
Seller (the "Class R Certificates") are herein referred to as the
"Certificates." The "Certificate Principal Balance" of any Class of Class A
Certificates is the original Certificate Principal Balance of such Class as of
the Closing Date as reduced by all amounts actually distributed as principal to
the Owners of such Class of Class A Certificates on all prior Payment Dates.
Persons in whose name a Certificate is registered in the Register
maintained by the Trustee are the "Owners" of the Certificates. For so long as
the Class A Certificates are in book-entry form with DTC, the only "Owner" of
the Class A Certificates as the term "Owner" is used in the Pooling and
Servicing Agreement will be Cede. No beneficial owners will be entitled to
receive a definitive certificate representing such person's interest in the
Trust, except in the event that physical Certificates are issued under limited
circumstances set forth in the Pooling and Servicing Agreement. All references
herein to the Owners of Class A Certificates shall mean and include the rights
of Owners as such rights may be exercised through DTC and its participating
organizations, except as otherwise specified in the Pooling and Servicing
Agreement.
As described in "The Portfolio of Mortgage Loans" herein, the Mortgage
Loan pool is divided into the Fixed Rate Group, which contains first and junior
lien Mortgage Loans having fixed rates of interest and the Variable Rate Group,
which contains first lien Mortgage Loans having variable rates of interest. For
each Mortgage Loan Group, the related Class of Class A Certificates will
evidence the right to receive on each Payment Date the Class A Distribution
Amount for such Class of Class A Certificates, in each case until the related
Certificate Principal Balance has been reduced to zero. The Owners of the Class
R Certificates will be entitled to receive distributions of residual Net Monthly
Excess Spread.
Collections and Remittances
The Pooling and Servicing Agreement will require that the Trustee
create and maintain a Certificate Account, to be established as a trust account
held by the trust department of the Trustee (the "Certificate Account"). All
funds in the Certificate Account shall be invested and reinvested by the Trustee
for the benefit of the Trustee as determined by the Trustee in its sole
discretion, but only in Eligible Investments.
Five business days prior to the related Payment Date (or, if such day
is not a business day, the immediately preceding business day) (the "Remittance
Date") the Servicer is required to withdraw from the Principal and Interest
Account and remit to the Trustee, for deposit in the Certificate Account, the
Monthly Remittance Amount for the related Mortgage Loan Group. The Monthly
Remittance Amount for a Mortgage Loan Group is equal to (a) the sum of (i) the
balance on deposit in the Principal and Interest Account as of the close of
business on the related Determination Date, (ii) all Delinquency Advances and
Compensating Interest (collectively, the "Advances") and (iii) certain amounts
required to be deposited by the Servicer in the Certificate Account, including
Loan Purchase Prices and Substitution Amount, reduced by (b) the sum of (i)
scheduled payments on the Mortgage Loans collected but due after the related Due
Date, (ii) reinvestment income on amounts in the Principal and Interest Account,
(iii) the Servicing Fee for such Payment Date and all amounts reimbursable to
the Servicer and (iv) any unscheduled payments, including Mortgagor prepayments
on the Mortgage Loans, Insurance Proceeds and Net Liquidation Proceeds occurring
in the month of such Payment Date. With respect to any Payment Date, (i) the Due
Date is the first day of the month in which such Payment Date occurs, and (ii)
the Determination Date is the 12th day of the month in which such Payment Date
occurs or, if such day is not a business day, the immediately preceding business
day. See "The Pooling and Servicing Agreement Servicing and Other Compensation
and Payment of Expenses; Originator's Retained Yield" in the Prospectus.
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The Compensating Interest for any Payment Date is equal to the
aggregate shortfall, if any, in collections of interest (adjusted to the related
net Mortgage Rates) resulting from principal prepayments in full on the Mortgage
Loans received in the corresponding Remittance Period. "Remittance Period"
means, the period beginning on the first day of the calendar month immediately
preceding the month in which the related Remittance Date occurs and ending on
the last day of such month. Such shortfalls will result because the Mortgagor is
required to pay interest on prepayments only to the date of prepayment. The
Servicer will be obligated to apply amounts otherwise payable to it as servicing
compensation in any month to cover any shortfalls in collections of one full
month's interest at the applicable net Mortgage Rate resulting from principal
prepayments in full. The Servicer is not obligated to cover any shortfalls in
collections of interest for prepayments in part. Such prepayments in part are
applied to reduce the outstanding principal balance of the related Mortgage Loan
as of the Due Date in the month following prepayment.
Distributions
Distributions on the Certificates will be made on each Payment Date to
Owners of record of the Certificates as of the immediately preceding Record Date
in an amount equal to the product of such Owner's Percentage Interest and the
amount distributed in respect of the Class of Certificates which includes such
Owner's Certificates on such Payment Date.
The "Record Date" is the last day of the calendar month immediately
preceding the calendar month in which such Payment Date occurs, whether or not
such day is a Business Day. The "Percentage Interest" represented by any
Certificate will be equal to the percentage obtained by dividing the original
Certificate Principal Balance of such Certificate by the original Certificate
Principal Balance of all Certificates of the same Class.
Distributions of Interest
On each Payment Date, each Class of Class A Certificates will be
entitled to payments in respect of Class A Current Interest.
The Pass-Through Rate for each Class of the Class A Certificates is as
follows:
Class A-1 Certificates On each Payment Date that occurs on or prior
to the Clean-Up Call Date, 6.68% per annum
and for any Payment Date thereafter, 7.18%
per annum.
Class A-2 Certificates On each Payment Date, the Class A-2
Pass-Through Rate will be equal to the
lesser of (i) the Class A-2 Formula
Pass-Through Rate and (ii) the Available
Funds Cap.
The "Class A-2 Formula Pass-Through Rate" is
the lesser of (i) (A) LIBOR plus 0.32% per
annum for any Payment Date that occurs on or
prior to the Clean-Up Call Date or (B) LIBOR
plus 0.64% per annum for any Payment Date
that occurs after the Clean-Up Call Date,
and (ii) 15% per annum.
The "Available Funds Cap" is defined in the
Pooling and Servicing Agreement as the
weighted average of the Mortgage Rates on
Mortgage Loans in the Variable Rate Group,
less the sum of (a) the Servicing Fee Rate,
(b) the premiums due to the Certificate
Insurer with respect to the Certificate
Insurance Policy relating to the Class A-2
Certificates (expressed as a per annum
rate), (c) the fee due to the Oversight
Agent (expressed as a per annum rate)
relating to the Class A-2 Certificates and
(d) beginning on the thirteenth Payment Date
following the Closing Date, 0.50%.
The Pooling and Servicing Agreement provides that if, on any Payment
Date, the Available Funds Cap limits the Class A-2 Pass-Through Rate (i.e., the
rate set by the Available Funds Cap is less than the Class A-2 Formula
Pass-Through Rate), the amount of any such shortfall will be carried forward and
be due and payable on future Payment Dates (to the extent that there are funds
available for such purpose) and shall accrue interest at the applicable Class
A-2 Formula Pass-Through Rate, until paid (such shortfall, together with such
accrued interest, the "Available Funds Cap Carry-Forward Amount"). The
Certificate Insurance Policy for the Class A-2 Certificates does not cover the
Available Funds Cap Carry-Forward Amount; the payment of such amount may be
funded only from (i) any excess interest in the
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Variable Rate Group resulting from the Available Funds Cap being in excess of
the Class A-2 Formula Pass-Through Rate on future Payment Dates, (ii) any Net
Monthly Excess Spread which would otherwise be paid to the Servicer or the
Trustee on account of certain reimbursable amounts, or to the Owners of the
Class R Certificates and (iii) any funds paid to effect the early retirement of
the Class A-2 Certificates on any Remittance Date after the Clean-Up Call Date.
"Class A Current Interest" means, with respect to a Class of Class A
Certificates and a Payment Date, the sum of (i) the aggregate amount of interest
accrued during the related Accrual Period at the Pass-Through Rate for such
Class of Class A Certificates on the outstanding Certificate Principal Balance
of such Class of Class A Certificates and (ii) any Interest Carry Forward Amount
for such Class of Class A Certificates.
The "Clean-Up Call Date" is the first Payment Date on which the
outstanding aggregate principal balance of the Mortgage Loans has declined to
less than $11,500,000.
"Accrual Period" means with respect to (x) the Class A-1 Certificates,
the calendar month immediately preceding the calendar month in which such
Payment Date occurs and (y) the Class A-2 Certificates, the period from the
preceding Payment Date (or from the Closing Date in the case of the first
Payment Date) to and including the day prior to the current Payment Date.
Calculations of interest on the Class A-1 Certificates will be made on the basis
of a 360-day year assumed to consist of twelve 30-day months. Calculations of
interest on the Class A-2 Certificates will be made on the basis of the actual
number of days elapsed in the related Accrual Period and a year of 360 days.
The "Interest Carry Forward Amount" for each Class of Class A
Certificates and any Payment Date is the sum of (x) the amount, if any, by which
(i) the Class A Current Interest for such Class of Class A Certificates as of
the immediately preceding Payment Date exceeded (ii) the amount of the actual
payments of interest for such Class of Class A Certificates made on such
immediately preceding Payment Date plus (y) interest on such amount, calculated
at the Pass-Through Rate for such Class of Class A Certificates for the number
of days in the related Accrual Period.
Distributions of Principal
The Owners of each Class of Class A Certificates are entitled to
receive certain monthly distributions of principal on each Payment Date which
generally reflect collections of scheduled principal due on the Due Date
occurring during the related Due Period and unscheduled payments of principal
collected during the related Remittance Period.
The credit enhancement provisions of the Trust result in a limited
acceleration of the principal payments to the Owners of each Class of Class A
Certificates; such credit enhancement provisions are more fully described under
"Description of the Class A Certificates -- Overcollateralization Provisions"
and "-- Crosscollateralization Provisions" herein. Such credit enhancement
provisions also have the effect of accelerating and shortening the weighted
average lives of the Class A Certificates by increasing the rate at which
principal is distributed to the Owners. See "Prepayment and Yield
Considerations" herein.
On each Payment Date, distributions in reduction of the Certificate
Principal Balance of the Class A Certificates will be made in the amounts
described herein. The "Class A Principal Distribution Amount" for each Mortgage
Loan Group with respect to each Payment Date shall be the lesser of:
(a) the related Total Available Funds for the related Mortgage
Loan Group plus any related Insured Payment minus the related
Class A Current Interest and Fees and Expenses; and
(b)(i) the sum, without any duplication of:
(a) the Principal Carry-Forward Amount with respect to
the related Mortgage Loan Group;
(b) the principal portion of all scheduled monthly
payments on the Mortgage Loans in the related
Mortgage Loan Group due during the related Due
Period, to the extent actually
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received by the Servicer on or prior to the related
Remittance Date or to the extent actually advanced by
the Servicer on or prior to the related Remittance
Date and the principal portion of all full and
partial principal prepayments made by the respective
Mortgagors during the related Remittance Period;
(c) the scheduled principal balance of each Mortgage Loan
in the related Mortgage Loan Group that either was
repurchased by the Seller or an Originator or
purchased by the Servicer on the related Remittance
Date;
(d) any Substitution Amounts delivered by the Seller or
an Originator on the related Remittance Date in
connection with a substitution of a Mortgage Loan in
the related Mortgage Loan Group (to the extent such
Substitution Amounts relate to principal);
(e) all Net Liquidation Proceeds actually collected by
the Servicer with respect to the Mortgage Loans in
the related Mortgage Loan Group during the related
Remittance Period (to the extent such Net Liquidation
Proceeds relate to principal);
(f) the amount of any Subordination Deficit with respect
to such Mortgage Loan Group for such Payment Date;
(g) the proceeds received by the Trustee of any
termination of the related Mortgage Loan Group (to
the extent such proceeds relate to principal);
(h) any moneys released from the Pre-Funding Account as a
prepayment of the related Class of Class A
Certificates on the Payment Date which immediately
follows the end of the Funding Period; and
(i) the amount of any Subordination Increase Amount with
respect to such Mortgage Loan Group for such Payment
Date consisting of the amount of any Net Monthly
Excess Spread to be actually applied for the
accelerated payment of principal on the related Class
A Certificates;
minus
(ii) the amount of any Subordination Reduction Amount with respect
to such Mortgage Loan Group for such Payment Date consisting
of the amount of any Net Monthly Excess Spread to be actually
paid to the Owners of the Class R Certificates.
In no event will the Class A Principal Distribution Amount for any
Mortgage Loan Group and Payment Date (x) be less than zero or (y) be greater
than the then-outstanding Certificate Principal Balance of the related Class of
Class A Certificates.
The sum of the Class A Current Interest and the Class A Principal
Distribution Amount with respect to any Class of Class A Certificates and
Payment Date is the "Class A Distribution Amount" for such Class of Class A
Certificates and Payment Date.
The "Principal Carry-Forward Amount" with respect to a Class of Class A
Certificates for any Payment Date is the amount, if any, by which (i) the amount
described in clause (b) of the definition of Class A Principal Distribution
Amount for such Class as of the immediately preceding Payment Date exceeded (ii)
the amount of the actual distribution of principal made to the Owners of the
related Class of Class A Certificates on such immediately preceding Payment
Date.
A "Due Period" with respect to any Payment Date is the period
commencing on the second day of the month preceding the month of such Payment
Date and ending on the first day of the month of such Payment Date.
The "Fees and Expenses" for a Mortgage Loan Group and Payment Date are
the premium amount payable to the Certificate Insurer and the portion of the
Oversight Agent Fee allocable to such Mortgage Loan Group.
S-35
A "Liquidated Mortgage Loan" is, in general, a defaulted Mortgage Loan
as to which the Servicer has determined that all amounts that it expects to
recover on such Mortgage Loan have been recovered (exclusive of any possibility
of a deficiency judgment).
Owners may not recover a loss on a Liquidated Mortgage Loan (i.e., a
Realized Loss) on the Payment Date which immediately follows the event of loss.
However, the Owners of the Class A Certificates are entitled to receive ultimate
recovery of any Realized Losses which occur in the related Mortgage Loan Group,
which receipt will be no later than the Payment Date occurring after such
Realized Loss creates a Subordination Deficit and will be in the form of an
Insured Payment if not covered through Net Monthly Excess Spread in the related
Group or the other Group.
Insured Payments do not cover Realized Losses until such time as the
aggregate cumulative Realized Losses have created a Subordination Deficit nor do
Insured Payments cover the Servicer's failure to make Delinquency Advances until
such time as the aggregate cumulative amount of such unpaid Delinquency
Advances, when added to Realized Losses, have created a Subordination Deficit or
when such unpaid Delinquency Advances are necessary to pay the required amount
of Class A Current Interest.
Overcollateralization Provisions
Overcollateralization Resulting from Cash Flow Structure. The Pooling
and Servicing Agreement requires that, on each Payment Date, Net Monthly Excess
Spread with respect to a Mortgage Loan Group be applied on such Payment Date as
an accelerated payment of principal on the related Class of Class A
Certificates, but only to the limited extent hereafter described. The "Net
Monthly Excess Spread" equals (i) the excess (such excess being the "Total
Monthly Excess Spread" with respect to the related Mortgage Loan Group), if any,
of (x) the interest which is collected on the Mortgage Loans in such Mortgage
Loan Group with respect to the Due Date occurring in the month in which such
Payment Date occurs (net of the Servicing Fee and of certain miscellaneous
administrative amounts) plus the interest portion of any Delinquency Advances
and Compensating Interest plus amounts transferred from the Capitalized Interest
Account over (y) the sum of (I) the related Class A Current Interest and (II)
the related Fees and Expenses, over (ii) any portion of the Total Monthly Excess
Spread that is used to cover any shortfalls in Available Funds in the related
Mortgage Loan Group on such Payment Date, or in the other Mortgage Loan Group,
or used to reimburse the Certificate Insurer.
The application of Net Monthly Excess Spread to principal has the
effect of accelerating the amortization of the related Class of Class A
Certificates relative to the amortization of the Mortgage Loans in the related
Mortgage Loan Group. To the extent that any Net Monthly Excess Spread is not so
used, the Pooling and Servicing Agreement provides that it will be used to
reimburse the Servicer or Trustee with respect to any amounts owing to each, and
then will be paid to the Owners of the Class R Certificates (subject to certain
prior applications as described below under "Crosscollateralization
Provisions").
Pursuant to the Pooling and Servicing Agreement, each Mortgage Loan
Group's Net Monthly Excess Spread is required to be applied as a payment of
principal on the related Class of Class A Certificates until the related
Subordinated Amount has increased to the level required with respect to the
related Mortgage Loan Group. "Subordinated Amount" means, with respect to a
Mortgage Loan Group and Payment Date, the positive difference, if any, between
(x) the sum of (i) the aggregate scheduled principal balances of the Mortgage
Loans in such Mortgage Loan Group as of the close of business on the last day of
the preceding Remittance Period after taking into account payments of scheduled
principal on such Mortgage Loans due on the Due Date which immediately follows
the last day of such Remittance Period and (ii) any amount on deposit in the
Pre-Funding Account less any earnings on the Pre-Funding Account related to such
Mortgage Loan Group at such time and (y) the Class A Principal Balance of the
related Class of Class A Certificates as of such Payment Date (and assuming all
distributions are made on such Payment Date). With respect to either Mortgage
Loan Group, any amount of Net Monthly Excess Spread actually applied as a
payment of principal is a "Subordination Increase Amount". The required level of
the Subordinated Amount with respect to a Mortgage Loan Group and Payment Date
is the "Specified Subordinated Amount" with respect to such Mortgage Loan Group
and Payment Date. The Pooling and Servicing Agreement generally provides that
the related Specified Subordinated Amount may, over time, decrease, or increase,
subject to certain floors, caps and triggers.
In the event that the required level of the Specified Subordinated
Amount with respect to a Mortgage Loan Group is permitted to decrease or "step
down" on a Payment Date in the future, the Pooling and Servicing Agreement
provides that a portion of the principal which would otherwise be distributed to
the Owners of the related Class of Class
S-36
A Certificates on such Payment Date shall be distributed to the Owners of the
Class R Certificates on such Payment Date (subject to certain prior applications
as described below under "Crosscollateralization Provisions"). This has the
effect of decelerating the amortization of the related Class of Class A
Certificates relative to the amortization of the Mortgage Loans in the related
Mortgage Loan Group, and of reducing the related Subordinated Amount. "Excess
Subordinated Amount" means, with respect to a Mortgage Loan Group and a Payment
Date, the positive difference, if any, between (x) the Subordinated Amount that
would apply to the related Mortgage Loan Group on such Payment Date after taking
into account all distributions to be made on such Payment Date (before giving
effect to any Subordination Reduction Amounts as described in this paragraph)
and (y) the related Specified Subordinated Amount for such Payment Date. If, on
any Payment Date, the Excess Subordinated Amount is, or, after taking into
account all other distributions to be made on such Payment Date would be,
greater than zero (i.e., the Subordinated Amount is or would be greater than the
related Specified Subordinated Amount), then any amounts relating to principal
which would otherwise be distributed to the Owners of the related Class of Class
A Certificates on such Payment Date shall instead be distributed to the Owners
of the Class R Certificates (subject to certain prior applications as described
below under "Crosscollateralization Provisions") to the extent of the lesser of
(x) the Excess Subordinated Amount and (y) the amount available for distribution
on account of principal with respect to the related Class of Class A
Certificates on such Payment Date; such amount being the "Subordination
Reduction Amount" with respect to a Mortgage Loan Group for such Payment Date.
The Pooling and Servicing Agreement provides that, on any Payment Date
all amounts (subject to the discussion in the preceding paragraph) collected on
account of unscheduled principal with respect to a Mortgage Loan Group during
the prior Remittance Period together with principal due on the Due Date that
immediately follows the last day of such Remittance Period, to the extent
received or advanced (other than any such amount applied to the payment of a
Subordination Reduction Amount), will be distributed to the Owners of the
related Class of Class A Certificates on such Payment Date. If any Mortgage Loan
became a Liquidated Mortgage Loan during such prior Remittance Period, the Net
Liquidation Proceeds related thereto and allocated to principal may be less than
the scheduled principal balance of the related Mortgage Loan; the amount of any
such insufficiency is a "Realized Loss." In addition, the Pooling and Servicing
Agreement provides that the principal balance of any Mortgage Loan which becomes
a Liquidated Mortgage Loan shall thenceforth equal zero. The Pooling and
Servicing Agreement does not contain any rule which requires that the amount of
any Realized Loss be distributed to the Owners of the related Class of Class A
Certificates on the Payment Date which immediately follows the event of loss;
i.e., the Pooling and Servicing Agreement does not require the current payment
to Owners in respect of losses. However, the occurrence of a Realized Loss will
reduce the Subordinated Amount with respect to the related Mortgage Loan Group,
which, to the extent that such reduction causes the related Subordinated Amount
to be less than the related Specified Subordinated Amount applicable to the
related Payment Date, will require the payment of a Subordination Increase
Amount on such Payment Date (or, if insufficient funds are available on such
Payment Date, on subsequent Payment Dates, until the Subordinated Amount equals
the related Specified Subordinated Amount). The effect of the foregoing is to
allocate losses to the Owners of the Class R Certificates by reducing, or
eliminating entirely, payments of Net Monthly Excess Spread and of Subordination
Reduction Amounts which such Owners would otherwise receive.
Overcollateralization and the Certificate Insurance Policies. A
"Subordination Deficit" with respect to a Mortgage Loan Group and a Payment Date
is the amount, if any, by which (x) the Certificate Principal Balance of the
related Class of Class A Certificates, after taking into account the payment of
the related Class A Principal Distribution Amount (other than any portion
thereof representing payments under the related Certificate Insurance Policy) on
such Payment Date, exceeds (y) the sum of (i) the aggregate principal balances
of the Mortgage Loans in the related Mortgage Loan Group as of the close of
business on the last day of the preceding Remittance Period after taking into
account payments of scheduled principal on such Mortgage Loans due on the Due
Date in the calendar month in which such Payment Date occurs and (ii) the
amount, if any, relating to such Mortgage Loan Group on deposit in the
Pre-Funding Account less any earnings on the Pre-Funding Account relating to
such Mortgage Loan Group on the last day of the related Remittance Period. The
Pooling and Servicing Agreement requires the Trustee to make a claim for an
Insured Payment under the related Certificate Insurance Policy not later than
two business days prior to any Payment Date as to which the Trustee has
determined that a Subordination Deficit will occur for the purpose of applying
the proceeds of such Insured Payment as a payment of principal to the Owners of
the related Class of Class A Certificates on such Payment Date. The Certificate
Insurance Policies are thus similar to the subordination provisions described
above insofar as the Certificate Insurance Policies guarantee ultimate, rather
than current, payment of the amounts of any Realized Losses to the Owners of the
related Class of Class A Certificates. Investors in the Class A Certificates
should realize that, under extreme loss or delinquency scenarios applicable to
the related Mortgage Loan Pool, they may temporarily receive no distributions of
principal.
S-37
Crosscollateralization Provisions
To the extent that any Mortgage Loan Group's Net Monthly Excess Spread
is not required to be applied to the payment of a Subordination Increase Amount
on the related Class of Class A Certificates because the Subordinated Amount
related to such Class is equal to or greater than the then Specified
Subordinated Amount related to such Class, such Net Monthly Excess Spread
(together with the amount of any Subordination Reduction Amount) is permitted to
be applied to the payment of Subordination Increase Amounts on the other Class
of Class A Certificates to the extent necessary to increase the related
Subordinated Amount to the level of its Specified Subordinated Amount.
On each Payment Date, an amount equal to the sum of (x) the Total
Monthly Excess Spread with respect to each Mortgage Loan Group and Payment Date
plus (y) any Subordination Reduction Amount with respect to each such Mortgage
Loan Group and Payment Date (such amount being the "Total Monthly Excess
Cashflow" with respect to such Mortgage Loan Group and Payment Date) will be
required to be applied in the following order of priority:
(i) such amount shall be used to fund any shortfall on
such Payment Date with respect to the related Mortgage Loan Group and
equal to the difference, if any, between (x) the sum of (A) the related
Class A Current Interest and (B) the related Class A Principal
Distribution Amount (calculated only with respect to clause (b) of the
definition thereof and without any Subordination Increase Amount) with
respect to such Mortgage Loan Group for such Payment Date and (y) the
Available Funds with respect to such Mortgage Loan Group for such
Payment Date (the amount of such difference being equal to an
"Available Funds Shortfall" with respect to the related Mortgage Loan
Group);
(ii) any portion of the Total Monthly Excess Cashflow
with respect to such Mortgage Loan Group remaining after the
application described in clause (i) above shall be used to fund any
Available Funds Shortfall with respect to the other Mortgage Loan
Group;
(iii) any portion of the Total Monthly Excess Cashflow
with respect to such Mortgage Loan Group remaining after the
applications described in clauses (i) and (ii) above shall be paid to
the Certificate Insurer in respect of amounts owed on account of any
Insured Payments theretofore made and interest thereon with respect to
the related Mortgage Loan Group (any such amount so owed to the
Certificate Insurer and not theretofore paid, together with accrued
interest thereon, the "Insurer Reimbursable Amount" with respect to the
related Mortgage Loan Group); and
(iv) any portion of the Total Monthly Excess Cashflow
with respect to such Mortgage Loan Group remaining after the
applications described in clauses (i), (ii) and (iii) above shall be
paid to the Certificate Insurer in respect of any Insurer Reimbursable
Amount with respect to the other Mortgage Loan Group.
The amount, if any, of the Total Monthly Excess Cashflow with respect
to a Mortgage Loan Group on a Payment Date remaining after such applications is
the "Net Monthly Excess Cashflow" with respect to such Mortgage Loan Group for
such Payment Date; such amount is required to be applied in the following order
of priority on such Payment Date:
(i) such amount shall be used to fund the payment of
any required Subordination Increase Amount with respect to the related
Mortgage Loan Group as a portion of the distribution of the Class A
Principal Distribution Amount on such Payment Date;
(ii) any portion of the Net Monthly Excess Cashflow
remaining after the application described in clause (i) above shall be
used first, to make any required Subordination Increase Amount with
respect to the other Mortgage Loan Group and second, to pay any
Available Funds Cap Carry-Forward Amount; and
(iii) any remaining Net Monthly Excess Cashflow shall
be used to reimburse the Servicer and the Trustee for certain amounts
owing to each, and any remaining funds shall then be paid to the Owners
of the Class R Certificates.
S-38
Credit Enhancement Does Not Apply to Prepayment Risk
In general, the protection afforded by the overcollateralization
provisions, the crosscollateralization provisions and by the Certificate
Insurance Policies is protection for credit risk and not for prepayment risk.
The subordination provisions may not be adjusted, nor may a claim be made under
the Certificate Insurance Policies to guarantee or insure that any particular
rate of prepayment is experienced by the Trust.
Class A Distributions and Insured Payments to the Owners of the Class A
Certificates
No later than two Business Days prior to each Payment Date the Trustee
will be required to determine the amounts to be on deposit in the Certificate
Account on such Payment Date with respect to each of the two Mortgage Loan
Groups and equal to the sum of (x) such amounts to be on deposit (excluding any
portion thereof that is Total Monthly Excess Cashflow), plus (y) any amounts of
Total Monthly Excess Cashflow (as described above under "Crosscollateralization
Provisions") to be applied on account of such Mortgage Loan Group on such
Payment Date plus, (z) any deposit to the Certificate Account from the
Pre-Funding Account and Capitalized Interest Account expected to be made in
accordance with the Pooling and Servicing Agreement. The amounts described in
clause (x) of the preceding sentence with respect to each Mortgage Loan Group
and Payment Date are the "Fixed Rate Group Available Funds" and the "Variable
Rate Group Available Funds", respectively or, generally, "Available Funds"; the
sum of the amounts described in clauses (x), (y) and (z) of the preceding
sentence with respect to each Mortgage Loan Group and Payment Date are the
"Fixed Rate Group Total Available Funds" and the "Variable Rate Group Total
Available Funds," respectively, or, generally, "Total Available Funds." If the
sum of the Class A Distribution Amounts with respect to the Class A-1
Certificates, for any Payment Date exceeds the Fixed Rate Group Total Available
Funds for such Payment Date, the Trustee will be required to draw the amount of
such insufficiency from the Certificate Insurer under the Certificate Insurance
Policy applicable to the Class A-1 Certificates. Similarly, if on any Payment
Date the Class A Distribution Amount with respect to the Class A-2 Certificates
exceeds the Variable Rate Group Total Available Funds for such Payment Date, the
Trustee will be required to draw the amount of such insufficiency from the
Certificate Insurer under the Certificate Insurance Policy applicable to the
Class A-2 Certificates. The Trustee will be required to deposit to the
Certificate Account the amount of any Insured Payment made by the Certificate
Insurer. The Pooling and Servicing Agreement provides that amounts which cannot
be distributed to the Owners of the Class A Certificates as a result of
proceedings under the United States Bankruptcy Code or similar insolvency laws
will not be considered in determining the amount of Total Available Funds with
respect to any Payment Date.
On each Payment Date, and following the making by the Trustee of all
allocations, transfers and deposits heretofore described under this caption,
from amounts (including any related Insured Payment) then on deposit in the
Certificate Account with respect to the related Mortgage Loan Group, the Trustee
will be required to distribute (x) to the Owners of the Class A-1 Certificates,
the related Class A Distribution Amount for such Payment Date and (y) to the
Owners of the Class A-2 Certificates, the related Class A Distribution Amount
for such Payment Date, together with any portion of any Available Funds Cap
Carry-Forward Amount to be funded on such Payment Date.
Pre-Funding Account
On the Closing Date, an aggregate cash amount of $24,966,099 (the
"Original Pre-Funded Amount") will be deposited in a trust account (the
"Pre-Funding Account"), which account shall be in the name of and maintained by
the Trustee and shall be part of the Trust. During the Funding Period, the
Pre-Funded Amount will be maintained in the Pre-Funding Account. The Original
Pre-Funded Amount will be reduced during the period from the Closing Date to
April 30, 1999 (the "Funding Period") by the amount thereof used to purchase
Subsequent Mortgage Loans for addition to the Fixed Rate Group or the Variable
Rate Group in accordance with the Pooling and Servicing Agreement. The amount on
deposit in the Pre-Funding Account at any time is the "Pre-Funded Amount".
Subsequent Mortgage Loans purchased by and added to the Fixed Rate Group or the
Variable Rate Group on any date (each, a "Subsequent Transfer Date") must
satisfy the criteria for such Group set forth in the Pooling and Servicing
Agreement. Any Pre-Funded Amount remaining at the end of the Funding Period will
be distributed to the Owners of the Class A Certificates in accordance with the
terms of the Pooling and Servicing Agreement on the Payment Date that
immediately follows the end of the Funding Period in reduction of the
Certificate Principal Balance of such Owner's Certificates, thus resulting in a
principal prepayment of such Class of Certificates.
Amounts on deposit in the Pre-Funding Account will be invested in
Eligible Investments. All interest and any other investment earnings on amounts
on deposit in the Pre-Funding Account will be deposited in the Capitalized
S-39
Interest Account prior to each Payment Date during the Funding Period. The
Pre-Funding Account will not be an asset of the REMIC.
Capitalized Interest Account
On the Closing Date, cash in an amount satisfactory to the Certificate
Insurer shall be deposited in a trust account (the "Capitalized Interest
Account"), which account shall be in the name of and maintained by the Trustee
and shall be part of the Trust. The amount on deposit in the Capitalized
Interest Account, including reinvestment income thereon and amounts deposited
thereto from the Pre-Funding Account, will be used by the Trustee, as provided
in the Pooling and Servicing Agreement, to fund any shortfalls in interest
accruing on (i) the Class A-1 Certificates through April 30, 1999 and (ii) the
Class A-2 Certificates through May 19, 1999 as a result of the Certificate
Principal Balance of the Class A Certificates exceeding the aggregate Loan
Balance of the Initial Mortgage Loans. On the April 1999 and May 1999 Payment
Dates, the Trustee will use the funds in the capitalized interest account to pay
you such shortfalls in interest.
Any amounts remaining in the Capitalized Interest Account at the end of
the Funding Period and not needed for such purpose will be paid to the Seller
and will not thereafter be available for distribution to the Owners of the
Certificates.
Amounts on deposit in the Capitalized Interest Account will be invested
in Eligible Investments. The Capitalized Interest Account will not be an asset
of the REMIC.
Calculation of LIBOR
On the second business day preceding each Payment Date, or in the case
of the first Payment Date, on the second business day preceding the Closing Date
(each such date, an "Interest Determination Date"), the Trustee will determine
the London interbank offered rate for one-month U.S. dollar deposits ("LIBOR")
for the next Accrual Period for the Class A-2 Certificates on the basis of the
offered rate for one-month U.S. dollar deposits, as such rate appears on the
Telerate Page 3750, as of 11:00 a.m. (London time) on such Interest
Determination Date. As used in this section, "business day" means a day on which
banks are open for dealing in foreign currency and exchange in London and New
York City; "Telerate Page 3750" means the display page currently so designated
on the Bridge Telerate (or such other page as may replace that page on that
service for the purpose of displaying comparable rates or prices). If such rate
does not appear on such page (or such other page as may replace that page on
that service, or if such service is no longer offered, such other service for
displaying LIBOR or comparable rates as may be selected by the Trustee), the
rate will be the Reference Bank Rate. The "Reference Bank Rate" will be
determined on the basis of the rates at which deposits in U.S. Dollars are
offered by the reference banks (which shall be two major banks that are engaged
in transactions in the London interbank market, selected by the Trustee) as of
11:00 a.m. (London time), on the day that is two business days prior to the
immediately preceding Payment Date to prime banks in the London interbank market
for a period of one month in amounts approximately equal to the aggregate
Certificate Principal Balance of the Class A-2 Certificates. The Trustee will
request the principal London office of each of the reference banks to provide a
quotation of its rate. If at least two such quotations are provided, as
requested, the rate arithmetic mean of the quotations. If on such date fewer
than two quotations are provided as requested, the rate will be the arithmetic
mean of the rates quoted by one or more major banks in New York City, selected
by the Trustee, as of 11:00 a.m. (New York City time), on such date for loans in
U.S. Dollars to leading European banks for a period of one month in amounts
approximately equal to the aggregate Certificate Principal Balance of the Class
A-2 Certificates. If no such quotations can be obtained, the rate will be LIBOR
for the prior Payment Date.
The establishment of LIBOR on each Interest Determination Date by the
Trustee and the Trustee's calculation of the rate of interest applicable to the
Class A-2 Certificates for the related Accrual Period shall (in the absence of
manifest error) be final and binding.
S-40
Book Entry Registration of the Class A Certificates
The Class A Certificates will be book-entry Certificates (the
"Book-Entry Certificates"). Persons acquiring beneficial ownership interests in
such Book-Entry Certificates ("Beneficial Owners") may elect to hold their
Book-Entry Certificates directly through The Depository Trust Company ("DTC") in
the United States, or Cedelbank ("Cedel") or The Euroclear System ("Euroclear")
(in Europe) if they are participants of such systems ("Participants"), or
indirectly through organizations which are Participants. The Book-Entry
Certificates will be issued in one or more certificates per class of Class A
Certificates which in the aggregate equal the principal balance of such Class A
Certificates and will initially be registered in the name of Cede & Co.
("Cede"), the nominee of DTC. Cedel and Euroclear will hold omnibus positions on
behalf of their Participants through customers' securities accounts in Cedel's
and Euroclear's names on the books of their respective depositaries which in
turn will hold such positions in customers' securities accounts in the
depositaries' names on the books of DTC. Citibank, N.A. ("Citibank") will act as
depositary for Cedel and The Chase Manhattan Bank ("Chase") will act as
depositary for Euroclear (in such capacities, individually the "Relevant
Depositary" and collectively the "European Depositaries"). Investors may hold
such beneficial interests in the Book-Entry Certificates in minimum
denominations representing principal amounts of $25,000 and in integral
multiples of $1,000 in excess thereof. Except as described below, no Beneficial
Owner will be entitled to receive a physical certificate representing such
Certificate (a "Definitive Certificate"). Unless and until definitive
Certificates are issued, it is anticipated that the only "Owner" of such
Book-Entry Certificates will be Cede & Co., as nominee of DTC. Beneficial Owners
will not be Owners as that term is used in the Pooling and Servicing Agreement.
Beneficial Owners are only permitted to exercise their rights indirectly through
Participants and DTC.
The Beneficial Owner's ownership of a Book-Entry Certificate will be
recorded on the records of the brokerage firm, bank, thrift institution or other
financial intermediary (each, a "Financial Intermediary") that maintains the
Beneficial Owner's account for such purpose. In turn, the Financial
Intermediary's ownership of such Book-Entry Certificate will be recorded on the
records of DTC (or of a participating firm that acts as agent for the Financial
Intermediary, whose interest will in turn be recorded on the records of DTC, if
the Beneficial Owner's Financial Intermediary is not a DTC Participant and on
the records of Cedel or Euroclear, as appropriate).
Beneficial Owners will receive all distributions of principal of, and
interest on, the Book-Entry Certificates from the Trustee through DTC and DTC
Participants. While such Certificates are outstanding (except under the
circumstances described below), under the rules, regulations and procedures
creating and affecting DTC and its operations (the "Rules"), DTC is required to
make book-entry transfers among Participants on whose behalf it acts with
respect to such Certificates and is required to receive and transmit
distributions of principal of, and interest on, such Certificates. Participants
and indirect participants with whom Beneficial Owners have accounts with respect
to Book-Entry Certificates are similarly required to make book-entry transfers
and receive and transmit such distributions on behalf of their respective
Beneficial Owners. Accordingly, although Beneficial Owners will not possess
certificates, the Rules provide a mechanism by which Beneficial Owners will
receive distributions and will be able to transfer their interests.
Beneficial Owners will not receive or be entitled to receive
certificates representing their respective interests in the Class A
Certificates, except under the limited circumstances described below. Unless and
until Definitive Certificates are issued, Beneficial Owners who are not
Participants may transfer ownership of Class A Certificates only through
Participants and indirect participants by instructing such Participants and
indirect participants to transfer such Class A Certificates, by book-entry
transfer, through DTC for the account of the purchasers of such Class A
Certificates, which account is maintained with their respective Participants.
Under the Rules and in accordance with DTC's normal procedures, transfers of
ownership of such Class A Certificates will be executed through DTC and the
accounts of the respective Participants at DTC will be debited and credited.
Similarly, the Participants and indirect participants will make debits or
credits, as the case may be, on their records on behalf of the selling and
purchasing Beneficial Owners.
Because of time zone differences, credits of securities received in
Cedel or Euroclear as a result of a transaction with a Participant will be made
during subsequent securities settlement processing and dated the business day
following the DTC settlement date. Such credits or any transactions in such
securities settled during such processing will be reported to the relevant
Euroclear or Cedel Participants on such business day. Cash received in Cedel or
Euroclear as a result of sales of securities by or through a Cedel Participant
(as defined below) or Euroclear Participant (as defined below) to a DTC
Participant will be received with value on the DTC settlement date but will be
available in the relevant Cedel or Euroclear cash account only as of the
business day following settlements in DTC. For information with respect to tax
documentation procedures relating to the Certificates, see "Certain Federal
Income Tax Consequences -- Backup
S-41
Withholding" in the Prospectus and "Global Clearance, Settlement and Tax
Documentation Procedures--Certain U.S. Federal Income Tax Documentation
Requirements" in Annex I hereto.
Transfers between Participants will occur in accordance with DTC rules.
Transfers between Cedel Participants and Euroclear Participants will occur in
accordance with their respective rules and operating procedures.
Cross-market transfers between persons holding directly or indirectly
through DTC, on the one hand, and directly or indirectly through Cedel
Participants or Euroclear Participants, on the other, will be effected in DTC in
accordance with DTC rules on behalf of the relevant European international
clearing system by the Relevant Depositary; however, such cross market
transactions will require delivery of instructions to the relevant European
international clearing system by the counterparty in such system in accordance
with its rules and procedures and within its established deadlines (European
time). The relevant European international clearing system will, if the
transaction meets its settlement requirements, deliver instructions to the
Relevant Depositary to take action to effect final settlement on its behalf by
delivering or receiving securities in DTC, and making or receiving payment in
accordance with normal procedures for same day funds settlement applicable to
DTC. Cedel Participants and Euroclear Participants may not deliver instructions
directly to the European Depositaries.
DTC, which is a New York-chartered limited purpose trust company,
performs services for its Participants ("DTC Participants"), some of which
(and/or their representatives) own DTC. In accordance with its normal
procedures, DTC is expected to record the positions held by each DTC Participant
in the Book-Entry Certificates, whether held for its own account or as a nominee
for another person. In general, beneficial ownership of Book-Entry Certificates
will be subject to the rules, regulations and procedures governing DTC and DTC
Participants as in effect from time to time.
Cedelbank was incorporated in 1970 as a limited company under
Luxembourg law. Cedel is owned by banks, securities dealers and financial
institutions, and currently has about 100 shareholders, including United States
financial institutions or their subsidiaries. No single entity may own more than
five percent of Cedel's stock.
Cedel is registered as a bank in Luxembourg, and as such is subject to
regulation by the Institut Monetaire Luxembourgeois, "IML," the Luxembourg
Monetary Authority, which supervises Luxembourg banks.
Cedel holds securities for its participant organizations ("Cedel
Participants") and facilitates the clearance and settlement of securities
transactions between Cedel Participants through electronic book-entry changes in
accounts of Cedel Participants, thereby eliminating the need for physical
movement of certificates. Transactions may be settled in Cedel in any of 28
currencies, including United States dollars. Cedel provides to its Cedel
Participants, among other things, services for safekeeping, administration,
clearance and settlement of internationally traded securities and securities
lending and borrowing. Cedel interfaces with domestic markets in several
countries. As a professional depository, Cedel is subject to regulation by the
Luxembourg Monetary Institute. Cedel Participants are recognized financial
institutions around the world, including underwriters, securities brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations. Indirect access to Cedel is also available to others, such as
banks, brokers, dealers and trust companies that clear through or maintain a
custodial relationship with a Cedel Participant, either directly or indirectly.
Euroclear was created in 1968 to hold securities for participants of
Euroclear ("Euroclear Participants") and to clear and settle transactions
between Euroclear Participants through simultaneous electronic book-entry
delivery against payment, thereby eliminating the need for physical movement of
certificates and any risk from lack of simultaneous transfers of securities and
cash. Transactions may now be settled in any of 32 currencies, including United
States dollars. Euroclear includes various other services, including securities
lending and borrowing and interfaces with domestic markets in several countries
generally similar to the arrangements for cross-market transfers with DTC
described above. Euroclear is operated by 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.
S-42
The Euroclear Operator is a branch of a New York banking corporation
which is a member bank of the Federal Reserve System. As such, it is regulated
and examined by the Board of Governors of the Federal Reserve System and the New
York State Banking Department, as well as the Belgian Banking Commission.
Securities clearance accounts and cash accounts with the Euroclear
Operator are governed by the Terms and Conditions Governing Use of Euroclear and
the related Operating Procedures of the Euroclear System and applicable Belgian
law (collectively, the "Terms and Conditions"). The Terms and Conditions govern
transfers of securities and cash within Euroclear, withdrawals of securities and
cash from Euroclear, and receipts of payments with respect to securities in
Euroclear. All securities in Euroclear are held on a fungible basis without
attribution of specific certificates to specific securities clearance accounts.
The Euroclear Operator acts under the Terms and Conditions only on behalf of
Euroclear Participants, and has no record of or relationship with persons
holding through Euroclear Participants.
Distributions on the Book-Entry Certificates will be made on each
Payment Date by the Trustee to DTC. DTC will be responsible for crediting the
amount of such payments to the accounts of the applicable DTC Participants in
accordance with DTC's normal procedures. Each DTC Participant will be
responsible for disbursing such payment to the Beneficial Owners of the
Book-Entry Certificates that it represents and to each Financial Intermediary
for which it acts as agent. Each such Financial Intermediary will be responsible
for disbursing funds to the Beneficial Owners of the Book-Entry Certificates
that it represents.
Under a book-entry format, Beneficial Owners of the Book-Entry
Certificates may experience some delay in their receipt of payments, since such
payments will be forwarded by the Trustee to Cede. Distributions with respect to
Certificates held through Cedel or Euroclear will be credited to the cash
accounts of Cedel Participants or Euroclear Participants in accordance with the
relevant system's rules and procedures, to the extent received by the Relevant
Depositary. Such distributions will be subject to tax reporting in accordance
with relevant United States tax laws and regulations. Because DTC can only act
on behalf of Financial Intermediaries, the ability of a Beneficial Owner to
pledge Book-Entry Certificates to persons or entities that do not participate in
the Depository system, or otherwise take actions in respect of such Book-Entry
Certificates, may be limited due to the lack of physical certificates for such
Book-Entry Certificates. In addition, issuance of the Book-Entry Certificates in
book-entry form may reduce the liquidity of such Certificates in the secondary
market since certain potential investors may be unwilling to purchase
Certificates for which they cannot obtain physical certificates.
Monthly and annual reports on the Trust provided by the Servicer to
Cede, as nominee of DTC, may be made available to Beneficial Owners upon
request, in accordance with the rules, regulations and procedures creating and
affecting the Depository, and to the Financial Intermediaries to whose DTC
accounts the Book-Entry Certificates of such Beneficial Owners are credited.
DTC has advised the Trustee that, unless and until Definitive
Certificates are issued, DTC will take any action permitted to be taken by the
holders of the Book-Entry Certificates under the Pooling and Servicing Agreement
only at the direction of one or more Financial Intermediaries to whose DTC
accounts the Book-Entry Certificates are credited, to the extent that such
actions are taken on behalf of Financial Intermediaries whose holdings include
such Book-Entry Certificates. Cedel or the Euroclear Operator, as the case may
be, will take any action permitted to be taken by an Owner under the Pooling and
Servicing Agreement on behalf of a Cedel Participant or Euroclear Participant
only in accordance with its relevant rules and procedures and subject to the
ability of the Relevant Depositary to effect such actions on its behalf through
DTC. DTC may take actions, at the direction of the related Participants, with
respect to some Class A Certificates which conflict with actions taken with
respect to other Class A Certificates.
None of the Seller, the Servicer or the 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 Certificates held by
Cede, as nominee for DTC, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Definitive Certificates will be issued to Beneficial Owners of the
Book-Entry Certificates, or their nominees, rather than to DTC, only if (a) DTC
or the Seller advises the Trustee and the Certificate Insurer in writing that
DTC is no longer willing, qualified or able to discharge properly its
responsibilities as a nominee and depository with respect to the Book-Entry
Certificates and the Seller or the Trustee is unable to locate a qualified
successor, (b) the Seller, at its sole option, elects to terminate a book-entry
system through DTC or (c) DTC, at the direction of the Beneficial Owners
representing a majority of the outstanding Percentage Interests of the Class A
Certificates, advises the Trustee
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in writing that the continuation of a book-entry system through DTC (or a
successor thereto) is no longer in the best interests of Beneficial Owners.
Upon the occurrence of any of the events described in the immediately
preceding paragraph, the Trustee will be required to notify DTC (and request
that DTC notify all Beneficial Owners) and the Certificate Insurer of the
occurrence of such event and the availability through DTC of Definitive
Certificates. Upon surrender by DTC of the global certificate or certificates
representing the Book-Entry Certificates and instructions for re-registration,
the Trustee will issue Definitive Certificates, and thereafter the Trustee will
recognize the holders of such Definitive Certificates as Owners under the
Pooling and Servicing Agreement.
Although DTC, Cedel and Euroclear have agreed to the foregoing
procedures in order to facilitate transfers of Certificates among Participants
of DTC, Cedel and Euroclear, they are under no obligation to perform or continue
to perform such procedures and such procedures may be discontinued at any time.
Certain Activities
The Trust has not and will not: (i) issue securities (except for the
Certificates); (ii) borrow money; (iii) make loans; (iv) invest in securities
for the purpose of exercising control; (v) underwrite securities; (vi) except as
provided in the Pooling and Servicing Agreement, engage in the purchase and sale
(or turnover) of investments; (vii) offer securities in exchange for property
(except Certificates for the Mortgage Loans); or (viii) repurchase or otherwise
reacquire its securities. See "Description of the Securities -- Reports To
Securityholders" in the Prospectus for information regarding reports to the
Owners.
THE SELLER
The Seller, First Alliance Mortgage Company, was incorporated in the
State of California on May 13, 1975 and has been actively involved in the
mortgage lending business since its founding. The Seller is a consumer finance
company with headquarters in Irvine, California. The Seller originates,
purchases, sells and services non-conventional mortgage loans through 32 retail
branch offices located in the United States. In July 1996, the Seller became a
wholly owned subsidiary of FACO pursuant to a reorganization in connection with
the initial public offering of the Class A Common Stock of FACO. The Seller and
all of its predecessors have been located in Orange County, California. All
Mortgage Loans included in the Trust were originated in the United States and
are secured by Mortgaged Properties located in the United States.
The Seller maintains its corporate headquarters at 17305 Von Karman
Avenue, Irvine, California 92614-6203. Its telephone number is (949) 224-8500.
The Seller has performed a review of its computer systems and hardware
to identify processes which may be affected by Year 2000 problems. The Seller
has implemented a formal five-step plan to address the Year 2000 issue: (1)
Awareness, (2) Inventory, (3) Assessment, (4) Renovation and (5) Testing and
Implementation. The plan addresses hardware and software purchased or leased
from outside vendors, in-house developed software, telecommunication equipment
and facilities. The first four steps of the plan have been completed and, thus
far, the Seller has been required to replace or renovate only a small amount of
older computer equipment to comply with the Year 2000 issue. The Seller expects
to complete the last step of the plan by the second quarter of 1999. Because the
majority of the Seller's computer software and hardware has been purchased or
developed recently and was designed to be Year 2000 compliant, the Seller does
not expect its costs to be material in addressing the Year 2000 issue.
The Seller has initiated formal communications with its significant
outside vendors to determine the extent to which the Seller may be vulnerable in
the event that those parties fail to properly address their own Year 2000 issue.
While the Seller is not presently aware of any significant exposure, there can
be no assurance that the systems of third parties on which the Seller relies
will be converted in a timely manner. A contingency plan for outside vendors has
not yet been developed for dealing with the most reasonably likely worst case
scenario, and such scenario has not yet been clearly identified. The Seller
expects to complete its analysis and contingency plan by June 30, 1999.
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THE CERTIFICATE INSURANCE POLICIES AND THE CERTIFICATE INSURER
The following information has been supplied by the Certificate Insurer
for inclusion in this Prospectus Supplement. The Certificate Insurer does not
accept any responsibility for the accuracy or completeness of this Prospectus
Supplement or any information or disclosure contained herein, or omitted
herefrom, other than with respect to the accuracy of the information regarding
the Certificate Insurance Policies and Certificate Insurer set forth under the
heading "The Certificate Insurance Policies and the Certificate Insurer."
Additionally, the Certificate Insurer makes no representations regarding the
Certificates or the advisability of investing in the Certificates.
The Policies
The Certificate Insurer, in consideration of the payment of the premium
and subject to the terms of the Certificate Insurance Policies, thereby
unconditionally and irrevocably guarantees to any Owner (as described below)
that an amount equal to each full and complete Insured Payment (as described
below) will be received by the Trustee, or its successor, as trustee for the
Owners, on behalf of the Owners from the Certificate Insurer, for distribution
by the Trustee to each Owner of each Owner's proportionate share of the Insured
Payment. The Certificate Insurer's obligations under the Certificate Insurance
Policies with respect to a particular Insured Payment shall be discharged to the
extent funds equal to the applicable Insured Payment are received by the
Trustee, whether or not such funds are properly applied by the Trustee. Insured
Payments shall be made only at the time set forth in the Certificate Insurance
Policies and no accelerated Insured Payments shall be made regardless of any
acceleration of the Class A Certificates, unless such acceleration is at the
sole option of the Certificate Insurer.
Notwithstanding the foregoing paragraph, the Certificate Insurance
Policies do not cover shortfalls, if any, attributable to the liability of the
Trust, the REMIC or the Trustee for withholding taxes, if any (including
interest and penalties in respect of any such liability).
The Certificate Insurer will pay any Insured Payment that is a
Preference Amount (as described below) on the Business Day (as described below)
following receipt on a Business Day by the Fiscal Agent (as described below) of:
o a certified copy of the order requiring the return of a preference
payment,
o an opinion of counsel satisfactory to the Certificate Insurer that
such order is final and not subject to appeal,
o an assignment in such form as is reasonably required by the
Certificate Insurer, irrevocably assigning to the Certificate
Insurer all rights and claims of the Owner relating to or arising
under the Class A Certificates against the debtor which made such
preference payment or otherwise with respect to such preference
payment, and
o appropriate instruments to effect the appointment of the
Certificate Insurer as agent for such Owner in any legal proceeding
related to such preference payment, such instruments being in a
form satisfactory to the Certificate Insurer,
provided that if such documents are received after 12:00 noon New York City time
on such Business Day, they will be deemed to be received on the following
Business Day. Such payments shall be disbursed to the receiver or trustee in
bankruptcy named in the final order of the court exercising jurisdiction on
behalf of the Owner and not to such Owner directly unless such Owner has
returned principal or interest paid on the Class A Certificates to any receiver
or trustee in bankruptcy, in which case such payment shall be disbursed to such
Owner.
The Certificate Insurer will pay any other amount payable under a
Certificate Insurance Policy no later than 12:00 noon New York City time on the
later of the related Payment Date or the Business Day following receipt in New
York, New York on a Business Day by State Street Bank and Trust Company, N.A.,
as Fiscal Agent for the Certificate Insurer or any successor fiscal agent
appointed by the Certificate Insurer (the "Fiscal Agent") of a Notice (as
described below); provided that if such Notice is received after 12:00 noon New
York City time on such Business Day, it will be deemed to be received on the
following Business Day. If any such Notice received by the Fiscal Agent is not
in proper form or is otherwise insufficient for the purpose of making claim
under the related Certificate Insurance Policy it shall be deemed not to have
been received by the Fiscal Agent for purposes of this paragraph, and the
Certificate Insurer or
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the Fiscal Agent, as the case may be, shall promptly so advise the Trustee and
the Trustee may submit an amended Notice.
Insured Payments due under a Certificate Insurance Policy unless
otherwise stated in such Certificate Insurance Policy will be disbursed by the
Fiscal Agent to the Trustee on behalf of Owners by wire transfer of immediately
available funds in the amount of the Insured Payment less, in respect of Insured
Payments related to Preference Amounts, any amount held by the Trustee for the
payment of such Insured Payment and legally available therefor.
The Fiscal Agent is the agent of the Certificate Insurer only and the
Fiscal Agent shall in no event be liable to Owners for any acts of the Fiscal
Agent or any failure of the Certificate Insurer to deposit, or cause to be
deposited, sufficient funds to make payments due under the related Certificate
Insurance Policy.
As used in each Certificate Insurance Policy, the following terms shall
have the following meanings:
"Agreement" means the Pooling and Servicing Agreement dated as of
March 1, 1999 among First Alliance Mortgage Company, as Seller and
Servicer and Norwest Bank Minnesota, National Association, as Trustee
and Oversight Agent, without regard to any amendment or supplement
thereto unless the Certificate Insurer shall have consented in writing
thereto.
"Business Day" means any day other than a Saturday, a Sunday or a
day on which the Certificate Insurer or banking institutions in New
York City or in the city in which the corporate trust office of the
Trustee under the Agreement is located are authorized or obligated by
law or executive order to close.
"Class A Distribution Amount" shall have the same meaning
ascribed to such term in the Agreement as of the date of execution of
such Certificate Insurance Policy, without giving effect to any
subsequent amendment or modification to the Agreement.
"Insured Payment," with respect to the related Mortgage Loan
Group and as to any Payment Date, will equal the sum of (i) the excess,
if any, of (a) the related Class A Current Interest over (b) the
related Total Available Funds (after any deduction for the related Fees
and Expenses), (ii) the related Subordination Deficit, if any (after
applying the crosscollateralization provisions of the Agreement) and
(iii) the related Preference Amount. Insured Payments do not include
the payment of any Available Funds Cap Carry-Forward Amounts.
"Notice" means the telephonic or telegraphic notice, promptly
confirmed in writing by telecopy substantially in the form of the
exhibit attached to the related Certificate Insurance Policy, the
original of which is subsequently delivered by registered or certified
mail, from the Trustee specifying the Insured Payment which shall be
due and owing on the applicable Payment Date.
"Owner" means each Owner of a Class A Certificate (as defined in
the Agreement) who, on the applicable Payment Date, is entitled under
the terms of the applicable Class A Certificate to payment thereunder.
"Preference Amount" means any amount previously distributed to an
Owner on the Class A Certificates that is recoverable and sought to be
recovered as a voidable preference by a trustee in bankruptcy pursuant
to the United States Bankruptcy Code (11 U.S.C.), as amended from time
to time, in accordance with a final nonappealable order of a court
having competent jurisdiction.
Capitalized terms used in a Certificate Insurance Policy and not
otherwise defined therein shall have the respective meanings set forth in the
Agreement as of the date of execution of such Certificate Insurance Policy,
without giving effect to any subsequent amendment or modification to the
Agreement unless such amendment or modification has been approved in writing by
the Certificate Insurer.
Any notice under a Certificate Insurance Policy or service of process
on the Fiscal Agent may be made at the address listed below for the Fiscal Agent
of the Certificate Insurer or such other address as the Certificate Insurer
shall specify in writing to the Trustee.
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The notice address of the Fiscal Agent is 61 Broadway, 15th Floor, New
York, New York 10006, Attention: Municipal Registrar and Paying Agency or such
other address as the Fiscal Agent shall specify to the Trustee in writing.
The Certificate Insurance Policies are being issued under and pursuant
to, and shall be construed under, the laws of the State of New York, without
giving effect to the conflict of laws principles thereof.
THE INSURANCE PROVIDED BY THE CERTIFICATE INSURANCE POLICIES IS NOT
COVERED BY THE PROPERTY/CASUALTY INSURANCE SECURITY FUND SPECIFIED IN ARTICLE 76
OF THE NEW YORK INSURANCE LAW.
The Certificate Insurance Policies are not cancelable for any reason.
The premiums on the Certificate Insurance Policies are not refundable for any
reason including payment, or provision being made for payment, prior to the
maturity of the Class A Certificates.
The Certificate Insurer
The Certificate Insurer is the principal operating subsidiary of MBIA
Inc., a New York Stock Exchange listed company. MBIA Inc. is not obligated to
pay the debts of or claims against the Certificate Insurer. The Certificate
Insurer is domiciled in the State of New York and licensed to do business in,
and is subject to regulation under the laws of, all 50 states, the District of
Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern
Mariana Islands, the Virgin Islands of the United States and the Territory of
Guam. The Certificate Insurer has two European branches, one in the Republic of
France and the other in the Kingdom of Spain. New York has laws prescribing
minimum capital requirements, limiting classes and concentrations of investments
and requiring the approval of policy rates and forms. State laws also regulate
the amount of both the aggregate and individual risks that may be insured, the
payment of dividends by the Certificate Insurer, changes in control and
transactions among affiliates. Additionally, the Certificate Insurer is required
to maintain contingency reserves on its liabilities in certain amounts and for
certain periods of time.
Effective February 17, 1998, MBIA Inc. acquired all of the outstanding
stock of Capital Markets Assurance Corporation ("CMAC") through a merger with
its parent CapMac Holdings Inc. Pursuant to a reinsurance agreement, CMAC has
ceded all of its net insured risks (including any amounts due but unpaid from
third party reinsurers), as well as its unearned premiums and contingency
reserves, to the Certificate Insurer. MBIA Inc. is not obligated to pay the
debts of or claims against CMAC.
Certificate Insurer Financial Information
The consolidated financial statements of the Certificate Insurer, a
wholly-owned subsidiary of MBIA Inc., and its subsidiaries as of December 31,
1997 and December 31, 1996 and for each of the three years in the period ended
December 31, 1997, prepared in accordance with generally accepted accounting
principles, included in the Annual Report on Form 10-K of MBIA Inc. for the year
ended December 31, 1997 and the consolidated financial statements of the
Certificate Insurer and its subsidiaries as of September 30, 1998 and for the
nine-month periods ended September 30, 1998 and September 30, 1997, included in
the Quarterly Report on Form 10-Q of MBIA Inc. for the period ended September
30, 1998, are hereby incorporated by reference into this Prospectus Supplement
and shall be deemed to be a part hereof. Any statement contained in a document
incorporated by reference herein shall be modified or superseded for purposes of
this Prospectus Supplement to the extent that a statement contained herein or in
any other subsequently filed document which also is incorporated by reference
herein modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus Supplement.
All financial statements of the Certificate Insurer and its
subsidiaries included in documents filed by MBIA Inc. pursuant to Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended,
subsequent to the date of this Prospectus Supplement and prior to the
termination of the offering of the Certificates shall be deemed to be
incorporated by reference into this Prospectus Supplement and to be a part
hereof from the respective dates of filing such documents.
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The tables below present selected financial information of the
Certificate Insurer determined in accordance with statutory accounting practices
prescribed or permitted by insurance regulatory authorities ("SAP") and
generally accepted accounting principles ("GAAP"):
SAP
--------------------------------
December 31, September 30,
1997 1998
(Audited) (Unaudited)
(In millions)
Admitted Assets................................ $5,256 $6,318
Liabilities.................................... 3,496 4,114
Capital and Surplus............................ 1,760 2,204
GAAP
----------------------------------
December 31, September 30,
1997 1998
(Audited) (Unaudited)
(In millions)
Assets......................................... $5,988 $7,439
Liabilities.................................... 2,624 3,268
Shareholder's Equity........................... 3,364 4,171
Where You Can Obtain Additional Information about the Certificate Insurer
Copies of the financial statements of the Certificate Insurer
incorporated by reference herein and copies of the Certificate Insurer's 1997
year-end audited financial statements prepared in accordance with statutory
accounting practices are available, without charge, from the Certificate
Insurer. The address of the Certificate Insurer is 113 King Street, Armonk, New
York 10504. The telephone number of the Certificate Insurer is (914) 273-4545.
Moody's rates the financial strength of the Certificate Insurer "Aaa."
Standard & Poor's rates the financial strength of the Certificate
Insurer "AAA."
Fitch IBCA, Inc. (formerly known as Fitch Investors Service, L.P.)
rates the financial strength of the Certificate Insurer "AAA."
Each rating of the Certificate Insurer should be evaluated
independently. The ratings reflect the respective rating agency's current
assessment of the creditworthiness of the Certificate Insurer and its ability to
pay claims on its policies of insurance. Any further explanation as to the
significance of the above ratings may be obtained only from the applicable
rating agency.
The above ratings are not recommendations to buy, sell or hold the
Class A Certificates, and such ratings may be subject to revision or withdrawal
at any time by the rating agencies. Any downward revision or withdrawal of any
of the above ratings may have an adverse effect on the market price of the Class
A Certificates. The Certificate Insurer does not guaranty the market price of
the Class A Certificates, nor does it guaranty that the ratings on the Class A
Certificates will not be revised or withdrawn.
Year 2000 Readiness Disclosure
An area of potential risk to the Certificate Insurer's financial
guarantee business would be the inability of an issuer or its trustee or paying
agent to make payments on a Certificate Insurer insured transaction because of
their failure to be year 2000 ready. To mitigate this risk, the Certificate
Insurer has been surveying all trustees, all paying agents and selected high
volume issuers to determine their state of readiness. While the survey is not
complete, the results to-date are that all respondents are either ready or
planning to be ready by late 1999. If the Certificate Insurer is asked to pay in
those situations where the issuer's system fails, it will do so and would expect
to recover any such payment in
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a fairly short time period. It is not possible at this time to evaluate the
extent of such payments. The Certificate Insurer believes that it has adequate
sources of liquidity to cover these payments.
THE POOLING AND SERVICING AGREEMENT
In addition to the provisions of the Pooling and Servicing Agreement
summarized elsewhere in this Prospectus Supplement, there is set forth below a
summary of certain other provisions of the Pooling and Servicing Agreement.
Formation of the Trust
On the Closing Date, the Trust will be created and established pursuant
to the Pooling and Servicing Agreement dated as of March 1, 1999 among the
Seller, the Servicer, the Oversight Agent and the Trustee (the "Pooling and
Servicing Agreement"). On such date, the Seller will sell, without recourse, the
Initial Mortgage Loans to the Trust and the Trust will issue the Class A
Certificates to the Owners thereof pursuant to the Pooling and Servicing
Agreement.
The property of the Trust shall include all money, instruments and
other property to the extent such money, instruments and other property are
subject or intended to be held in trust for the benefit of the Owners and the
Certificate Insurer, as their interests may appear, and all proceeds thereof,
including, without limitation, (i) the Mortgage Loans, (ii) such amounts,
including Eligible Investments, as from time to time may be held by the Trustee
in the Certificate Account, the Pre-Funding Account and the Capitalized Interest
Account and by the Servicer in the Principal and Interest Account (except as
otherwise provided in the Pooling and Servicing Agreement), each to be created
pursuant to the Pooling and Servicing Agreement, (iii) any Mortgaged Property,
the ownership of which has been effected on behalf of the Trust as a result of
foreclosure or acceptance by the Servicer of a deed in lieu of foreclosure and
that has not been withdrawn from the Trust, (iv) any insurance policies relating
to the Mortgage Loans and any rights of the Seller under any insurance policies,
(v) Net Liquidation Proceeds with respect to any Liquidated Loan, (vi) the
Certificate Insurance Policies and (vii) the proceeds of the foregoing
(collectively, the "Trust Estate").
The Class A Certificates will not represent an interest in or an
obligation of, nor will the Mortgage Loans be guaranteed by, any Originator, the
Seller, the Servicer, the Oversight Agent or the Trustee.
Sale of Mortgage Loans
On the Closing Date the Seller will sell without recourse to the Trust
all right, title and interest of the Seller in each Initial Mortgage Loan listed
on the related schedules of the Mortgage Loans delivered to the Trustee, prior
to the Closing Date with respect to the Initial Mortgage Loans and prior to each
Subsequent Transfer Date with respect to the Subsequent Mortgage Loans (the
"Schedules of Mortgage Loans") and all of its right, title and interest in all
scheduled payments due on each Initial Mortgage Loan after the Cut-Off Date (or
on each Subsequent Mortgage Loan after the related Subsequent Cut-Off Date).
In connection with the sale of the Initial Mortgage Loans on the
Closing Date and the Subsequent Mortgage Loans on each Subsequent Transfer Date,
the Seller will be required to deliver to the Trustee, at least five Business
Days prior to the Closing Date or Subsequent Transfer Date, as applicable, a
file consisting of (i) the original Notes or certified copies thereof, endorsed
by the Originator thereof in blank or to the order of the holder, (ii) originals
of all intervening assignments, showing a complete chain of title from
origination to the applicable Originators, if any, including warehousing
assignments, with evidence of recording thereon, (iii) originals of all
assumption and modification agreements, if any, (iv) the original assignment of
the Mortgage to the Trustee or in blank in recordable form, (v) either: (a) the
original Mortgage, with evidence of recording thereon, or a certified copy of
the Mortgage as recorded, or (b) if the original Mortgage has not yet been
returned from the recording office, a certified copy of the Mortgage, (vi)
evidence of title insurance with respect to the Mortgaged Property in the form
of a binder or commitment and (vii) at the Seller's expense, an opinion of
counsel with respect to the sale and perfection of all Subsequent Mortgage Loans
delivered to the Trustee in form and substance satisfactory to the Trustee and
the Certificate Insurer. The Trustee will agree, for the benefit of the Owners
and the Certificate Insurer, as their interests may appear, to review each such
file on or before the Closing Date or the Subsequent Transfer Date, as
applicable, and again within 90 days after the Closing Date or the Subsequent
Transfer Date, as applicable, to ascertain that all required documents (or
certified copies of documents) have been executed and received.
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Pursuant to the terms of the Pooling and Servicing Agreement, the
Seller shall assign to the Trustee for the benefit of the holders of the
Certificates and the Certificate Insurer, as their interests may appear, all of
the Seller's right, title and interest in each Master Loan Transfer Agreement
insofar as it relates to the representations and warranties made therein by the
Originators and the Seller in respect of the origination of the Mortgage Loans
and the remedies provided for breach of such representations and warranties.
Upon discovery by the Trustee of a breach of any representation, warranty or
covenant which materially and adversely affects the interests of the Owners in a
Mortgage Loan or of the Certificate Insurer, the Trustee will promptly notify
the Originator, the Seller and the Certificate Insurer. The Originators and the
Seller will have 60 days from its discovery or its receipt of such notice to
cure such breach or the Seller is obligated to repurchase the Mortgage Loan.
The Seller is additionally required to cause to be prepared and
submitted for recording, within 75 business days of the Closing Date with
respect to the Initial Mortgage Loans, or Subsequent Transfer Date with respect
to the Subsequent Mortgage Loans (or, if original recording information is
unavailable, within such later period as is permitted by the Pooling and
Servicing Agreement) assignments of the Mortgages from the Originators (other
than the Seller) to the Seller and then from the Seller to the Trustee, in the
appropriate jurisdictions in which such recordation is necessary to perfect the
lien of the Trust thereof as against creditors of or purchasers from the
Originators; provided, however, that if the Seller furnishes to the Trustee
executed recordable assignments of the Mortgages and to the Trustee and the
Certificate Insurer an opinion of counsel to the effect that no such recording
is necessary to perfect the Trustee's interests in the Mortgages with respect to
any of the relevant jurisdictions, then such recording will not be required with
respect to such jurisdictions. However, the Certificate Insurer may require
recordation at a future date at its reasonable discretion.
Delinquency Advances and Compensating Interest
The Servicer will be obligated to make advances ("Delinquency
Advances") with respect to delinquent payments of interest (at the related
Mortgage Rate less the Servicing Fee Rate, as defined below) and scheduled
principal due on each Mortgage Loan to the extent that such Delinquency
Advances, in good faith and in the Servicer's reasonable judgment, are
reasonably recoverable from the related Mortgage Loan. Delinquency Advances are
recoverable from (i) future collections on the Mortgage Loan which gave rise to
the Delinquency Advance, (ii) Liquidation Proceeds for such Mortgage Loan and
(iii) from certain excess moneys which would otherwise be paid to the Owners of
the Class R Certificates.
In addition, the Servicer will also be required to deposit in the
Principal and Interest Account with respect to any full Prepayment received on a
Mortgage Loan during the related Remittance Period out of its own funds without
any right of reimbursement therefor, an amount equal to the difference between
(x) 30 days' interest at such Mortgage Loan's Mortgage Rate (less the Servicing
Fee) on the scheduled principal balance of such Mortgage Loan as of the first
day of the related Remittance Period and (y) to the extent not previously
advanced, the interest (less the Servicing Fee) paid by the Mortgagor with
respect to such Mortgage Loan during such Remittance Period (any such amount
paid by the Servicer, "Compensating Interest"). The Servicer will not be
required to pay Compensating Interest with respect to any Remittance Period in
an amount in excess of the aggregate Servicing Fee received by the Servicer for
such Remittance Period or to cover shortfalls in collections of interest due to
curtailments.
Any failure by the Servicer to remit to the Trustee a Delinquency
Advance or Compensating Interest to the extent required under the Pooling and
Servicing Agreement will constitute an event of default under the Pooling and
Servicing Agreement, in which case, upon the removal of the Servicer, the
Oversight Agent or the successor Servicer will be obligated to make such
advances in accordance with the terms of the Pooling and Servicing Agreement.
See "Description of the Securities -- Advances" in the Prospectus.
The "Servicing Fee" as of any Payment Date is equal to the product of
(x) one-twelfth of the Servicing Fee Rate and (y) the aggregate loan balances of
the Mortgage Loans.
The "Servicing Fee Rate" is equal to 0.50% per annum, payable monthly
at one-twelfth the annual rate of the then-outstanding principal amount of each
Mortgage Loan.
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Removal and Resignation of the Servicer
The Pooling and Servicing Agreement provides that the Servicer shall be
hired for a term of no longer than two calendar months, and may be re-hired for
additional terms of no longer than two calendar months each, but only with the
consent of the Certificate Insurer, in its sole and absolute discretion. The
Servicer may not resign from its obligations and duties thereunder, or not agree
to be re-hired, except in connection with a permitted transfer of servicing,
unless such duties and obligations are no longer permissible under applicable
law or are in material conflict by reason of applicable law with any other
activities of a type and nature presently carried on by it. No such resignation
will become effective until the Oversight Agent (or an affiliate thereof) or a
successor Servicer has assumed the Servicer's obligations and duties under the
Pooling and Servicing Agreement. In addition, during any term, the Certificate
Insurer, the Trustee or the Owners with the consent of the Certificate Insurer,
will have the right, pursuant to the Pooling and Servicing Agreement, to remove
the Servicer upon the occurrence of any of (a) the continuing failure of the
Servicer to deliver to the Trustee any proceeds or required payment for a period
of five business days after written notice; (b) certain events of insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings regarding the Servicer and certain actions by the Servicer
indicating its insolvency or inability to pay its obligations; (c) the
continuing failure of the Servicer to perform any one or more of its material
obligations under the Pooling and Servicing Agreement for a period specified in
the Pooling and Servicing Agreement; or (d) the failure of the Servicer to cure
any breach of any of its representations and warranties set forth in the Pooling
and Servicing Agreement which materially and adversely affects the interests of
the Owners or the Certificate Insurer for a period of sixty (60) days after the
Servicer's discovery or receipt of notice thereof.
The Pooling and Servicing Agreement additionally provides that the
Certificate Insurer may remove the Servicer upon the occurrence of any of the
following events:
(i) with respect to any Payment Date, if the sum of the Fixed Rate
Group and Variable Rate Group Total Available Funds will be
less than the sum of the Class A Distribution Amounts with
respect to all of the Class A Certificates, in respect of such
Payment Date; provided, however, that the Certificate Insurer
will have no right to remove the Servicer pursuant to the
provision described in this clause (i) if the Servicer can
demonstrate to the reasonable satisfaction of the Certificate
Insurer that such event was due to circumstances beyond the
control of the Servicer;
(ii) the failure by the Servicer to make any required Servicing
Advance (as defined in the Pooling and Servicing Agreement);
(iii) the failure of the Servicer to perform one or more of its
obligations under the Pooling and Servicing Agreement and the
continuance thereof for a period of thirty (30) days or such
longer period as agreed to in writing by the Certificate
Insurer;
(iv) the failure by the Servicer to make any required Delinquency
Advance or to pay any Compensating Interest by the Remittance
Date;
(v) if the delinquency or loss levels applicable to the Mortgage
Loans exceed certain "trigger" levels set forth in the
Pooling and Servicing Agreement; or
(vi) certain other events described in the Pooling and Servicing
Agreement.
The Oversight Agent
Norwest Bank Minnesota, National Association ("Norwest"), as the
oversight agent (the "Oversight Agent"), will oversee and monitor the Servicer's
performance of the loan servicing functions under the Pooling and Servicing
Agreement.
Norwest is a national banking association with executive offices
located at Sixth Street and Marquette Avenue, Minneapolis, Minnesota 55479 and
its office for overseeing loan servicing is located at 11000 Broken Land
Parkway, Columbia, Maryland 21044.
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Norwest is engaged in the business of overseeing the servicing of
single family residential mortgage loans secured by properties in all 50 states
and the District of Columbia. As of December 31, 1998, Norwest was acting as
Oversight Agent or in a similar capacity for more than 570,000 mortgage loans
representing an aggregate outstanding principal balance of approximately $67
billion.
Norwest has provided the foregoing information regarding Norwest, and
none of the Depositor, the Seller or the Underwriter makes any representation or
warranty as to the accuracy and completeness of such information.
Oversight Agent Duties
The Oversight Agent will be responsible for performing loan level
review and backup servicing functions for the Mortgage Loans pursuant to the
Pooling and Servicing Agreement. As compensation for performing its duties as
the Oversight Agent, including its oversight functions, the Oversight Agent will
be entitled to a monthly fee (the "Oversight Agent Fee") from which the
Oversight Agent will pay a fee to the Trustee.
Under the Pooling and Servicing Agreement, the Oversight Agent will
perform the following loan review and backup servicing functions:
(1) The Oversight Agent will periodically review the servicing reports,
loan level information and other relevant information as may be reasonably
required by the Oversight Agent pursuant to the Pooling and Servicing Agreement;
(2) If the reports submitted by the Servicer are materially inaccurate
or incomplete, then the Oversight Agent will prepare and submit exception
reports to the Trustee, the Certificate Insurer and the Rating Agencies and
notify the Trustee, the Certificate Insurer and the Rating Agencies of any event
of default of which the Oversight Agent has actual knowledge, with respect to
the Servicer under the Pooling and Servicing Agreement; and
(3) If the Servicer is not rehired or is terminated as Servicer under
the Pooling and Servicing Agreement, then the Oversight Agent will accept
appointment as, or cause another entity (which may be an affiliate of the
Oversight Agent) reasonably acceptable to the Certificate Insurer to act as, the
successor servicer thereunder.
Under the Pooling and Servicing Agreement, the Servicer will facilitate
the review and backup servicing functions of the Oversight Agent as follows:
(1) the Servicer will comply with the terms of the various agreements
it is entering into in connection with the Mortgage Loans, including but not
limited to, the Pooling and Servicing Agreement;
(2) the Servicer will provide to the Oversight Agent certain
information regarding the Mortgage Loans and its servicing activities of such
Mortgage Loans;
(3) the Servicer will permit the Oversight Agent to inspect the
Servicer's books and records; and
(4) the Servicer will reimburse and indemnify the Oversight Agent for
certain losses, liabilities and expenses incurred by it.
In certain circumstances, the Oversight Agent may resign or be removed,
in which event another third-party oversight agent will be sought to become the
successor oversight agent. The Oversight Agent has the right to resign under the
Pooling and Servicing Agreement upon 30 days' notice or any time on or after one
year from the Closing Date. No removal or resignation of the Oversight Agent
will become effective until the Trustee, or a successor oversight agent,
reasonably acceptable to the Certificate Insurer, has assumed the Oversight
Agent's responsibilities and obligations under the Pooling and Servicing
Agreement.
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The Trustee
Norwest Bank Minnesota, National Association will be appointed as
Trustee (the "Trustee") of the First Alliance Mortgage Loan Trust 1999-1 (the
"Trust"). In accordance with the Pooling and Servicing Agreement, in the event
of termination of both the Servicer and the Oversight Agent, the Trustee (for
this purpose, the term Trustee includes an affiliate thereof) shall become the
successor servicer and is empowered to perform the duties of the Servicer.
Pending the appointment of any other person as successor servicer, the Trustee
shall have the power and duty:
(i) to collect Mortgagor payments;
(ii) to foreclose on defaulted Mortgage Loans;
(iii) to enforce due-on-sale clauses and to enter into
assumption and substitution agreements as permitted
by the Pooling and Servicing Agreement;
(iv) to deliver instruments of satisfaction;
(v) to make Delinquency Advances and Servicing Advances and to
pay Compensating Interest; and
(vi) to enforce the Mortgage Loans.
During any period in which the Trustee is successor servicer, the
Trustee shall be entitled to all compensation due to the Servicer and the
Oversight Agent.
The Trustee may choose to make available each month, the monthly
statement to Owners via the Trustee's website, electronic bulletin board and its
fax-on-demand service. The Trustee's website will be located at
"www.ctslink.com". The Trustee's electronic bulletin board may be accessed by
calling (301) 815-6620, and its fax-on-demand service may be accessed by calling
(301) 815-6610.
Governing Law
The Pooling and Servicing Agreement and each Certificate will be
construed in accordance with and governed by the laws of the State of New York
applicable to agreements made and to be performed therein.
Termination of the Trust
The Pooling and Servicing Agreement will provide that the Trust will
terminate upon the earlier of (i) the payment to the Owners of all Certificates
from amounts other than those available under the Certificate Insurance Policies
of all amounts required to be paid such Owners upon the later to occur of (a)
the final payment or other liquidation (or any advance made with respect
thereto) of the last Mortgage Loan or (b) the disposition of all property
acquired in respect of any Mortgage Loan remaining in the Trust Estate or (ii)
any time when a Qualified Liquidation (as defined in the Pooling and Servicing
Agreement) of both Mortgage Loan Groups is effected.
Optional Termination
By the Servicer. At its option, the Servicer (and the Oversight Agent
in the event the Servicer does not exercise its right to purchase) acting
directly or through one or more affiliates may determine to purchase from the
Trust all of the Mortgage Loans and other property then held by the Trust, and
thereby effect early retirement of the Class A Certificates, on any Remittance
Date after the Clean-Up Call Date at a price equal to 100% of the aggregate
principal balance of the Mortgage Loans as of the day of purchase minus amounts
remitted from the Principal and Interest Account to the Certificate Account
representing collections of principal on the Mortgage Loans during the current
Remittance Period and the Due Date on the first day after such Remittance
Period, plus one month's interest on such amount computed at the weighted
average Pass-Through Rates of the Class A Certificates plus any Available Funds
Cap-Carry Forward Amount at such time plus the aggregate amount of any
unreimbursed Delinquency Advances and Servicing Advances together with
Reimbursement Amounts then owed to the Certificate Insurer. Under certain
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circumstances described in the Pooling and Servicing Agreement the Certificate
Insurer may also exercise such purchase rights if the Servicer and the Oversight
Agent do not do so.
Upon Loss of REMIC Status. Following a final determination by the
Internal Revenue Service, or by a court of competent jurisdiction, in each 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 Internal Revenue
Code of 1986, as amended (the "Code") (the "Final Determination"), at any time
on or after the date which is 30 calendar days following such Final
Determination, (i) the Certificate Insurer or the Owners of a majority in
Percentage Interest represented by the Class of Class A Certificates then
outstanding with the consent of the Certificate Insurer (which consent may not
be unreasonably withheld) may direct the Trustee on behalf of the Trust to adopt
a plan of complete liquidation as contemplated by Section 860F(a)(4) of the Code
and (ii) the Certificate Insurer may notify the Trustee of the Certificate
Insurer's determination to purchase from the Trust all Mortgage Loans and other
property acquired by foreclosure, deed in lieu of foreclosure, or otherwise in
respect of any Mortgage Loan then remaining in the Trust, and thereby effect the
early retirement of the Certificates. The purchase price for any purchase of the
property of the Trust Estate shall be the Termination Price (as defined in the
Pooling and Servicing Agreement).
Upon receipt of such notice or direction from the Certificate Insurer,
the Trustee will be required to notify the Owners of the Class R Certificates of
such election to liquidate or such determination to purchase, as the case may be
(the "Termination Notice"). The Owners of a majority of the Percentage Interest
of the Class R Certificates then outstanding may, within sixty (60) days from
the date of receipt of the Termination Notice (the "Purchase Option Period"), at
their option, purchase from the Trust all (but not fewer than all) 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
Trust Estate at a purchase price equal to the Termination Price. If, during the
Purchase Option Period, the Owners of the Class R Certificates have not
exercised the option described in the immediately preceding sentence, then upon
the expiration of the Purchase Option Period (i) in the event that the
Certificate Insurer or the Owners of the Class A Certificates with the consent
of the Certificate Insurer have given the Trustee the direction described in
clause (a)(i) above, the Trustee will be required to sell the Mortgage Loans and
distribute the proceeds of the liquidation of the Trust Estate, each in
accordance with the plan of complete liquidation, such that, if so directed, the
liquidation of the Trust Estate, the distribution of the proceeds of the
liquidation and the termination of the Pooling and Servicing Agreement occur no
later than the close of the sixtieth (60th) day, or such later day as the
Certificate Insurer or the Owners of the Class A Certificates with the consent
of the Certificate Insurer permit or direct in writing, after the expiration of
the Purchase Option Period and (ii) in the event that the Certificate Insurer
has given the Trustee notice of the Certificate Insurer's determination to
purchase the Trust Estate described in clause (a)(ii) preceding the Certificate
Insurer will be required to, within sixty (60) days, purchase all (but not fewer
than 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 Trust Estate. In connection with such purchase, the Servicer
will be required to remit to the Trustee all amounts then on deposit in the
Principal and Interest Account for deposit to the Certificate Account, which
deposit will be deemed to have occurred immediately preceding such purchase.
Following a Final Determination, the Owners of a majority of the
Percentage Interest of the Class R Certificates then outstanding may, at their
option and upon delivery to the Certificate Insurer of an opinion of counsel
experienced in federal income tax matters acceptable to the Certificate Insurer
selected by the Owners of the Class R Certificates which opinion shall be
reasonably satisfactory in form and substance to the Certificate Insurer, to the
effect that the effect of the Final Determination is to increase substantially
the probability that the gross income of the Trust will be subject to federal
taxation, purchase from the Trust all (but not fewer than all) 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
Trust Estate at a purchase price equal to the Termination Price. In connection
with such purchase, the Servicer will be required to remit to the Trustee all
amounts then on deposit in the Principal and Interest Account for deposit to the
Certificate Account, which deposit shall be deemed to have occurred immediately
preceding such purchase. The foregoing opinion shall be deemed satisfactory
unless the Certificate Insurer gives the Owners of a majority of the Percentage
Interest of the Class R Certificates notice that such opinion is not
satisfactory within thirty days after receipt of such opinion.
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CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following section discusses certain of the material anticipated
federal income tax consequences of the purchase, ownership and disposition of
the Class A Certificates. Such section must be considered only in connection
with "Certain Federal Income Tax Consequences" in the Prospectus. The
discussions herein and in the Prospectus are based upon laws, regulations,
rulings and decisions now in effect, all of which are subject to change. The
discussions below and in the Prospectus do not purport to deal with all federal
tax consequences applicable to all categories of investors, some of which may be
subject to special rules. Investors should consult their own tax advisors in
determining the federal, state, local and any other tax consequences to them of
the purchase, ownership and disposition of the Class A Certificates.
REMIC Election
The Trustee will cause an election to be made to treat the Trust as a
real estate mortgage investment conduit (the "REMIC") (other than the
Pre-Funding Account and the Capitalized Interest Account) for federal income tax
purposes. Arter & Hadden LLP, special tax counsel, will advise that, in its
opinion, for federal income tax purposes, assuming (i) the REMIC election is
made and (ii) compliance with the Pooling and Servicing Agreement, the Trust
(other than the Pre-Funding Account and the Capitalized Interest Account) will
be treated as a REMIC, each Class of Class A Certificates will be treated as
"regular interests" in the REMIC and the Class R Certificates will be treated as
the sole class of "residual interests" in a REMIC.
The Class A Certificates may, depending on their issue price, be issued
with original issue discount ("OID") for federal income tax purposes. Owners of
such Certificates issued with OID will be required to include OID in income as
it accrues under a constant yield method, in advance of the receipt of cash
attributable to such income. The OID Regulations do not contain provisions
specifically interpreting Code Section 1272(a)(6) which applies to prepayable
securities such as the Class A Certificates. Until the Treasury issues guidance
to the contrary, the Trustee intends to base its OID computation on Code Section
1272(a)(6) and the OID Regulations as described in the Prospectus. However,
because no regulatory guidance currently exists under Code Section 1272(a)(6),
there can be no assurance that such methodology represents the correct manner of
calculating OID.
The yield used to calculate accruals of OID with respect to the Class A
Certificates with OID will be the original yield to maturity of such
Certificates, determined by assuming that the Mortgage Loans will prepay in
accordance with Assumption IV of the Prepayment Assumptions. No representation
is made as to the actual rate at which the Mortgage Loans will prepay.
The Class A Certificates will be treated as regular interests in a
REMIC under section 860G of the Code. Accordingly, the Class A Certificates will
be treated as (i) assets described in section 7701(a)(19)(C) of the Code, and
(ii) "real estate assets" within the meaning of section 856(c)(4) of the Code,
in each case to the extent described in the Prospectus. Interest on the Class A
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 to the same
extent that the Class A Certificates are treated as real estate assets. See
"Certain Federal Income Tax Consequences" in the Prospectus.
Backup Withholding
Certain Owners may be subject to backup withholding at the rate of 31%
with respect to interest paid on the Class A Certificates if the Owners, upon
issuance, fail to supply the Trustee or their broker with their taxpayer
identification number, furnish an incorrect taxpayer identification number, fail
to report interest, dividends, or other "reportable payments" (as defined in the
Code) properly, or, under certain circumstances, fail to provide the Trustee or
their broker with a certified statement, under penalty of perjury, that they are
not subject to backup withholding.
The Trustee will be required to report annually to the Internal Revenue
Service (the "IRS"), and to each Owner of record, the amount of interest paid
(and OID accrued, if any) on the Class A Certificates (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, certain
tax-exempt organizations or nonresident aliens who provide certification as to
their status as nonresidents). As long as the only Owner of the Class A
Certificates of record is Cede, as nominee for DTC, Owners and the IRS will
receive tax and other information including the amount of interest paid on such
Certificates owned from Participants and Indirect Participants rather than from
the Trustee. (The Trustee, however, will respond to requests for
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necessary information to enable Participants, indirect participants and certain
other persons to complete their reports.) Each non-exempt Owner will be required
to provide, under penalty of perjury, a certificate on IRS Form W-9 containing
his or her name, address, correct federal taxpayer identification number and a
statement that he or she is not subject to backup withholding. Should a
nonexempt Owner fail to provide the required certification, the Participants or
Indirect Participants will be required to withhold 31% of the interest (and
principal) otherwise payable to the holder, and remit the withheld amount to the
IRS as a credit against the holder's federal income tax liability.
Such amounts will be deemed distributed to the affected Owner for all
purposes of the Certificates, the Pooling and Servicing Agreement and the
Certificate Insurance Policies.
Final regulations dealing with backup withholding and information
reporting on income paid to a foreign person and related matters (the "New
Withholding Regulations") were published in the Federal Register on October 14,
1997. In general, the New Withholding Regulations do not significantly alter the
substantive withholding and information reporting requirements, but do unify
current certification procedures and forms and clarify reliance standards. The
New Withholding Regulations generally will be effective for payments made after
December 31, 1999, subject to certain transition rules. The discussion set forth
above does not take the New Withholding Regulations into account. Prospective
Owners are strongly urged to consult their own tax advisor with respect to the
New Withholding Regulations.
New Capital Gains Provision
The IRS Restructuring and Reform Act of 1998 (the "Act") was signed
into law on July 22, 1998. The Act generally reduces from 18 months to one year
the period of time that an individual must hold a capital asset in order to
receive a long-term capital gains treatment upon its disposition. Such change is
retroactive in effect and generally applies to sales of capital assets occurring
on or after January 1, 1998.
Federal Income Tax Consequences to Foreign Investors
The following information describes the United States federal income
tax treatment of holders that are not United States persons ("Foreign
Investors"). The term "Foreign Investor" means any person other than (i) a
citizen or resident of the United States, (ii) a corporation or partnership
(including an entity treated as a corporation or partnership for United States
federal income tax purposes) organized in or under the laws of the United States
or any state thereof including the District of Columbia (other than a
partnership that is not treated as a United States person under any applicable
Treasury regulations), (iii) an estate the income of which is includible in
gross income for United States federal income tax purposes, regardless of its
source or (iv) a trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more United
States persons have authority to control all substantial decisions of the trust.
Notwithstanding clause (iv), to the extent provided in the regulations, certain
trusts in existence on August 20, 1996 and treated as United States persons
prior to such date that elect to continue to be so treated also shall be
considered United States persons.
The Code and Treasury regulations generally subject interest paid to a
Foreign Investor to a withholding tax at a rate of 30% (unless such rate were
changed by an applicable treaty). The withholding tax, however, is eliminated
with respect to certain "portfolio debt investments" issued to Foreign
Investors. Portfolio debt investments include debt instruments issued in
registered form for which the United States payor receives a statement that the
beneficial owner of the instrument is a Foreign Investor. The Class A
Certificates will be issued in registered form, therefore if the information
required by the Code is furnished (as described below) and no other exceptions
to the withholding tax exemption are applicable, no withholding tax will apply
to the Class A Certificates.
For the Class A Certificates to constitute portfolio debt investments
exempt from the United States withholding tax, the withholding agent must
receive from the Owner an executed IRS Form W-8 or substantially similar form
signed under penalty of perjury by the Owner stating that the Owner is a Foreign
Investor and providing such Owner's name and address. The statement must be
received by the withholding agent in the calendar year in which the interest
payment is made, or in either the two preceding calendar years.
An Owner 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 such Class A Certificate, provided that (i) such gain
is not effectively connected with a trade or business carried on by the Owner in
the United States, (ii) in the case of an Owner
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that is an individual, such Owner 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
conditions described in the immediately preceding paragraph are satisfied.
As described above, the New Withholding Regulations were published in
the Federal Register on October 14, 1997, and generally will be effective for
payments made after December 31, 1999, subject to certain transition rules. The
discussion set forth above does not take the New Withholding Regulations into
account. Prospective Foreign Investors are strongly urged to consult their own
tax advisor with respect to the New Withholding Regulations.
ERISA CONSIDERATIONS
The Employee Retirement Income Security Act of 1974, as amended
("ERISA"), imposes certain requirements on those employee benefit plans and
individual retirement arrangements (and entities whose underlying assets include
plan assets by reason of such a plan's or arrangement's investment in such
entities) to which it applies (each, a "Plan") and on those persons who are
fiduciaries with respect to such Plans. Any Plan fiduciary which proposes to
cause a Plan to acquire any of the Class A Certificates should consult with
counsel with respect to the consequences under ERISA and the Code of the Plan's
acquisition and ownership of such Certificates. See "ERISA Considerations --
Plan Asset Regulations," "-- Prohibited Transaction Class Exemption," "-- Tax
Exempt Investors" and "-- Consultation with Counsel" in the Prospectus.
Section 406 of ERISA prohibits Plans from engaging in certain
transactions involving the assets of such Plans with Parties in Interest with
respect to such Plans, unless a statutory, regulatory or administrative
exemption is applicable to the transaction. Excise taxes under Section 4975 of
the Code, penalties under Section 502 of ERISA and other penalties may be
imposed on Plan fiduciaries and Parties in Interest (or "disqualified persons"
under the Code) that engage in "prohibited transactions" involving assets of a
Plan. Individual retirement arrangements and other plans that are not subject to
ERISA, but are subject to Section 4975 of the Code, and disqualified persons
with respect to such arrangements and plans, also may be subject to excise taxes
and other penalties if they engage in prohibited transactions. Furthermore,
based on the reasoning of the United States Supreme Court in John Hancock Life
Ins. Co. v. Harris Trust and Sav. Bank, 510 U.S. 86 (1993) an insurance company
that invests in the Class A Certificates may be subject to excise taxes and
other penalties if such insurance company's general account is deemed to include
assets of the Plans investing in the general account (e.g., through the purchase
of an annuity contract).
The Department of Labor (the "DOL") has issued a regulation (the "Plan
Asset Regulation") describing what constitutes the assets of a Plan when the
Plan acquires an equity interest in another entity. The Plan Asset Regulation
states that, unless an exception described in the regulation is applicable, the
underlying assets of an entity are considered, for purposes of ERISA, to be the
assets of the investing Plan. Pursuant to the Plan Asset Regulation, if the
assets of the Trust were deemed to be plan assets by reason of a Plan's
investment in any Class A Certificates, such plan assets would include an
undivided interest in each asset of the Trust, and the purchase, sale or holding
of any Certificate by a Plan subject to Section 406 of ERISA or Section 4975 of
the Code might result in prohibited transactions and the imposition of excise
taxes and civil penalties.
The DOL has issued to Lehman Brothers Inc. an individual prohibited
transaction exemption, Prohibited Transaction Exemption 91-14 (the "Exemption"),
which generally exempts from the application of the prohibited transaction
provision of Section 406(a), Section 406(b)(1) and Section 406(b)(2) of ERISA
and the excise taxes imposed pursuant to Sections 4975(a) and (b) of the Code,
with respect to the initial purchase, the holding and the subsequent resale by
Plans of certificates in pass-through trusts that consist of certain
receivables, loans and other obligations that meet the conditions and
requirements of the Exemption. The loans covered by the Exemption include
mortgage loans such as the Mortgage Loans.
Among the conditions that must be satisfied for the Exemption to apply
are the following:
(1) the acquisition of the certificates by a Plan is on
terms (including the price for the certificates) that
are at least as favorable to the Plan as they would
be in an arm's-length transaction with an unrelated
party;
(2) the rights and interests evidenced by the
certificates acquired by the Plan are not
subordinated to the rights and interests evidenced by
other certificates of the Trust;
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(3) the certificates acquired by the Plan have received a
rating at the time of such acquisition that is one of
the three highest generic rating categories from
either Standard & Poor's, Moody's, Duff & Phelps
Credit Rating Co. ("D&P") or Fitch IBCA, Inc.
(formerly known as Fitch Investors Service, L.P.)
("Fitch") (each, a "Rating Agency");
(4) the Trustee is not an affiliate of any other member
of the Restricted Group (as defined below);
(5) the sum of all payments made to and retained by the
Underwriter in connection with the distribution of
the certificates represents not more than reasonable
compensation for underwriting the certificates; the
sum of all payments made to and retained by the
Seller pursuant to the assignment of the loans to the
Trust represents not more than the fair market value
of such loans; the sum of all payments made to and
retained by any Servicer represents not more than
reasonable compensation for such person's services
under the Pooling and Servicing Agreement and
reimbursement of such person's reasonable expenses in
connection therewith; and
(6) the Plan investing in the certificates is an
"accredited investor" as defined in Rule 501(a)(1) of
Regulation D of the Securities and Exchange
Commission under the Securities Act of 1933.
The Trust must also meet the following requirements:
(i) the corpus of the Trust must consist solely of assets
of the type that have been included in other
investment pools;
(ii) certificates in such other investment pools must have
been rated in one of the three highest rating
categories of Standard & Poor's, Moody's, Fitch or
D&P for at least one year prior to the Plan's
acquisition of certificates; and
(iii) certificates evidencing interests in such other
investment pools must have been purchased by
investors other than Plans for at least one year
prior to the Plan's acquisition of certificates.
Moreover, the Exemption provides relief from certain
self-dealing/conflict of interest prohibited transactions that may occur when
the Plan fiduciary causes a Plan to acquire certificates in a trust in which the
fiduciary (or its affiliate) is an obligor on the receivables held in the trust;
provided that, among other requirements, (i) in the case of an acquisition in
connection with the initial issuance of certificates, at least fifty percent of
each class of certificates in which Plans have invested is acquired by persons
independent of the Restricted Group and at least fifty percent of the aggregate
interest in the trust is acquired by persons independent of the Restricted
Group; (ii) such fiduciary (or its affiliate) is an obligor with respect to five
percent or less of the fair market value of the obligations contained in the
trust; (iii) a Plan's investment in certificates of any class does not exceed
twenty-five percent of all of the certificates of that class outstanding at the
time of the acquisition; and (iv) immediately after the acquisition, no more
than twenty-five percent of the assets of any Plan with respect to which such
person is a fiduciary are invested in certificates representing an interest in
one or more trusts containing assets sold or serviced by the same entity. The
Exemption does not apply to Plans sponsored by the Seller, the Certificate
Insurer, the Underwriter, the Trustee, any Servicer, any obligor with respect to
Mortgage Loans included in the Trust constituting more than five percent of the
aggregate unamortized principal balance of the assets in the Trust, or any
affiliate of such parties (the "Restricted Group").
On July 21, 1997, the DOL published in the Federal Register amendments
to the Exemption ("PTE 97-34"), which extend exemptive relief to certain
mortgage-backed and asset-backed securities transactions using pre-funding
accounts for trusts issuing pass-through certificates. With respect to the
Certificates, the amendments generally allow Mortgage Loans supporting payments
to Owners, and having a value equal to no more than 25% of the total principal
amount of the Certificates being offered by the Trust, to be transferred to the
Trust within a funding period no longer than 90 days or three months following
the Closing Date instead of requiring that all such Mortgage Loans be either
identified or transferred on or before the Closing Date. The relief will apply
to the purchase, sale and holding of the Class A Certificates, provided that the
following general conditions are met:
S-58
(1) the ratio of the amount allocated to the Pre-Funding Account to the
total principal amount of the Certificates being offered ("Pre-Funding Limit")
does not exceed 25%;
(2) all Subsequent Mortgage Loans meet the same terms and conditions
for eligibility as the original Mortgage Loans used to create the Trust, which
terms and conditions have been approved by the Rating Agencies;
(3) the transfer of such Subsequent Mortgage Loans to the Trust during
the Funding Period does not result in the Certificates to be covered by the
Exemption receiving a lower credit rating from a Rating Agency upon termination
of the Funding Period than the rating that was obtained at the time of the
initial issuance of the Certificates by the Trust;
(4) solely as a result of the use of pre-funding, the weighted average
annual percentage interest rate (the "Average Interest Rate") for all of the
Mortgage Loans and Subsequent Mortgage Loans in the Trust at the end of the
Funding Period is not more than 100 basis points lower than the Average Interest
Rate for the Mortgage Loans which were transferred to the Trust on the Closing
Date;
(5) either: (i) the characteristics of the Subsequent Mortgage Loans
are monitored by an insurer or other credit support provider which is
independent of the Seller; or (ii) an independent accountant retained by the
Seller provides the Seller with a letter (with copies provided to the Rating
Agencies, the Underwriters and the Trustee) stating whether or not the
characteristics of the Subsequent Mortgage Loans conform to the characteristics
described in the Prospectus or Prospectus Supplement and/or Pooling and
Servicing Agreement. In preparing such letter, the independent accountant must
use the same type of procedures as were applicable to the Mortgage Loans which
were transferred to the Trust as of the Closing Date;
(6) the Funding Period ends no later than three months or 90 days after
the Closing Date or earlier in certain circumstances if the Pre-Funding Account
falls below the minimum level specified in the Pooling and Servicing Agreement
or an event of default occurs;
(7) amounts transferred to any Pre-Funding Account and/or Capitalized
Interest Account used in connection with the pre-funding may be invested only in
investments which are permitted by the Rating Agencies and described in the
Pooling and Servicing Agreement and: (i) are direct obligations of, or
obligations fully guaranteed as to timely payment of principal and interest by,
the United States or any agency or instrumentality thereof (provided that such
obligations are backed by the full faith and credit of the United States); or
(ii) have been rated (or the obligor has been rated) in one of the three highest
generic rating categories by such Rating Agency;
(8) the Prospectus or Prospectus Supplement describes: (i) any
Pre-Funding Account and/or Capitalized Interest Account; (ii) the duration of
the Funding Period; (iii) the percentage and/or dollar amount of the Pre-Funding
Limit for the Funding Period that will be remitted to Owners as repayments of
principal; and (iv) that the amounts remaining in the Pre-Funding Account at the
end of the Funding Period will be remitted to Owners as repayments of principal;
and
(9) the Pooling and Servicing Agreement describes the permitted
investments for the Pre-Funding Account and/or Capitalized Interest Account and,
if not disclosed in the Prospectus or Prospectus Supplement, the terms and
conditions for eligibility of Subsequent Mortgage Loans.
It is expected that the Exemption will apply to the acquisition and
holding by Plans of the Class A Certificates and that all conditions for
exemptive relief (other than those within the control of the investors) will be
satisifed.
Prospective Plan investors should consult with their legal advisors
concerning the impact of ERISA and the Code, the applicability of the Exemption,
as amended by PTE 97-34, and the potential consequences in their specific
circumstances, prior to making an investment in the Class A Certificates.
Moreover, each Plan fiduciary should determine whether under the general
fiduciary standards of investment prudence and diversification an investment in
the Class A Certificates is appropriate for the Plan, taking into account the
overall investment policy of the Plan and the composition of the Plan's
investment portfolio.
S-59
RATINGS
It is a condition of the original issuance of the Class A Certificates
that they receive ratings of AAA by Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc. ("Standard & Poor's") and Aaa by
Moody's Investors Service, Inc. ("Moody's"). The ratings issued by Standard &
Poor's and Moody's on the payment of principal and interest on the Class A-2
Certificates do not cover the payment of the Available Funds Cap CarryForward
Amount. The ratings assigned to the Class A Certificates will be based on the
claims-paying ability of the Certificate Insurer.
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 organization. The security rating assigned to the Class A
Certificates should be evaluated independently of similar security ratings
assigned to other kinds of securities.
Explanations of the significance of such ratings may be obtained from
Moody's Investors Service, Inc., 99 Church Street, New York, New York, 10007 and
Standard & Poor's, a division of The McGraw-Hill Companies, Inc., 25 Broadway,
New York, New York 10004. Such ratings will be the views only of such rating
agencies. There is no assurance that any such ratings will continue for any
period of time or that such ratings will not be revised or withdrawn. Any such
revision or withdrawal of such ratings may have an adverse effect on the market
price of the Class A Certificates.
LEGAL INVESTMENT CONSIDERATIONS
The Class A Certificates will not constitute "mortgage related
securities" for purposes of the Secondary Mortgage Market Enhancement Act of
1984, as amended. Accordingly, many institutions with legal authority to invest
in comparably rated securities may not be legally authorized to invest in the
Class A Certificates.
The Seller makes no representations as to the proper characterization
of the Class A Certificates for legal investment or other purposes, or as to the
ability of particular investors to purchase the Class A Certificates under
applicable legal investment restrictions. These uncertainties may adversely
affect the liquidity of the Class A Certificates. Accordingly, all institutions
whose investment activities are subject to legal investment laws and
regulations, regulatory capital requirements or review by regulatory authorities
should consult with their legal advisors in determining whether and to what
extent the Class A Certificates constitute a legal investment or are subject to
investment, capital or other restrictions.
UNDERWRITING
Under the terms and subject to the conditions set forth in the
Underwriting Agreement for the sale of the Class A Certificates, dated March 11,
1999, the Seller has agreed to cause the Trust to sell to Lehman Brothers Inc.
(the "Underwriter") and the Underwriter has agreed to purchase the Class A
Certificates.
The Underwriter has advised the Seller that it proposes to offer the
Class A Certificates for sale from time to time in one or more negotiated
transactions or otherwise, at market prices prevailing at the time of sale, at
prices related to such market prices or at negotiated prices. The Underwriter
may effect such transactions by selling such Certificates to or through dealers,
and such dealers may receive compensation in the form of underwriting discounts,
concessions or commissions from the Underwriter or purchasers of the Class A
Certificates for whom they may act as agent. Any dealers that participate with
the Underwriter in the distribution of the Class A Certificates purchased by the
Underwriter may be deemed to be underwriters, and any discounts or commissions
received by them or the Underwriter and any profit on the resale of Class A
Certificates by them or the Underwriter may be deemed to be underwriting
discounts or commissions under the Securities Act.
Proceeds to the Seller, including accrued interest, are expected to be
approximately 99.835% of the aggregate principal balance of the Class A
Certificates, before deducting expenses payable by the Seller in connection with
the Class A Certificates, estimated to be $300,000. In connection with the
purchase and sale of the Class A Certificates, the Underwriter may be deemed to
have received compensation from the Seller in the form of underwriting
discounts.
S-60
The Seller has agreed to indemnify the Underwriter against certain
liabilities including liabilities under the Securities Act of 1933, as amended.
Immediately prior to the sale of the Mortgage Loans to the Trust, the
Mortgage Loans were subject to financing provided by an affiliate of the
Underwriter. The Seller will apply a portion of the proceeds it receives from
the sale of the Certificates to repay such financing.
The Seller has been advised by the Underwriter that the Underwriter
presently intends to make a market in each Class of Class A Certificates, as
permitted by applicable laws and regulations. The Underwriter is not obligated,
however, to make a market in any Class of Class A Certificates and such
market-making may be discontinued at any time at the sole discretion of the
Underwriter. Accordingly, no assurance can be given as to the liquidity of, or
trading markets for, the Class A Certificates.
EXPERTS
The consolidated balance sheets of MBIA Insurance Corporation and
Subsidiaries as of December 31, 1997 and December 31, 1996 and the related
consolidated statements of income, changes in shareholder's equity and cash
flows for each of the three years in the period ended December 31, 1997,
incorporated by reference in this Prospectus Supplement, have been incorporated
herein in reliance on the report of PricewaterhouseCoopers LLP, independent
accountants, given on the authority of that firm as experts in accounting and
auditing.
CERTAIN LEGAL MATTERS
Certain legal matters relating to the validity of the issuance of the
Certificates will be passed upon for the Seller and the Servicer by Arter &
Hadden LLP, Washington, D.C. Certain legal matters relating to insolvency issues
and certain federal income tax matters concerning the Certificates will be
passed upon for the Seller by Arter & Hadden LLP. Certain legal matters relating
to the validity of the Certificates will be passed upon for the Underwriters by
Brown & Wood LLP, New York, New York. Certain legal matters relating to the
Certificate Insurer and the Certificate Insurance Policies will be passed upon
for the Certificate Insurer by Kutak Rock, Omaha, Nebraska.
S-61
ANNEX I
GLOBAL CLEARANCE, SETTLEMENT AND TAX DOCUMENTATION PROCEDURES
Except in certain limited circumstances, the globally offered First
Alliance Mortgage Loan Trust 1999-1 Mortgage Pass-Through Certificates, Class A
(the "Global Securities") will be available only in book-entry form. Investors
in the Global Securities may hold such Global Securities through any of The
Depository Trust Company ("DTC") in the United States, or Cedelbank ("Cedel") or
The Euroclear System ("Euroclear") (in Europe). The Global Securities will be
tradeable as home market instruments in both the European and U.S. domestic
markets. Initial settlement and all secondary trades will settle in same-day
funds.
Secondary market trading between investors through Cedel and Euroclear
will be conducted in the ordinary way in accordance with the normal rules and
operating procedures of Cedel and Euroclear and in accordance with conventional
eurobond practice (i.e., seven calendar day settlement).
Secondary market trading between investors through DTC will be
conducted according to DTC's rules and procedures applicable to U.S. corporate
debt obligations.
Secondary cross-market trading between Cedel or Euroclear and DTC
Participants holding Certificates will be effected on a delivery-against-payment
basis through the respective Depositaries of Cedel and Euroclear (in such
capacity) and as DTC Participants.
Non-U.S. holders (as described below) of Global Securities will be
subject to U.S. withholding taxes unless such holders meet certain requirements
and deliver appropriate U.S. tax documents to the securities clearing
organizations or their participants.
Initial Settlement
All Global Securities will be held in book-entry form by DTC in the
name of Cede & Co. as nominee of DTC. Investors' interests in the Global
Securities will be represented through financial institutions acting on their
behalf as direct and indirect Participants in DTC. As a result, Cedel and
Euroclear will hold positions on behalf of their participants through their
Relevant Depositary which in turn will hold such positions in their accounts as
DTC Participants.
Investors electing to hold their Global Securities through DTC will
follow DTC settlement practices. Investor securities custody accounts will be
credited with their holdings against payment in same-day funds on the settlement
date.
Investors electing to hold their Global Securities through Cedel or
Euroclear accounts will follow the settlement procedures applicable to
conventional eurobonds, except that there will be no temporary global security
and no "lockup" or restricted period. Global Securities will be credited to the
securities custody accounts on the settlement date against payment in same-day
funds.
Secondary Market Trading
Since the purchaser determines the place of delivery, it is important
to establish at the time of the trade where both the purchaser's and seller's
accounts are located to ensure that settlement can be made on the desired value
date.
Trading between DTC Participants. Secondary market trading between DTC
Participants will be settled using the procedures applicable to prior
asset-backed certificates issues in same-day funds.
Trading between Cedel and/or Euroclear Participants. Secondary market
trading between Cedel Participants or Euroclear Participants will be settled
using the procedures applicable to conventional eurobonds in same-day funds.
Trading between DTC, Seller and Cedel or Euroclear Participants. When
Global Securities are to be transferred from the account of a DTC Participant to
the account of a Cedel Participant or a Euroclear Participant, the purchaser
will send instructions to Cedel or Euroclear through a Cedel Participant or
Euroclear Participant at least one
I-1
business day prior to settlement. Cedel or Euroclear will instruct the Relevant
Depositary, as the case may be, to receive the Global Securities against
payment. Payment will include interest accrued on the Global Securities from and
including the last coupon payment date to and excluding the settlement date, on
the basis of the actual number of days in such accrual period and a year assumed
to consist of 360 days or a 360 day year of twelve 30 day months, as applicable.
For transactions settling on the 31st of the month, payment will include
interest accrued to and excluding the first day of the following month. Payment
will then be made by the Relevant Depositary to the DTC Participant's account
against delivery of the Global Securities. After settlement has been completed,
the Global Securities will be credited to the respective clearing system and by
the clearing system, in accordance with its usual procedures, to the Cedel
Participant's or Euroclear Participant's account. The securities credit will
appear the next day (European time) and the cash debt will be back-valued to,
and the interest on the Global Securities will accrue from, the value date
(which would be the preceding day when settlement occurred in New York). If
settlement is not completed on the intended value date (i.e., the trade fails),
the Cedel or Euroclear cash debt will be valued instead as of the actual
settlement date.
Cedel Participants and Euroclear Participants will need to make
available to the respective clearing systems the funds necessary to process
same-day funds settlement. The most direct means of doing so is to preposition
funds for settlement, either from cash on hand or existing lines of credit, as
they would for any settlement occurring within Cedel or Euroclear. Under this
approach, they may take on credit exposure to Cedel or Euroclear until the
Global Securities are credited to their account one day later.
As an alternative, if Cedel or Euroclear has extended a line of credit
to them, Cedel Participants or Euroclear Participants can elect not to
preposition funds and allow that credit line to be drawn upon to finance
settlement. Under this procedure, Cedel Participants or Euroclear Participants
purchasing Global Securities would incur overdraft charges for one day, assuming
they cleared the overdraft when the Global Securities were credited to their
accounts. However, interest on the Global Securities would accrue from the value
date. Therefore, in many cases the investment income on the Global Securities
earned during that one-day period may substantially reduce or offset the amount
of such overdraft charges, although the result will depend on each Cedel
Participant's or Euroclear Participant's particular cost of funds.
Since the settlement is taking place during New York business hours,
DTC Participants can employ their usual procedures for crediting Global
Securities to the respective European Depositary for the benefit of Cedel
Participants or Euroclear Participants. The sale proceeds will be available to
the DTC seller on the settlement date. Thus, to the DTC Participants a
cross-market transaction will settle no differently than a trade between two DTC
Participants.
Trading between Cedel or Euroclear Seller and DTC Purchaser. Due to
time zone differences in their favor, Cedel Participants and Euroclear
Participants may employ their customary procedures for transactions in which
Global Securities are to be transferred by the respective clearing system,
through the respective Depositary, to a DTC Participant. The seller will send
instructions to Cedel or Euroclear through a Cedel Participant or Euroclear
Participant at least one business day prior to settlement. In these cases Cedel
or Euroclear will instruct the respective Depositary, as appropriate, to credit
the Global Securities to the DTC Participant's account against payment. Payment
will include interest accrued on the Global Securities from and including the
last coupon payment to and excluding the settlement date on the basis of the
actual number of days in such accrual period and a year assumed to consist of
360 days or a 360 day year comprised of twelve 30 day months. For transactions
settling on the 31st of the month, payment will include interest accrued to and
excluding the first day of the following month. The payment will then be
reflected in the account of Cedel Participant or Euroclear Participant the
following day, and receipt of the cash proceeds in the Cedel Participant's or
Euroclear Participant's account would be back-valued to the value date (which
would be the preceding day, when settlement occurred in New York). Should the
Cedel Participant or Euroclear Participant have a line of credit with its
respective clearing system and elect to be in debt in anticipation of receipt of
the sale proceeds in its account, the back-valuation will extinguish any
overdraft incurred over that one-day period. If settlement is not completed on
the intended value date (i.e., the trade fails), receipt of the cash proceeds in
the Cedel Participant's or Euroclear Participant's account would instead be
valued as of the actual settlement date.
Finally, day traders that use Cedel or Euroclear and that purchase
Global Securities from DTC Participants for delivery to Cedel Participants or
Euroclear Participants should note that these trades would automatically fail on
the sale side unless affirmative action is taken. At least three techniques
should be readily available to eliminate this potential problem:
I-2
(a) borrowing through Cedel or Euroclear for one day (until the purchase side of
the trade is reflected in their Cedel or Euroclear accounts) in accordance with
the clearing system's customary procedures;
(b) borrowing the Global Securities in the U.S. from a DTC Participant no later
than one day prior to settlement, which would give the Global Securities
sufficient time to be reflected in their Cedel or Euroclear account in order to
settle the sale side of the trade; or
(c) staggering the value dates for the buy and sell sides of the trade so that
the value date for the purchase from the DTC Participant is at least one day
prior to the value date for the sale to the Cedel Participant or Euroclear
Participant.
Certain U.S. Federal Income Tax Documentation Requirements
A beneficial owner of Global Securities holding securities through
Cedel or Euroclear (or through DTC if the holder has an address outside the
U.S.) will be subject to the 30% U.S. withholding tax that generally applies to
payments of interest (including original issue discount) on registered debt
issued by U.S. Persons (as defined below), unless (i) each clearing system, bank
or other financial institution that holds customers' securities in the ordinary
course of its trade or business in the chain of intermediaries between such
beneficial owner and the U.S. entity required to withhold tax complies with
applicable certification requirements and (ii) such beneficial owner takes one
of the following steps to obtain an exemption or reduced tax rate:
Exemption for Non-U.S. Persons (Form W-8). Beneficial Owners of Global
Securities that are Non-U.S. Persons (as defined below) can obtain a complete
exemption from the withholding tax by filing a signed Form W-8 (Certificate of
Foreign Status). If the information shown on Form W-8 changes, a new Form W-8
must be filed within 30 days of such change.
Exemption for Non-U.S. Persons with effectively connected income (Form
4224). A Non-U.S. Person (as defined below), including a non-U.S. corporation or
bank with a U.S. branch, for which the interest income is effectively connected
with its conduct of a trade or business in the United States, can obtain an
exemption from the withholding tax by filing Form 4224 (Exemption from
Withholding of Tax on Income Effectively Connected with the Conduct of a Trade
or Business in the United States).
Exemption or reduced rate for Non-U.S. Persons resident in treaty
countries (Form 1001). Non-U.S. Persons residing in a country that has a tax
treaty with the United States can obtain an exemption or reduced tax rate
(depending on the treaty terms) by filing Form 1001 (Ownership, Exemption or
Reduced Rate Certificate). If the treaty provides only for a reduced rate,
withholding tax will be imposed at that rate unless the filer alternatively
files Form W-8. Form 1001 may be filed by Certificate Owners or their agent.
Exemption for U.S. Persons (Form W-9). U.S. Persons can obtain a
complete exemption from the withholding tax by filing Form W-9 (Payer's Request
for Taxpayer Identification Number and Certification).
U.S. Federal Income Tax Reporting Procedure. The Owner of a Global
Security or, in the case of a Form 1001 or a Form 4224 filer, his agent, files
by submitting the appropriate form to the person through whom it holds the
security (the clearing agency, in the case of persons holding directly on the
books of the clearing agency). Form W-8 and Form 1001 are effective for three
calendar years and Form 4224 is effective for one calendar year.
The term "U.S. Person" means (i) a citizen or resident of the United
States, (ii) a corporation, partnership or other entity organized in or under
the laws of the United States or any state thereof (including the District of
Columbia) or (iii) an estate or the income of which is includible in gross
income for United States tax purposes, regardless of its source or a trust if a
court within the United States is able to exercise primary supervision of the
administration of the trust and one or more United States fiduciaries have the
authority to control all substantial decisions of the trust. The term "Non-U.S.
Person" means any person who is not a U.S. Person. This summary does not deal
with all aspects of U.S. Federal income tax withholding that may be relevant to
foreign holders of the Global Securities. Investors are advised to consult their
own tax advisors for specific tax advice concerning their holding and disposing
of the Global Securities. This summary does not deal with all aspects of U.S.
federal income tax withholding that may be relevant to foreign holders of Global
Securities or with the application of recently issued Treasury Regulations
relating to tax documentation requirements that are generally effective with
respect to payments made after December 31, 1999. Investors are advised to
consult their own tax advisors for specific tax advice concerning their holding
and disposing of Global Securities.
I-3
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I-4
APPENDIX A
INDEX TO LOCATION OF PRINCIPAL DEFINED TERMS
2/28 Loans ........................................................................................................S-21
Accrual Period ....................................................................................................S-34
Act ...............................................................................................................S-56
Actuarial Loans....................................................................................................S-26
Advances ..........................................................................................................S-32
Agreement .........................................................................................................S-46
Appraised Values...................................................................................................S-17
Available Funds....................................................................................................S-39
Available Funds Cap Carry-Forward Amount...........................................................................S-33
Available Funds Shortfall..........................................................................................S-38
Average Interest Rate..............................................................................................S-59
Beneficial Owners..................................................................................................S-41
Book-Entry Certificates............................................................................................S-41
Business Day ....................................................................................................S-46
Capitalized Interest Account.......................................................................................S-40
Cede ..............................................................................................................S-41
Cedel .............................................................................................................S-41
Cedel Participants.................................................................................................S-42
Certificate Account................................................................................................S-32
Certificate Insurer.................................................................................................S-3
Certificate Principal Balance......................................................................................S-32
Certificates ......................................................................................................S-32
Chase..............................................................................................................S-41
Class A Current Interest...........................................................................................S-34
Class A Distribution Amount........................................................................................S-35
Class A Principal Distribution Amount..............................................................................S-34
Class R Certificates...............................................................................................S-32
Clean-Up Call Date.................................................................................................S-34
Closing Date.......................................................................................................S-29
CLTV...............................................................................................................S-15
Code...............................................................................................................S-54
Compensating Interest..............................................................................................S-50
Cooperative........................................................................................................S-42
CPR................................................................................................................S-28
Cut-Off Date.......................................................................................................S-15
D&P................................................................................................................S-58
Definitive Certificate.............................................................................................S-41
Delinquency Advances...............................................................................................S-50
DOL........... ....................................................................................................S-57
DTC................................................................................................................S-41
DTC Participants...................................................................................................S-42
Due Period.........................................................................................................S-35
Euroclear..........................................................................................................S-41
Euroclear Operator.................................................................................................S-42
Euroclear Participants.............................................................................................S-42
European Depositaries..............................................................................................S-41
Excess Subordinated Amount.........................................................................................S-37
Exemption..........................................................................................................S-57
FACO...............................................................................................................S-10
Fannie Mae.........................................................................................................S-28
Fees and Expenses..................................................................................................S-35
Final Determination................................................................................................S-54
Financial Intermediary.............................................................................................S-41
Fiscal Agent.......................................................................................................S-45
Fitch..............................................................................................................S-58
Fixed Rate Group...................................................................................................S-13
Fixed Rate Group Available Funds...................................................................................S-39
Fixed Rate Group Total Available Funds.............................................................................S-39
Foreign Investors..................................................................................................S-56
Freddie Mac........................................................................................................S-28
Funding Period ....................................................................................................S-39
GAAP...............................................................................................................S-48
Group..............................................................................................................S-13
Initial Mortgage Loans.............................................................................................S-13
Insured Payment....................................................................................................S-46
Insurer Reimbursable Amount........................................................................................S-38
Interest Carry Forward Amount......................................................................................S-34
Interest Determination Date........................................................................................S-40
IRS................................................................................................................S-55
Junior Lien Ratio..................................................................................................S-18
Last Scheduled ....................................................................................................S-28
LIBOR..............................................................................................................S-40
Liquidated Mortgage Loan...........................................................................................S-36
LTV................................................................................................................S-15
Modeling Assumptions...............................................................................................S-29
Moody's............................................................................................................S-60
Mortgage Loan Group................................................................................................S-13
Mortgaged Properties...............................................................................................S-13
Mortgages..........................................................................................................S-13
Mortgagor..........................................................................................................S-26
Net Monthly Excess Cashflow........................................................................................S-38
Net Monthly Excess Spread..........................................................................................S-36
New Withholding Regulations........................................................................................S-56
Norwest............................................................................................................S-51
Notes..............................................................................................................S-15
Notice.............................................................................................................S-46
OID................................................................................................................S-55
Original Pre-Funded Amount.........................................................................................S-39
Originators........................................................................................................S-13
Oversight Agent....................................................................................................S-51
Oversight Agent Fee................................................................................................S-52
Owner..............................................................................................................S-46
Owners.............................................................................................................S-32
Participants.......................................................................................................S-41
Payment Date........................................................................................................S-2
Percentage Interest................................................................................................S-33
Plan...............................................................................................................S-57
Plan Asset Regulation..............................................................................................S-57
Pooling and Servicing Agreement....................................................................................S-49
Pre-Funded Amount..................................................................................................S-39
Pre-Funding Account................................................................................................S-39
Pre-Funding Limit..................................................................................................S-59
Preference Amount..................................................................................................S-46
Prepayment.........................................................................................................S-27
Prepayment Assumption..............................................................................................S-28
Principal Carry-Forward Amount.....................................................................................S-35
Rating Agency......................................................................................................S-58
Realized Loss......................................................................................................S-37
Record Date........................................................................................................S-33
Relevant Depositary................................................................................................S-41
REMIC..............................................................................................................S-55
Remittance Date....................................................................................................S-32
Remittance Period..................................................................................................S-33
Restricted Group...................................................................................................S-58
Rules..............................................................................................................S-41
SAP................................................................................................................S-48
Schedules of Mortgage Loans........................................................................................S-49
Servicing Fee......................................................................................................S-50
Servicing Fee Rate.................................................................................................S-50
Six-Month LIBOR Loans..............................................................................................S-21
Specified Subordinated Amount......................................................................................S-36
Standard & Poor's..................................................................................................S-60
Subordination Deficit..............................................................................................S-37
Subordination Increase Amount......................................................................................S-36
A-1
Subordination Reduction Amount.....................................................................................S-37
Subsequent Mortgage Loans..........................................................................................S-15
Subsequent Transfer Date...........................................................................................S-39
Telerate Page 3750.................................................................................................S-40
Terms and Conditions...............................................................................................S-43
Total Available Funds..............................................................................................S-39
Total Monthly Excess Cashflow......................................................................................S-38
Total Monthly Excess Spread........................................................................................S-36
Trust..............................................................................................................S-53
Trustee............................................................................................................S-53
Underwriter........................................................................................................S-60
Variable Rate Group................................................................................................S-13
Variable Rate Group Available Funds................................................................................S-39
Variable Rate Group Total Available Funds..........................................................................S-39
190932.6D
A-2
PROSPECTUS
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Mortgage Loan Asset Backed Securities, Issuable in Series
First Alliance Mortgage Company
This Prospectus describes certain Mortgage Loan Asset Backed Securities
(the "Securities") that may be issued from time to time in series and certain
classes of which may be offered hereby from time to time as described in the
related Prospectus Supplement. Each series of Securities will be issued by a
separate trust (each, a "Trust") and will evidence either a beneficial ownership
interest in or the debt obligation of such Trust. The primary assets of each
Trust will consist of a segregated pool (a "Mortgage Pool") of conventional one-
to four-family residential mortgage loans or certificates of interest or
participation therein (the "Mortgage Loans"), to be acquired by such Trust from
First Alliance Mortgage Company (the "Company"). The Company will originate
and/or acquire the Mortgage Loans from one or more affiliated or unaffiliated
institutions (together with the Company, the "Originators"). See "The Mortgage
Pools."
The Mortgage Loans in each Mortgage Pool and certain other assets
described herein and in the related Prospectus Supplement (collectively with
respect to each Trust, the "Trust Estate") will be held by the related Trust for
the benefit of the holders of the related series of Securities (the
"Securityholders") to the extent and as more fully described herein and in the
related Prospectus Supplement. Each Mortgage Pool will consist of one or more of
the various types of Mortgage Loans described under "The Mortgage Pools."
Each series of Securities will include one or more classes. The
Securities of any particular class may represent beneficial ownership interests
in the related Mortgage Loans held by the related Trust, or may represent debt
secured by such Mortgage Loans, as described herein and in the related
Prospectus Supplement. A series may include one or more classes of Securities
entitled to principal distributions, with disproportionate, nominal or no
interest distributions, or to interest distributions, with disproportionate,
nominal or no principal distributions. The rights of one or more classes of
Securities of any series may be senior or subordinate to the rights of one or
more of the other classes of Securities. A series may include two or more
classes of Securities which differ as to the timing, sequential order, priority
of payment, interest rate or amount of distributions of principal or interest or
both. Information regarding each class of Securities of a series, and certain
characteristics of the Mortgage Loans to be evidenced by such Securities, will
be set forth in the related Prospectus Supplement.
The Company's and the related Originators' only obligations with
respect to a series of Securities will be pursuant to the servicing requirements
relating thereto, and pursuant to certain representations and warranties made by
the Company or by such Originators, except as described in the related
Prospectus Supplement. The Prospectus Supplement for each series of Securities
will name the Company or some other entity or entities as Servicer (the
"Servicer") which will act, directly or through one or more sub-servicers (the
"Sub-Servicer(s)"). The principal obligations of the Servicer will be pursuant
to its contractual servicing obligations (which include its limited obligation
to make certain advances in the event of delinquencies in payments on the
Mortgage Loans and interest shortfalls due to prepayment of Mortgage Loans). See
"Description of the Securities."
If so specified in the related Prospectus Supplement, the Trust Estate
for a series of Securities may include any combination of a mortgage pool
insurance policy, letter of credit, financial guaranty insurance policy,
bankruptcy bond, special hazard insurance policy, reserve fund or other form of
credit enhancement. In addition to or in lieu of the foregoing, credit
enhancement with respect to certain classes of Securities of any series may be
provided by means of subordination, cross-support among Mortgage Assets as
defined herein or over-collateralization. See "Description of Credit
Enhancement."
See "Risk Factors" beginning on page 14 herein and in the related
Prospectus Supplement for a discussion of significant matters affecting
investments in the Securities.
The rate of payment of principal of each class of Securities entitled
to principal payments will depend on the priority of payment of such class and
the rate of payment (including prepayments, defaults, liquidations and
repurchases of Mortgage Loans) of the related Mortgage Loans. A rate of
principal payment lower or higher than that anticipated may affect the yield on
each class of Securities in the manner described herein and in the related
Prospectus Supplement. The various types of Securities, the different classes of
such Securities and certain types of Mortgage Loans in a given Mortgage Pool may
have different prepayment risks and credit risks. The Prospectus Supplement for
a series of Securities will contain information as to (i) types, maturities and
certain statistical information relating to credit risks of the Mortgage Loans
in the related Mortgage Pool, (ii) projected prepayment and yields based upon
certain specified assumptions for a series of Securities and (iii) priority of
payment and maturity dates of the Securities. See "Yield Considerations." A
Trust may be subject to early termination under the circumstances described
herein and in the related Prospectus Supplement.
An investor should carefully review the information in the related
Prospectus Supplement concerning the different consequences of the risks
associated with the different types and classes of Securities.
THE ASSETS OF THE RELATED TRUST ARE THE SOLE SOURCE OF PAYMENTS ON THE
RELATED SECURITIES. THE SECURITIES DO NOT REPRESENT AN INTEREST IN OR OBLIGATION
OF THE COMPANY, THE SERVICER, ANY ORIGINATOR OR ANY OF THEIR AFFILIATES, EXCEPT
AS SET FORTH HEREIN AND IN THE RELATED PROSPECTUS SUPPLEMENT. NEITHER THE
SECURITIES NOR THE UNDERLYING MORTGAGE LOANS WILL BE GUARANTEED OR INSURED BY
ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR BY THE COMPANY, THE SERVICER, THE
MASTER SERVICER, ANY ORIGINATOR OR ANY OF THEIR AFFILIATES, EXCEPT AS SET FORTH
IN THE RELATED PROSPECTUS SUPPLEMENT.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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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
"Methods of Distribution" herein and "Underwriting" in the related Prospectus
Supplement. There will be no secondary market for any series of Securities prior
to the offering thereof. There can be no assurance that a secondary market for
any of the Securities will develop or, if it does develop, that it will offer
sufficient liquidity of investment or will continue.
Retain this Prospectus for future reference. This Prospectus may not be used to
consummate sales of securities offered hereby unless accompanied by a Prospectus
Supplement.
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The date of this Prospectus is March 11, 1999.
If specified in a Prospectus Supplement for a series of Certificates,
one or more separate elections may be made to treat a Trust, or specified
portions thereof, as a real estate mortgage investment conduit ("REMIC") for
federal income tax purposes. If applicable, the Prospectus Supplement for a
series of Securities will specify which class or classes of the related series
of Securities will be considered to be regular interests in a REMIC and which
classes of Securities or other interests will be designated as the residual
interest in a REMIC. Alternatively, a Trust may be treated as a grantor trust or
as a partnership for federal income tax purposes, or may be treated for federal
income tax purposes as a mere security device which constitutes a collateral
arrangement for the issuance of secured debt. See "Certain Federal Income Tax
Consequences" herein and in the related Prospectus Supplement.
TABLE OF CONTENTS
Caption Page
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AVAILABLE INFORMATION.....................................................3
REPORTS TO OWNERS.........................................................3
INCORPORATION OF CERTAIN DOCUMENTS BY
REFERENCE.............................................................3
PROSPECTUS SUPPLEMENT.....................................................3
SUMMARY OF PROSPECTUS.....................................................5
RISK FACTORS.............................................................14
Limited Liquidity....................................................14
Limited Obligations..................................................14
Limitations, Reduction and Substitution of Credit
Enhancement.......................................................14
Risks Related to the Mortgage Loans..................................14
Litigation...........................................................16
Geographic Concentration of Mortgaged Properties.....................16
The Subsequent Mortgage Loans and the Pre-Funding
Account...........................................................16
Social, Economic and Other Factors...................................17
Applicability of State and Federal Lending Laws......................17
Yield and Prepayment Considerations..................................17
Book-entry Registration..............................................18
The Status of the Mortgage Loans in the Event of Bankruptcy
of the Company or an Originator...................................18
Limitations on Interest Payments and Foreclosures....................18
Security Rating......................................................18
THE TRUSTS...............................................................19
The Mortgage Loans--General..........................................19
Single Family Loans..................................................22
THE MORTGAGE POOLS.......................................................22
General..............................................................22
The Mortgage Pools...................................................22
MORTGAGE LOAN PROGRAM....................................................24
Underwriting Guidelines..............................................24
Qualifications of Originators........................................26
Sub-Servicers........................................................27
Representations by Originators.......................................28
Sub-Servicing by Originators.........................................29
Master Servicer......................................................30
DESCRIPTION OF THE SECURITIES............................................30
General..............................................................30
General Payment Terms of Securities..................................31
Form of Securities...................................................32
Assignment of Mortgage Loans.........................................33
Forward Commitments; Pre-Funding.....................................34
Payments on Mortgage Loans; Deposits to Distribution
Account...........................................................35
Withdrawals from the Principal and Interest Account..................37
Distributions........................................................38
Principal and Interest on the Securities.............................38
Advances.............................................................39
Reports to Securityholders...........................................40
Collection and Other Servicing Procedures............................41
Realization upon Defaulted Mortgage Loans............................42
SUBORDINATION............................................................43
DESCRIPTION OF CREDIT ENHANCEMENT........................................44
Letter of Credit.....................................................44
Mortgage Pool Insurance Policies.....................................45
Special Hazard Insurance Policies....................................45
Bankruptcy Bonds.....................................................45
Reserve Funds........................................................46
Caption Page
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Financial Guaranty Insurance Policies................................46
Other Insurance, Guarantees and Similar Instruments or
Agreements........................................................46
Cross-Support........................................................46
Overcollateralization................................................47
Cross-Collateralization..............................................47
Maintenance of Credit Enhancement....................................47
Reduction or Substitution of Credit Enhancement......................48
HAZARD INSURANCE; CLAIMS THEREUNDER......................................48
Hazard Insurance Policies............................................48
THE COMPANY..............................................................49
THE SERVICER.............................................................49
THE MASTER SERVICER......................................................49
THE POOLING AND SERVICING AGREEMENT......................................49
Servicing and Other Compensation and Payment of
Expenses; Originator's Retained Yield.............................49
Evidence as to Compliance............................................50
Removal and Resignation of the Servicer..............................50
Resignation of the Master Servicer...................................51
Rights Upon Event of Default.........................................51
Amendment............................................................51
Termination; Retirement of Securities................................52
The Trustee..........................................................53
YIELD CONSIDERATIONS.....................................................53
MATURITY AND PREPAYMENT CONSIDERATIONS...................................55
CERTAIN LEGAL ASPECTS OF MORTGAGE LOANS
AND RELATED MATTERS..................................................56
General..............................................................56
Foreclosure..........................................................56
Rights of Redemption.................................................57
Anti-Deficiency Legislation and Other Limitations on
Lenders...........................................................57
Environmental Legislation............................................58
Enforceability of Certain Provisions.................................58
Certain Provisions of California Deeds of Trust......................59
Applicability of Usury Laws..........................................59
Alternative Mortgage Instruments.....................................60
Soldiers' and Sailors' Civil Relief Act of 1940......................60
CERTAIN FEDERAL INCOME TAX CONSEQUENCES..................................60
General..............................................................60
Grantor Trust Securities.............................................61
REMIC Securities.....................................................62
Sales of REMIC Securities............................................65
Debt Securities......................................................67
Discount and Premium.................................................67
Backup Withholding...................................................70
Foreign Investors....................................................70
ERISA CONSIDERATIONS.....................................................70
Plan Asset Regulations...............................................71
Prohibited Transaction Class Exemption...............................71
Tax Exempt Investors.................................................72
Consultation With Counsel............................................73
LEGAL INVESTMENT MATTERS.................................................73
USE OF PROCEEDS..........................................................73
METHODS OF DISTRIBUTION..................................................74
LEGAL MATTERS............................................................74
FINANCIAL INFORMATION....................................................75
RATING...................................................................75
INDEX OF PRINCIPAL DEFINITIONS...........................................76
2
AVAILABLE INFORMATION
The Company has filed a Registration Statement under the Securities Act
of 1933, as amended (the "1933 Act"), with the Securities and Exchange
Commission (the "Commission") with respect to the Securities. The Registration
Statement and amendments thereof and to the exhibits thereto, as well as such
reports and other information, are available for inspection without charge at
the public reference facilities maintained by the Commission at its Public
Reference Section 450 Fifth Street, N.W., Washington, D.C. 20549, and at its
Regional Offices located as follows: New York Regional Office, 7 World Trade
Center, 13th Floor, New York, New York 10048; and Chicago Regional Office,
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511. Copies of the Registration Statement and amendments thereof and
exhibits thereto may be obtained from the Public Reference Section of the
Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates
and electronically through the Commission's Electronic Data Gathering, Analysis
and Retrieval system at the Commission's Web site (http://www.sec.gov).
No person has been authorized to give any information or to make any
representation other than those contained in this Prospectus and any Prospectus
Supplement with respect hereto and, if given or made, such information or
representations must not be relied upon. This Prospectus and any accompanying
Prospectus Supplement with respect hereto do not constitute an offer to sell or
a solicitation of an offer to buy any securities other than the Securities
offered hereby and thereby nor an offer of the Securities to any person in any
state or other jurisdiction in which such offer would be unlawful. The delivery
of this Prospectus at any time does not imply that information herein is correct
as of any time subsequent to its date.
REPORTS TO OWNERS
Periodic and annual reports concerning any Securities and the related
Trust will be provided to the Securityholders. See "Description of the
Securities - Reports to Securityholders." If specified in the related Prospectus
Supplement, a series of Securities may be issuable in book-entry form. In such
event, the related Securities will be registered in the name of DTC (as defined
herein) and, therefore, DTC will be the Securityholder for purposes hereof. All
reports will be provided to DTC, which in turn will provide such reports to its
Participants (as defined herein). Such Participants will then forward such
reports to the beneficial owners of Securities. See "Description of the
Securities - Form of Securities" herein. The Company will file or cause to be
filed with the Commission such periodic reports with respect to each Trust as
are required under the Exchange Act and the rules and regulations of the
Commission thereunder. It is the Company's intent to suspend filing such reports
as soon as such reports are no longer statutorily required.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
All documents filed by each respective trust pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering of the securities of
such trust offered hereby shall be deemed to be incorporated by reference into
this Prospectus when delivered with respect to such trust. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
Any person receiving a copy of this Prospectus may obtain, without
charge, upon written or oral request, a copy of any of the documents
incorporated by reference herein, except for the exhibits to such documents
(other than the documents expressly incorporated therein by reference). Requests
should be directed to First Alliance Mortgage Company, 17305 Von Karman Avenue,
Irvine, California 92714 (telephone number 714-224-8600).
PROSPECTUS SUPPLEMENT
The Prospectus Supplement relating to the Securities of each series to
be offered hereunder will, among other things, set forth with respect to such
Securities, as appropriate: (i) a description of the class or classes of
Securities and the interest rate or method of determining the rate or the amount
of interest, if any, to be paid to each such class; (ii) the aggregate principal
amount and Payment Dates relating to such series and, if applicable, the initial
and final scheduled Payment Dates for each class; (iii) information as to the
assets comprising the Trust, including the general characteristics of the Trust
Estate and, if applicable, the insurance policies, surety bonds, guarantees,
letters of credit, reserve funds, cash accounts, reinvestment income or other
instruments or agreements included in the Trust or otherwise, and the amount and
source of any reserve account or cash account; (iv) the circumstances, if any,
under which the Trust may be subject to early termination; (v) the methods used
to calculate the amount of principal to be distributed with respect to each
class of Securities; (vi) the order of application of distributions to each of
the classes within such series, whether sequential, pro rata, or otherwise;
(vii) additional information with respect to the method of distribution of such
Securities; (viii) whether one or more REMIC elections will be made and
designation of the regular interests and residual interests; (ix) the aggregate
original percentage ownership interest in the Trust to be evidenced by each
class of Securities; (x) information as to the Trustee or Indenture Trustee;
(xi) information as to the nature and extent of subordination with respect to
any class of Securities that is subordinate in right of payment to any other
class; and (xii) information as to the Master Servicer, if any.
3
Until 90 days after the date of each Prospectus Supplement, all dealers
effecting transactions in the Securities covered by such Prospectus Supplement,
whether or not participating in the distribution thereof, may be required to
deliver such Prospectus Supplement and this Prospectus. This is in addition to
the obligations of dealers to deliver a Prospectus Supplement and the Prospectus
when acting as underwriters of the Securities covered by such Prospectus
Supplement and with respect to their unsold allotments or subscriptions.
4
SUMMARY OF PROSPECTUS
The following summary of certain pertinent information is qualified in
its entirety by reference to the detailed information appearing elsewhere in
this Prospectus and by reference to the information with respect to each series
of Securities contained in the Prospectus Supplement to be prepared and
delivered in connection with the offering of such series. Capitalized terms used
in this summary that are not otherwise defined shall have the meanings ascribed
thereto in this Prospectus. An index indicating where certain terms used herein
are defined appears at the end of this Prospectus.
Securities Offered............ Mortgage Loan Asset Backed Securities.
Company....................... First Alliance Mortgage Company. See "The
Company."
Originators................... The Company will originate and/or acquire the
Mortgage Loans from one or more institutions
affiliated with the Company ("Affiliated
Originators") or institutions unaffiliated
with the Company ("Unaffiliated Originators")
(the Affiliated Originators, the Unaffiliated
Originators and the Company are collectively
referred to as the "Originators").
Unaffiliated Originators that enter into
agreements to sell Mortgage Loans to the
Company and that meet certain qualifications
described herein are referred to as
"Participating Originators" or "Designated
Originators"; such designation is dependent
upon types of duties retained by an Originator
(i.e., sub-servicing) and satisfaction of the
Company's requirements for such qualification.
Servicer...................... First Alliance Mortgage Company or any entity
or entities named as Servicer in the related
Prospectus Supplement will act as servicer
with respect to the Mortgage Loans included in
the related Trust. An affiliate of the Company
may act as the Servicer. See "The Servicer"
and "The Pooling and Servicing
Agreement--Certain Matters Regarding the
Servicer and the Company."
Master Servicer............... A Master Servicer may be specified in the
related Prospectus Supplement for the related
series of Securities. See "Mortgage Loan
Program--Master Servicer" and "The Pooling and
Servicing Agreement--Certain Matters Regarding
the Servicer and the Company."
Sub-Servicers................. Affiliated Originators may act as Sub-
Servicers for Mortgage Loans acquired by the
Company from such Affiliated Originators
unless servicing is released to the Servicer
or has been transferred to a servicer approved
by the Servicer. Unaffiliated Originators
(including Designated Originators,
Participating Originators or Originators of
Bulk Acquisitions) may or may not act as
Sub-Servicers for Mortgage Loans acquired by
the Company from such Unaffiliated
Originators. In addition, third-party
unaffiliated contract servicers may act as
Sub-Servicers. See "Mortgage Loan
Program--Sub-Servicers."
Trustee....................... The trustee (the "Trustee") for each series of
Certificates will be specified in the related
Prospectus Supplement. The owner trustee (the
"Owner Trustee") and the indenture trustee
(the "Indenture Trustee") for each series of
Notes will be specified in the related
Prospectus Supplement. Unless otherwise noted,
references to the Trustee herein will mean
either the Trustee with respect to a series of
Certificates or the Indenture Trustee with
respect to a series of Notes.
Issuer of Notes............... With respect to each series of Notes, the
issuer (the "Issuer") will be an owner trust
established by the Company for the purpose of
issuing such Series of Notes. Each such owner
trust will be created pursuant to a Trust
Agreement between the Company and the Owner
Trustee. Each series of Notes will represent
indebtedness of the Issuer and will be issued
pursuant to an Indenture between the Issuer
and the Trustee whereby the Issuer will pledge
the related Trust to secure the Notes under
the lien of the
5
Indenture. As to each series of Notes where
the Issuer is an owner trust, the ownership of
the related Trust will be evidenced by
certificated or noncertificated interests
issued under the Trust Agreement, which,
unless otherwise specified in the Prospectus
Supplement, are not offered hereby. The Notes
will represent nonrecourse obligations solely
of the Issuer, and the proceeds of the related
Trust will be the sole source of payments on
the Notes, except as described herein under
"Description of Credit Enhancement" and in the
related Prospectus Supplement.
The Securities................ Issuance of Securities. Each series of
Securities will be issued at the direction of
the Company by a separate Trust (each, a
"Trust"). The primary assets of each Trust
will consist of a segregated pool (each a
"Mortgage Pool") of conventional, one-to-four
family residential mortgage loans (the
"Mortgage Loans") or certificates of interest
or participation therein, acquired by such
Trust from the Company. The Company will
originate and/or acquire the Mortgage Loans
from one or more of the Originators. The
Securities issued by any Trust may represent
beneficial ownership interests in the related
Mortgage Loans held by the related Trust, or
may represent debt secured by such Mortgage
Loans, as described herein and in the related
Prospectus Supplement. Securities which
represent beneficial ownership interests in
the related Trust will be referred to as
"Certificates" in the related Prospectus
Supplement; Securities which represent debt
issued by the related Trust will be referred
to as "Notes" in the related Prospectus
Supplement.
Each Trust will be established pursuant to an
agreement (each, a "Trust Agreement") by and
between the Company and the Trustee or Owner
Trustee, as applicable, named therein. Each
Trust Agreement will describe the related pool
of assets to be held in trust (each such asset
pool, the "Trust Estate"), which will include
the related Mortgage Loans and, if so
specified in the related Prospectus
Supplement, may include any combination of a
mortgage pool insurance policy, letter of
credit, financial guaranty insurance policy,
special hazard policy, reserve fund or other
form of credit enhancement.
The Mortgage Loans held by each Trust will be
serviced by the Servicer pursuant to a
servicing agreement (each, a "Servicing
Agreement") by and between the Servicer and
the related Trustee.
With respect to Securities that represent debt
issued by the related Trust, the related Trust
will enter into an indenture (each, an
"Indenture") by and between such Trust and the
trustee named on such Indenture (the
"Indenture Trustee"), as set forth in the
related Prospectus Supplement. Securities that
represent beneficial ownership interests in
the related Trust will be issued pursuant to
the related Trust Agreement.
In the case of any individual Trust, the
contractual arrangements relating to the
establishment of the Trust, the servicing of
the related Mortgage Loans and the issuance of
the related Securities may be contained in a
single agreement, or in several agreements
which combine certain aspects of the Trust
Agreement, the Servicing Agreement and the
Indenture described above (for example, a
pooling and servicing agreement, or a
servicing and collateral management
agreement). For purposes of this Prospectus,
the term "Pooling and Servicing Agreement" as
used with respect to a Trust means,
collectively, and except as otherwise
specified, any and all agreements relating to
the establishment of the related Trust, the
servicing of the related Mortgage Loans and
the issuance of the related Securities.
6
Securities Will Be Recourse to the Assets of
the Related Trust Only. The sole source of
payment for any series of Securities will be
the assets of the related Trust (i.e., the
related Trust Estate). The Securities will not
be obligations, either recourse or
non-recourse (except for certain non-recourse
debt described under "Certain Federal Income
Tax Consequences"), of the Company, the Master
Servicer, the Servicer, any Originator or any
Person other than the related Trust. In the
case of Securities that represent beneficial
ownership interest in the related Trust
Estate, such Securities will represent the
ownership of such Trust Estate; with respect
to Securities that represent debt issued by
the related Trust, such Securities will be
secured by the related Trust Estate.
Notwithstanding the foregoing, and as to be
described in the related Prospectus
Supplement, certain types of credit
enhancement, such as a financial guaranty
insurance policy or a letter of credit, may
constitute a full recourse obligation of the
issuer of such credit enhancement.
General Nature of the Securities as
Investments. The Securities will consist of
two basic types: (i) Securities of the
fixed-income type ("Fixed-Income Securities")
and (ii) Securities of the equity
participation type ("Equity Securities"). No
Class of Equity Securities will be offered
pursuant to this Prospectus or any Prospectus
Supplement related hereto. Fixed-Income
Securities will generally be styled as debt
instruments, having a principal balance and a
specified interest rate ("Interest Rate").
Fixed-Income Securities may be either
beneficial ownership interests in the related
Mortgage Loans held by the related Trust, or
may represent debt secured by such Mortgage
Loans. Each series or class of Fixed-Income
Securities may have a different Interest Rate,
which may be a fixed or adjustable Interest
Rate. The related Prospectus Supplement will
specify the Interest Rate for each series or
class of Fixed-Income Securities, or the
initial Interest Rate and the method for
determining subsequent changes to the Interest
Rate.
A series may include one or more classes of
Fixed-Income Securities ("Strip Securities")
entitled (i) to principal distributions, with
disproportionate, nominal or no interest
distributions, or (ii) to interest
distributions, with disproportionate, nominal
or no principal distributions. In addition, a
series may include two or more classes of
Fixed-Income Securities that differ as to
timing, sequential order, priority of payment,
Interest Rate or amount of distributions of
principal or interest or both, or as to which
distributions of principal or interest or both
on any class may be made upon the occurrence
of specified events, in accordance with a
schedule or formula, or on the basis of
collections from designated portions of the
related Mortgage Pool, which series may
include one or more classes of Fixed-Income
Securities ("Accrual Securities"), as to which
certain accrued interest will not be
distributed but rather will be added to the
principal balance (or nominal principal
balance, in the case of Accrual Securities
which are also strip Securities) thereof on
each Payment Date, as hereinafter defined and
in the manner described in the related
Prospectus Supplement.
If so provided in the related Prospectus
Supplement, a series of Securities may include
one or more other classes of Fixed-Income
Securities (collectively, the "Senior
Securities") that are senior to one or more
other classes of Fixed-Income Securities
(collectively, the "Subordinate Securities")
in respect of certain distributions of
principal and interest and allocations of
losses on Mortgage Loans. In addition, certain
classes of Senior (or Subordinate) Securities
may be senior to other classes of Senior (or
Subordinate) Securities in respect of such
distributions or losses.
7
Equity Securities will represent the right to
receive the proceeds of the related Trust
Estate after all required payments have been
made to the Securityholders of the related
Fixed-Income Securities (both Senior
Securities and Subordinate Securities), and
following any required deposits to any reserve
account which may be established for the
benefit of the Fixed-Income Securities. Equity
Securities may constitute what are commonly
referred to as the "residual interest,"
"seller's interest" or the "general
partnership interest," depending upon the
treatment of the related Trust for federal
income tax purposes. As distinguished from the
Fixed-Income Securities, the Equity Securities
will not be styled as having principal and
interest components. Any losses suffered by
the related Trust will first be absorbed by
the related class of Equity Securities, as
described herein and in the related Prospectus
Supplement.
No Class of Equity Securities will be offered
pursuant to this Prospectus or any Prospectus
Supplement related hereto. Equity Securities
may be offered on a private placement basis or
pursuant to a separate Registration Statement
to be filed by the Company. In addition, the
Company and its affiliates may initially or
permanently hold any Equity Securities issued
by any Trust.
General Payment Terms of Securities. As
provided in the related Pooling and Servicing
Agreement and as described in the related
Prospectus Supplement, Securityholders will be
entitled to receive payments on their
Securities on specified dates ("Payment
Dates"). Payment Dates with respect to
Fixed-Income Securities will occur monthly,
quarterly or semiannually, as described in the
related Prospectus Supplement; Payment Dates
with respect to Equity Securities will occur
as described in the related Prospectus
Supplement.
The related Prospectus Supplement will
describe a date (the "Record Date") preceding
each Payment Date, as of which the Trustee or
its paying agent will fix the identity of the
Securityholders for the purpose of receiving
payments on the next succeeding Payment Date.
Unless otherwise described in the related
Prospectus Supplement, the Payment Date will
be the twentieth day of each month (or, in the
case of quarterly-pay Securities, the
twentieth day of every third month; and in the
case of semi-annually-pay Securities, the
twentieth day of every sixth month) and the
Record Date will be the close of business as
of the last day of the calendar month that
precedes the calendar month in which such
Payment Date occurs.
Each Pooling and Servicing Agreement will
describe different periods (a "Remittance
Period" or "Due Period") antecedent to each
Payment Date (for example, in the case of
monthly-pay Securities, the calendar month (or
the 30-day period) preceding the month in
which a Payment Date occurs or such other
specified period). Unless otherwise provided
in the related Prospectus Supplement,
collections received on or with respect to the
related Mortgage Loans during a Remittance
Period will be required to be remitted by the
Servicer to the related Trustee prior to the
related Payment Date, and will be used to fund
payments to Securityholders on such Payment
Date. As may be described in the related
Prospectus Supplement, the related Pooling and
Servicing Agreement may provide that all or a
portion of the principal collected on or with
respect to the related Mortgage Loans may be
applied by the related Trustee to the
acquisition of additional Mortgage Loans
during a specified period (rather than be used
to fund payments of principal to
Securityholders during such period) with the
result that the related securities will
possess an interest-only period, also commonly
referred to as a revolving period, which will
be followed by an amortization period. Any
such interest-only
8
or revolving period may, upon the occurrence
of certain events to be described in the
related Prospectus Supplement, terminate prior
to the end of the specified period and result
in the earlier than expected amortization of
the related Securities.
In addition, and as may be described in the
related Prospectus Supplement, the related
Pooling and Servicing Agreement may provide
that all or a portion of such collected
principal may be retained by the Trustee (and
held in certain temporary investments,
including Mortgage Loans) for a specified
period prior to being used to fund payments of
principal to Securityholders.
The result of such retention and temporary
investment by the Trustee of such principal
would be to slow the amortization rate of the
related Securities relative to the
amortization rate of the related Mortgage
Loans, or to attempt to match the amortization
rate of the related Securities to an
amortization schedule established at the time
such Securities are issued. Any such feature
applicable to any Securities may terminate
upon the occurrence of events to be described
in the related Prospectus Supplement,
resulting in the current distribution of
principal payments to the specified
Securityholders and an acceleration of the
amortization of such Securities.
Unless otherwise specified in the related
Prospectus Supplement, neither the Securities
nor the underlying Mortgage Loans will be
guaranteed or insured by any governmental
agency or instrumentality or the Company, the
Servicer, the Master Servicer, any
Sub-Servicer, any Originator or any of their
affiliates; however, certain distributions to
the Securityholders may be insured by a
Financial Guaranty Insurer pursuant to a
Financial Guaranty Insurance Policy.
No Investment
Companies................... Neither the Company nor any Trust will
register as an "investment company" under the
Investment Company Act of 1940, as amended
(the "Investment Company Act").
Cross-Collateralization....... Unless otherwise provided in the related
Pooling and Servicing Agreement and described
in the related Prospectus Supplement, the
source of payment for Securities of each
series will be the assets of the related Trust
Estate only. However, as may be described in
the related Prospectus Supplement, a Trust
Estate may include the right to receive moneys
from a common pool of credit enhancement which
may be available for more than one series of
Securities, such as a master reserve account
or a master insurance policy. Notwithstanding
the foregoing, no collections on any Mortgage
Loans held by any Trust may be applied to the
payment of Securities issued by any other
Trust (except to the limited extent that
certain collections in excess of amounts
needed to pay the related Securities may be
deposited in a common, master reserve account
that provides credit enhancement for more than
one series of Securities).
The Mortgage Pools............ Each Trust Estate will consist primarily of
Mortgage Loans secured by liens on one- to
four-family residential properties
("Mortgages"), located in any one of the fifty
states, the District of Columbia, Puerto Rico,
any other Territories of the United States or
in the United Kingdom (the "Mortgaged
Properties"). All Mortgage Loans will have
been acquired by the related Trust from the
Company. All Mortgage Loans will have been
originated either by (i) the Company; (ii) one
or more Affiliated Originators generally
pursuant to standard underwriting guidelines
described herein, as modified from time to
time ("Company's Guidelines"); (iii) one or
more Unaffiliated Originators, generally
pursuant to the Company's Guidelines; (iv)
certain Unaffiliated
9
Originators, including Participating
Originators or Designated Originators,
generally pursuant to such Unaffiliated
Originators' underwriting guidelines approved
by the Company ("Approved Guidelines"); and
(v) the Originators of a portfolio of Mortgage
Loans, subsequently purchased in whole or in
part by the Company as bulk acquisitions
("Bulk Acquisitions"), generally pursuant to
such Originators' underwriting guidelines. See
"Mortgage Loan Program." For a description of
the types of Mortgage Loans that may be
included in the Mortgage Pools, see "The
Mortgage Pools--The Mortgage Loans."
A Current Report on Form 8-K will be available
to purchasers or underwriters of the related
series of Securities and will generally be
filed, together with the related Pooling and
Servicing Agreement, with the Securities and
Exchange Commission within fifteen days after
the initial issuance of such series or in the
case of a Forward Purchase Agreement, within
fifteen days of the end of the related Funding
Period. See "Description of the Securities -
Forward Commitments; Pre-Funding."
Forward Commitments;
Pre-Funding................. A Trust may enter into an agreement (each, a
"Forward Purchase Agreement") with the Company
whereby the Company will agree to transfer
Subsequent Mortgage Loans (each, a "Subsequent
Mortgage Loan") to such Trust following the
date on which such Trust is established and
the related Securities are issued. All
Subsequent Mortgage Loans transferred to the
Trust pursuant to a Forward Purchase Agreement
will be originated by the Company or an
Originator. Any Forward Purchase Agreement
will require that any Mortgage Loans so
transferred to a Trust conform to the
requirements specified in such Forward
Purchase Agreement. If a Forward Purchase
Agreement is to be utilized the related
Trustee will be required to deposit in a
segregated account (each, a "Pre-Funding
Account") all or a portion of the proceeds
received by the Trustee in connection with the
sale of one or more classes of Securities of
the related series; subsequently, the
Subsequent Mortgage Loans will be transferred
to the related Trust in exchange for money
released to the Company from the related
Pre-Funding Account in one or more transfers.
The maximum amount of money deposited in the
Pre-Funding Account to acquire Subsequent
Mortgage Loans for transfer to the Trust will
not exceed 25% of the aggregate principal
amount of the Securities offered pursuant to
the related Prospectus Supplement. Each
Forward Purchase Agreement will set a
specified period (the "Funding Period") during
which any such transfers must occur, which
such period shall not exceed 90 days from the
date such Trust is established. The Forward
Purchase Agreement or the related Pooling and
Servicing Agreement will require that, if all
moneys originally deposited to such
Pre-Funding Account are not so used by the end
of such specified period, then any remaining
moneys will be applied as a mandatory
prepayment of the related class or classes of
Securities as specified in the related
Prospectus Supplement. See "Risk Factors"
herein and in the related Prospectus
Supplement. All moneys on deposit in the
Pre-Funding Account will be invested in
Permitted Investments with all earnings
thereon available to make interest payments on
the Securities.
Credit Enhancement............ If so specified in the Prospectus Supplement,
the Trust Estate with respect to any series of
Securities may include any one or any
combination of a letter of credit, mortgage
pool insurance policy, special hazard
insurance policy, bankruptcy bond, financial
guaranty insurance policy, reserve fund or
other type of credit enhancement to provide
full or partial coverage for certain defaults
and losses relating to the Mortgage Loans.
Credit support also may be provided in the
form of the related class of Equity
Securities, and/or by subordination of one or
more classes of Fixed-Income
10
Securities in a series under which losses in
excess of those absorbed by any related class
of Equity Securities are first allocated to
any Subordinate Securities up to a specified
limit, cross-support among groups of Mortgage
Assets or overcollateralization. Any mortgage
pool insurance policy may have certain
exclusions from coverage thereunder, which
will be described in the related Prospectus
Supplement, which may be accompanied by one or
more separate credit enhancements that may be
obtained to cover certain of such exclusions.
To the extent not set forth herein, the amount
and types of coverage, the identification of
any entity providing the coverage, the terms
of any subordination and related information
will be set forth in the Prospectus Supplement
relating to a series of Securities. See
"Description of Credit Enhancement" and
"Subordination."
Advances...................... The Servicer, directly or through Sub-
Servicers, may be obligated to make certain
cash advances with respect to delinquent
scheduled payments on the Mortgage Loans, but
only to the extent that the Servicer believes
that such amounts will be recoverable by it.
Any such advance made by the Servicer with
respect to a Mortgage Loan is recoverable by
it as provided herein under "Description of
the Securities--Advances" either from
recoveries on the specific Mortgage Loan or,
with respect to any advance subsequently
determined to be nonrecoverable, out of funds
otherwise distributable to the holders of the
related series of Securities, which may
include the holders of any Senior Securities
of such series.
The Servicer may be required to advance
Compensating Interest as defined hereafter
under "Description of the
Securities--Advances."
In addition, the Servicer will be required to
pay all "out of pocket" costs and expenses
incurred in the performance of its servicing
obligations, but only to the extent that the
Servicer reasonably believes that such amounts
will increase Net Liquidation Proceeds on the
related Mortgage Loan. See "Description of the
Securities--Advances."
Optional Termination.......... The Servicer, the Company, or, if specified
in the related Prospectus Supplement, the
holders of the related class of Equity
Securities or the credit enhancer may at their
respective option effect early retirement of a
series of Securities through the purchase of
the Mortgage Loans and other assets in the
related Trust Estate under the circumstances
and in the manner set forth herein under "The
Pooling and Servicing Agreement--Termination;
Retirement of Securities" and in the related
Prospectus Supplement.
Mandatory Termination......... The Trustee, the Servicer or certain other
entities specified in the related Prospectus
Supplement may be required to effect early
retirement of a series of Securities by
soliciting competitive bids for the purchase
of the related Trust Estate or otherwise,
under other circumstances and in the manner
specified in "The Pooling and Servicing
Agreement--Termination; Retirement of
Securities" and in the related Prospectus
Supplement.
Legal Investment.............. Not all of the Mortgage Loans in a particular
Mortgage Pool may represent first liens.
Accordingly, as disclosed in the related
Prospectus Supplement, certain classes of
Securities offered hereby and by the related
Prospectus Supplement may not constitute
"mortgage related securities" for purposes of
the Secondary Mortgage Market Enhancement Act
of 1984 ("SMMEA") and, if so, will not be
legal investments for certain types of
institutional investors under SMMEA.
11
Institutions whose investment activities are
subject to legal investment laws and
regulations or to review by certain regulatory
authorities may be subject to additional
restrictions on investment in certain classes
of Securities. Any such institution should
consult its own legal advisors in determining
whether and to what extent a class of
Securities constitutes legal investments for
such investors. See "Legal Investment" herein.
ERISA Considerations.......... A fiduciary of an employee benefit plan and
certain other retirement plans and
arrangements, including individual retirement
accounts and annuities, Keogh plans, and
collective investment funds and separate
accounts in which such plans, accounts,
annuities or arrangements are invested, that
is subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or
Section 4975 of the Code (each such entity, a
"Plan") should carefully review with its legal
advisors whether the purchase or holding of
Securities could give rise to a transaction
that is prohibited or is not otherwise
permissible either under ERISA or Section 4975
of the Code. Investors are advised to consult
their counsel and to review "ERISA
Considerations" herein and in the related
Prospectus Supplement. Certain classes of
Securities may not be transferred unless the
Trustee is furnished with a letter of
representations or an opinion of counsel to
the effect that such transfer will not result
in a violation of the prohibited transaction
provisions of ERISA and the Code and will not
subject the Trustee, the Company or the
Servicer to additional obligations.
Certain Federal Income Tax
Consequences................ Securities of each series offered hereby will,
for federal income tax purposes, constitute
either (i) interests ("Grantor Trust
Securities") in a Trust treated as a grantor
trust under applicable provisions of the Code,
(ii) "regular interests" ("REMIC Regular
Securities") or "residual interests" ("REMIC
Residual Securities") in a Trust treated as a
REMIC (or, in certain instances, containing
one or more REMIC's) under Sections 860A
through 860G of the Code, (iii) debt issued by
a Trust ("Debt Securities"), (iv) interests in
a Trust which is treated as a partnership
("Partnership Interests"), and (v) "regular
interests" ("FASIT Regular Securities"),
"high-yield interests" ("FASIT High-Yield
Securities") or an ownership interest in a
Trust treated as a FASIT (or, in certain
circumstances containing one or more FASITs
under Sections 860H through 860L of the Code.
Unless otherwise specified in the related
Prospectus Supplement, Securities that are
Notes will be treated as Debt Securities for
federal income tax purposes and the
Securityholders, in accepting such Notes, will
agree to treat such Notes as indebtedness. See
"Certain Federal Income Tax Consequences"
herein and in the related Prospectus
Supplement.
Investors are advised to consult their tax
advisors and to review "Certain Federal Income
Tax Consequences" herein and in the related
Prospectus Supplement.
Registration of Securities.... Securities may be represented by global
securities registered in the name of Cede &
Co. ("Cede"), as nominee of The Depository
Trust Company ("DTC"), or another nominee. In
such case, Securityholders will not be
entitled to receive definitive securities
representing such holders' interests, except
in certain circumstances described in the
related Prospectus Supplement. See
"Description of the Securities--Form of
Securities" herein.
12
Ratings....................... Each class of Fixed-Income Securities offered
pursuant to the related Prospectus Supplement
will be rated in one of the four highest
rating categories by one or more "national
statistical rating organizations," as defined
in the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and commonly
referred to as "Rating Agencies." Such ratings
will address, in the opinion of such Rating
Agencies, the likelihood that the related
Trust will be able to make timely payment of
all amounts due on the related Fixed-Income
Securities in accordance with the terms
thereof. Such ratings will neither address any
prepayment or yield considerations applicable
to any Securities nor constitute a
recommendation to buy, sell or hold any
Securities.
The ratings expected to be received with
respect to any Securities will be set forth in
the related Prospectus Supplement.
13
RISK FACTORS
Investors should consider, among other things, the following factors in
connection with the purchase of the Securities.
Limited Liquidity. Prior to their issuance, there will have been no market
for the Securities of any Series. There can be no assurance that a secondary
market for the Securities of any series or class will develop or, if it does
develop, that it will provide Securityholders with liquidity of investment or
that it will continue for the life of the Securities of any series. The
Prospectus Supplement for any series of Securities may indicate that an
underwriter specified therein intends to establish a secondary market in such
Securities; however, no underwriter will be obligated to do so. The Securities
will not be listed on any securities exchange. Accordingly, there can be no
assurance that sufficient liquidity will exist at any particular time for any
series or class of Securities. Consequently, Securityholders may not be able to
dispose of their investment in the event of an emergency or for any other reason
and must be prepared to bear the economic risk of an investment in the
Securities for an indefinite period. Such factors may also adversely affect the
price that a Securityholder may be able to obtain for the Securities that such
investor is able to sell.
Limited Obligations. The Securities will not represent an interest in or
obligation, either recourse or non-recourse (except for certain non-recourse
debt described under "Certain Federal Income Tax Consequences"), of the Company,
the Master Servicer, the Servicer, any Originator (as defined herein) or any
person other than the related Trust. Notwithstanding the foregoing, and as to be
described in the related Prospectus Supplement, certain types of credit
enhancement, such as a financial guaranty insurance policy or a letter of
credit, may constitute a full recourse obligation of the issuer of such credit
enhancement. The only obligations of the foregoing entities with respect to the
Securities or the Mortgage Loans will be the obligations (if any) of the
Company, the related Originators and the Servicer pursuant to certain limited
representations and warranties made with respect to the Mortgage Loans, the
Servicer's servicing obligations and the Master Servicer's secondary servicing
obligations under the related Pooling and Servicing Agreement (including their
respective limited obligation to make certain advances in the event of
delinquencies on the Mortgage Loans, but only to the extent deemed recoverable)
and, if and to the extent expressly described in the related Prospectus
Supplement, certain limited obligations of the Company, Servicer, applicable
Sub-Servicer, or another party in connection with a purchase obligation
("Purchase Obligation"). Except as described in the related Prospectus
Supplement, neither the Securities nor the underlying Mortgage Loans will be
guaranteed or insured by any governmental agency or instrumentality, or by the
Company, the Master Servicer, the Servicer, any Sub-Servicer or any of their
affiliates. Proceeds of the assets included in the related Trust Estate for each
series of Securities (including the Mortgage Loans and any form of credit
enhancement) will be the sole source of payments on the Securities, and there
will be no recourse to the Company or any other entity in the event that such
proceeds are insufficient or otherwise unavailable to make all payments provided
for under the Securities. Accordingly, investors in Securities could experience
delays in payment or losses to the extent such sources of payment are
insufficient to make required distributions on any series or class of
Securities.
Limitations, Reduction and Substitution of Credit Enhancement. With respect
to each series of Securities, credit enhancement will be provided in limited
amounts to cover certain types of losses on the underlying Mortgage Loans.
Credit enhancement will be provided in one or more of the forms referred to
herein, including, but not limited to: a letter of credit; a mortgage pool
insurance policy; a special hazard insurance policy; a bankruptcy bond; a
reserve fund; a financial guaranty insurance policy or other type of credit
enhancement to provide partial coverage for certain defaults and losses relating
to the Mortgage Loans. Credit enhancement also may be provided in the form of
the related class of Equity Securities, subordination of one or more classes of
Fixed-Income Securities in a series under which losses in excess of those
absorbed by any related class of Equity Securities are first allocated to any
Subordinate Securities up to a specified limit, cross-support among Mortgage
Assets and/or overcollateralization. See "Subordination" and "Description of
Credit Enhancement" herein. Regardless of the form of credit enhancement
provided, the coverage will be limited in amount and in most cases will be
subject to periodic reduction in accordance with a schedule or formula.
Furthermore, such credit enhancements may provide only very limited coverage as
to certain types of losses, and may provide no coverage as to certain other
types of losses. Generally, credit enhancements do not directly or indirectly
guarantee to the investors any specified rate of prepayments. The Servicer will
generally be permitted to reduce, terminate or substitute all or a portion of
the credit enhancement for any series of Securities, if the applicable Rating
Agency indicates that the then-current rating thereof will not be adversely
affected. To the extent not set forth herein, the amount and types of coverage,
the identification of any entity providing the coverage, the terms of any
subordination and related information will be set forth in the Prospectus
Supplement relating to a series of Securities. See "Description of Credit
Enhancement" and "Subordination."
Risks Related to the Mortgage Loans
Risk of the Losses Associated with Junior Liens. Certain of the Mortgage
Loans will be secured by junior liens subordinate to the rights of the mortgagee
or beneficiary under each related senior mortgage or deed of trust. As a result,
the proceeds from any liquidation, insurance or condemnation proceedings will be
available to satisfy the principal
14
balance of a mortgage loan only to the extent that the claims, if any, of each
such senior mortgagee or beneficiary are satisfied in full, including any
related foreclosure costs. In addition, a mortgagee secured by a junior lien may
not foreclose on the related mortgaged property 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. In servicing junior lien loans in
its portfolio, it has been the practice of the Company when acting as the
Servicer to satisfy each such senior mortgage at or prior to the foreclosure
sale only to the extent that it determines any amounts so paid will be
recoverable from future payments and collections on such junior lien 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 Mortgage Loans and Related Matters--Foreclosure."
Risk of Losses Associated with Declining Real Estate Values. An investment
in securities such as the Securities that generally represent beneficial
ownership interests in the Mortgage Loans or debt secured by such Mortgage Loans
may be affected by, among other things, a decline in real estate values and
changes in the borrowers' financial condition. 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 residential
real estate market should experience an overall decline in property values such
that the outstanding balances of any senior liens, the Mortgage Loans and any
secondary financing on the Mortgaged Properties in a particular Mortgage Pool
become equal to or greater than the value of the Mortgaged Properties, the
actual rates of delinquencies, foreclosures and losses could be higher than
those now generally experienced in the nonconforming credit mortgage lending
industry. Such a decline could extinguish the interest of the related Trust in
the Mortgaged Properties before having any effect on the interest of the related
senior mortgagee. In addition, in the case of Mortgage Loans that are subject to
negative amortization, due to the addition to principal balance of deferred
interest ("Deferred Interest"), the principal balances of such Mortgage Loans
could be increased to an amount equal to or in excess of the value of the
underlying Mortgaged Properties, thereby increasing the likelihood of default.
To the extent that such losses are not covered by the applicable credit
enhancement, holders of Securities of the series evidencing interests in the
related Mortgage Pool will bear all risk of loss resulting from default by
Mortgagors and will have to look primarily to the value of the Mortgaged
Properties for recovery of the outstanding principal and unpaid interest on the
defaulted Mortgage Loans.
Risk of Losses Associated with Certain Non-Conforming and Non-Traditional
Loans. The Company's underwriting standards consider, among other things, a
mortgagor's credit history, repayment ability and debt service-to-income ratio,
as well as the value of the property; however, the Company's Mortgage Loan
program generally provides for the origination of Mortgage Loans relating to
non-conforming credits. For purposes hereof, "non-conforming credit" means a
mortgage loan which, based upon standard underwriting guidelines, is ineligible
for purchase by the Federal National Mortgage Association ("FNMA") or the
Federal Home Loan Mortgage Corporation ("FHLMC") due to credit characteristics
that do not meet FNMA or FHLMC guidelines, respectively. Certain of the types of
loans that may be included in the Mortgage Pools may involve additional
uncertainties not present in traditional types of loans. For example, certain of
the Mortgage Loans may provide for escalating or variable payments by the
borrower under the Mortgage Loan (the "Mortgagor"), as to which the Mortgagor is
generally qualified on the basis of the initial payment amount. In some
instances the Mortgagors' income may not be sufficient to enable them to
continue to make their loan payments as such payments increase and thus the
likelihood of default will increase. For a more detailed discussion, see
"Mortgage Loan Program."
Risk of Losses Associated with Balloon Loans. 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. Consequently, upon the maturity of a Balloon Loan, the Mortgagor will
be required to make a "balloon" payment that will be significantly larger than
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, 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 Company,
the Originators, the Master Servicer, the Servicer, any Sub-Servicer or the
Trustee will be obligated to provide funds to refinance any Mortgage Loan,
including Balloon Loans.
Risk of Losses Associated with Bankruptcy of Mortgagors. General economic
conditions have an impact on the ability of borrowers to repay Mortgage Loans.
Loss of earnings, illness and other similar factors also may lead to an increase
in delinquencies and bankruptcy filings by borrowers. In the event of personal
bankruptcy of a Mortgagor,
15
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 thereby 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.
Risk of Losses Associated with Foreclosure of Mortgaged Properties. 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,
rules and judicial decisions 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 Servicer to
foreclose on or sell the Mortgaged Property or to obtain liquidation proceeds
(net of expenses) ("Liquidation Proceeds") sufficient to repay all amounts due
on the related Mortgage Loan. The 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 ("Liquidated Mortgage Loan")
and not yet repaid, including payments to prior lienholders, accrued servicing
fees, 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 any applicable credit enhancement, Securityholders could
experience a loss on their investment.
Many 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 takes 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 less as a
percentage of the outstanding principal balance of the smaller principal balance
mortgage loan than would be the case with a larger principal balance loan.
Under environmental legislation and judicial decisions applicable in
various states, a secured party who takes a deed in lieu of foreclosure, or
acquires at a foreclosure sale a mortgaged property and who, 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 the
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 Pooling and Servicing Agreement, is not required
to take an active role in operating the Mortgaged Properties. See "Certain Legal
Aspects of Mortgage Loans and Related Matters--Environmental Legislation."
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.
Litigation. Any material litigation relating to the Company will be
specified in the related Prospectus Supplement.
Geographic Concentration of Mortgaged Properties. Certain geographic
regions from time to time will experience weaker regional economic conditions
and housing markets than will other regions, and, consequently, will experience
higher rates of loss and delinquency on mortgage loans generally. The Mortgage
Loans underlying certain series of Securities may be concentrated in such
regions, and such concentrations may present risk considerations in addition to
those generally present for similar mortgage loan asset backed securities
without such concentrations. Information with respect to geographic
concentration of Mortgaged Properties will be specified in the related
Prospectus Supplement or Current Report on Form 8-K filed by the Trust.
The Subsequent Mortgage Loans and the Pre-Funding Account. If the principal
amount of eligible Mortgage Loans available during the Funding Period and sold
by the Company to the Trust is less than 100% of the aggregate principal amount,
the Company will have insufficient Mortgage Loans to sell to the Trust, thereby
resulting in a prepayment of principal to Owners of the Securities as described
herein. See "Social, Economic and Other Factors" below. In addition, any
conveyance of Subsequent Mortgage Loans is subject to the following conditions,
among others (i) each such Subsequent Mortgage Loan must satisfy the
representations and warranties specified in the agreement pursuant to which such
Subsequent Mortgage Loans are transferred to the Trust (each a "Subsequent
Transfer Agreement") and in the Pooling and Servicing Agreement; (ii) the
Company will not select such Subsequent Mortgage Loans in a manner that it
believes is adverse to the interest of the Owners of the Securities; (iii) the
Depositor will deliver certain opinions of counsel with respect to the validity
of the conveyance of such Subsequent Mortgage Loans;
16
and (iv) as of each cut-off date (each, a "Subsequent Cut-Off Date") applicable
thereto, the Subsequent Mortgage Loans to be conveyed by the Company as of such
Subsequent Cut-Off Date, will satisfy the criteria set forth in the Pooling and
Servicing Agreement.
To the extent that amounts on deposit in the Pre-Funding Account have not
been fully applied to the purchase of Subsequent Mortgage Loans by the Trust by
the end of the Funding Period, the Owners of the Securities then entitled to
receive payments of principal will receive a prepayment of principal in an
amount equal to the amount remaining in the Pre-Funding Account on the first
Payment Date following the end of the Funding Period. Although no assurances can
be given, the Company intends that the principal amount of Subsequent Mortgage
Loans sold to the Trust will require the application of substantially all amount
on deposit in the Pre-Funding Account and that there will be no material
principal prepayment to the Owners of the Securities.
Each Subsequent Mortgage Loan must satisfy the eligibility criteria
referred to above at the time of its addition. However, Subsequent Mortgage
Loans may be originated or purchased by the Company using credit criteria
different from those which were applied to the initial Mortgage Loans and may be
of a different credit quality. Therefore, following the transfer of Subsequent
Mortgage Loans, the aggregate characteristics of the pool of Mortgage Loans may
vary from those of the initial Mortgage Loans.
Social, Economic and Other Factors. The ability of the Trust to invest in
Subsequent Mortgage Loans is largely dependent upon the ability of the Company
to originate or purchase additional mortgage loans. The ability of the Company
to originate or purchase additional mortgage loans may be affected as a result
of a variety of social and economic factors. Economic factors include interest
rates, unemployment levels, the rate of inflation and consumer perception of
economic conditions generally. However, the Company is unable to determine and
has no basis to predict whether or to what extent economic or social factors
will affect the Company's origination ability and the availability of Subsequent
Mortgage Loans.
Applicability of State and Federal Lending Laws. Applicable state laws
generally regulate interest rates and other charges, require certain
disclosures, and require licensing of the Originators, the Servicer and
Sub-Servicers. 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 that may apply to the origination, servicing
and collection of the Mortgage Loans. In California, for example, a mortgage
lender is subject to the California Fair Debt Collection Practices Act which
regulates practices used to effect collection on consumer loans. See "Certain
Legal Aspects of Mortgage Loans and Related Matters."
The Mortgage Loans may also be subject to federal laws, including: (i) the
Federal Truth-in-Lending Act and Regulation Z promulgated thereunder and the
Real Estate Settlement Procedures Act and Regulation X 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 Home Ownership and Equity Protection Act of 1994, which
imposes additional disclosure and other requirements on creditors with respect
to non-purchase money home equity loans with interest rates or high upfront fees
and charges. Depending on the provisions of the applicable law and the specific
facts and circumstances involved, violations of these laws, policies and general
principles of equity may limit the ability of the Servicer to collect all or
part of the principal of or interest on the Mortgage Loans, may entitle the
borrower to rescind the loan or to a refund of amounts previously paid and, in
addition, could subject the Servicer to damages and administrative sanctions. If
the Servicer is unable to collect all or part of the principal or interest on
the Mortgage Loans because of a violation of the aforementioned laws, public
policies or general principles of equity then the Trust may be delayed or unable
to repay all amounts owed to Securityholders. Furthermore, depending upon
whether damages and sanctions are assessed against the Servicer or an
Originator, such violations may materially impact the financial ability of the
Company to continue to act as Servicer or the ability of an Originator to
repurchase or replace Mortgage Loans if such violations breach a representation
or warranty contained in a Pooling and Servicing Agreement.
Yield and Prepayment Considerations. The yield to maturity of the
Securities of each series will depend on the rate of payment of principal
(including prepayments, liquidations due to defaults, and repurchases due to
conversion of adjustable-rate mortgage loans ("ARM Loans") to fixed-rate loans
or breaches of representations and warranties) on the Mortgage Loans and the
price paid by Securityholders. Such yield may be adversely affected by a higher
or lower than anticipated rate of prepayments on the related Mortgage Loans. The
yield to maturity on Strip Securities or Securities purchased at premiums to or
discounts from par will be extremely sensitive to the rate of prepayments on the
related Mortgage Loans. In addition, the yield to maturity on certain other
types of classes of Securities, including Accrual Securities or certain other
classes in a series including more than one class of Securities,
17
may be relatively more sensitive to the rate of prepayment on the related
Mortgage Loans than other classes of Securities.
The Mortgage Loans may be prepaid in full or in part at any time; however,
a prepayment penalty or premium may be imposed in connection therewith. Such
penalties may not become the property of the related Trust. The rate of
prepayments of the Mortgage Loans cannot be predicted and is influenced by a
wide variety of economic, social, and other factors, including prevailing
mortgage market interest rates, the availability of alternative financing, local
and regional economic conditions and homeowner mobility. Therefore, no assurance
can be given as to the level of prepayments that a Trust will experience.
Prepayments may result from mandatory prepayments relating to unused moneys
held in Pre-Funding Accounts, if any, 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. In
addition, repurchases or purchases from a Trust of Mortgage Loans or
substitution adjustments required to be made under the Pooling and Servicing
Agreement will have the same effect on the Securityholders as a prepayment of
such Mortgage Loans. The Mortgage Loans may contain "due-on-sale" provisions,
and the 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 Servicer is
authorized to permit the purchaser of the related Mortgaged Property to assume
the Mortgage Loan. See "The Pooling and Servicing 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.
Book-entry Registration. Issuance of the Securities 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
definitive physical securities representing such Securityholders' interests,
except in certain circumstances described in the related Prospectus Supplement.
Since transactions in Securities will, in most cases, be able to be
effected only through DTC, direct or indirect participants in DTC's book-entry
system ("Direct or Indirect Participants") and certain banks, the ability of a
Securityholder to pledge a Security 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 security representing the
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. See "Description of the Securities--Form of Securities."
The Status of the Mortgage Loans in the Event of Bankruptcy of the Company
or an Originator. In the event of the bankruptcy of the Company or an Originator
at a time when it or any affiliate thereof holds an Equity Security, a trustee
in bankruptcy of the Company, an Originator or its creditors could attempt to
recharacterize the sale of the Mortgage Loans to the related Trust as a
borrowing by the Company, the Originator or such affiliate with the result, if
such recharacterization is upheld, that the Securityholders would be deemed
creditors of the Company, the Originator or such affiliate, secured by a pledge
of the Mortgage Loans. If such an attempt were successful, it could prevent
timely payments of amounts due to the Trust.
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
Servicer to collect full amounts of interest on certain of the Mortgage Loans.
In addition, the Relief Act imposes limitations that would impair the ability of
the 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. The rating of Securities credit enhanced through external
credit enhancement such as a letter of credit, financial guaranty insurance
policy or mortgage pool insurance will depend primarily on the creditworthiness
18
of the issuer of such external credit enhancement device (a "Credit Enhancer").
Any reduction in the rating assigned to the claims-paying ability of the related
Credit Enhancer below the rating initially given to the related Securities would
likely result in a reduction in the rating of the Securities. The rating of
Securities credit enhanced through subordination or reserve amounts will depend
on the actual performance of the related Mortgage Pool, and a reduction in such
rating could occur if defaults and losses on the related Mortgage Loans exceed
the rate assumed in determining the original level of credit enhancement.
Reduction of a rating would adversely affect the market value and possibly the
liquidity of the related Securities. See "Rating" in the Prospectus Supplement.
THE TRUSTS
A Trust for any series of Securities will include the primary mortgage
assets ("Mortgage Assets") consisting of (A) a Mortgage Pool comprised of (i)
Single Family Loans or (ii) other loans (each hereinafter defined) or (B)
certificates of interest or participation in the items described in clause (A)
or in pools of such items, in each case, as specified in the related Prospectus
Supplement, together with payments in respect of such primary Mortgage Assets
and certain other accounts, obligations or agreements, in each case as specified
in the related Prospectus Supplement.
The Securities will be entitled to payment only from the assets of the
related Trust (i.e., the related Trust Estate) and will not be entitled to
payments in respect of the assets of any other related Trust Estate established
by the Company, 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 the related Mortgage Loans held by
the related Trust or may represent debt secured by the related Mortgage Loans.
The following is a brief description of the Mortgage Assets expected to be
included in the related Trusts. If specific information respecting the primary
Mortgage Assets is not known at the time the related series of Securities
initially is offered, information of the nature described below will be provided
in the Prospectus Supplement, and specific information (the "Detailed
Description") 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,
or, in the case of a series including a Forward Purchase Agreement, within
fifteen days of the related Funding Period. See "Description of the Securities
Forward Commitments; Pre-Funding" herein. A copy of the Pooling and Servicing
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 Pooling and Servicing Agreement delivered to the Trustee upon
delivery of the Securities.
The Mortgage Loans--General
The real properties which secure repayment of the Mortgage Loans (the
"Mortgaged Properties") may be located in any one of the fifty states, the
District of Columbia, Puerto Rico, any other Territories of the United States or
in the United Kingdom. The Mortgage Loans will generally be "Conventional Loans"
(i.e., loans that are not insured or guaranteed by any governmental agency). If
specified in the related Prospectus Supplement, Mortgage Loans with certain
loan-to-value ratios and/or certain principal balances may be covered wholly or
partially by primary mortgage insurance policies. The Mortgage Loans will be
generally covered by standard hazard insurance policies (which may be in the
form of a blanket or forced placed hazard insurance policy). The existence,
extent and duration of any such coverage will be described in the applicable
Prospectus Supplement. The Mortgage Loans will not be guaranteed or insured by
any government agency or other insurer; however, certain distributions to
Securityholders may be guaranteed by a Financial Guaranty Insurer.
All of the Mortgage Loans in a Mortgage Pool will provide for payments to
be made monthly ("monthly pay") or bi-weekly. 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 combination 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 period of time and under certain circumstances 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
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. If provided for in the
Prospectus Supplement, certain Mortgage Loans may be subject to temporary
buydown plans ("Buydown Mortgage Loans") pursuant to which the monthly
payments made by the Mortgagor during the early years of the Mortgage Loan
(the "Buydown Period") will be less than the scheduled monthly payments on
the Mortgage Loan, and the amount of any difference may be contributed
19
from (i) an amount (such amount, exclusive of investment earnings thereon,
being hereinafter referred to as "Buydown Funds") funded by the originator
of the Mortgage Loan or another source (including the Servicer or the
related Originator and the builder of the Mortgaged Property) and placed in
a custodial account (the "Buydown Account") and (ii) if the Buydown Funds
are contributed on a present value basis, investment earnings on such
Buydown Funds.
(b) Principal may be payable on a level debt service basis to
fully amortize the Mortgage Loan over its term, may be calculated on the
basis of an assumed amortization schedule that is significantly longer than
the original term to maturity or on an interest rate that is different from
the Mortgage 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 having graduated payment provisions may provide
for deferred payment of a portion of the interest due monthly during a
specified period, and recoup the deferred interest through negative
amortization during such period whereby the difference between the interest
paid during such period and the interest accrued during such period is
added monthly to the outstanding principal balance. 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 a period of time, 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 therewith. 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.
(e) Other Mortgage Loans may be assumable by persons meeting the
then applicable Underwriting Guidelines of the Company.
The Prospectus Supplement for each series of Securities or the Current
Report on Form 8-K will contain certain information with respect to the Mortgage
Loans (or a sample thereof) contained in the related Mortgage Pool; such
information, insofar as it may relate to statistical information relating to
such Mortgage Loans will be presented as of a date certain (the "Statistic
Calculation Date") which may also be the related cut-off date (the "Cut-Off
Date"). Such information will include to the extent applicable to the particular
Mortgage Pool (in all cases as of the Statistic Calculation Date) (i) the
aggregate outstanding principal balance and the average outstanding principal
balance of the Mortgage Loans, (ii) the largest principal balance and the
smallest principal balance of any of the Mortgage Loans, (iii) the types of
Mortgaged Property securing the Mortgage Loans (e.g., one-to-four-family houses,
vacation and second homes or other real property), (iv) the original terms to
stated maturity of the Mortgage Loans, (v) the weighted average remaining term
to maturity of the Mortgage Loans and the range of the remaining terms to
maturity; (vi) the earliest origination date and latest maturity date of any of
the Mortgage Loans, (vii) the weighted average Combined Loan-to-Value Ratio and
the range of Combined Loan-to-Value Ratios of the Mortgage Loans at origination,
(viii) the weighted average Mortgage Rate or annual percentage rate (as
determined under Regulation Z) (the "APR") and ranges of Mortgage Rates or APRs
borne by the Mortgage Loans, (ix) in the case of Mortgage Loans having
adjustable rates, the weighted average of the adjustable rates and indexes, if
any; (x) the aggregate outstanding principal balance, if any, of Buy-Down Loans
and Mortgage Loans having graduated payment provisions; (xi) the amount of any
mortgage pool insurance policy, special hazard insurance policy or bankruptcy
bond to be maintained with respect to such Mortgage Pool; (xii) the amount of
any standard hazard insurance required to be maintained with respect to each
Mortgage Loan; (xiii) the amount, if any, and terms of any credit enhancement to
be provided with respect to all or any Mortgage Loans or the Mortgage Pool; and
(xiv) the geographical distribution of the Mortgage Loans on a state-by-state
basis. In addition, preliminary or more general information of the nature
described above may be provided in the Prospectus Supplement, and specific or
final information may be set forth in a Current Report on Form 8-K, together
with the related Pooling and Servicing Agreement, which will be filed with the
Securities and Exchange Commission and will be made available to holders of the
related series of Securities within fifteen days after the initial issuance of
such Securities, or, in the case of a series of Securities including a Forward
Purchase Agreement, within fifteen days of the end of the related Funding
Period.
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The "Combined Loan-to-Value Ratio" of a Mortgage Loan at any given time is
the ratio, expressed as a percentage, determined by dividing (x) the sum of the
original principal balance of such Mortgage Loan plus the then current principal
balance of all mortgage loans secured by liens on the related Mortgaged Property
having priorities senior to that of the lien which secures such Mortgage Loan,
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 Mortgage Loan or,
in the case where there is no senior lien to the Mortgage Loan and such Mortgage
represents a purchase money instrument, the lesser of (a) the appraisal or
valuation, or (b) the purchase price. If the Mortgagor will use the proceeds of
the Mortgage Loan to refinance an existing Mortgage Loan which is being serviced
directly or indirectly by the Servicer, the requirement of an appraisal or other
valuation at the time the new Mortgage Loan is made may be waived.
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 residential 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 Mortgage 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 nonconforming credit mortgage lending industry. 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,
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 nonconforming credit mortgage lending industry.
Certain Mortgage Loans may be secured by junior liens ("Junior Lien Loans")
subordinate to the rights of the mortgagee under each related senior
mortgage(s). The proceeds from any liquidation, insurance or condemnation of
Mortgaged Properties relating to Junior Lien Loans in a Mortgage Pool will be
available to satisfy the principal balance of such Junior Lien Loans only to the
extent that the claims, if any, of all related senior mortgagees, including any
related foreclosure costs, are satisfied in full. In addition, the Servicer may
not foreclose on a Mortgaged Property relating to a Junior Lien 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 Junior Lien Loans in its loan portfolios, it has been
the Company's practice when acting as the Servicer to satisfy each senior
mortgage at or prior to a foreclosure sale only to the extent that it determines
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 Mortgage Loans and Related Matters--Foreclosure."
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 losses
on the Mortgage Loans are not covered by credit enhancements, such losses will
be borne, at least in part, by the Securityholders of the related series.
The Company will cause the Mortgage Loans comprising each Mortgage 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. The Servicer
will service the Mortgage Loans, either directly or through Sub-Servicers,
pursuant to the Pooling and Servicing Agreement and will receive a fee for such
services. A Master Servicer, if required by a Prospectus Supplement, will have
the primary function of reviewing the Servicer's monthly servicing reports for
any material inconsistencies, and secondarily, the Master Servicer will assume
the Servicer's obligations in the event of a default by the Servicer. The
Servicer or the Trust will be liable for fees and expenses of the Master
Servicer. See "Mortgage Loan Program" and "The Pooling and Servicing Agreement."
With respect to Mortgage Loans serviced through a Sub-Servicer, the Servicer
will remain liable for its servicing obligations under the related Pooling and
Servicing Agreement as if the Servicer alone were servicing such Mortgage Loans.
The only obligations of the Company and the Originators with respect to a
series of Securities will be related to servicing and/or providing (or, where
the Company or an Originator acquired a Mortgage Loan from another originator,
obtaining from such originator) certain representations and warranties
concerning the Mortgage Loans and to assign to the Trustee for such series of
Securities the Company's or Originator's rights with respect to such
representations and warranties. See "The Pooling and Servicing Agreement." The
obligations of the Servicer with respect to the Mortgage Loans will consist
principally of its contractual servicing obligations under the related Pooling
and Servicing Agreement (including its obligation to enforce the obligations of
the Sub-Servicers or Originators as more fully described herein under "Mortgage
Loan Program--Qualifications of Originators" and "The Pooling and Servicing
Agreement") and its obligation to make certain cash advances in the event of
delinquencies in payments on or with
21
respect to the Mortgage Loans in the amounts described herein under "Description
of the Securities--Advances." The obligations of a Servicer to make advances may
be subject to limitations, to the extent provided herein and in the related
Prospectus Supplement. The Master Servicer's contractual obligations for
servicing the Mortgage Loans and making advances will consist primarily of
acting as a back-up Servicer in the event of the removal of the Servicer in
accordance with the terms of the Pooling and Servicing Agreement.
Single Family Loans
Single family loans will consist of mortgage loans, deeds of trust or
participation or other beneficial interests therein, secured by first or junior
liens on one- to four-family residential properties ("Single Family Loans"). 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 condominium developments,
individual units in planned unit developments, and certain mixed use and other
dwelling units. Such Mortgage Properties may include owner-occupied (which
includes vacation and second homes) and non-owner occupied investment
properties.
If so specified, the Single Family Loans may include loans or
participations therein secured by mortgages or deeds of trust on condominium
units in low-or high-rise condominium developments together with such
condominium units' appurtenant interests in the common elements of such
condominium developments.
THE MORTGAGE POOLS
General
Each Mortgage Pool will consist primarily of (i) conventional Mortgage
Loans, minus any stripped portion of the interest payments due under the related
Mortgage Note that may have been retained by any Originator ("Originator's
Retained Yield"), or any other interest retained by the Company or any affiliate
of the Company, evidenced by promissory notes (the "Mortgage Notes") secured by
mortgages or deeds of trust or other similar security instruments creating a
lien on single-family (i.e., one- to four-family) residential properties, or
(ii) certificates of interest or participations in such Mortgage Notes. The
Mortgaged Properties will consist primarily of owner-occupied attached or
detached one-family dwelling units, two- to four-family dwelling units,
condominiums, townhouses, row houses, individual units in planned-unit
developments and certain other dwelling units, and the fee, leasehold or other
interests in the underlying real property. The Mortgage Properties may include
manufactured housing. The Mortgaged Properties may include vacation, second and
non-owner occupied homes.
Each Mortgage Loan will be selected by the Company for inclusion in a
Mortgage Pool from among mortgage loans originated by the Company, one or more
institutions affiliated with the Company, (such affiliated institutions, the
"Affiliated Originators") or from banks, savings and loan associations, mortgage
bankers, mortgage brokers, investment banking firms, the RTC and the FDIC (as
defined herein) and other mortgage loan originators or sellers not affiliated
with the Company (such unaffiliated institutions, the "Unaffiliated Originators"
and, collectively with the Affiliated Originators and the Company, the
"Originators"), all as described below under "Mortgage Loan Program." The
characteristics of the Mortgage Loans will be described in the related
Prospectus Supplement. Other mortgage loans available for acquisition by a Trust
may have characteristics that would make them eligible for inclusion in a
Mortgage Pool but may not be selected by the Company for inclusion in such
Mortgage Pool.
Each series of Securities will evidence interests in one or more Mortgage
Pool(s) containing Mortgage Loans having an aggregate principal balance of not
less than approximately $5,000,000 as of, unless otherwise specified in the
applicable Prospectus Supplement, the related Cut-Off Date. Each Security will
evidence an interest in only the related Mortgage Pool and corresponding Trust
Estate, and not in any other Mortgage Pool or any other Trust Estate (except in
those limited situations whereby certain collections on any Mortgage Loans in a
related Mortgage Pool in excess of amounts needed to pay the related Securities
may be deposited in a master reserve account or otherwise applied in a manner
that provides credit enhancement for more than one series of Securities).
The Mortgage Pools
Unless otherwise specified below, all of the Mortgage Loans in a Mortgage
Pool will (i) have payments that are due monthly or bi-weekly, (ii) be secured
by Mortgaged Properties located in any of the fifty states, the District of
Columbia, Puerto Rico, any other Territories of the United States or in the
United Kingdom and (iii) consist of one or more of the following types of
mortgage loans:
(a) Fixed-rate, fully-amortizing mortgage loans (which may include
mortgage loans converted from adjustable-rate mortgage loans or otherwise
modified) providing for level monthly payments of principal and interest
and terms at origination or modification of generally not more than 30
years;
22
(b) ARM Loans having original or modified terms to maturity of
generally not more than 30 years with a related Mortgage Rate that adjusts
periodically, at the intervals described in the related Prospectus
Supplement (which may have adjustments in the amount of monthly payments at
periodic intervals) over the term of the mortgage loan to equal the sum of
a fixed percentage set forth in the related Mortgage Note (the "Note
Margin") and an index (the "Index") to be specified in the related
Prospectus Supplement, such as, by way of example: (i) U.S. Treasury
securities of a specified constant maturity, (ii) weekly auction average
investment yield of U.S. Treasury bills of specified maturities, (iii) the
daily Bank Prime Loan rate made available by the Federal Reserve Board or
as quoted by one or more specified lending institutions, (iv) the cost of
funds of member institutions for the Federal Home Loan Bank of San
Francisco, or (v) the interbank offered rates for U.S. dollar deposits in
the London Markets, each calculated as of a date prior to each scheduled
interest rate adjustment date that will be specified in the related
Prospectus Supplement. The related Prospectus Supplement will set forth the
relevant Index and the related Prospectus Supplement or the related Current
Report on Form 8-K will indicate the highest, lowest and weighted-average
Note Margin with respect to the ARM Loans in the related Mortgage Pool. If
specified in the related Prospectus Supplement, an ARM Loan may include a
provision that allows the Mortgagor to convert the adjustable Mortgage Rate
to a fixed rate at some point during the term of such ARM Loan subsequent
to the initial payment date;
(c) Fixed-rate, graduated payment mortgage loans having original
or modified terms to maturity of generally not more than 30 years with
monthly payments during the first year calculated on the basis of an
assumed interest rate that will be lower than the Mortgage Rate applicable
to such mortgage loan in subsequent years. Deferred Interest, if any, will
be added to the principal balance of such mortgage loans;
(d) Balloon mortgage loans ("Balloon Loans"), which are fixed-rate
mortgage loans having original or modified terms to maturity of generally 5
to 15 years as described in the related Prospectus Supplement and that may
have level monthly payments of principal and interest based generally on a
10 to 30-year amortization schedule. The amount of the monthly payment may
remain constant until the maturity date, upon which date the full
outstanding principal balance on such Balloon Loan will be due and payable
(such amount, the "Balloon Amount");
(e) Modified mortgage loans ("Modified Loans"), which are fixed or
adjustable-rate mortgage loans providing for terms at the time of
modification of generally not more than 30 years. Modified Loans may be
mortgage loans which have been consolidated and/or have had various terms
changed, mortgage loans which have been converted from adjustable rate
mortgage loans to fixed rate mortgage loans, or construction loans which
have been converted to permanent mortgage loans; or
(f) Another type of mortgage loan described in the related
Prospectus Supplement.
If provided for in the related Prospectus Supplement, certain of the
Mortgage Loans may be Buydown Mortgage Loans pursuant to which the monthly
payments made by the Mortgagor during the Buydown Period will be less than the
scheduled monthly payments on the Mortgage Loan, the resulting difference to be
made up from (i) Buydown Funds funded by the Originator of the Mortgaged
Property or another source (including the Servicer or the related Originator)
and placed in the Buydown Account and (ii) if the Buydown Funds are contributed
on a present value basis, investment earnings on such Buydown Funds. See
"Description of the Securities--Payments on Mortgage Loans; Deposits to
Distribution Account." The terms of the Buydown Mortgage Loans, if such loans
are included in a Trust, will be as set forth in the related Prospectus
Supplement.
The Company and/or certain Originators may make certain representations and
warranties regarding the Mortgage Loans, but the Company's assignment of the
Mortgage Loans to the Trustee will be without recourse. See "Description of the
Securities--Assignment of Mortgage Loans." The Servicer's obligations with
respect to the Mortgage Loans will consist principally of its contractual
servicing obligations under the related Pooling and Servicing Agreement
(including its obligation to enforce certain purchase and other obligations of
Sub-Servicers and of Originators, as more fully described herein under "Mortgage
Loan Program--Representations by Originators," "--Sub-Servicing by Originators"
and "Description of the Securities--Assignment of Mortgage Loans," and its
obligation to make certain cash advances in the event of delinquencies in
payments on or with respect to the Mortgage Loans and interest shortfalls due to
prepayment of Mortgage Loans, in amounts described herein under "Description of
the Securities--Advances"). The obligation of the Servicer to make delinquency
advances will be limited to amounts which the Servicer believes ultimately will
be reimbursable out of the proceeds of liquidation of the Mortgage Loans. The
Master Servicer's obligations consist primarily of acting as a back-up Servicer
in the event of the removal of the Servicer in accordance with the terms and
conditions of the Pooling and Servicing Agreement. See "Mortgage Loan
Program--Master Servicer." In the event that the Master Servicer assumes the
role of Servicer, the Master Servicer will assume all of the obligations of the
Servicer except for obligations to repurchase or substitute for Mortgage Loans
which breach representations and warranties under the Pooling and Servicing
Agreement. See "Description of the Securities--Advances."
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MORTGAGE LOAN PROGRAM
As a general matter, the Company's Mortgage Loan program will consist of
the origination and packaging of Mortgage Loans relating to non-conforming
credits. For purposes hereof, "non-conforming credit" means a mortgage loan
which, based upon standard underwriting guidelines, is ineligible for purchase
by FNMA due to credit characteristics that do not meet FNMA guidelines. However,
certain of the Mortgage Loans will relate to FNMA conforming credits.
The Mortgagors generally will have taken out the related Mortgage Loans for
one of four reasons: (i) to purchase the related Mortgaged Property, (ii) to
refinance an existing mortgage loan on more favorable terms, (iii) to
consolidate debt, or (iv) to obtain cash proceeds by borrowing against the
Mortgagor's equity in the related Mortgaged Property. The Mortgage Loans
described in (i) are commonly referred to as purchase money loans and the
Mortgage Loans described in (ii), (iii) and (iv) on the whole are commonly
referred to as home equity loans.
Underwriting Guidelines
As more fully described below under "Qualifications of Originators" and as
may also be described in greater detail in the related Prospectus Supplement,
there are various types of Originators that may participate in the Company's
Mortgage Loan Program. Under the Company's Mortgage Loan Program, the Company
purchases and originates Mortgage Loans pursuant to three types of underwriting
guidelines: (1) standard underwriting guidelines according to the Company's
Originator Guide, as modified from time to time, used by Affiliated Originators
and Unaffiliated Originators ("Company's Guidelines"), (2) underwriting
guidelines utilized by Participating Originators or Designated Originators and
approved by the Company ("Approved Guidelines"), and (3) underwriting guidelines
("Bulk Guidelines") used by Unaffiliated Originators of a portfolio of Mortgage
Loans subsequently purchased in whole or part by the Company as a bulk
acquisition ("Bulk Acquisition"). The respective underwriting guidelines are
described below.
Company's Guidelines. The Company's Guidelines are set forth in the
Company's Guides. The Company's Guides are revised continuously based on
opportunities and prevailing conditions in the nonconforming credit residential
mortgage market, as well as the expected market for the resulting Securities.
Each loan is underwritten on a case by case basis; therefore the Company may
deviate from these guidelines where it deems it reasonable to do so.
Substantially all loans originated or purchased by the Company are
subjected to the Company's Guidelines. The underwriting process is intended to
assess both the prospective borrower's ability to repay and equally, if not more
important, the adequacy of the real property security. The fixed-rate and
adjustable-rate loans are generally fully amortized over a ten, fifteen or
thirty year schedule. To a limited extent, the Company will originate balloon
loans which generally are based on a 30-year amortization schedule with a single
payment of the remaining balance of the balloon loan generally 15 years after
origination. Loan amounts range from a minimum of $20,000 to a maximum of
$350,000, unless a higher amount is approved by the Company's loan committee.
The properties securing the loans are primarily single family detached, owner
occupied residences. Occasionally, loans are originated or acquired on one-to
four-family residential properties, condominiums or townhouses. No mobile home,
co-operative or land loans are currently originated or acquired.
The decision of the Company to approve a loan is based upon a number of
factors, including the appraised value of the property, the applicant's
creditworthiness and the Company's perception of the applicant's ability to
repay the loan. With respect to the value of the collateral, generally, loans
secured by first mortgages are limited to a maximum of 80% combined
loan-to-value ratio; however, the Company will originate loans with a combined
loan-to-value ratio of up to 90%. Loans secured by second mortgages are limited
to a maximum of 80% combined loan-to-value ratio. With respect to
creditworthiness, the Company has established classifications with respect to
the credit profiles of loans and subject properties based on certain of the
applicant's characteristics. Each loan application is placed into one of the
Company's four ratings ("A" through "D," with subratings within those
categories), depending upon the following three primary factors: (i) an
applicant's mortgage history within the preceding 12 months or if the mortgage
history is not available, an applicant's FICO score (a"FICO" score is a
predictive performance measure developed by Fair, Isaac and Co.), (ii) combined
loan-to-value ratios and (iii) debt-to-income ratios. Terms of loans made by the
Company vary depending upon the classification of the application. Applications
with lower classifications generally are subject to higher interest rates due to
the increased risk inherent in the loan. A loan application must obtain the
following thresholds with respect to each of the three primary factors to be
included in the particular ratings shown below:
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"A" "B" "C" "D"
--- --- --- ---
Maximum Number of Mortgage Lates 2X30 4X30, 1X120, 1X150,
1X60, 0X150 0X180
1X90
Minimum FICO Score 650 575 500 0
Maximum of Loan-to-Value 80% 80% 70% 65%
Maximum of Debt-to-Income Ratio 55% 50% 55% 60%
While the Company primarily analyzes the three factors noted above, the
Company also reviews other factors to determine whether an application will be
subject to a higher interest rate than the interest rate applicable to the
rating under which such application has initially been placed. These include
factors such as an unsubstantiated employment history, a recent foreclosure
proceeding, a number of recent delinquent payments on installment and revolving
debt, a recent bankruptcy filing, a non-owner occupied property or the presence
of a senior mortgage or zoning restrictions on the subject property.
Each loan applicant is required to provide personal financial information
on a loan application and a statement of obligations. A credit report is
obtained for each borrower at the time of application which confirms and
reconciles amounts disclosed in the statement of obligations and which discloses
the applicant's payment and credit history. Generally, the borrower is required
to have an acceptable credit history given the amount of equity available, the
strength of the employment history and income stability. Income, employment, and
deed of trust status is verified for each applicant by telephone and/or written
inquiry, examination of tax returns, pay check stubs, court supported documents
or bank statements. Self-employed applicants provide personal and business
financial statements. The Company rates a borrower's credit score, property
value and debt ratio and then determines the interest rate to be charged.
In general, with respect to Company originated Mortgage Loans, the value of
each property proposed as security for a mortgage loan is required to be
determined by a full appraisal conducted by a Company employee. After evaluation
of a minimum of three neighborhood comparables, a Company appraiser will
complete his appraisal with an inspection of the subject property and a meeting
with the prospective borrower. The Company hires certified appraisers in those
states which require such designation. Appraisers at the Company's headquarters,
not third party fee appraisers, perform a review of the property appraisal on
the following loan applications: (i) all properties with a market value above
$250,000, (ii) all loans with a combined loan-to-value ratio of equal to or
greater than 68%, (iii) all loan applications prepared by a new retail branch
office for the first 90 days of its existence, (iv) all income properties, and
(v) all properties with a value less than $100,000 not otherwise reviewed.
In connection with prior securitizations of the Company's loans,
independent appraisers have conducted appraisals of a sample of the subject
properties that are the collateral for the securitized loans. The appraisals
performed by the Company's appraisers have been within less than 4 % of the
aggregate appraisal values on securitized loans to date as calculated by the
independent appraisers. Historically, variances in values between the Company's
appraisal and that of independent appraisals have ranged from negative 4% to
positive 2% (based on aggregate appraisal values). A negative variance indicates
that the Company's appraisal is more conservative that the independent appraisal
and a positive variance indicates that the Company's appraisal is less
conservative than the independent appraisal.
Certain laws protect loan applicants by offering them a timeframe after
loan documents are signed, termed the rescission period, during which the
applicant has the right to cancel the loan. The rescission period must have
expired prior to funding a loan and may not be waived by the applicant except as
permitted by law. The Company discourages waiving the rescission period but does
permit such waivers with proper documentation.
The Company's Guidelines generally require title insurance coverage issued
by an approved American Land Title Association title insurance company (as
defined below) on each loan the Company originates or purchases. The Company,
the related Originator and their assignees are generally named as the insured.
Title insurance policies indicate the lien position of the mortgage loan and
protect the insured against loss if the title or lien position is not as
indicated.
The applicant is required to secure property insurance in an amount
sufficient to cover the new loan and any prior mortgage. If the sum of the
outstanding first mortgage, if any, and the related loan exceeds replacement
value, insurance equal to replacement value may be accepted. The Company or its
designee is required to ensure that its name and address is properly added to
the "Mortgagee Clause" of the insurance policy. In the event the Company or the
25
related Originator's name is added to a "Loss Payee Clause" and the policy does
not provide for written notice of policy changes of cancellation, an endorsement
adding such provision is required.
Approved Guidelines. The Company may cause a Trust to acquire Mortgage
Loans underwritten pursuant to underwriting guidelines that may differ from the
Company's Guidelines. Certain of the Mortgage Loans will be acquired in
negotiated transactions, and such negotiated transactions may be governed by
agreements ("Master Commitments") relating to ongoing acquisitions of Mortgage
Loans by the Company from Originators who will represent that the Mortgage Loans
have been originated in accordance with underwriting guidelines agreed to by the
Company; the Company will generally review or cause to be reviewed only a
portion of the Mortgage Loans in any delivery of Mortgage Loans from the related
Originator for conformity with the Approved Guidelines.
The underwriting standards utilized in negotiated transactions and Master
Commitments may vary substantially from the Company's Guidelines. The Approved
Guidelines are designed to provide an underwriter with information to evaluate
either the security for the related Mortgage Loan, which security consists
primarily of the borrower's repayment ability, or the adequacy of the Mortgaged
Property as collateral, or a combination of both. Due to the variety of Approved
Guidelines and review procedures that may be applicable to the Mortgage Loans
included in any Mortgage Pool, the related Prospectus Supplement will not
distinguish among the various Approved Guidelines applicable to the Mortgage
Loans nor describe any review for compliance with applicable Approved Guidelines
performed by the Company. Moreover, there can be no assurance that every
Mortgage Loan was originated in conformity with the applicable Approved
Guidelines in all material respects, or that the quality or performance of
Mortgage Loans underwritten pursuant to varying guidelines as described above
will be equivalent under all circumstances. Notwithstanding the foregoing, in
the case of a Designated Originator transaction or a Participating Originator
transaction, the applicable underwriting guidelines may not be those
pre-approved by the Company, as in the case of Approved Guidelines, but may be
those of the related Designated Originator or Participating Originator, and will
be described in the related Prospectus Supplement.
Bulk Guidelines. Bulk portfolios of Mortgage Loans may be originated by a
variety of Originators under several different underwriting guidelines. Because
bulk portfolios are generally seasoned for a period of time, the Company's
underwriting review of bulk portfolios of Mortgage Loans focuses primarily on
payment histories and estimated current values based on estimated property
appreciation or depreciation and loan amortization. As a result, Mortgage Loans
that conform to the related Bulk Guidelines may not conform to the requirements
of the Company's Guidelines or any Approved Guidelines. For example, the Company
may purchase Mortgage Loans in bulk acquisitions with Loan-to-Value Ratios in
excess of 80%, without title insurance, or with nonconforming appraisal methods
such as tax assessments. Bulk Acquisition portfolios may be purchased servicing
released or retained. If servicing is retained, the Originator must meet certain
minimum requirements, as modified from time to time, by the Company. The Company
generally will cause the Mortgage Loans acquired in a Bulk Acquisition to be
reviewed for the purpose of determining whether such Mortgage Loans were
originated in accordance with the applicable Bulk Guidelines. Such underwriting
may consist of a review of all such Mortgage Loans or may be performed on a
sample basis. In addition, such reunderwriting may be performed by the Company
or by a third party acting at the direction of the Company.
Quality Control. The Company maintains a quality control department. All
files originated by the Company are reviewed for the accuracy of certain data
fields as well as for legal compliance of documentation prior to approval by the
underwriting department. In addition each file originated by the Company is
reviewed again by the quality control department prior to disbursement of loan
funds. The Company performs a quality control review on all loans acquired from
other Originators.
The Company generally will cause Mortgage Loans acquired from Unaffiliated
Originators to be reunderwritten for the purpose of determining whether such
Mortgage Loans were originated in accordance with the loan submission
underwriting guidelines. Such reunderwriting may consist of a review of all such
Mortgage Loans or may be performed on a sample basis. Such reunderwriting may be
performed by the Company or a third party acting at the direction of the
Company.
Qualifications of Originators
Each Originator from which a Mortgage Loan is acquired will have been
accepted by the Company for participation in the Company's mortgage loan
program. Unaffiliated Originators that enter into agreements to sell mortgage
loans to the Company ("Master Commitments") and which meet the following
qualifications are hereinafter referred to as "Participating Originators." As of
the date of approval, each Participating Originator is generally required to
have a specified minimum level of experience in originating conventional
non-conforming mortgage loans. Furthermore, an Originator that will retain the
servicing of the related Mortgage Loans will be required to have a Mortgage Loan
servicing portfolio of a required amount and to have a specified minimal level
of experience servicing comparable mortgage loans. An Unaffiliated Originator
that would qualify as a "Participating Originator" is a "Designated Originator"
if it meets certain additional requirements. Notwithstanding these requirements,
however, there
26
can be no assurance that any Originator presently meets such qualifications or
will continue to meet such qualifications at the time of inclusion of mortgage
loans sold by it in the Trust Estate for a series of Securities, or thereafter.
The Company may waive or modify in an appropriate case any of the foregoing
requirements for Participating Originators and Designated Originators. Unless
otherwise described in the related Prospectus Supplement, the Company will make
directly, or will guarantee compliance with, any representations and warranties
made by any Unaffiliated Originator, other than a Designated Originator, with
respect to the Mortgage Loans originated by it and acquired by a Trust;
provided, however, that the Company will not directly make or guarantee
compliance with such representations and warranties made by a Designated
Originator. In the event of a breach of any such representation or warranty made
by a Designated Originator the only remedies will lie against such Designated
Originator.
All Unaffiliated Originators are required to originate mortgage loans in
accordance with the applicable underwriting standards. However, with respect to
any Originator, some of the generally applicable underwriting standards
described herein and in the Company's Guidelines may be modified or waived with
respect to certain Mortgage Loans originated by such Originators.
The Federal Deposit Insurance Corporation (the "FDIC") (either in its
corporate capacity or as receiver or conservator for a depository institution)
may also be an Originator of the Mortgage Loans. The FDIC is an independent
executive agency originally established by the Banking Act of 1933 to insure the
deposits of all banks entitled to federal deposit insurance under the Federal
Reserve Act and Federal Deposit Insurance Act. The FDIC administers the system
of nationwide deposit insurance (mutual guaranty of deposits) for United States
Banks and together with the United States Comptroller of the Currency regulates
in areas related to the maintenance of reserves for certain types of deposits,
the maintenance of certain financial ratios, transactions with affiliates and a
broad range of other banking practices.
The Company monitors the Originators and the Sub-Servicers under the
control of the FDIC, as well as those Originators and Sub-Servicers that are
insolvent or in receivership or conservatorship or otherwise financially
distressed. Such Originators may not be able or permitted to repurchase Mortgage
Loans for which there has been a breach of representation and warranty.
Moreover, any such Originator may make no representations and warranties with
respect to Mortgage Loans sold by it. The FDIC (either in its corporate capacity
or as receiver for a depository institution) may also originate Mortgage Loans,
in which event neither the FDIC nor the depository institution for which the
FDIC is acting as receiver may make representations and warranties with respect
to the Mortgage Loans that the FDIC sells, or the FDIC may make only limited
representations and warranties (for example, that the related legal documents
are enforceable). The FDIC may have no obligation to repurchase any Mortgage
Loan for a breach of a representation and warranty. If, as a result of a breach
of representation and warranty, an Originator is required to repurchase a
Mortgage Loan but is not permitted or otherwise fails to do so or if
representations and warranties are not made by an Originator, to the extent that
neither the Company nor any other entity has assumed the representations and
warranties or made representations and warranties, neither the Company nor that
entity will be required to repurchase such Mortgage Loan and, consequently such
Mortgage Loan will remain in the related Mortgage Pool and any related losses
will be borne by the Securityholders or by the related credit enhancement, if
any. In addition, loans which are purchased either directly or indirectly from
the FDIC may be subject to a contract right of the FDIC to repurchase such loans
under certain limited circumstances.
To the extent the Originator in a Designated Originator transaction fails
to or is unable to repurchase any Mortgage Loan due to a breach of
representation and warranty, neither the Company nor any other entity has
assumed the representations and warranties and any related losses will be borne
by the Securityholders or by the credit enhancement, if any.
Sub-Servicers
Each Originator of a Mortgage Loan will act as Sub-Servicer for such
Mortgage Loan pursuant to an agreement between the Servicer and the Sub-Servicer
(a "Sub-Servicing Agreement") unless the servicing obligations are released to
the Servicer or transferred to a servicer approved by the Servicer. An
Affiliated Originator of a Mortgage Loan may act as the Sub-Servicer for such
Mortgage Loan unless the other related servicing obligations are released or
transferred. The Servicer may employ Sub-Servicers that neither originate
mortgage loans nor originated the Mortgage Loans, such Sub-Servicers shall be
referred to as "Contract Sub-Servicers."
Unaffiliated Originators (except for Designated Originators and
Participating Originators) will be required to release such servicing
obligations to the Servicer. Designated Originators and Participating
Originators may act as Sub-Servicers for such Mortgage Loans pursuant to a
Sub-Servicing Agreement or may release such servicing obligations to the
Servicer. An Unaffiliated Originator acting as a Sub-Servicer for the Mortgage
Loans will be required to meet certain standards specified in the Prospectus
Supplement with respect to its conventional Mortgage Loan servicing portfolio,
GAAP tangible net worth, cash/warehouse line availability, mortgage servicing
licensing status and other specified qualifications. Contract Sub-Servicers
shall be required to satisfy standards similar to those for
27
Unaffiliated Originators; however, the Servicer will be directly responsible to
the Trusts for Servicing Mortgage Loans in compliance with the standards set
forth in the Pooling and Servicing Agreement. The Servicer will be responsible
for the compensation of any Contract Sub-Servicer and such compensation shall be
inclusive in the Servicer's fees.
Representations by Originators
Each Originator will generally make representations and warranties in
respect of the Mortgage Loans sold by such Originator and evidenced by a series
of Securities. Such representations and warranties generally include, among
other things, that at the time of the sale by the Originator to the Company of
each Mortgage Loan: (i) the information with respect to each Mortgage Loan set
forth in the Schedules of Mortgage Loans is true and correct as of the related
Cut-Off Date; (ii) each Mortgage Loan being transferred to the Trust which is a
REMIC is a qualified mortgage under the REMIC provisions of the Code and is a
Mortgage; (iii) each Mortgaged Property is improved by a single (one-to-four)
family residential dwelling, which may include condominiums and townhouses; (iv)
each Mortgage Loan had, at the time of origination, either an attorney's
certification of title or a title search or title policy; (v) as of the related
Cut-Off Date each Mortgage Loan is secured by a valid and subsisting lien of
record on the Mortgaged Property having the priority indicated on the related
Schedule of Mortgage Loans subject in all cases to exceptions to title set forth
in the title insurance policy, if any, with respect to the related Mortgage
Loan; (vi) each Originator held good and indefeasible title to, and was the sole
owner of, each Mortgage Loan conveyed by such Originator; and (vii) each
Mortgage Loan was originated in accordance with law and is the valid, legal and
binding obligation of the related Mortgagor.
Unless otherwise described in the related Prospectus Supplement all of the
representations and warranties of an Originator in respect of a Mortgage Loan
will be made as of the date on which such Originator sells the Mortgage Loan to
the Company; the date as of which such representations and warranties are made
thus may be a date prior to the date of the issuance of the related series of
Securities. A substantial period of time may elapse between the date as of which
the representations and warranties are made and the later date of issuance of
the related series of Securities. Accordingly, the Originator's purchase
obligation (or, if specified in the related Prospectus Supplement, limited
replacement option) will not arise if, during the period commencing on the date
of sale of a Mortgage Loan by the Originator to the Company, an event occurs
that would give rise to such an obligation if the event had occurred prior to
sale of the affected Mortgage Loan.
The Company will assign to the Trustee for the benefit of the holders of
the related series of Securities all of its right, title and interest in each
agreement by which it acquires a Mortgage Loan from an Originator insofar as
such agreement relates to the representations and warranties made by an
Originator in respect of such Mortgage Loan and any remedies provided for breach
of such representations and warranties. If an Originator cannot cure a breach of
any representation or warranty made by it in respect of a Mortgage Loan that
materially and adversely affects the interests of the Securityholders in such
Mortgage Loan within a time period specified in the related Pooling and
Servicing Agreement, such Originator and/or the Company will be obligated to
purchase from the related Trust such Mortgage Loan at a price (the "Loan
Purchase Price") set forth in the related Pooling and Servicing Agreement which
Loan Purchase Price will be equal to the principal balance thereof as of the
date of purchase plus one month's interest at the Mortgage Rate less the amount,
expressed as a percentage per annum, payable in respect of master servicing
compensation or sub-servicing compensation, as applicable, and the Originator's
Retained Yield, if any, and certain miscellaneous administrative amounts,
together with, without duplication, the aggregate amount of all delinquent
interest, if any.
As to any such Mortgage Loan required to be purchased by an Originator
and/or the Company, as provided above, rather than repurchase the Mortgage Loan,
the Servicer may, at its sole option, remove such Mortgage Loan (a "Deleted
Mortgage Loan") from the related Trust and cause the Company to substitute in
its place another Mortgage Loan of like kind (a "Qualified Replacement Mortgage"
as such term is defined in the related Pooling and Servicing Agreement);
however, such substitution must be effected within 90 days of the date of the
initial issuance of the Securities with respect to a Trust for which no REMIC
election is to be made. With respect to a Trust for which a REMIC election is to
be made, except as otherwise provided in the Prospectus Supplement relating to a
series of Securities, such substitution of a defective Mortgage Loan must be
effected within two years of the date of the initial issuance of the Securities,
and may not be made if such substitution would cause the Trust to not qualify as
a REMIC or result in a prohibited transaction tax under the Code. Except as
otherwise provided in the related Prospectus Supplement, any Qualified
Replacement Mortgage generally will, on the date of substitution, (i) have an
outstanding principal balance, after deduction of all scheduled payments due in
the month of substitution, not in excess of the outstanding principal balance of
the Deleted Mortgage Loan (the amount of any shortfall to be paid to the related
Trust in the month of substitution for distribution to the Securityholders),
(ii) have a Mortgage Rate neither one percentage point less than nor one
percentage point more than the Mortgage Rate of the Deleted Mortgage Loan as of
the date of substitution, (iii) have a remaining term to maturity neither one
year less than nor one year more than that of the Deleted Mortgage Loan, and
(iv) comply with all of the representations and warranties set forth in the
related Pooling and Servicing Agreement as of the date of substitution. The
related Pooling and Servicing Agreement may include
28
additional requirements relating to ARM Loans or other specific types of
Mortgage Loans or additional provisions relating to meeting the foregoing
requirements on an aggregate basis where a number of substitutions occur
contemporaneously. Unless otherwise specified in the related Prospectus
Supplement or Pooling and Servicing Agreement, an Originator will also have the
option to substitute a replacement Mortgage Loan for a Mortgage Loan that it is
obligated to repurchase in connection with a breach of a representation and
warranty.
The Servicer will be required under the applicable Pooling and Servicing
Agreement to enforce such purchase or substitution obligations for the benefit
of the Trustee and the Securityholders, following the practices it would employ
in its good faith business judgment if it were the owner of such Mortgage Loan;
provided, however, that this purchase or substitution obligation will in no
event become an obligation of the Servicer in the event the Originator fails to
honor such obligation. If the Originator fails to repurchase or substitute a
loan and no breach of the Company's representations has occurred, the
Originator's purchase or substitution obligation will in no event become an
obligation of the Company. In the case of a Designated Originator transaction
where the Originator fails to repurchase or substitute a Mortgage Loan and
neither the Company, nor any other entity has assumed the representations and
warranties, such repurchase or substitute obligation of the Originator will in
no event become an obligation of the Company. The foregoing will constitute the
sole remedy available to Securityholders or the Trustee for a breach of
representation by an Originator in its capacity as a seller of Mortgage Loans to
the Company.
Unless otherwise described in the related Prospectus Supplement, the
Company will make directly, or will guarantee compliance with, any
representations and warranties made by any Unaffiliated Originator with respect
to the Mortgage Loans originated or purchased by it and acquired by a Trust;
provided, however, that the Company will not directly make or guarantee
compliance with such representations and warranties made by a Designated
Originator. In the event of a breach of any such representation or warranty made
by a Designated Originator the only remedies will lie against such Designated
Originator.
Notwithstanding the foregoing with respect to any Originator that requests
the Servicer's consent to the transfer of sub-servicing rights relating to any
Mortgage Loans to a successor servicer, the Servicer may release such Originator
from liability, under its representations and warranties described above, upon
the assumption by such successor servicer of the Originator's liability for such
representations and warranties as of the date they were made. In that event, the
Servicer's rights under the instrument by which such successor servicer assumes
the Originator's liability will be assigned to the Trustee, and such successor
servicer shall be deemed to be the "Originator" for purposes of the foregoing
provisions.
Sub-Servicing by Originators
Each Originator of a Mortgage Loan will act as the Sub-Servicer for such
Mortgage Loan pursuant to a Sub-Servicing Agreement unless servicing is released
to the Servicer or has been transferred to a servicer approved by the Servicer.
The Servicer may, in turn, assign such subservicing to designated Sub-Servicers
that will be qualified Originators and may include affiliates of the Company.
While such a Sub-Servicing Agreement will be a contract solely between the
Servicer and the Sub-Servicer, the Pooling and Servicing Agreement pursuant to
which a series of Securities is issued will provide that, the Trustee, the
Servicer or any Master Servicer must recognize the Sub-Servicer's rights and
obligations under such Sub-Servicing Agreement.
With the approval of the Servicer, a Sub-Servicer generally may delegate
its servicing obligations to third-party servicers, but such Sub-Servicer will
remain obligated under the related Sub-Servicing Agreement. Each Sub-Servicer
will be required to perform the customary functions of a servicer, including
collection of payments from Mortgagors and remittance of such collections to the
Servicer; maintenance of hazard insurance and filing and settlement of claims
thereunder, subject in certain cases to the right of the Servicer to approve in
advance any such settlement; maintenance of escrow or impound accounts of
Mortgagors for payment of taxes, insurance and other items required to be paid
by the Mortgagor pursuant to the Mortgage Loan; processing of assumptions or
substitutions; attempting to cure delinquencies; supervising foreclosures;
inspecting and managing of Mortgaged Properties under certain circumstances; and
maintaining accounting records relating to the Mortgage Loans. A Sub-Servicer
also may be obligated to make advances to the Servicer in respect of delinquent
installments of principal and/or interest (net of any sub-servicing or other
compensation) on Mortgage Loans, as described more fully under "Description of
the Securities--Advances," and in respect of certain taxes and insurance
premiums not paid on a timely basis by Mortgagors. A Sub-Servicer may also be
obligated to pay to the Servicer any Compensating Interest with respect to the
related Mortgage Loans. No assurance can be given that the Sub-Servicers will
carry out their advance or payment obligations, if any, with respect to the
Mortgage Loans. A Sub-Servicer may transfer its servicing obligations to another
entity that has been approved for participation in the Company's loan purchase
programs, but only with the approval of the Servicer.
As compensation for its servicing duties, the Sub-Servicer may be entitled
to a monthly servicing fee in a minimum amount set forth in the related
Prospectus Supplement. The Sub-Servicer may also be entitled to collect and
retain, as part of its servicing compensation, any late charges or prepayment
penalties provided in the Mortgage Note
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or related instruments. The Sub-Servicer will be reimbursed by the Servicer for
certain expenditures that it makes, generally to the same extent that the
Servicer would be reimbursed under the applicable Pooling and Servicing
Agreement from the loan proceeds. Unless specified in the related Prospectus
Supplement and Pooling and Servicing Agreement, compensation for the services of
the Sub-Servicer shall be paid by the Servicer as a general corporate obligation
of the Servicer. See "The Pooling and Servicing Agreement--Servicing and Other
Compensation and Payment of Expenses; Originator's Retained Yield."
Each Sub-Servicer will be required to agree to indemnify the Servicer for
any liability or obligation sustained by the Servicer in connection with any act
or failure to act by the Sub-Servicer in its servicing capacity. Each
Sub-Servicer will be required to maintain a fidelity bond and an errors and
omission policy with respect to its officers, employees and other persons acting
on its behalf or on behalf of the Servicer.
Each Sub-Servicer will be required to service each Mortgage Loan pursuant
to the terms of the Sub-Servicing Agreement for the entire term of such Mortgage
Loan, unless the Sub-Servicing Agreement is terminated earlier by the Servicer
or the Sub-Servicer or unless servicing is released to the Servicer. The
Servicer generally may terminate a Sub-Servicing Agreement immediately upon the
giving of notice upon certain stated events, including the violation of such
Sub-Servicing Agreement by the Sub-Servicer, or upon thirty days' notice to the
Sub-Servicer without cause upon payment of an amount equal to a specified
termination fee calculated as a specified percentage of the aggregate
outstanding principal balance of all mortgage loans, including the Mortgage
Loans serviced by such Sub-Servicer pursuant to a Sub-Servicing Agreement and
certain transfer fees.
The Servicer may agree with a Sub-Servicer to amend a Sub-Servicing
Agreement. Upon termination of a Sub-Servicing Agreement, the Servicer may act
as servicer of the related Mortgage Loans or enter into one or more new
Sub-Servicing Agreements. If the Servicer acts as servicer, it will not assume
liability for the representations and warranties of the Sub-Servicer that it
replaces. If the Servicer enters into a new Sub-Servicing Agreement, each new
Sub-Servicer either must be an Originator, meet the standards for becoming an
Originator or have such servicing experience that is otherwise satisfactory to
the Servicer. The Servicer may make reasonable efforts to have the new
Sub-Servicer assume liability for the representations and warranties of the
terminated Sub-Servicer, but no assurance can be given that such an assumption
will occur and, in any event, if the new Sub-Servicer is an affiliate of the
Servicer, the liability for such representations and warranties will not be
assumed by such new Sub-Servicer. In the event of such an assumption, the
Servicer may in the exercise of its business judgment release the terminated
Sub-Servicer from liability in respect of such representations and warranties.
Any amendments to a Sub-Servicing Agreement or to a new Sub-Servicing Agreement
may contain provisions different from those described above that are in effect
in the original Sub-Servicing Agreements. However, the Pooling and Servicing
Agreement for each Trust Estate will provide that any such amendment or new
agreement may not be inconsistent with such Pooling and Servicing Agreement to
the extent that it would materially and adversely affect the interests of the
Securityholders.
Master Servicer
A Master Servicer may be specified in the related Prospectus Supplement for
the related series of Securities. Customary servicing functions with respect to
Mortgage Loans constituting the Mortgage Pool in the Trust Estate will be
provided by the Servicer directly or through one or more Sub-Servicers subject
to supervision by the Master Servicer. If the Master Servicer is not directly
servicing the Mortgage Loans, then the Master Servicer will (i) administer and
supervise the performance by the Servicer of its servicing responsibilities
under the Pooling and Servicing Agreement with the Master Servicer, (ii)
maintain a current data base with the payment histories of each Mortgagor, (iii)
review monthly servicing reports and data relating to the Mortgage Pool for
discrepancies and errors, and (iv) act as back-up Servicer during the term of
the transaction unless the Servicer is terminated or resigns in such case the
Master Servicer shall assume the obligations of the Servicer.
The Master Servicer will be a party to the Pooling and Servicing Agreement
for any Series for which Mortgage Loans comprise the Trust Estate. The Master
Servicer generally will be required to be a FNMA- or FHLMC-approved
seller/servicer and, in the case of FHA Loans, approved by HUD as an FHA
mortgagee. The Master Servicer will be compensated for the performance of its
services and duties under each Pooling and Servicing Agreement as specified in
the related Prospectus Supplement.
DESCRIPTION OF THE SECURITIES
General
The Securities will be issued in series. Each series of Securities (or, in
certain instances, two or more series of Securities) will be issued pursuant to
a Pooling and Servicing Agreement. The following summaries (together with
additional summaries under "The Pooling and Servicing Agreement" below) describe
all material terms and provisions relating to the Securities common to each
Pooling and Servicing Agreement. The summaries do not purport to be
30
complete and are subject to, and are qualified in their entirety by reference
to, all of the provisions of the Pooling and Servicing Agreement for the related
Trust and to the related Prospectus Supplement.
The Securities will consist of two basic types: (i) Securities of the
fixed-income type ("Fixed-Income Securities") and (ii) Securities of the equity
participation type ("Equity Securities"). No Class of Equity Securities will be
offered pursuant to this Prospectus or any Prospectus Supplement related hereto.
Fixed-Income Securities generally will be styled as Debt Instruments, having a
principal balance and a specified interest rate ("Interest Rate"). Fixed-Income
Securities may be either beneficial ownership interests in the related Mortgage
Loans held by the related Trust, or may represent debt secured by such Mortgage
Loans. Each series or class of Fixed-Income Securities may have a different
Interest Rate, which may be a fixed, variable or adjustable Interest Rate. The
related Prospectus Supplement will specify the Interest Rate for each series or
class of Fixed-Income Securities, or the initial Interest Rate and the method
for determining subsequent changes to the Interest Rate.
A series may include one or more classes of Fixed-Income Securities ("Strip
Securities") entitled to (i) principal distributions, with disproportionate,
nominal or no interest distributions, or (ii) interest distributions, with
disproportionate, nominal or no principal distributions. In addition, a series
may include two or more classes of Fixed-Income Securities that differ as to
timing, sequential order, priority of payment, Interest Rate or amount of
distributions of principal or interest or both, or as to which distributions of
principal or interest or both on any class may be made upon the occurrence of
specified events, in accordance with a schedule or formula, or on the basis of
collections from designated portions of the related Mortgage Pool, which series
may include one or more classes of Fixed-Income Securities ("Accrual
Securities"), as to which certain accrued interest will not be distributed but
rather will be added to the principal balance (or nominal principal balance in
the case of Accrual Securities which are also Strip Securities) thereof on each
Payment Date, as hereinafter defined and in the manner described in the related
Prospectus Supplement.
If so provided in the related Prospectus Supplement, a series of Securities
may include one or more classes of Fixed-Income Securities (collectively, the
"Senior Securities") that are senior to one or more classes of Fixed-Income
Securities (collectively, the "Subordinate Securities") in respect of certain
distributions of principal and interest and allocations of losses on Mortgage
Loans. In addition, certain classes of Senior (or Subordinate) Securities may be
senior to other classes of Senior (or Subordinate) Securities in respect of such
distributions or losses.
Equity Securities will represent the right to receive the proceeds of the
related Trust Estate after all required payments have been made to the
Securityholders of the related Fixed-Income Securities (both Senior Securities
and Subordinate Securities), and following any required deposits to any reserve
account that may be established for the benefit of the Fixed-Income Securities.
Equity Securities may constitute what are commonly referred to as the "residual
interest," "seller's interest" or the "general partnership interest," depending
upon the treatment of the related Trust for federal income tax purposes. As
distinguished from the Fixed-Income Securities, the Equity Securities will not
be styled as having principal and interest components. Any losses suffered by
the related Trust first will be absorbed by the related class of Equity
Securities, as described herein and in the related Prospectus Supplement.
No Class of Equity Securities will be offered pursuant to this Prospectus
or any Prospectus Supplement related hereto. Equity Securities may be offered on
a private placement basis or pursuant to a separate Registration Statement to be
filed by the Company. In addition, the Company and its affiliates may initially
or permanently hold any Equity Securities issued by any Trust.
General Payment Terms of Securities
As provided in the related Pooling and Servicing Agreement and as described
in the related Prospectus Supplement, Securityholders will be entitled to
receive payments on their Securities on specified dates ("Payment Dates").
Payment Dates with respect to Fixed-Income Securities will occur monthly,
quarterly or semi-annually, as described in the related Prospectus Supplement.
The related Prospectus Supplement will describe a date (the "Record Date")
preceding such Payment Date, as of which the Trustee or its paying agent will
fix the identity of the Securityholders for the purpose of receiving payments on
the next succeeding Payment Date. Unless otherwise described in the related
Prospectus Supplement, the Payment Date will be the twentieth day of each month
(or, in the case of quarterly-pay Securities, the twentieth day of every third
month; and in the case of semi-annually-pay Securities, the twentieth day of
every sixth month) and the Record Date will be the close of business as of the
last day of the calendar month which precedes such Payment Date.
The related Prospectus Supplement and Pooling and Servicing Agreement will
describe the periods (each, a "Remittance Period" or "Due Period") antecedent to
each Payment Date (for example, in the case of monthly-pay Securities, the
calendar month (or the 30 days) preceding the month in which a Payment Date
occurs or such other specified period). Unless otherwise provided in the related
Prospectus Supplement, collections received on or with respect to the related
Mortgage Loans during a Remittance Period will be required to be remitted by the
Servicer to the related Trustee prior to the related Payment Date, and will be
used to distribute payments to Securityholders on such
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Payment Date. As may be described in the related Prospectus Supplement, the
related Pooling and Servicing Agreement may provide that all or a portion of the
principal collected on or with respect to the related Mortgage Loans may be
applied by the related Trustee to the acquisition of additional Mortgage Loans
during a specified period (rather than used to distribute payments of principal
to Securityholders during such period) with the result that the related
securities possess an interest-only period, also commonly referred to as a
revolving period, which will be followed by an amortization period. Any such
interest-only or revolving period may, upon the occurrence of certain events to
be described in the related Prospectus Supplement, terminate prior to the end of
the specified period and result in the earlier than expected amortization of the
related Securities.
In addition, and as may be described in the related Prospectus Supplement,
the related Pooling and Servicing Agreement may provide that all or a portion of
such collected principal may be retained by the Trustee (and held in certain
temporary investments, including Mortgage Loans) for a specified period prior to
being used to distribute payments of principal to Securityholders.
The result of such retention and temporary investment by the Trustee of
such principal would be to slow the amortization rate of the related Securities
relative to the amortization rate of the related Mortgage Loans, or to attempt
to match the amortization rate of the related Securities to an amortization
schedule established at the time such Securities are issued. Any such feature
applicable to any Securities may terminate upon the occurrence of events to be
described in the related Prospectus Supplement, resulting in the current funding
of principal payments to the related Securityholders and an acceleration of the
amortization of such Securities.
Neither the Securities nor the underlying Mortgage Loans will be guaranteed
or insured by any governmental agency or instrumentality or the Company, the
Servicer, any Sub-Servicer, any Master Servicer, any Originator or any of their
affiliates; provided, however, that certain distributions to Securityholders may
be guaranteed by a Financial Guaranty Insurer.
Unless otherwise specified in the Prospectus Supplement with respect to a
series, Securities of each series covered by a particular Pooling and Servicing
Agreement will evidence specified beneficial ownership interest in a separate
Trust Estate created pursuant to such Pooling and Servicing Agreement. A Trust
Estate will consist of, to the extent provided in the Pooling and Servicing
Agreement: (i) a pool of Mortgage Loans (and the related mortgage documents) or
certificates of interest or participations therein underlying a particular
series of Securities as from time to time are subject to the Pooling and
Servicing Agreement, exclusive of, if specified in the related Prospectus
Supplement, any Originator's Retained Yield or other interest retained by the
related Originator, the Company or any of its affiliates with respect to each
such Mortgage Loan; (ii) certain other assets including, without limitation, all
payments due on the Mortgage Loans after the related Cut-Off Date, as from time
to time are identified as deposited in respect thereof in the Principal and
Interest Account and in the related Distribution Account; (iii) property
acquired by foreclosure of the Mortgage Loans or deed in lieu of foreclosure;
(iv) hazard insurance policies and primary insurance policies, if any, and
certain proceeds thereof; and (v) any combination, as specified in the related
Prospectus Supplement, of a letter of credit, financial guaranty insurance
policy, purchase obligation, mortgage pool insurance policy, special hazard
insurance policy, bankruptcy bond, reserve fund or other type of credit
enhancement as described under "Description of Credit Enhancement." To the
extent that any Trust Estate includes certificates of interest or participations
in Mortgage Loans, the related Prospectus Supplement will describe the material
terms and conditions of such certificates or participations.
Form of Securities
If so specified in the related Prospectus Supplement, the Securities of
each series will be issued as physical certificates ("Physical Certificates") in
fully registered form only in the denominations specified in the related
Prospectus Supplement, and will be transferable and exchangeable at the
corporate trust office of the registrar of the Securities (the "Security
Registrar") named in the related Prospectus Supplement. No service charge will
be made for any registration of exchange or transfer of Securities, but the
Trustee may require payment of a sum sufficient to cover any tax or other
governmental charge.
If so specified in the related Prospectus Supplement, specified classes of
a series of Securities will be issued in uncertificated book-entry form
("Book-Entry Securities"), and 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
32
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, Securityholders that are not Participants or
Indirect Participants but desire to purchase, sell or otherwise transfer
ownership of Securities 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 from the Trustee through DTC and its Participants. Under a
book-entry format, Securityholders will receive payments after the related
Payment Date because, while payments are required to be forwarded to Cede, as
nominee for DTC, on each such date, DTC will forward such payments to its
Participants which thereafter will be required to forward such payments to
Indirect Participants or Securityholders. Unless and until Physical 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 Pooling and Servicing
Agreement. The beneficial holders of such Securities will only be permitted to
exercise the rights of Securityholders under the Pooling and Servicing 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 payments of principal of and interest on the Securities.
Participants and Indirect Participants with which Securityholders have accounts
with respect to their Securities similarly are required to make book-entry
transfers and receive and transmit such 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 will be able to transfer their interests.
Unless and until Physical Certificates 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 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 a Pooling and Servicing Agreement only at the
direction of one or more Participants to whose account with DTC the related
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 Securities initially registered in the name of Cede, as nominee of DTC,
will be issued in fully registered, certificated form to Securityholders or
their nominees ("Physical Securities"), rather than to DTC or its nominee only
under the events specified in the related Pooling and Servicing Agreement and
described in the related Prospectus Supplement. Upon the occurrence of any of
the events specified in the related Pooling and Servicing Agreement and the
Prospectus Supplement, DTC will be required to notify all Participants of the
availability through DTC of Physical Certificates. Upon surrender by DTC of the
securities representing the Securities and instruction for reregistration, the
Trustee will issue the Securities in the form of Physical Certificates, and
thereafter the Trustee will recognize the holders of such Physical Certificates
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 Pooling and Servicing Agreement.
The final distribution of any Security (whether Physical Certificates or
Securities registered in the name of Cede), however, will be made only upon
presentation and surrender of such Securities on the final Payment Date at such
office or agency as is specified in the notice of final payment to
Securityholders.
Assignment of Mortgage Loans
At the time of issuance of a series of Securities, the Company will cause
the Mortgage Loans being included in the related Trust Estate to be assigned to
the Trustee together with all principal and interest due on or after the Cut-Off
Date with respect to such Mortgage Loan, other than principal and interest due
before the Cut-Off Date. If specified in the related Prospectus Supplement, the
Company or any of its affiliates may retain the Originator's Retained Yield,
33
if any, for itself or transfer the same to others. The Trustee will,
concurrently with such assignment, deliver a series of Securities to the Company
in exchange for the Mortgage Loans. Each Mortgage Loan will be identified in a
schedule appearing as an exhibit to the related Pooling and Servicing Agreement.
Such schedule will include, among other things, information as to the principal
balance of each Mortgage Loan as of the Cut-Off Date, as well as information
regarding the Mortgage Rate, the currently scheduled monthly payment of
principal and interest and the maturity of the Mortgage Note.
In connection with the transfer of the Mortgage Loans to the Trustee, the
Originators will be required to deliver to the Company, who in turn will deliver
to the Trustee, a file consisting of (i) the original Notes or certified copies
thereof, endorsed by the Originator thereof in blank or to the order of the
holder, (ii) originals of all intervening assignments, showing a complete chain
of title from origination to the applicable Originators, if any, including
warehousing assignments, with evidence of recording thereon, (iii) originals of
all assumption and modification agreements, if any, and, unless such Mortgage
Loan is covered by a counsel's opinion as described in the next paragraph, (iv)
either: (a) the original Mortgage, with evidence of recording thereon, (b) a
true and accurate copy of the Mortgage where the original has been transmitted
for recording, until such time as the original is returned by the public
recording office or (c) a copy of the Mortgage certified by the public recording
office in those instances where the original recorded Mortgage has been lost.
The Trustee will agree, for the benefit of the Securityholders, to review each
such file within 90 days after the execution and delivery of the applicable
Pooling and Servicing Agreement to ascertain that all required documents (or
certified copies of documents) have been executed and received.
The Originators are additionally required to cause to be prepared and
submitted for recording, within 75 business days of the execution and delivery
of the applicable Pooling and Servicing Agreement (or, if original recording
information is unavailable, within such later period as is permitted by the
Pooling and Servicing Agreement) assignments of the Mortgages from the
Originators to the Trustee, in the appropriate jurisdictions in which such
recordation is necessary to perfect the lien thereof as against creditors of or
purchasers from the Originators, to the Trustee; provided, however, that if the
Originators furnish to the Trustee an opinion of counsel to the effect that no
such recording is necessary to perfect the Trustee's interests in the Mortgages
with respect to one or more jurisdictions, then such recording will not be
required with respect to such jurisdictions.
If the Sub-Servicer or Originator does not cure an omission or defect in a
required document within 60 days after notice is given to the Servicer, the
Sub-Servicer or Originator, as the case may be, will be obligated to purchase on
the next succeeding Remittance Date the related Mortgage Loan from the Trustee
at its Loan Purchase Price (or, if specified in the related Prospectus
Supplement, will be permitted to substitute for such Mortgage Loan under the
conditions specified in the related Prospectus Supplement). The Servicer will be
obligated to enforce this obligation of the Sub-Servicer or Originator, as the
case may be, to the extent described above under "Mortgage Loan
Program--Representations by Originators." Neither the Servicer, the Master
Servicer nor the Company will, however, be obligated to purchase or substitute
for such Mortgage Loan if the Sub-Servicer or Originator, as the case may be,
defaults on its obligation to do so, and there can be no assurance that a
Sub-Servicer or Originator, as the case may be, will carry out any such
obligation. Such purchase obligation constitutes the sole remedy available to
the Securityholders or the Trustee for omission of, or a material defect in, a
constituent document.
The Trustee will be authorized at any time to appoint a custodian pursuant
to a custodial agreement to maintain possession of and, if applicable, to review
the documents relating to the Mortgage Loans as the agent of the Trustee. The
identity of any such custodian to be appointed on the date of initial issuance
of the Securities will be set forth in the related Prospectus Supplement.
Pursuant to each Pooling and Servicing Agreement, the Servicer, either
directly or through Sub-Servicers, will service and administer the Mortgage
Loans assigned to the Trustee as more fully set forth below.
Forward Commitments; Pre-Funding
A Trust may enter into a Forward Purchase Agreement with the Company
whereby the Company will agree to transfer Subsequent Mortgage Loans to such
Trust following the date on which such Trust is established and the related
Securities are issued. All Subsequent Mortgage Loans transferred to the Trust
pursuant to a Forward Purchase Agreement will be originated by the Company or an
Originator. The Trust may enter into Forward Purchase Agreements to permit the
acquisition of Subsequent Mortgage Loans that could not be delivered by the
Company or have not formally completed the origination process, in each case
prior to the date on which the Securities are delivered to the Securityholders
(the "Closing Date"). Any Forward Purchase Agreement will require that any
Subsequent Mortgage Loans so transferred to a Trust conform to the requirements
specified in such Forward Purchase Agreement. If a Forward Purchase Agreement is
to be utilized the related Trustee will be required to deposit in the
Pre-Funding Account all or a portion of the proceeds received by the Trustee in
connection with the sale of one or more classes of Securities of the related
series; the Subsequent Mortgage Loans will be transferred to the related Trust
in exchange for money released to the Company from the related Pre-Funding
Account in one or more transfers. The maximum amount
34
of money deposited in the Pre-Funding Account to acquire Subsequent Mortgage
Loans for transfer to the Trust will not exceed 25% of the aggregate principal
amount of the Securities offered pursuant to the related Prospectus Supplement.
Each Forward Purchase Agreement will set a specified period during which any
such transfers must occur, which such period shall not exceed 90 days from the
date such Trust was established. The Forward Purchase Agreement or the related
Pooling and Servicing Agreement will require that, if all moneys originally
deposited to such Pre-Funding Account are not so used by the end of such
specified period, then any remaining moneys will be applied as a mandatory
prepayment of the related class or classes of Securities as specified in the
related Prospectus Supplement. See "Risk Factors" herein and in the related
Prospectus Supplement. All moneys on deposit in the Pre-Funding Account will be
invested in one or more Permitted Investments with all earnings thereon
available to make interest payments on the Securities.
Each additional Mortgage Loan will be of a type specified herein, will be
originated or underwritten in accordance with the Company's guidelines discussed
under "Mortgage Loan Program--Underwriting Guidelines" and will satisfy any
additional eligibility criteria specified in the related Prospectus Supplement.
Such eligibility criteria will be determined in consultation with each Rating
Agency (and/or any credit enhancement provider for the related series) prior to
the issuance of such series to ensure that such additional Mortgage Loans will
not cause the aggregate characteristics of the related Mortgage Pool to vary
materially from those of the initial Mortgage Pool, or that any such variation
is within parameters that were taken into account at the time the initial
ratings were assigned to the Securities of the related series. The Company will
be required to certify that all conditions precedent to the transfer of such
additional Mortgage Loans, including the satisfaction of specific eligibility
criteria, have been satisfied. It will be a condition to the transfer of any
additional Mortgage Loans by the Company for inclusion in the related Mortgage
Pool that each Rating Agency, after receiving prior notice of any such proposed
transfer, shall not have advised the Company or the Trustee or any credit
enhancement provider for the series that the conveyance of such additional
Mortgage Loans will result in a qualification, modification or withdrawal of its
then current rating of the related Securities. The inclusion of additional
Mortgage Loans in a Mortgage Pool for a series of Securities may affect, in some
instances adversely, the performance of the related Securities, even if the
aggregate characteristics of such Mortgage Pool do not vary as a result of the
inclusion of such additional Mortgage Loans. The Company will provide a schedule
of such additional Mortgage Loans or tabular information on such additional
Mortgage Loans similar to that included in the related Prospectus Supplement in
the Detailed Description filed under cover of a Current Report on Form 8-K
within 15 days of the end of the Funding Period.
The ability of any Trust to invest in additional Mortgage Loans during the
related Funding Period and, in the case of a series of Securities, any revolving
period, will be dependent upon the ability of the Company to acquire Mortgage
Loans that satisfy the prerequisites to transfer for inclusion in the related
Mortgage Pool specified in the related Prospectus Supplement. The ability of the
Company to 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 perceptions of general economic conditions.
Payments on Mortgage Loans; Deposits to Distribution Account
Each Sub-Servicer servicing a Mortgage Loan pursuant to a Sub-Servicing
Agreement will establish and maintain an account (the "Sub-Servicing Account")
which generally meets the requirements set forth in the Company's Guidelines
from time to time, and is otherwise acceptable to the Servicer. A Sub-Servicing
Account will generally be a lock box account established with a Federal Home
Loan Bank or with a depository institution (including the Sub-Servicer itself)
whose accounts are insured by the National Credit Union Share Insurance Fund or
the FDIC, provided that any such depository institution must meet certain
minimum rating criteria set forth in the Company's Guidelines. Except as
otherwise permitted by the applicable Rating Agencies, a Sub-Servicing Account
must be segregated and may not be established as a general ledger account.
A Sub-Servicer is required to deposit into its Sub-Servicing Account within
one day of receipt all amounts described above under "Mortgage Loan
Program--Sub-Servicing by Originators" that are received by it in respect of the
Mortgage Loans, less its servicing fee or other compensation. On a daily basis
or on or before the date specified in the Sub-Servicing Agreement (which date
may be no later than the business day prior to the Determination Date referred
to below or, if such day is not a business day, the preceding business day), the
Sub-Servicer must remit or cause to be remitted to the Servicer or the Trustee
all funds held in the Sub-Servicing Account with respect to Mortgage Loans that
are required to be so remitted. A Sub-Servicer may also be required to make
Servicing Advances, and Delinquency Advances and to pay Compensating Interest as
set forth in the related Sub-Servicing Agreement.
The Servicer will deposit or will cause to be deposited into the Principal
and Interest Account on a daily basis certain payments and collections received
by it subsequent to the Cut-Off Date (other than payments due on or before the
Cut-Off Date), as specifically set forth in the related Pooling and Servicing
Agreement, which generally will include the following except as otherwise
provided therein:
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(i) all payments on account of principal, including principal payments
received in advance of the date on which the related monthly payment is due
(the "Due Date") ("Principal Prepayments"), on the Mortgage Loans
comprising a Trust Estate;
(ii) all payments on account of interest on the Mortgage Loans comprising
such Trust Estate, net of the portion of each payment thereof retained by
the Servicer and the Sub-Servicer, if any, as their servicing fee or other
compensation;
(iii) all amounts (net of unreimbursed liquidation expenses and insured
expenses incurred, and unreimbursed advances made, by the Servicer or the
related Sub-Servicer) received and retained, if any, in connection with the
liquidation of any defaulted Mortgage Loan, by foreclosure, deed in lieu of
foreclosure or otherwise ("Liquidation Proceeds"), including all proceeds
of any special hazard insurance policy, bankruptcy bond, mortgage pool
insurance policy, financial guaranty insurance policy and any title, hazard
or other insurance policy covering any Mortgage Loan in such Mortgage Pool
(together with any payments under any letter of credit, "Insurance
Proceeds") or proceeds from any alternative arrangements established in
lieu of any such insurance and described in the applicable Prospectus
Supplement, other than proceeds to be applied to the restoration of the
related property or released to the Mortgagor in accordance with the
Servicer's normal servicing procedures (such amounts, net of related
unreimbursed expenses and advances of the Servicer, "Net Liquidation
Proceeds");
(iv) any Buydown Funds (and, if applicable, investment earnings thereon)
required to be paid to Securityholders, as described below;
(v) all proceeds of any Mortgage Loan in such Trust Estate purchased (or,
in the case of a substitution, certain amounts representing a principal
adjustment) by the Servicer, the Company, the Master Servicer, any
Sub-Servicer or Originator or any other person pursuant to the terms of the
Pooling and Servicing Agreement. See "Mortgage Loan
Program--Representations by Originators," "--Assignment of Mortgage Loans"
above; and
(vi) any amounts required to be transferred from the Distribution Account
(as defined below) to the Principal and Interest Account.
In addition to the Principal and Interest Account, the Servicer shall cause
to be established and the Trustee will maintain, at the corporate trust office
of the Trustee, in the name of the Trust for the benefit of the holders of each
series of Securities, an account for the disbursement of payments on the
Mortgage Loans evidenced by each series of Securities (the "Distribution
Account"). Both the Principal and Interest Account and the Distribution Account
must be (x) maintained with a depository institution whose debt obligations at
the time of any deposit therein meet certain rating criteria, and (y) (i) an
account or accounts the deposits in which are fully insured to the limits
established by the FDIC, (ii) an account maintained at a federal savings and
loan or state banking institution, (iii) an account maintained at a principal
subsidiary of a bank holding company, (iv) an account maintained at a national
banking association, or (v) such other account or accounts acceptable to the
Rating Agency or Agencies that rated one or more classes of Securities of such
series (an "Eligible Account"). The collateral that is eligible to secure
amounts in an Eligible Account is limited to certain permitted investments
("Permitted Investments"). Permitted Investments include direct general
obligations of the United States or the obligations of any agency or
instrumentality of the United States that are fully guaranteed, Federal Funds,
certificates of deposit, time and demand deposits of any bank meeting certain
short term rating requirements described in a Pooling and Servicing Agreement,
certain investment agreements approved by the Financial Guaranty Insurer, and
commercial paper and no load mutual funds meeting certain rating requirements
described in a Pooling and Servicing Agreement. A Distribution Account may be
maintained as an interest-bearing or a non-interest-bearing account, or funds
therein may be invested in Permitted Investments as described below. The
Principal and Interest Account may contain funds relating to more than one
series of Securities as well as payments received on other mortgage loans
serviced or master serviced by the Servicer that have been deposited into the
Principal and Interest Account. The Servicer will be entitled to any interest or
other income or gain realized with respect to the funds on deposit in the
Principal and Interest Accounts.
Unless otherwise specified in the related Prospectus Supplement and Pooling
and Servicing Agreement, not later than the third day preceding each Payment
Date (the "Remittance Date"), the Servicer will withdraw from the Principal and
Interest Account and remit to the Trustee for deposit into the applicable
Distribution Account, in immediately available funds, the amount to be
distributed therefrom to Securityholders on such Payment Date. The Servicer will
remit to the Trustee for deposit into the Distribution Account the amount of any
advances made by the Servicer as described herein under "Advances," any amounts
required to be paid by the Servicer out of its own funds due to the operation of
a deductible clause in any blanket policy maintained by the Servicer to cover
hazard losses on the Mortgage Loans as described under "Hazard Insurance; Claims
Thereunder" below and any other amounts as specifically set forth in the related
Pooling and Servicing Agreement. The Trustee will cause all payments under any
36
credit enhancement such as a financial guaranty insurance policy or a letter of
credit to be deposited in the Distribution Account prior to the close of
business on the business day next preceding each Payment Date.
The portion of any payment received by the Servicer in respect of a
Mortgage Loan that is allocable to the Originator's Retained Yield generally
will be deposited into the Principal and Interest Account but will not be
deposited in the Distribution Account for the related series of Securities.
Funds on deposit in the Principal and Interest Account attributable to
Mortgage Loans underlying a series of Securities may be invested in Permitted
Investments maturing in general not later than the business day preceding the
next Payment Date. All income and gain realized from any such investment will
generally be for the account of the Servicer. Funds on deposit in the related
Distribution Account may be invested in Permitted Investments maturing, in
general, no later than the Payment Date.
With respect to each Buydown Mortgage Loan, the Sub-Servicer will deposit
the related Buydown Funds provided to it in a Buydown Account that will comply
with the requirements set forth herein with respect to a Sub-Servicing Account.
The terms of all Buydown Mortgage Loans provide for the contribution of Buydown
Funds in an amount equal to or exceeding either (i) the total payments to be
made from such funds pursuant to the related buydown plan or (ii) if such
Buydown Funds are to be deposited on a discounted basis, that amount of Buydown
Funds which, together with investment earnings thereon at a rate as set forth in
the Company's Guidelines from time to time, will support the scheduled level of
payments due under the Buydown Mortgage Loan. Neither the Servicer nor the
Company will be obligated to add to any such discounted Buydown Funds any of its
own funds should investment earnings prove insufficient to maintain the
scheduled level of payments. To the extent that any such insufficiency is not
recoverable from the Mortgagor or, in an appropriate case, from the related
Originator or the related Sub-Servicer, distributions to Securityholders may be
affected. With respect to each Buydown Mortgage Loan, the Sub-Servicer will
withdraw from the Buydown Account and remit to the Servicer on or before the
date specified in the Sub-Servicing Agreement described above the amount, if
any, of the Buydown Funds (and, if applicable, investment earnings thereon) for
each Buydown Mortgage Loan that, when added to the amount due from the Mortgagor
on such Buydown Mortgage Loan, equals the full monthly payment which would be
due on the Buydown Mortgage Loan if it were not subject to the buydown plan.
If the Mortgagor on a Buydown Mortgage Loan prepays such Mortgage Loan in
its entirety during the Buydown Period, the Sub-Servicer will withdraw from the
Buydown Account and remit to the Mortgagor or such other designated party in
accordance with the related buydown plan any Buydown Funds remaining in the
Buydown Account. If a prepayment by a Mortgagor during the Buydown Period
together with Buydown Funds will result in full prepayment of a Buydown Mortgage
Loan, the Sub-Servicer will generally be required to withdraw from the Buydown
Account and remit to the Servicer the Buydown Funds and investment earnings
thereon, if any, which together with such prepayment will result in a prepayment
in full; provided that Buydown Funds may not be available to cover a prepayment
under certain Mortgage Loan programs. Any Buydown Funds so remitted to the
Servicer in connection with a prepayment described in the preceding sentence
will be deemed to reduce the amount that would be required to be paid by the
Mortgagor to repay fully the related Mortgage Loan if the Mortgage Loan were not
subject to the buydown plan. Any investment earnings remaining in the Buydown
Account after prepayment or after termination of the Buydown Period will be
remitted to the related Mortgagor or such other designated party pursuant to the
agreement relating to each Buydown Mortgage Loan (the "Buydown Agreement"). If
the Mortgagor defaults during the Buydown Period with respect to a Buydown
Mortgage Loan and the property securing such Buydown Mortgage Loan is sold in
liquidation (either by the Servicer, the Primary Insurer, the insurer under the
mortgage pool insurance policy (the "Pool Insurer") or any other insurer), the
Sub-Servicer will be required to withdraw from the Buydown Account the Buydown
Funds and all investment earnings thereon, if any, and remit the same to the
Servicer or, if instructed by the Servicer, pay the same to the Primary Insurer
or the Pool Insurer, as the case may be, if the Mortgaged Property is
transferred to such insurer and such insurer pays all of the loss incurred in
respect of such default.
Withdrawals from the Principal and Interest Account
The Servicer may, from time to time, make withdrawals from the Principal
and Interest Account for certain purposes, as specifically set forth in the
related Pooling and Servicing Agreement, which generally will include the
following except as otherwise provided therein:
(i) to effect the timely remittance to the Trustee for deposit to the
Distribution Account in the amounts and in the manner provided in the
Pooling and Servicing Agreement and described in "--Payments on Mortgage
Loans; Deposits to Distribution Account" above;
(ii) to reimburse itself or any Sub-Servicer for Delinquency Advances or
Servicing Advances as to any Mortgaged Property, out of late payments or
collections on the related Mortgage Loan with respect to which such
Delinquency Advances or Servicing Advances were made;
37
(iii) to withdraw investment earnings on amounts on deposit in the
Principal and Interest Account;
(iv) to pay the Company or its assignee all amounts allocable to the
Originator's Retained Yield out of collections or payments which represent
interest on each Mortgage Loan (including any Mortgage Loan as to which
title to the underlying Mortgaged Property was acquired);
(v) to withdraw amounts that have been deposited in the Principal and
Interest Account in error; and
(vi) to clear and terminate the Principal and Interest Account in
connection with the termination of the Trust Estate pursuant to the Pooling
and Servicing Agreement, as described in "The Pooling and Servicing
Agreement--Termination, Retirement of Securities."
Distributions
Beginning on the Payment Date in the month following the month (or, in the
case of quarterly-pay Securities, the third month following such month and each
third month thereafter or, in the case of semi-annually-pay Securities, the
sixth month following such month and each sixth month thereafter) in which the
Cut-Off Date occurs (or such other date as may be set forth in the related
Prospectus Supplement) for a series of Securities, distributions of principal
and interest (or, where applicable, of principal only or interest only) on each
class of Securities entitled thereto will be made either by the Trustee or a
paying agent appointed by the Trustee (the "Paying Agent"), to the persons who
are registered as the Securityholders of such Securities at the close of
business as of the last day of the preceding month (the "Record Date") in
proportion to their respective Percentage Interests. Interest that accrues and
is not payable on a class of Securities will generally be added to the principal
balance of each Security of such class in proportion to its Percentage Interest.
The undivided percentage interest (the "Percentage Interest") represented by a
Security of a particular class will be equal to the percentage obtained by
dividing the initial principal balance or notional amount of such Security by
the aggregate initial amount or notional balance of all the Securities of such
class. Distributions will be made in immediately available funds (by wire
transfer or otherwise) to the account of a Securityholder at a bank or other
entity having appropriate facilities therefor, if such Securityholder has so
notified the Trustee or the Paying Agent, as the case may be, and the applicable
Pooling and Servicing Agreement provides for such form of payment, or by check
mailed to the address of the person entitled thereto as it appears on the
Security Register; provided, however, that the final distribution in retirement
of the Securities (other than any Book-Entry Securities) will be made only upon
presentation and surrender of the Securities at the office or agency of the
Trustee specified in the notice to Securityholders of such final distribution.
Principal and Interest on the Securities
The method of determining, and the amount of, distributions of principal
and interest (or, where applicable, of principal only or interest only) on a
particular series of Securities will be described in the related Prospectus
Supplement. Each class of Securities (other than certain classes of Strip
Securities) may bear interest at a different interest rate (the "Pass-Through
Rate"), which may be a fixed or adjustable Pass-Through Rate. The related
Prospectus Supplement will specify the Pass-Through Rate for each class, or in
the case of an adjustable Pass-Through Rate, the initial Pass-Through Rate and
the method for determining the Pass-Through Rate. Interest on the Securities
generally will be calculated either on the basis of a 360-day year consisting of
twelve 30-day months or, in the case of certain Securities bearing an adjustable
Pass-Through Rate, on the basis of the actual number of days elapsed in the
period for which interest is being paid, divided by 360.
On each Payment Date for a series of Securities, the Trustee will
distribute or cause the Paying Agent to distribute, as the case may be, to each
holder of record on the Record Date of a class of Securities, an amount equal to
the Percentage Interest represented by the Security held by such holder
multiplied by such class' Distribution Amount. The Distribution Amount for a
class of Securities for any Payment Date will be the portion, if any, of the
Principal Distribution Amount (as defined in the related Prospectus Supplement)
allocable to such class for such Payment Date, as described in the related
Prospectus Supplement, plus, if such class is entitled to payments of interest
on such Payment Date, the interest accrued at the applicable Pass-Through Rate
on the principal balance or notional amount of such class, as specified in the
applicable Prospectus Supplement, less the amount of any Deferred Interest added
to the principal balance of the Mortgage Loans and/or the outstanding balance of
one or more classes of Securities on the related Due Date, allocable to
Securityholders which are not covered by advances or the applicable credit
enhancement, in each case in such amount that is allocated to such class on the
basis set forth in the Prospectus Supplement.
As may be described in the related Prospectus Supplement, the related
Pooling and Servicing Agreement may provide that all or a portion of the
principal collected on or with respect to the related Mortgage Loans may be
applied by the related Trustee to the acquisition of additional Mortgage Loans
during a specified period (rather than used to fund payments of principal to
Securityholders during such period) with the result that the related securities
will possess an interest-only period, also commonly referred to as a revolving
period, which will be followed by an amortization period. Any such interest-only
or revolving period may, upon the occurrence of certain events to be described
in the related
38
Prospectus Supplement, terminate prior to the end of the specified period and
result in the earlier than expected amortization of the related Securities.
In addition, and as may be described in the related Prospectus Supplement,
the related Pooling and Servicing Agreement may provide that all or a portion of
such collected principal may be retained by the Trustee (and held in certain
temporary investments, including Mortgage Loans) for a specified period prior to
being used to fund payments of principal to Securityholders.
In the case of a series of Securities that includes two or more classes of
Securities, the timing, sequential order, priority of payment or amount of
distributions in respect of principal, and any schedule or formula or other
provisions applicable to the determination thereof (including distributions
among multiple classes of Senior Securities or Subordinate Securities) of each
such class shall be as provided in the related Prospectus Supplement.
Distributions in respect of principal of any class of Securities will be made on
a pro rata basis among all of the Securities of such class.
Except as otherwise provided in the related Pooling and Servicing
Agreement, on or prior to the 15th day (or if such day is not a business day,
the next succeeding business day or such other date specified in the Pooling and
Servicing Agreement) of the month of distribution (the "Determination Date"),
the Servicer will provide the Trustee, (and the Master Servicer and Credit
Enhancer, if any) with a monthly servicing report. Except as otherwise provided
in the related Pooling and Servicing Agreement, on or prior to one business day
after the related Remittance Date (or such earlier or later day as shall be
agreed by a Financial Guaranty Insurer, if applicable, and Trustee) of the month
of distribution, the Trustee will use the monthly servicing report to determine
the amounts of principal and interest which will be passed through to
Securityholders on the immediately succeeding Payment Date. If the amount in the
Principal and Interest Account is insufficient to cover the amount to be passed
through to Securityholders, no later than 12:00 noon New York City time on the
second business day preceding a Payment Date, the Trustee will notify a
Financial Guaranty Insurer or any other person required to be notified pursuant
to the related Pooling and Servicing Agreement.
Advances
Unless otherwise specified in the related Prospectus Supplement, the
Servicer is required, not later than each Remittance Date, to deposit into the
Principal and Interest Account an amount equal to the sum of the scheduled
interest and principal payments (net of the Servicing Fees and certain
administrative amounts) due, but not collected, with respect to delinquent
Mortgage Loans during the prior Remittance Period, but only if, in its good
faith business judgment, the Servicer believes that such amount will ultimately
be recovered from the related Mortgage Loan. Such amounts are "Delinquency
Advances." The Servicer will be permitted to fund its payment of Delinquency
Advances on any Remittance Date from collections on any Mortgage Loan deposited
to the Principal and Interest Account subsequent to the related Remittance
Period and will be required to deposit into the Principal and Interest Account
with respect thereto (i) collections from the Mortgagor whose delinquency gave
rise to the shortfall which resulted in such Delinquency Advance and (ii) Net
Liquidation Proceeds recovered on account of the related Mortgage Loan to the
extent of the amount of aggregate Delinquency Advances related thereto.
A Mortgage Loan is "delinquent" if any payment due thereon is not made by
the close of business on the day such payment is scheduled to be due.
Generally, on or prior to each Remittance Date, the Servicer will be
required to deposit in the Principal and Interest Account with respect to any
full prepayment received on a Mortgage Loan during the related Remittance Period
out of its own funds without any right of reimbursement therefor, an amount
equal to the difference between (x) 30 days' interest at the Mortgage Loan's
Mortgage Rate (less the Servicing Fee and certain miscellaneous administrative
amounts) on the loan balance of such Mortgage Loan as of the first day of the
related Remittance Period and (y) to the extent not previously advanced, the
interest (less the Servicing Fee and certain miscellaneous administrative
amounts) paid by the Mortgagor with respect to the Mortgage Loan during such
Remittance Period (any such amount paid by the Servicer, "Compensating
Interest"). The Servicer shall in no event be required to pay Compensating
Interest with respect to any Remittance Period in an amount in excess of the
aggregate Servicing Fee received by the Servicer with respect to all Mortgage
Loans for such Remittance Period.
The Servicer will be required to pay all "out of pocket" costs and expenses
incurred in the performance of its servicing obligations, but only to the extent
that the Servicer reasonably believes that such amounts will increase Net
Liquidation Proceeds on the related Mortgage Loan. Each such amount so paid will
constitute a "Servicing Advance." The Servicer may 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 realized upon the liquidation of the related Mortgage Loan. In no case
may the Servicer recover Servicing Advances from the principal and interest
payments on any Mortgage Loan or from any amounts relating to any other Mortgage
Loan.
Notwithstanding the foregoing, if the Servicer exercises its option, if
any, to purchase the assets of a Trust Estate as described under "The Pooling
and Servicing Agreement--Termination; Retirement of Securities" below, the
39
Servicer will be deemed to have been reimbursed for all related advances
previously made by it and not theretofore reimbursed to it. The Servicer's
obligation to make advances may be supported by credit enhancement as described
in the related Pooling and Servicing Agreement. In the event that the provider
of such support is downgraded by a Rating Agency rating the related Securities
or if the collateral supporting such obligation is not performing or is removed
pursuant to the terms of any agreement described in the related Prospectus
Supplement, the Securities may also be downgraded.
Reports to Securityholders
With each distribution to Securityholders of a particular class the Trustee
will forward or cause to be forwarded to each holder of record of such class of
Securities a statement or statements with respect to the related Trust setting
forth the information specifically described in the related Pooling and
Servicing Agreement, which generally will include the following as applicable
except as otherwise provided therein:
(i) the amount of the distribution with respect to each class of
Securities;
(ii) the amount of such distribution allocable to principal, separately
identifying the aggregate amount of any prepayments or other recoveries of
principal included therein;
(iii) the amount of such distribution allocable to interest;
(iv) the aggregate unpaid Principal Balance of the Mortgage Loans after
giving effect to the distribution of principal on such Payment Date;
(v) with respect to a series consisting of two or more classes, the
outstanding principal balance or notional amount of each class after giving
effect to the distribution of principal on such Payment Date;
(vi) the amount of coverage under any letter of credit, mortgage pool
insurance policy or other form of credit enhancement covering default risk
as of the close of business on the applicable Determination Date and a
description of any credit enhancement substituted therefor;
(vii) information furnished by the Company pursuant to section
6049(d)(7)(C) of the Code and the regulations promulgated thereunder to
assist Securityholders in computing their market discount;
(viii) the total of any Substitution Amounts and any Loan Purchase Price
amounts included in such distribution; and
(ix) a number with respect to each class (the "Pool Factor") computed by
dividing the principal balance of all certificates in such class (after
giving effect to any distribution of principal to be made on such Payment
Date) by the original principal balance of certificates of such class on
the Closing Date.
Items (i) through (iii) above shall, with respect to each class of
Securities, be presented on the basis of a certificate having a $1,000
denomination. In addition, by January 31 of each calendar year following any
year during which Securities are outstanding, the Trustee shall furnish a report
to each Securityholder of record at any time during each calendar year as to the
aggregate amounts reported pursuant to (i), (ii) and (iii) with respect to the
Securities for such calendar year. If a class of Securities are in book-entry
form, DTC will supply such reports to the Securityholders in accordance with its
procedures.
In addition, on each Payment Date the Trustee will forward or cause to be
forwarded additional information, as of the close of business on the last day of
the prior calendar month, as more specifically described in the related Pooling
and Servicing Agreement, which generally will include the following as
applicable except as otherwise provided therein:
(i) the total number of Mortgage Loans and the aggregate principal
balances thereof, together with the number, percentage and aggregate
principal balances of Mortgage Loans (a) 30-59 days delinquent, (b) 60-89
days delinquent and (c) 90 or more days delinquent;
(ii) the number, percentage, aggregate Mortgage Loan balances and
status of all Mortgage Loans in foreclosure proceedings (and whether any
such Mortgage Loans are also included in any of the statistics described in
the foregoing clause (i));
(iii) the number, percentage and aggregate Mortgage Loan balances
of all Mortgage Loans relating to Mortgagors in bankruptcy proceedings (and
whether any such Mortgage Loans are also included in any of the statistics
described in the foregoing clause (i));
40
(iv) the number, percentage and aggregate Mortgage Loan balances
of all Mortgage Loans relating to the status of any Mortgaged Properties as
to which title has been taken in the name of, or on behalf of the Trustee
(and whether any such Mortgage Loans are also included in any of the
statistics described in the foregoing clause (i)); and
(v) the book value of any real estate acquired through foreclosure
or grant of a deed in lieu of foreclosure.
Each Pooling and Servicing Agreement shall provide that the Securityholders
will have the right to request a Securityholder list. Any Securityholder in a
Trust may apply in writing to the related Trustee, and such application shall
state that the Securityholder desires to communicate with other Securityholders
with respect to their rights under the related Pooling and Servicing Agreement.
Such written request shall be accompanied by a copy of the communication which
such Securityholder proposes to transmit to other Securityholders. The Trustee
shall furnish such Securityholder list to such requesting Securityholder within
ten business days after receipt of the application.
Collection and Other Servicing Procedures
Acting directly or through one or more Sub-Servicers as provided in the
related Pooling and Servicing Agreement, the Servicer, is required to service
and administer the Mortgage Loans in accordance with the Pooling and Servicing
Agreement and with reasonable care, and using that degree of skill and attention
that the Servicer exercises with respect to comparable mortgage loans that it
services for itself or others.
The duties of the Servicer include collecting and posting of all payments,
responding to inquiries of Mortgagors or by federal, state or local government
authorities with respect to the Mortgage Loans, investigating delinquencies,
reporting tax information to Mortgagors in accordance with its customary
practices and accounting for collections and furnishing monthly and annual
statements to the Trustee with respect to distributions and making Delinquency
Advances and Servicing Advances. The Servicer is required to follow its
customary standards, policies and procedures in performing its duties as
Servicer.
The Servicer (i) is authorized and empowered to execute and deliver, on
behalf of itself, the Securityholders and the Trustee or any of them, any and
all instruments of satisfaction or cancellation, or of partial or full release
or discharge and all other comparable instruments, with respect to the Mortgage
Loans and with respect to the related Mortgaged Properties; (ii) may consent to
any modification of the terms of any Note not expressly prohibited by the
Pooling and Servicing Agreement if the effect of any such modification (x) will
not materially and adversely affect the security afforded by the related
Mortgaged Property (other than as permitted by the related Pooling and Servicing
Agreement) or the timing of receipt of any payments required thereunder; and (y)
will not cause a Trust which is a REMIC to fail to qualify as a REMIC.
The related Pooling and Servicing Agreement will require the Servicer to
follow such collection procedures as it follows from time to time with respect
to mortgage loans in its servicing portfolio that are comparable to the Mortgage
Loans; provided that the Servicer is required always at least to follow
collection procedures that are consistent with or better than standard industry
practices. The Servicer may in its discretion (i) waive any assumption fees,
late payment charges, charges for checks returned for insufficient funds,
prepayment fees, if any, or the fees which may be collected in the ordinary
course of servicing the Mortgage Loans, (ii) if a Mortgagor is in default or
about to be in default because of a Mortgagor's financial condition, arrange
with the Mortgagor a schedule for the payment of delinquent payments due on the
related Mortgage Loan; provided, however, the Servicer shall not reschedule the
payment of delinquent payments more than one time in any twelve consecutive
months with respect to any Mortgagor or (iii) modify payments of monthly
principal and interest on any Mortgage Loan becoming subject to the terms of the
Relief Act in accordance with the Servicer's general policies for comparable
mortgage loans subject to the Relief Act.
The Servicer will be required to foreclose upon or otherwise comparably
effect the ownership on behalf of the Trust of Mortgaged Properties relating to
defaulted Mortgage Loans as to which no satisfactory arrangements can be made
for collection of delinquent payments. The related Pooling and Servicing
Agreement will require the Servicer to take into account the existence of any
hazardous substances, hazardous wastes or solid wastes, as such terms are
defined in the Comprehensive Environmental Response Compensation and Liability
Act, the Response Conservation and Recovery Act of 1976, or other federal, state
or local environmental legislation, in determining whether to foreclose upon a
Mortgaged Property, or otherwise comparably effect the ownership of such
Mortgaged Property on behalf of the Trust.
When a Mortgaged Property (other than Mortgaged Property subject to an ARM
Loan) has been or is about to be conveyed by the Mortgagor, the Servicer will be
required, to the extent it has knowledge of such conveyance or prospective
conveyance, to exercise its rights to accelerate the maturity of the related
Mortgage Loan under any "due-on-sale" clause contained in the related Mortgage
or Note; provided, however, that the Servicer will not be required to exercise
any such right if (i) the "due-on-sale" clause, in the reasonable belief of the
Servicer, is not enforceable under
41
applicable law or (ii) the Servicer reasonably believes that to permit an
assumption of the Mortgage Loan would not materially and adversely affect the
interests of Securityholders or the Financial Guaranty Insurer, if any, or
jeopardize coverage under any primary insurance policy or applicable credit
enhancement arrangements. In such event, the Servicer will be required to enter
into an assumption and modification agreement with the person to whom such
Mortgaged Property has been or is about to be conveyed, pursuant to which such
person becomes liable under the Mortgage Note and, unless prohibited by
applicable law or the related documents, the Mortgagor remains liable thereon.
If the foregoing is not permitted under applicable law, the Servicer will be
authorized to enter into a substitution of liability agreement with such person,
pursuant to which the original Mortgagor is released from liability and such
person is substituted as Mortgagor and becomes liable under the Mortgage Note.
The assumed loan must conform in all respects to the requirements,
representations and warranties of the Pooling and Servicing Agreement.
An ARM Loan may be assumed if such ARM Loan is by its terms assumable and
if, in the reasonable judgment of the Servicer or the Sub-Servicer, the proposed
transferee of the related Mortgaged Property establishes its ability to repay
the loan and the security for such ARM Loan would not be impaired by the
assumption. If a Mortgagor transfers the Mortgaged Property subject to an ARM
Loan without consent, such ARM Loan may be declared due and payable. Any fee
collected by the Servicer or Sub-Servicer for entering into an assumption or
substitution of liability agreement will be retained by the Servicer or
Sub-Servicer as additional servicing compensation unless otherwise set forth in
the related Prospectus Supplement. See "Certain Legal Aspects of Mortgage Loans
and Related Matters--Enforceability of Certain Provisions" herein.
The Servicer will have the right under the Pooling and Servicing Agreement
to approve applications of Mortgagors seeking consent for (i) partial releases
of Mortgages, (ii) alterations and (iii) removal, demolition or division of
Mortgaged Properties. No application for consent may be approved by the Servicer
unless: (i) the provisions of the related Mortgage Note and Mortgage have been
complied with; (ii) the loan-to-value ratio and debt-to-income ratio after any
release are consistent with the Company's Guidelines then applicable to such
Mortgage Loan; and (iii) the lien priority of the related Mortgage is not
affected.
Realization upon Defaulted Mortgage Loans
The Servicer shall foreclose upon or otherwise comparably effect the
ownership on behalf of the Trust of Mortgaged Properties relating to defaulted
Mortgage Loans as to which no satisfactory arrangements can be made for
collection of delinquent payments and which the Servicer has not purchased
pursuant to the related Pooling and Servicing Agreement (such Mortgage Loans,
"REO Property"). In connection with such foreclosure or other conversion, the
Servicer shall exercise such of the rights and powers vested in it under the
related Pooling and Servicing Agreement, and use the same degree of care and
skill in their exercise or use, as prudent mortgage lenders would exercise or
use under the circumstances in the conduct of their own affairs, including, but
not limited to, advancing funds for the payment of taxes, amounts due with
respect to Senior Liens and insurance premiums. Any amounts so advanced shall
constitute "Servicing Advances." Unless otherwise provided in the related
Prospectus Supplement, the Servicer shall sell any REO Property within 23 months
of its acquisition by the Trust, unless the Servicer obtains for the Trustee an
opinion of counsel experienced in federal income tax matters, addressed to the
Trustee, a Financial Guaranty Insurer, if applicable, and the Servicer, to the
effect that the holding by the Trust of such REO Property for any greater period
will not result in the imposition of taxes on "Prohibited Transactions" of the
Trust as defined in Section 860F of the Code or, if a REMIC election has been
made, cause the Trust to fail to qualify as a REMIC under the REMIC Provisions
at any time that any Securities are outstanding, in which case the Servicer
shall sell any REO Property by the end of any extended period specified in any
such opinion.
Notwithstanding the generality of the foregoing provisions, the Servicer
shall manage, conserve, protect and operate each REO Property for the
Securityholders solely for the purpose of its prompt disposition and sale in a
manner which does not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code or result in the
receipt by the Trust of any "income from non-permitted assets" within the
meaning of Section 860F(a)(2)(B) of the Code or any "net income from foreclosure
property" which is subject to taxation under the REMIC Provisions. Pursuant to
its efforts to sell such REO Property, the Servicer shall either itself or
through an agent selected by the Servicer protect and conserve such REO Property
in the same manner and to such extent as is customary in the locality where such
REO Property is located and may, incident to its conservation and protection of
the interests of the Securityholders, rent the same, or any part thereof, as the
Servicer deems to be in the best interest of the Securityholders for the period
prior to the sale of such REO Property. The Servicer shall take into account the
existence of any hazardous substances, hazardous wastes or solid wastes, as such
terms are defined in the Comprehensive Environmental Response Compensation and
Liability Act, the Resource Conservation and Recovery Act of 1976, or other
federal, state or local environmental legislation, on a Mortgaged Property in
determining whether to foreclose upon or otherwise comparably convert the
ownership of such Mortgaged Property. The Servicer shall determine, with respect
to each defaulted Mortgage Loan, when it has recovered, whether through
trustee's sale, foreclosure sale or otherwise, all amounts it expects to recover
from or on account of such defaulted Mortgage Loan, whereupon such Mortgage Loan
shall become a Liquidated Mortgage Loan.
42
If a defaulted Mortgage Loan or REO Property is not so removed from the
Trust Estate, then, upon the final liquidation thereof, if a loss is realized
that is not covered by any applicable form of credit enhancement or other
insurance, the Securityholders will bear such loss. However, if a gain results
from the final liquidation of an REO Property that is not required by law to be
remitted to the related Mortgagor, the Servicer will be entitled to retain such
gain as additional servicing compensation unless the related Prospectus
Supplement provides otherwise. For a description of the Servicer's obligations
to maintain and make claims under applicable forms of credit enhancement and
insurance relating to the Mortgage Loans, see "Description of Credit
Enhancement" and "Hazard Insurance; Claims Thereunder--Hazard Insurance
Policies."
SUBORDINATION
A Senior/Subordinate Series of Securities will consist of one or more
classes of Senior Securities and one or more classes of Subordinate Securities,
as specified in the related Prospectus Supplement. Subordination of the
Subordinate Securities of any Senior/Subordinate Series of Securities will be
effected by the following method, unless an alternative method is specified in
the related Prospectus Supplement. In addition, certain classes of Senior (or
Subordinate) Securities may be senior to other classes of Senior (or
Subordinate) Securities, as specified in the related Prospectus Supplement, in
which case the following discussion is qualified in its entirety by reference to
the related Prospectus Supplement with respect to the various priorities and
other rights as among the various classes of Senior Securities or Subordinate
Securities, as the case may be.
With respect to any Senior/Subordinate Series of Securities, the total
amount available for distribution on each Payment Date, as well as the method
for allocating such amount among the various classes of Securities included in
such series, will be as set forth in the related Prospectus Supplement.
Generally, the amount available for distribution will be allocated first to
interest on the Senior Securities of such series, and then to principal of the
Senior Securities up to the amounts determined as specified in the related
Prospectus Supplement, prior to allocation to the Subordinate Securities of such
series.
In the event of any Realized Losses (as defined below) on Mortgage Loans
not in excess of the limitations described below, other than Extraordinary
Losses, the rights of the Subordinate Securityholders to receive distributions
with respect to the Mortgage Loans will be subordinate to the rights of the
Senior Securityholders. With respect to any defaulted Mortgage Loan that becomes
a Liquidated Mortgage Loan, the amount of loss realized, if any (as more fully
described in the related Pooling and Servicing Agreement, a "Realized Loss"),
will equal the portion of the stated principal balance remaining, after
application of all amounts recovered (net of amounts reimbursable to the
Servicer for related advances and expenses) towards interest and principal owing
on the Mortgage Loan. With respect to a Mortgage Loan the principal balance of
which has been reduced in connection with bankruptcy proceedings, the amount of
such reduction will be treated as a Realized Loss.
Except as noted below, all Realized Losses will be allocated to the
Subordinate Securities of the related series, until the Principal Balance (as
defined in the related Prospectus Supplement) of such Subordinate Securities
thereof has been reduced to zero. Any additional Realized Losses will be
allocated to the Senior Securities (or, if such series includes more than one
class of Senior Securities, either on a pro-rata basis among all of the Senior
Securities in proportion to their respective outstanding Principal Balances or
as otherwise provided in the related Prospectus Supplement).
With respect to certain Realized Losses resulting from physical damage to
Mortgaged Properties that are generally of the same type as are covered under a
special hazard insurance policy, the amount thereof that may be allocated to the
Subordinate Securities of the related series may be limited to an amount (the
"Special Hazard Amount") specified in the related Prospectus Supplement. See
"Description of Credit Enhancement--Special Hazard Insurance Policies." If so,
any Special Hazard Losses in excess of the Special Hazard Amount will be
allocated among all outstanding classes of Securities of the related series,
either on a pro-rata basis in proportion to their outstanding Security Principal
Balances, regardless of whether any Subordinate Securities remain outstanding,
or as otherwise provided in the related Prospectus Supplement. The respective
amounts of other specified types of losses (including Fraud Losses and
Bankruptcy Losses) that may be borne solely by the Subordinate Securities may be
similarly limited to an amount (with respect to Fraud Losses, the "Fraud Loss
Amount" and with respect to Bankruptcy Losses, the "Bankruptcy Loss Amount"),
and the Subordinate Securities may provide no coverage with respect to certain
other specified types of losses, as described in the related Prospectus
Supplement, in which case such losses would be allocated on a pro-rata basis
among all outstanding classes of Securities.
Any allocation of a Realized Loss (including a Special Hazard Loss) to a
Security in a Senior/Subordinate Series will be made by reducing the Principal
Balance thereof as of the Payment Date following the calendar month in which
such Realized Loss was incurred.
In lieu of the foregoing provisions, subordination may be effected in the
following manner, or in any other manner described in the related Prospectus
Supplement. The rights of the holders of Subordinate Securities to receive
43
any or a specified portion of distributions with respect to the Mortgage Loans
may be subordinated to the extent of the amount set forth in the related
Prospectus Supplement (the "Subordinate Amount"). As specified in the related
Prospectus Supplement, the Subordinate Amount may be subject to reduction based
upon the amount of losses borne by the holders of the Subordinate Securities as
a result of such subordination, a specified schedule or such other method of
reduction as such Prospectus Supplement may specify. If so specified in the
related Prospectus Supplement, additional credit support for this form of
subordination may be provided by the establishment of a reserve fund for the
benefit of the holders of the Senior Securities (which may, if such Prospectus
Supplement so provides, initially be funded by a cash deposit by the Company or
the related Originator) into which certain distributions otherwise allocable to
the holders of the Subordinate Securities may be placed; such funds would
thereafter be available to cure shortfalls in distributions to holders of the
Senior Securities.
DESCRIPTION OF CREDIT ENHANCEMENT
Unless otherwise expressly provided and described in the applicable
Prospectus Supplement, each Series of Securities shall have credit support
comprised of one or more of the following components. Each component will have a
monetary limit and will provide coverage with respect to Realized Losses that
are (i) attributable to the Mortgagor's failure to make any payment of principal
or interest as required under the Mortgage Note, but not including Special
Hazard Losses, Extraordinary Losses or other losses resulting from damage to a
Mortgaged Property, Bankruptcy Losses or Fraud Losses (any such loss, a
"Defaulted Mortgage Loss"); (ii) of a type generally covered by a special hazard
insurance policy (as defined below) (any such loss, a "Special Hazard Loss");
(iii) attributable to certain actions which may be taken by a bankruptcy court
in connection with a Mortgage Loan, including a reduction by a bankruptcy court
of the principal balance of or the Mortgage Rate on a Mortgage Loan or an
extension of its maturity (any such loss, a "Bankruptcy Loss"); and (iv)
incurred on defaulted Mortgage Loans as to which there was fraud in the
origination of such Mortgage Loans (any such loss, a "Fraud Loss"). Losses
occasioned by war, civil insurrection, certain governmental actions, nuclear
reaction and certain other risks ("Extraordinary Losses") will not be covered
unless specified herein. To the extent that the credit enhancement for any
series of Securities is exhausted, the Securityholders will bear all further
risks of loss not otherwise insured against.
As set forth below and in the applicable Prospectus Supplement, 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 Subordinate Securities to provide credit support to one or more classes of
Senior Securities as described under "Subordination," (ii) the use of a mortgage
pool insurance policy, special hazard insurance policy, bankruptcy bond, reserve
fund, letter of credit, financial guaranty insurance policy, other third party
guarantees, another method of credit enhancement described in the related
Prospectus Supplement, or the use of a cross-support feature or
overcollateralization, or (iii) any combination of the foregoing. Any 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 that exceed the amount covered by credit
enhancement or 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 that
receive such distributions at a later time are more likely to bear any losses
that exceed the amount covered by credit enhancement.
The amounts and type of credit enhancement arrangement as well as the
provider thereof, if applicable, with respect to each series of Securities will
be set forth in the related Prospectus Supplement. To the extent provided in the
applicable Prospectus Supplement and the Pooling and Servicing Agreement, the
credit enhancement arrangements may be periodically modified, reduced and
substituted for based on the aggregate outstanding principal balance of the
Mortgage Loans covered thereby. See "Reduction or Substitution of Credit
Enhancement." If specified in the applicable Prospectus Supplement, credit
enhancement for a series of Securities may cover one or more other series of
Securities.
The descriptions of any insurance policies or bonds described in this
Prospectus or any Prospectus Supplement and the coverage thereunder do not
purport to be complete and are qualified in their entirety by reference to the
actual forms of such policies, copies of which are available upon request.
Letter of Credit
If any component of credit enhancement as to any series of Securities is to
be provided by a letter of credit (the "Letter of Credit"), a bank (the "Letter
of Credit Bank") will deliver to the Trustee an irrevocable Letter of Credit.
The Letter of Credit may provide direct coverage with respect to the related
Securities or, if specified in the related Prospectus Supplement, support the
Company's or any other person's obligation pursuant to a Purchase Obligation to
make certain payments to the Trustee with respect to one or more components of
credit enhancement. The Letter of Credit Bank, as well as the amount available
under the Letter of Credit with respect to each component of credit enhancement,
will be specified in the applicable Prospectus Supplement and in the related
Form 8-K. The Letter of
44
Credit will expire on the expiration date set forth in the related Prospectus
Supplement, unless earlier terminated or extended in accordance with its terms.
On or before each Payment Date, either the Letter of Credit Bank or the Company
(or other obligor under a Purchase Obligation) will be required to make the
payments specified in the related Prospectus Supplement after notification from
the Trustee, to be deposited in the related Distribution Account, if and to the
extent covered, under the applicable Letter of Credit.
Mortgage Pool Insurance Policies
Any mortgage pool insurance policy ("Mortgage Pool Insurance Policy")
obtained by the Company for each related Trust Estate will be issued by the Pool
Insurer named in the related Prospectus Supplement. Each Mortgage Pool Insurance
Policy will, subject to limitations specified in the related Prospectus
Supplement described below, cover Defaulted Mortgage Losses in an amount equal
to a percentage specified in the related Prospectus Supplement (or in a Current
Report on Form 8-K) of the aggregate principal balance of the Mortgage Loans on
the Cut-Off Date. As set forth under "Maintenance of Credit Enhancement," the
Servicer will use reasonable efforts to maintain the Mortgage Pool Insurance
Policy and to present claims thereunder to the Pool Insurer on behalf of itself,
the Trustee and the Securityholders. The Mortgage Pool Insurance Policies,
however, are not blanket policies against loss (typically, such policies do not
cover Special Hazard Losses, Fraud Losses and Bankruptcy Losses), since claims
thereunder may only be made respecting particular defaulted Mortgage Loans and
only upon satisfaction of certain conditions precedent described below due to a
failure to pay irrespective of the reason therefor.
Special Hazard Insurance Policies
Any insurance policy covering Special Hazard Losses (a "Special Hazard
Insurance Policy") obtained by the Company for a Trust will be issued by the
insurer named in the related Prospectus Supplement. Each Special Hazard
Insurance Policy will, subject to limitations described in the related
Prospectus Supplement, protect holders of the related series of Securities from
(i) losses due to direct physical damage to a Mortgaged Property other than any
loss of a type covered by a hazard insurance policy or a flood insurance policy,
if applicable, and (ii) losses from partial damage caused by reason of the
application of the co-insurance clauses contained in hazard insurance policies.
See "Hazard Insurance; Claims Thereunder." A Special Hazard Insurance Policy
will not cover Extraordinary Losses. Aggregate claims under a Special Hazard
Insurance Policy will be limited to a maximum amount of coverage, as set forth
in the related Prospectus Supplement or in a Current Report on Form 8-K. A
Special Hazard Insurance Policy will provide that no claim may be paid unless
hazard and, if applicable, flood insurance on the Mortgaged Property securing
the Mortgage Loan has been kept in force and other protection and preservation
expenses have been paid by the Servicer.
Subject to the foregoing limitations, in general a Special Hazard Insurance
Policy will provide that, where there has been damage to property securing a
foreclosed Mortgage Loan (title to which has been acquired by the insured) and
to the extent such damage is not covered by the hazard insurance policy or flood
insurance policy, if any, maintained by the Mortgagor or the Servicer or the
Sub-Servicer, the insurer will pay the lesser of (i) the cost of repair or
replacement of such property or (ii) upon transfer of the property to the
insurer, the unpaid principal balance of such Mortgage Loan at the time of
acquisition of such property by foreclosure or deed in lieu of foreclosure, plus
accrued interest at the Mortgage Rate to the date of claim settlement and
certain expenses incurred by the Servicer or the Sub-Servicer with respect to
such property. If the property is transferred to a third party in a sale
approved by the issuer of the Special Hazard Insurance Policy (the "Special
Hazard Insurer"), the amount that the Special Hazard Insurer will pay will be
the amount under (ii) above reduced by the net proceeds of the sale of the
property.
Bankruptcy Bonds
In the event of a personal bankruptcy of a Mortgagor, it is possible that
the bankruptcy court may establish the value of the Mortgaged Property of such
Mortgagor at an amount less than the then outstanding, principal balance of the
Mortgage Loan secured by such Mortgaged Property (a "Deficient Valuation"). The
amount of the secured debt then could be reduced to such value, and, thus, the
holder of such Mortgage Loan would become an unsecured creditor to the extent
the outstanding principal balance of such Mortgage Loan exceeds the value
assigned to the Mortgaged Property by the bankruptcy court. In addition, certain
other modifications of the terms of a Mortgage Loan can result from a bankruptcy
proceeding, including a reduction in the amount of the monthly payment on the
related Mortgage Loan or a reduction in the mortgage interest rate. See "Certain
Legal Aspects of Mortgage Loans and Related Matters--Anti-Deficiency Legislation
and Other Limitations on Lenders." Any bankruptcy bond ("Bankruptcy Bond") to
provide coverage for Bankruptcy Losses for proceedings under the federal
Bankruptcy Code obtained by the Company for a Trust Estate will be issued by an
insurer named in the related Prospectus Supplement. The level of coverage under
each Bankruptcy Bond will be set forth in the applicable Prospectus Supplement
or in a Current Report on Form 8-K.
45
Reserve Funds
If so provided in the related Prospectus Supplement, the Company will
deposit or cause to be deposited in an account (a "Reserve Fund") any
combination of cash, one or more irrevocable letters of credit or one or more
Permitted Investments in specified amounts, amounts otherwise distributable to
Subordinate Securityholders or the owners of any Originator's Retained Yield, or
any other instrument satisfactory to the Rating Agency or Agencies, which will
be applied and maintained in the manner and under the conditions specified in
such Prospectus Supplement. In the alternate or in addition to such deposit to
the extent described in the related Prospectus Supplement, a Reserve Fund may be
funded through application of all or a portion of amounts otherwise payable on
any related Subordinate Securities from the Originator's Retained Yield or
otherwise. In addition, with respect to any series of Securities as to which
credit enhancement includes a Letter of Credit, if so specified in the related
Prospectus Supplement, under certain circumstances the remaining amount of the
Letter of Credit may be drawn by the Trustee and deposited in a Reserve Fund.
Amounts in a Reserve Fund may be distributed to Securityholders, or applied to
reimburse the Servicer for outstanding advances or may be used for other
purposes, in the manner and to the extent specified in the related Prospectus
Supplement. Unless otherwise provided in the related Prospectus Supplement, any
such Reserve Fund will not be deemed to be part of the related Trust Estate.
Financial Guaranty Insurance Policies
If so specified in the related Prospectus Supplement, a financial guaranty
insurance policy or surety bond ("Financial Guaranty Insurance Policy") may be
obtained and maintained for each class or series of Securities. The issuer of
any Financial Guaranty Insurance Policy (a "Financial Guaranty Insurer") will be
described in the related Prospectus Supplement.
A Financial Guaranty Insurance Policy will unconditionally and irrevocably
guarantee to Securityholders that an amount equal to each full and complete
insured payment will ultimately 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 be defined in the
related Prospectus Supplement, and will generally equal the full amount of the
distributions of principal and interest to which Securityholders of one or more
classes are entitled under the related Pooling and Servicing Agreement plus any
other amounts specified therein or in the related Prospectus Supplement (the
"Insured Payment").
The specific terms of any Financial Guaranty Insurance Policy will be as
set forth in the related Prospectus Supplement. Financial Guaranty Insurance
Policies may have limitations including (but not limited to) limitations on the
insurer's obligation to guarantee the obligations of the Originators to
repurchase or substitute for any Mortgage Loans. Financial Guaranty Insurance
Policies generally will not guarantee any specified rate of prepayments or
provide funds to redeem Securities on any specified date.
Subject to the terms of the related Pooling and Servicing Agreement, the
Financial Guaranty Insurer may be subrogated to the rights of each
Securityholder to receive payments under the Securities to the extent of any
payment by such Financial Guaranty Insurer under the related Financial Guaranty
Insurance Policy.
Other Insurance, Guarantees 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 third party
guarantees, 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 contract providing limited protection
against interest rate risks.
Cross-Support
If specified in the 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 with
respect to one class of security be made with excess amounts available from
asset groups within the same Trust which support other classes of Securities.
The Prospectus Supplement for a series that includes a cross-support feature
will describe the manner and conditions for applying such cross-support feature.
If specified in the Prospectus Supplement, the coverage provided by one or
more forms of credit support may apply concurrently to two or more separate
Trusts. If applicable, the Prospectus Supplement will identify the Trusts
46
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.
Overcollateralization
If specified in the Prospectus Supplement, subordination provisions of a
Trust may be used to accelerate to a limited extent the amortization of one or
more classes of Securities relative to the amortization of the related Mortgage
Loans. The accelerated amortization is achieved by the application of certain
excess interest to the payment of principal of one or more classes of
Securities. This acceleration feature creates, with respect to the Mortgage
Loans or groups thereof, overcollateralization which results from the excess of
the aggregate principal balance of the related Mortgage Loans, or a group
thereof, over the principal balance of the related class of Securities. Such
acceleration may continue for the life of the related security or may be
limited. In the case of limited acceleration, once the required level of
overcollateralization is reached, and subject to certain provisions specified in
the related Prospectus Supplement, such limited acceleration feature may cease,
unless necessary to maintain the required level of overcollateralization.
Cross-Collateralization
If specified in the 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 that requires that distributions with
respect to one class of security be made with excess amounts available from
asset groups within the same Trust that support other classes of Securities. The
Prospectus Supplement for a series that includes a cross-support feature will
describe the manner and conditions for applying such cross-support feature.
In addition, as may be described in the related Prospectus Supplement, a
Trust Estate may include the right to receive moneys from a common pool of
credit enhancement that may be available for more than one series of Securities,
such as a master reserve account or a master insurance policy. Notwithstanding
the foregoing, no collections on any Mortgage Loans held by any Trust may be
applied to the payment of Securities issued by any other Trust (except to the
limited extent that certain collections in excess of amounts needed to pay the
related Securities may be deposited in a common, master reserve account that
provides credit enhancement for more that one series of Securities).
Maintenance of Credit Enhancement
To the extent that the applicable Prospectus Supplement does not expressly
provide for credit enhancement arrangements in lieu of some or all of the
arrangements mentioned below, the following paragraphs shall apply.
If a form of credit enhancement has been obtained for a series of
Securities, the Company or the Servicer will be obligated to exercise its best
reasonable efforts to keep or cause to be kept such form of credit support in
full force and effect throughout the term of the applicable Pooling and
Servicing Agreement, unless coverage thereunder has been exhausted through
payment of claims or otherwise, or substitution therefor is made as described
below under "Reduction or Substitution of Credit Enhancement."
In lieu of the Company's or the Servicer's obligation to maintain a
particular form of credit enhancement, the Company or the Servicer may obtain a
substitute or alternate form of credit enhancement. If the Servicer obtains such
a substitute form of credit enhancement, it will maintain and keep such form of
credit enhancement in full force and effect as provided herein. Prior to its
obtaining any substitute or alternate form of credit enhancement, the Company or
the Servicer, as the case may be, will obtain written confirmation from the
Rating Agency or Agencies that rated the related series of Securities that the
substitution or alternate form of credit enhancement for the existing credit
enhancement will not adversely affect the then current ratings assigned to such
Securities by such Rating Agency or Agencies.
The Servicer, on behalf of itself, the Trustee and Securityholders, will
provide the Trustee information required for the Trustee to draw under a Letter
of Credit or Financial Guaranty Insurance Policy, will present claims to each
Pool Insurer, to the issuer of each Special Hazard Insurance Policy or other
special hazard instrument, to the issuer of each Bankruptcy Bond and will take
such reasonable steps as are necessary to permit recovery under such Letter of
Credit, Financial Guaranty Insurance Policy, Purchase Obligation, insurance
policies or comparable coverage respecting defaulted Mortgage Loans or Mortgage
Loans which are the subject of a bankruptcy proceeding. Additionally, the
Servicer will present such claims and take such steps as are reasonably
necessary to provide for the performance by another party of its Purchase
Obligation. As set forth above, all collections by the Servicer under any
Purchase Obligation, any Mortgage Pool Insurance Policy, or any Bankruptcy Bond
and, where the related property has not been restored, any Special Hazard
Insurance Policy, are to be deposited initially in the Principal and Interest
Account and ultimately in the Distribution Account, subject to withdrawal as
described above. All draws under any Letter of Credit or Financial Guaranty
Insurance Policy will be deposited directly in the Distribution Account.
47
If any property securing a defaulted Mortgage Loan is damaged and proceeds,
if any, from the related hazard insurance policy or any applicable Special
Hazard Instrument are insufficient to restore the damaged property to a
condition sufficient to permit recovery under any applicable form of Credit
Enhancement, the Servicer is not required to expend its own funds to restore the
damaged property unless it determines (i) that such restoration will increase
the proceeds to one or more classes of Securityholders on liquidation of the
Mortgage Loan after reimbursement of the Servicer for its expenses and (ii) that
such expenses will be recoverable by it through Liquidation Proceeds or
Insurance Proceeds. If recovery under any applicable form of credit enhancement
is not available because the Servicer has been unable to make the above
determinations, has made such determinations incorrectly or recovery is not
available for any other reason, the Servicer is nevertheless obligated to follow
such normal practices and procedures (subject to the preceding sentence) as it
deems necessary or advisable to realize upon the defaulted Mortgage Loan and in
the event such determination has been incorrectly made, is entitled to
reimbursement of its expenses in connection with such restoration.
Reduction or Substitution of Credit Enhancement
The amount of credit support provided pursuant to any of the credit
enhancements (including, without limitation, a Mortgage Pool Insurance Policy,
Financial Guaranty Insurance Policy, Special Hazard Insurance Policy, Bankruptcy
Bond, Letter of Credit or any alterative form of credit enhancement) may be
reduced under certain specified circumstances. In addition, if provided in the
related Prospectus Supplement, any formula used in calculating the amount or
degree of credit enhancement may be changed without the consent of the
Securityholders upon written confirmation from each Rating Agency then rating
the Securities that such change will not adversely affect the then-current
rating or ratings assigned to the Securities. In most cases, the amount
available pursuant to any credit enhancement will be subject to periodic
reduction in accordance with a schedule or formula on a nondiscretionary basis
pursuant to the terms of the related Pooling and Servicing Agreement as the
aggregate outstanding principal balance of the Mortgage Loans declines.
Additionally, in certain cases, such credit support (and any replacements
therefor) may be replaced, reduced or terminated upon the written assurance from
each applicable Rating Agency that the then current rating of the related series
of Securities will not be adversely affected. Furthermore, in the event that the
credit rating of any obligor under any applicable credit enhancement is
downgraded, the credit rating of the related Securities may be downgraded to a
corresponding level, and, neither the Company nor the Servicer thereafter will
be obligated to obtain replacement credit support in order to restore the rating
of the Securities, and also will be permitted to replace such credit support
with other credit enhancement instruments issued by obligors whose credit
ratings are equivalent to such downgraded level and in lower amounts which would
satisfy such downgraded level, provided that the then-current rating of the
related series of Securities is maintained. Where the credit support is in the
form of a Reserve Fund, a permitted reduction in the amount of credit
enhancement will result in a release of all or a portion of the assets in the
Reserve Fund to the Company, one or more Originators, the Servicer or such other
person that is entitled thereto. Any assets so released will not be available to
fund distribution obligations in future periods.
HAZARD INSURANCE; CLAIMS THEREUNDER
Each Mortgage Loan will be required to be covered by a hazard insurance
policy (as described below). The following is only a brief description of
certain insurance policies and does not purport to summarize or describe all of
the provisions of these policies. Such insurance is subject to underwriting and
approval of individual Mortgage Loans by the respective insurers. The
descriptions of any insurance policies described in this Prospectus or any
Prospectus Supplement and the coverage thereunder do not purport to be complete
and are qualified in their entirety by reference to such forms of policies,
sample copies of which are available from the Servicer upon request.
Hazard Insurance Policies
The terms of the Mortgage Loans require each Mortgagor to maintain a hazard
insurance policy for the Mortgage Loan. Additionally, the Pooling and Servicing
Agreement will require the Servicer to cause to be maintained with respect to
each Mortgage Loan a hazard insurance policy with a generally acceptable carrier
that provides for fire and extended coverage relating to such Mortgage Loan in
an amount not less than the least of (i) the outstanding principal balance of
the Mortgage Loan, (ii) the minimum amount required to compensate for damage or
loss on a replacement cost basis or (iii) the full insurable value of the
premises.
If a Mortgage Loan at the time of origination relates to a Mortgaged
Property in an area identified in the Federal Register by the Federal Emergency
Management Agency as having special flood hazards, the Servicer will be required
to maintain with respect thereto a flood insurance policy in a form meeting the
requirements of the then-current guidelines of the Federal Insurance
Administration with a generally acceptable carrier in an amount representing
coverage, and which provides for recovery by the Servicer on behalf of the Trust
of insurance proceeds relating to such Mortgage Loan of not less than the least
of (i) the outstanding principal balance of the Mortgage Loan, (ii) the minimum
amount required to compensate for damage or loss on a replacement cost basis,
(iii) the maximum amount of insurance that is available under the Flood Disaster
Protection Act of 1973. Pursuant to the related Pooling and Servicing
48
Agreement, the Servicer will be required to indemnify the Trust out of the
Servicer's own funds for any loss to the Trust resulting from the Servicer's
failure to maintain such flood insurance.
In the event that the Servicer obtains and maintains a blanket policy
insuring against fire with extended coverage and against flood hazards on all of
the Mortgage Loans, then, to the extent such policy names the Servicer as loss
payee and provides coverage in an amount equal to the aggregate unpaid principal
balance on the Mortgage Loans without co-insurance, and otherwise complies with
the requirements of the Pooling and Servicing Agreement, the Servicer shall be
deemed conclusively to have satisfied its obligations with respect to fire and
hazard insurance coverage under the Pooling and Servicing Agreement. Such
blanket policy may contain a deductible clause, in which case the Servicer will
be required, in the event that there shall not have been maintained on the
related Mortgaged Property a policy complying with the Pooling and Servicing
Agreement, and there shall have been a loss that would have been covered by such
policy, to deposit in the Principal and Interest Account from the Servicer's own
funds the difference, if any, between the amount that would have been payable
under a policy complying with the Pooling and Servicing Agreement and the amount
paid under such blanket policy.
While the Servicer does not actively monitor the maintenance of hazard or
flood insurance by borrowers, it responds to the notices of cancellation or
expiration as joint-loss payee by requiring verification of replacement
coverage.
THE COMPANY
The Company, First Alliance Mortgage Company, was incorporated in the State
of California on May 13, 1975. The Company or its affiliates have been actively
involved in the mortgage lending business since its founding. In July 1996, the
Company became a wholly owned subsidiary of First Alliance Corporation ("FACO")
pursuant to a reorganization in connection with the initial public offering of
the Class A Common Stock of FACO. The current corporation and all of its
predecessors have been located in Orange County, California.
The Company maintains its principal office at 17305 Von Karman Avenue,
Irvine, California 92614. Its telephone number is (714) 224-8500.
THE SERVICER
With respect to each series of Securities, the related Mortgage Loans will
be serviced by First Alliance Mortgage Company acting as the Servicer or such
other Servicer as provided for in the related Pooling and Servicing Agreement.
The Prospectus Supplement for each series of Securities will specify the
Servicer for such series. An affiliate of the Company may act as the Servicer.
THE MASTER SERVICER
A Master Servicer or such other agent may be appointed pursuant to a
Pooling and Servicing Agreement and named in the related Prospectus Supplement
or Current Report on Form 8-K.
THE POOLING AND SERVICING AGREEMENT
As described above under "Description of the Securities--General," each
series of Securities will be issued pursuant to a Pooling and Servicing
Agreement as described in that section. The following summaries describe certain
additional provisions common to each Pooling and Servicing Agreement.
Servicing and Other Compensation and Payment of Expenses; Originator's Retained
Yield
The principal servicing compensation to be paid to the Servicer in respect
of its servicing activities for each series of Securities will be equal to the
percentage per annum specified in the related Prospectus Supplement or Current
Report on Form 8-K of the outstanding principal balance of the Mortgage Loans,
and such compensation will be retained by it from collections of interest on the
Mortgage Loans in the related Trust Estate (after provision has been made for
the payment of interest at the applicable Pass-Through Rate or Net Mortgage
Rate, as the case may be, to Securityholders and for the payment of any
Originator's Retained Yield) at the time such collections are deposited into the
applicable Principal and Interest Account. As compensation for its servicing
duties, the Servicer and/or a Sub-Servicer and any Master Servicer will be
entitled to a monthly servicing fee as set forth in the related Prospectus
Supplement. Certain Sub-Servicers may also receive additional compensation in
the amount of all or a portion of the interest due and payable on the applicable
Mortgage Loan which is over and above the interest rate specified at the time
the Company committed to purchase the Mortgage Loan. See "Mortgage Loan
Program--Sub-Servicing by Originators." In addition, the Servicer or a
Sub-Servicer will retain all prepayment charges, assumption fees and late
payment charges, to the extent collected from Mortgagors, and any benefit which
may accrue as a result of the investment of funds in the Principal and Interest
Account or the applicable Distribution Account or in a Sub-Servicing Account, as
the case may be.
49
The Servicer generally will pay or cause to be paid certain ongoing
expenses associated with each Trust Estate and incurred by it in connection with
its responsibilities under the Pooling and Servicing Agreement, including,
without limitation, payment of any fee or other amount payable in respect of any
alternative credit enhancement arrangements, payment of the fees and
disbursements of the Master Servicer, the Trustee, any custodian appointed by
the Trustee, the Security Registrar and any Paying Agent, and payment of
expenses incurred in enforcing the obligations of Sub-Servicers and Originators.
The Servicer may be entitled to reimbursement of expenses incurred in enforcing
the obligations of Sub-Servicers and Originators under certain limited
circumstances. In addition, as indicated in the preceding section, the Servicer
will be entitled to reimbursements for certain expenses incurred by it in
connection with Liquidated Mortgage Loans and in connection with the restoration
of Mortgaged Properties, such right of reimbursement being prior to the rights
of Securityholders to receive any related Liquidation Proceeds (including
Insurance Proceeds).
The Prospectus Supplement for a series of Securities will specify if there
will be any Originator's Retained Yield retained. Any such Originator's Retained
Yield will be a specified portion of the interest payable on each Mortgage Loan
in a Mortgage Pool. Any such Originator's Retained Yield will be established on
a loan-by-loan basis and the amount thereof with respect to each Mortgage Loan
in a Mortgage Pool will be specified on an exhibit to the related Pooling and
Servicing Agreement. Any Originator's Retained Yield in respect of a Mortgage
Loan will represent a specified portion of the interest payable thereon and will
not be part of the related Trust Estate. Any partial recovery of interest in
respect of a Mortgage Loan will be allocated between the owners of any
Originator's Retained Yield and the holders of classes of Securities entitled to
payments of interest as provided in the Prospectus Supplement and the applicable
Pooling and Servicing Agreement.
Evidence as to Compliance
The Servicer will be required to deliver to the Trustee, the Master
Servicer (if applicable), the Rating Agencies and any Credit Enhancer on or
before a specified date of each year, beginning the first such date that is at
least a specified number of months after the Cut-Off Date, an officers'
certificate stating, as to each signer thereof, that (i) a review of the
activities of the Servicer during such preceding calendar year and of
performance under the related Pooling and Servicing Agreement has been made
under such officers' supervision, and (ii) to the best of such officers'
knowledge, based on such review, the Servicer has fulfilled all its obligations
under the related Pooling and Servicing Agreement for such year, or, if there
has been a default in the fulfillment of any such obligations, specifying each
such default known to such officers and the nature and status thereof including
the steps being taken by the Servicer to remedy such defaults.
On or before the last day of a specified month of each year, beginning the
first such date that is at least a specified number of months after the Cut-Off
Date, the Servicer will be required to cause to be delivered to the Trustee, the
Master Servicer (if applicable), the Rating Agencies and any Credit Enhancer, if
applicable, a letter or letters of a firm of independent, nationally recognized
certified public accountants reasonably acceptable to the Credit Enhancer, if
applicable, stating that such firm has, with respect to the Servicer's overall
servicing operations (i) performed applicable tests in accordance with the
compliance testing procedures as set forth in Appendix 3 of the Audit Guide for
Audits of HUD Approved Nonsupervised Mortgagees or (ii) examined such operations
in accordance with the requirements of the Uniform Single Audit Program for
Mortgage Bankers, and in either case stating such firm's conclusions relating
thereto.
Removal and Resignation of the Servicer
Each Pooling and Servicing Agreement provides that the Servicer may not
resign from its obligations and duties thereunder, except in connection with a
permitted transfer of servicing, unless such duties and obligations are no
longer permissible under applicable law or are in material conflict by reason of
applicable law with any other activities of a type and nature presently carried
on by it or subject to the consent of the Master Servicer or Financial Guaranty
Insurer and the Trustee. No such resignation will become effective until the
Trustee, the Master Servicer or a successor Servicer has assumed the Servicer's
obligations and duties under the Pooling and Servicing Agreement. The Trustee,
the Master Servicer, the Financial Guaranty Insurer or the Securityholders will
have the right, pursuant to the related Pooling and Servicing Agreement, to
remove the Servicer upon the occurrence of any of (a) certain events of
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings regarding the Servicer and certain actions by the Servicer
indicating its insolvency or inability to pay its obligations; (b) the failure
of the Servicer to perform any one or more of its material obligations under the
Pooling and Servicing Agreement as to which the Servicer shall continue in
default with respect thereto for a period of sixty (60) days after notice by the
Trustee, the Master Servicer or any Financial Guaranty Insurer of said failure;
(c) the failure of the Servicer to cure any breach of any of its representations
and warranties set forth in the Pooling and Servicing Agreement which materially
and adversely affects the interests of the Securityholders or any Financial
Guaranty Insurer, if applicable, for a period of sixty (60) days after the
Servicer's discovery or receipt of notice thereof; or (d) the failure to deliver
to Trustee any proceeds or required payments.
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The Pooling and Servicing Agreement may also provide that a Financial
Guaranty Insurer may remove the Servicer, or the Master Servicer pursuant to
clause (iii) below, upon the occurrence of any of certain events including:
(i) with respect to any Payment Date, if the total available funds with
respect to the Mortgage Loans Group will be less than the related
distribution amount on the class of insured securities in respect of such
Payment Date; provided, however, that the Financial Guaranty Insurer will
have no right to remove the Servicer pursuant to the provision described in
this clause (i) if the Servicer can demonstrate to the reasonable
satisfaction of the Financial Guaranty Insurer that such event was due to
circumstances beyond the control of the Servicer;
(ii) the failure by the Servicer to make any required Servicing Advance;
(iii) the failure of the Servicer (or the Master Servicer, if applicable)
to perform one or more of its material obligations under the Pooling and
Servicing Agreement and such failure shall continue for a period of 30
days;
or
(iv) the failure by the Servicer to make any required Delinquency Advance
or to pay any Compensating Interest.
Resignation of the Master Servicer
Each applicable Pooling and Servicing Agreement provides that the Master
Servicer may not resign from its obligations and duties thereunder, unless such
duties and obligations are no longer permissible under applicable law or the
Trustee resigns. No such resignation is acceptable until a successor Master
Servicer assumes such duties and obligations.
Rights Upon Event of Default
So long as an Event of Default remains unremedied, the Trustee, the Master
Servicer or the Financial Guaranty Insurer (as provided in the related Pooling
and Servicing Agreement) may, by written notification to the Servicer, terminate
all of the rights and obligations of the Servicer under the Pooling and
Servicing Agreement (other than any rights of the Servicer as Securityholder)
covering such Trust Estate and in and to the Mortgage Loans and the proceeds
thereof, whereupon the Master Servicer, if designated in the related Pooling and
Servicing Agreement, the Trustee or, with the Financial Guaranty Insurer's
consent, its designee will succeed to all responsibilities, duties and
liabilities of the Servicer under such Pooling and Servicing Agreement (other
than the obligation to purchase Mortgage Loans under certain circumstances) and
will be entitled to similar compensation arrangements. In the event that the
Master Servicer and Trustee would be obligated to succeed the Servicer but is
unwilling or unable so to act, it may appoint, or petition a court of competent
jurisdiction for the appointment of, a FNMA-or FHLMC-approved mortgage servicing
institution with a net worth of at least $5,000,000 to act as successor to the
Servicer under the Pooling and Servicing Agreement (unless otherwise set forth
in the Pooling and Servicing Agreement). Pending such appointment, the Master
Servicer is obligated to act in such capacity.
Amendment
Each Pooling and Servicing Agreement may be amended by the Company, the
Servicer, the Master Servicer and the Trustee, with the prior approval of a
Financial Guaranty Insurer, if required, but without giving notice or the
consent of any of the holders of Securities covered by such Pooling and
Servicing Agreement, (i) to cure an ambiguity, (ii) to correct or supplement any
provision therein which may be inconsistent with any other provision therein,
(iii) to change the timing and/or nature of deposits in the Principal and
Interest Account or the Distribution Account or to change the name in which the
Principal and Interest Account is maintained to that of the Servicer alone;
provided that (a) the Remittance Date would in no event be later than the
related Payment Date, (b) such change would not adversely affect in any material
respect the interests of any Securityholder, as evidenced by an opinion of
counsel, and (c) such change would not adversely affect the then-current rating
of any rated classes of Securities, as evidenced by a letter from each
applicable Rating Agency, (iv) if a REMIC election has been made with respect to
the related Trust Estate, to modify, eliminate or add to any of its provisions
(A) to such extent as shall be necessary to maintain the qualification of the
Trust Estate as a REMIC or to avoid or minimize the risk of imposition of any
tax on the related Trust Estate, provided that the Trustee has received an
Opinion of Counsel to the effect that (1) such action is necessary or desirable
to maintain such qualifications or to avoid or minimize such risk, and (2) such
action will not adversely affect in any material respect the interests of any
holder of Securities covered by the Pooling and Servicing Agreement, or (B) to
restrict the transfer of the REMIC Residual Securities, provided that the
Company has determined that the then-current ratings of the classes of the
Securities that have been rated will not be adversely affected, as evidenced by
a letter from each applicable Rating Agency, and that any such amendment will
not give rise to any tax with respect to the transfer of the REMIC Residual
Securities to a non-permitted transferee, (v) to make any other provisions with
respect to matters or questions arising under such Pooling and Servicing
Agreement which are not materially inconsistent with the
51
provisions thereof, provided that such action will not adversely affect in any
material respect the interests of any Securityholder or (vi) to make any changes
required by law.
The Pooling and Servicing Agreement may also be amended by the Company, the
Servicer, the Master Servicer and the Trustee with the consent of the holders of
Securities of each class affected thereby evidencing, in each case, not less
than 51% of the aggregate Percentage Interests constituting such class for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of such Pooling and Servicing Agreement or of modifying in any
manner the rights of the holders of Securities covered by such Pooling and
Servicing Agreement, except that no such amendment may (i) reduce in any manner
the amount of, or delay the timing of, payments received on Mortgage Loans which
are required to be distributed on a Security of any class without the consent of
the holder of such Security or (ii) reduce the aforesaid percentage of
Securities of any class the holders of which are required to consent to any such
amendment without the consent of the holders of all Securities of such class
covered by such Pooling and Servicing Agreement then outstanding.
Notwithstanding the foregoing, if a REMIC election has been made with
respect to the related Trust Estate, the Trustee will not be entitled to consent
to any amendment to a Pooling and Servicing Agreement without having first
received an Opinion of Counsel to the effect that such amendment or the exercise
of any power granted to the Servicer, the Company or the Trustee in accordance
with such amendment will not result in the imposition of a tax on the related
Trust Estate or cause such Trust Estate to fail to qualify as a REMIC.
Each Pooling and Servicing Agreement may also be amended by the Trustee,
the Servicer, the Company or the Master Servicer at any time and from time to
time, with the prior written approval of a Financial Guaranty Insurer, if
required, and not less than a majority of the Percentage Interest represented by
each related class of Securities then outstanding, for the purpose of adding any
provisions or changing in any manner or eliminating any of the provisions of
such Pooling and Servicing Agreement or of modifying in any manner the rights of
the Securityholders thereunder; provided, however, that no such amendment shall
(a) change in any manner the amount of, or delay the timing of, payments which
are required to be distributed to any Securityholders without the consent of the
holder of such Security or (b) change the aforesaid percentages of Percentage
Interest which are required to consent to any such amendments, without the
consent of the holders of all Securities of the class or classes affected then
outstanding.
Termination; Retirement of Securities
Each Pooling and Servicing Agreement will provide that a Trust will
terminate upon the earlier of (i) the payment to the Securityholders of all
Securities issued by the Trust from amounts other than those available under, if
applicable, a Financial Guaranty Insurance Policy of all amounts required to be
paid to such Securityholders upon the later to occur of (a) the final payment or
other liquidation (or any advance made with respect thereto) of the last
Mortgage Loan in the Trust Estate or (b) the disposition of all property
acquired in respect of any Mortgage Loan remaining in the Trust Estate, (ii) any
time when a Qualified Liquidation (as defined in the Code) of the Trust Estate
is effected. In no event, however, will the trust created by the Pooling and
Servicing Agreement continue beyond the expiration of 21 years from the death of
the survivor of certain persons named in such Pooling and Servicing Agreement.
Written notice of termination of the Pooling and Servicing Agreement will be
given to each Securityholder, and the final distribution will be made only upon
surrender and cancellation of the Securities at an office or agency appointed by
the Trustee that will be specified in the notice of termination. If the
Securityholders are permitted to terminate the trust under the applicable
Pooling and Servicing Agreement, a penalty may be imposed upon the
Securityholders based upon the fee that would be foregone by the Servicer
because of such termination. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Securityholder, and the final
distribution will be made only upon surrender and cancellation of the Securities
at an office or agency appointed by the Trustee that will be specified in the
notice of termination. If the Securityholders are permitted to terminate the
trust under the applicable Pooling and Servicing Agreement, a penalty may be
imposed upon the Securityholders based upon the fee that would be foregone by
the Servicer because of such termination.
Any purchase of Mortgage Loans and property acquired in respect of Mortgage
Loans evidenced by a series of Securities shall be made at the option of the
Servicer, the Company or, if applicable, the holder of the REMIC Residual
Securities at the price specified in the related Prospectus Supplement. The
exercise of such right will effect earlier than expected retirement of the
Securities of that series, but the right of the Servicer, the Company or, if
applicable, such holder to so purchase is, unless otherwise specified in the
applicable Prospectus Supplement, subject to the aggregate principal balance of
the Mortgage Loans for that series as of any Remittance Date being less than the
percentage specified in the related Prospectus Supplement of the aggregate
principal balance of the Mortgage Loans at the Cut-Off Date for that series. The
Prospectus Supplement or Form 8-K for each series of Securities will set forth
the amounts that the holders of such Securities will be entitled to receive upon
such earlier than expected retirement. If a REMIC election has been made, the
termination of the related Trust Estate will be effected in a manner consistent
with applicable federal income tax regulations and its status as a REMIC.
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The Trustee
The Trustee under each Pooling and Servicing Agreement will be named in the
related Prospectus Supplement. The commercial bank or trust company serving as
Trustee may have normal banking relationships with the Company and/or its
affiliates.
The Trustee may resign at any time, in which event the Company will be
obligated to appoint a successor Trustee. The Company may also remove the
Trustee if the Trustee ceases to be eligible to continue as such under the
Pooling and Servicing Agreement or if the Trustee becomes insolvent. Upon
becoming aware of such circumstances, the Company will be obligated to appoint a
successor Trustee. The Trustee may also be removed at any time by the holders of
Securities evidencing not less than 51% of the aggregate undivided interests
(or, if so specified in the related Prospectus Supplement, voting rights) in the
related Trust Estate or by the related Financial Guaranty Insurer or Credit
Enhancer, if any. 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.
YIELD CONSIDERATIONS
The yield to maturity of a Security will depend on the price paid by the
holder for such Security, the Pass-Through Rate on any such Security entitled to
payments of interest (which Pass-Through Rate may vary if so specified in the
related Prospectus Supplement) and the rate of payment of principal on such
Security (or the rate at which the notional amount thereof is reduced if such
Security is not entitled to payments of principal) and other factors.
Each month the interest payable on an actuarial type of Mortgage Loan will
be calculated as one-twelfth of the applicable Mortgage Rate multiplied by the
principal balance of such Mortgage Loan outstanding as of a specified day,
usually the first day of the month prior to the month in which the Payment Date
for the related series of Securities occurs, after giving effect to the payment
of principal due on such day, subject to any Deferred Interest. With respect to
date of payment Mortgage Loans, interest is charged to the Mortgagor at the
Mortgage Rate on the outstanding principal balance of such Note and calculated
based on the number of days elapsed between receipt of the Mortgagor's last
payment through receipt of the Mortgagor's most current payments. The amount of
such payments with respect to each Mortgage Loan distributed (or accrued in the
case of Deferred Interest or Accrual Securities) either monthly, quarterly or
semi-annually to holders of a class of Securities entitled to payments of
interest will be similarly calculated on the basis of such class specified
percentage of each such payment of interest (or accrual in the case of Accrual
Securities) and will be expressed as a fixed, adjustable or variable
Pass-Through Rate payable on the outstanding principal balance or notional
amount of such Security, calculated as described herein and in the related
Prospectus Supplement. Holders of Strip Securities or a class of Securities
having a fixed Pass-Through Rate that varies based on the weighted average
Mortgage Rate of the underlying Mortgage Loans will be affected by
disproportionate prepayments and repurchases of Mortgage Loans having higher Net
Mortgage Rates or rates applicable to the Strip Securities, as applicable.
The effective yield to maturity to each holder of fixed-rate Securities
entitled to payments of interest will be below that otherwise produced by the
applicable Pass-Through Rate and purchase price of such Security because, while
interest will accrue on each Mortgage Loan from the first day of each month, the
distribution of such interest will be made on the 20th day (or, if such day is
not a business day, the next succeeding business day) of the month (or, in the
case of quarterly-pay Securities, the twentieth day of every third month, or, in
the case of semi-annually-pay Securities, the twentieth day of every sixth
month) following the month of accrual.
A class of Securities may be entitled to payments of interest at a fixed
Pass-Through Rate specified in the related Prospectus Supplement, a variable
Pass-Through Rate or adjustable Pass-Through Rate calculated based on the
weighted average of the Mortgage Rates (net of Servicing Fees and any
Originator's Retained Yield (each, a "Net Mortgage Rate")) of the related
Mortgage Loans for the designated periods preceding the Payment Date if so
specified in the related Prospectus Supplement, or at such other variable rate
as may be specified in the related Prospectus Supplement.
As will be described in the related Prospectus Supplement, the aggregate
payments of interest on a class of Securities, and the yield to maturity
thereon, will be effected by the rate of payment of principal on the Securities
(or the rate of reduction in the notional balance of Securities entitled only to
payments of interest) and, in the case of Securities evidencing interests in ARM
Loans, by changes in the Net Mortgage Rates on the ARM Loans. See "Maturity and
Prepayment Considerations" below. The yield on the Securities also will be
effected by liquidations of Mortgage Loans following Mortgagor defaults and by
purchases of Mortgage Loans required by the Pooling and Servicing Agreement in
the event of breaches of representations made in respect of such Mortgage Loans
by the Company, the Originators, the Servicer and others, or repurchases due to
conversions of ARM Loans to a fixed interest rate. See "Mortgage Loan
Program--Representations by Originators" and "Descriptions of the
Securities--Assignment of Mortgage Loans" above. In general, if a class of
Securities is purchased at initial issuance at a premium and payments of
principal on the related Mortgage Loans occur at a rate faster than anticipated
at the time of purchase, the purchaser's
53
actual yield to maturity will be lower than that assumed at the time of
purchase. Conversely, if a class of Securities is purchased at initial issuance
at a discount and payments of principal on the related Mortgage Loans occur at a
rate slower than that assumed at the time of purchase, the purchaser's actual
yield to maturity will be lower than that originally anticipated. The effect of
principal prepayments, liquidations and purchases on yield will be particularly
significant in the case of a series of Securities having a class entitled to
payments of interest only or to payments of interest that are disproportionately
high relative to the principal payments to which such class is entitled. Such a
class will likely be sold at a substantial premium to its principal balance, if
any, and any faster than anticipated rate of prepayments will adversely affect
the yield to holders thereof. In certain circumstances, rapid prepayments may
result in the failure of such holders to recoup their original investment. In
addition, the yield to maturity on certain other types of classes of Securities,
including Accrual Securities or certain other classes in a series including more
than one class of Securities, may be relatively more sensitive to the rate of
prepayment on the related Mortgage Loans than other classes of Securities.
The timing of changes in the rate of principal payments on or repurchases
of the Mortgage Loans may significantly affect an investor's actual yield to
maturity, even if the average rate of principal payments experienced over time
is consistent with an investor's expectation. In general, the earlier a
prepayment of principal on the underlying Mortgage Loans or a repurchase
thereof, the greater will be the effect on an investor's yield to maturity. As a
result, the effect on an investor's yield of principal payments and repurchases
occurring at a rate higher (or lower) than the rate anticipated by the investor
during the period immediately following the issuance of a series of Securities
would not be fully offset by a subsequent like reduction (or increase) in the
rate of principal payments.
When a full prepayment is made on a Mortgage Loan, the Mortgagor is charged
interest on the principal amount of the Mortgage Loan so prepaid for the number
of days in the month actually elapsed up to the date of the prepayment, at a
daily rate determined by dividing the Mortgage Rate by 365. The effect of
prepayments in full will be to reduce the amount of interest paid in the next
succeeding month to holders of Securities entitled to payments of interest
because interest on the principal amount of any Mortgage Loan so prepaid will be
paid only to the date of prepayment rather than for a full month. A partial
prepayment of principal is applied so as to reduce the outstanding principal
balance of the related Mortgage Loan as of the first day of the month in which
such partial prepayment is received. As a result, unless otherwise specified in
the related Prospectus Supplement, the effect of a partial prepayment on a
Mortgage Loan will be to reduce the amount of interest passed through to holders
of Securities on the Payment Date following the receipt of such partial
prepayment by an amount equal to one month's interest at the applicable
Pass-Through Rate or Net Mortgage Rate, as the case may be, on the prepaid
amount. With respect to amounts due the Servicer from Sub-Servicers in respect
of partial principal prepayments, see "Description of the Securities--Payment on
Mortgage Loans; Deposits to Distribution Account." Neither full nor partial
principal prepayments are passed through until the month following receipt. See
"Maturity and Prepayment Considerations."
The Mortgage Rates on certain ARM Loans subject to negative amortization
adjust monthly and their amortization schedules adjust less frequently. During a
period of rising interest rates as well as immediately after origination
(initial Mortgage Rates are generally lower than the sum of the indices
applicable at origination and the related Note Margins) the amount of interest
accruing on the principal balance of such Mortgage Loans may exceed the amount
of the minimum scheduled monthly payment thereon. As a result, a portion of the
accrued interest on negatively amortizing Mortgage Loans may become Deferred
Interest that will be added to the principal balance thereof and will bear
interest at the applicable Mortgage Rate. The addition of any such Deferred
Interest to the principal balance will lengthen the weighted average life of the
Securities evidencing interests in such Mortgage Loans and may adversely affect
yield to holders thereof depending upon the price at which such Securities were
purchased. In addition, with respect to certain ARM Loans subject to negative
amortization, during a period of declining interest rates, it might be expected
that each minimum scheduled monthly payment on such a Mortgage Loan would exceed
the amount of scheduled principal and accrued interest on the principal balance
thereof, and since such excess will be applied to reduce such principal balance,
the weighted average life of such Securities will be reduced and may adversely
affect yield to holders thereof depending upon the price at which such
Securities were purchased.
For each Mortgage Pool, if all necessary advances are made, if there is no
unrecoverable loss on any Mortgage Loan and if the related Credit Enhancer is
not in default under its obligations or other credit enhancement has not been
exhausted, the net effect of each distribution respecting interest will be to
pass-through to each holder of a class of Securities entitled to payments of
interest an amount which is equal to one month's interest (or, in the case of
quarterly-pay Securities, three month's interest or, in the case of
semi-annually-pay Securities, six month's interest) at the applicable
Pass-Through Rate on such class' principal balance or notional balance, as
adjusted downward to reflect any decrease in interest caused by any principal
prepayments and the addition of any Deferred Interest to the principal balance
of any Mortgage Loan "Description of the Securities--Principal and Interest on
the Securities."
With respect to certain of the ARM Loans, the Mortgage Rate at origination
may be below the rate that would result if the index and margin relating thereto
were applied at origination. Under the Company's underwriting standards, the
Mortgagor under each Mortgage Loan will be qualified on the basis of the
Mortgage Rate in effect at origination.
54
The repayment of any such Mortgage Loan may thus be dependent on the ability of
the Mortgagor to make larger level monthly payments following the adjustment of
the Mortgage Rate.
MATURITY AND PREPAYMENT CONSIDERATIONS
As indicated above under "The Mortgage Pools," the original terms to
maturity of the Mortgage Loans in a given Mortgage Pool will vary depending upon
the type of Mortgage Loans included in such Mortgage Pool. The Prospectus
Supplement for a series of Securities will contain information with respect to
the types and maturities of the Mortgage Loans in the related Mortgage Pool.
Generally, all of the Mortgage Loans may be prepaid without penalty in full or
in part at any time. The prepayment experience with respect to the Mortgage
Loans in a Mortgage Pool will affect the maturity, average life and yield of the
related series of Securities.
With respect to Balloon Loans, payment of the Balloon Amount (which, based
on the amortization schedule of such Mortgage Loans, may be a substantial
amount) will generally depend on the Mortgagor's ability to obtain refinancing
of such Mortgage Loan or to sell the Mortgaged Property prior to the maturity of
the Balloon Loan. The ability to obtain refinancing will depend on a number of
factors prevailing at the time refinancing or sale is required, including,
without limitation, real estate values, the Mortgagor's financial situation,
prevailing mortgage loan interest rates, the Mortgagor's equity in the related
Mortgaged Property, tax laws and prevailing general economic conditions. Neither
the Company, the Servicer, nor any of their affiliates will be obligated to
refinance or repurchase any Mortgage Loan or to sell the Mortgaged Property.
A number of factors, including homeowner mobility, economic conditions,
enforceability of due-on-sale clauses, mortgage market interest rates and the
availability of mortgage funds, affect prepayment experience. Generally all
Mortgage Loans will contain due-on-sale provisions permitting the mortgagee to
accelerate the maturity of the Mortgage Loan upon sale or certain transfers by
the Mortgagor of the underlying Mortgaged Property. Unless the related
Prospectus Supplement indicates otherwise, the Servicer will generally enforce
any due-on-sale clause to the extent it has knowledge of the conveyance or
proposed conveyance of the underlying Mortgaged Property and it is entitled to
do so under applicable law; provided, however, that the Servicer will not take
any action in relation to the enforcement of any due-on-sale provision which
would adversely affect or jeopardize coverage under any applicable insurance
policy. Certain ARM Loans may be assumable under certain conditions if the
proposed transferee of the related Mortgaged Property establishes its ability to
repay the Mortgage Loan and, in the reasonable judgment of the Servicer or the
related Sub-Servicer, the security for the ARM Loan would not be impaired or
might be improved by the assumption. The extent to which ARM Loans are assumed
by purchasers of the Mortgaged Properties rather than prepaid by the related
Mortgagors in connection with the sales of the Mortgaged Properties will affect
the weighted average life of the related series of Securities. See "Description
of the Securities--Collection and Other Servicing Procedures" and "Certain Legal
Aspects of the Mortgage Loans and Related Matters--Enforceability of Certain
Provisions" for a description of certain provisions of the Pooling and Servicing
Agreement and certain legal developments that may affect the prepayment
experience on the Mortgage Loans.
There can be no assurance as to the rate of prepayment of the Mortgage
Loans. The Company is not aware of any reliable, publicly available statistics
relating to the principal prepayment experience of diverse portfolios of
mortgage loans such as the Mortgage Loans over an extended period of time. All
statistics known to the Company that have been compiled with respect to
prepayment experience on mortgage loans indicates that while some mortgage loans
may remain outstanding until their stated maturities, a substantial number will
be paid prior to their respective stated maturities.
Although the Mortgage Rates on ARM Loans will be subject to periodic
adjustments, such adjustments generally will, (i) not increase or decrease such
Mortgage Rates by more than a fixed percentage amount on each adjustment date,
(ii) not increase such Mortgage Rates over a fixed percentage amount during the
life of any ARM Loan and (iii) be based on an index (which may not rise and fall
consistently with mortgage interest rates) plus the related Note Margin (which
may be different from margins being used at the time for newly originated
adjustable rate mortgage loans). As a result, the Mortgage Rates on the ARM
Loans in a Mortgage Pool at any time may not equal the prevailing rates for
similar, newly originated adjustable rate mortgage loans. In certain rate
environments, the prevailing rates on fixed-rate mortgage loans may be
sufficiently low in relation to the then-current Mortgage Rates on ARM Loans
that the rate of prepayment may increase as a result of refinancings. There can
be no certainty as to the rate of prepayments on the Mortgage Loans during any
period or over the life of any series of Securities.
As may be described in the related Prospectus Supplement, the related
Pooling and Servicing Agreement may provide that all or a portion of the
principal collected on or with respect to the related Mortgage Loans may be
applied by the related Trustee to the acquisition of additional Mortgage Loans
during a specified period (rather than used to fund payments of principal to
Securityholders during such period) with the result that the related securities
possess an interest-only period, also commonly referred to as a revolving
period, which will be followed by an amortization period. Any such interest-only
or revolving period may, upon the occurrence of certain events to be described
in the related
55
Prospectus Supplement, terminate prior to the end of the specified period and
result in the earlier than expected amortization of the related Securities.
In addition, and as may be described in the related Prospectus Supplement,
the related Pooling and Servicing Agreement may provide that all or a portion of
such collected principal may be retained by the Trustee (and held in certain
temporary investments, including Mortgage Loans) for a specified period prior to
being used to fund payments of principal to Securityholders.
The result of such retention and temporary investment by the Trustee of
such principal would be to slow the amortization rate of the related Securities
relative to the amortization rate of the related Mortgage Loans, or to attempt
to match the amortization rate of the related Securities to an amortization
schedule established at the time such Securities are issued. Any such feature
applicable to any Securities may terminate upon the occurrence of events to be
described in the related Prospectus Supplement, resulting in the current funding
of principal payments to the related Securityholders and an acceleration of the
amortization of such Securities.
Under certain circumstances, the Servicer, the Company or, if specified in
the related Prospectus Supplement, the holders of the REMIC Residual Securities
or the Credit Enhancer may have the option to purchase the Mortgage Loans in a
Trust Estate. See "The Pooling and Servicing Agreement--Termination; Retirement
of Securities."
CERTAIN LEGAL ASPECTS OF MORTGAGE LOANS AND RELATED MATTERS
The following discussion contains summaries of certain legal aspects of
mortgage loans that are general in nature. Because such legal aspects are
governed in part by applicable state laws (which laws may differ substantially),
the summaries do not purport to be complete nor to reflect the laws of any
particular state nor to encompass the laws of all states in which the Mortgaged
Properties may be situated. The summaries are qualified in their entirety by
reference to the applicable federal and state laws governing the Mortgage Loans.
General
The Mortgage Loans will be secured by either deeds of trust or mortgages,
depending upon the prevailing practice in the state in which the Mortgaged
Property subject to a Mortgage Loan is located. In California, Mortgage Loans
are secured by deeds of trust. In some states, a mortgage creates a lien upon
the real property encumbered by the mortgage. In other states, the mortgage
conveys legal title to the property to the mortgagee subject to a condition
subsequent (i.e., the payment of the indebtedness secured thereby). The mortgage
is not prior to the lien for real estate taxes and assessments and other charges
imposed under governmental police powers. Priority between mortgages depends on
their terms in some cases or on the terms of separate subordination or
intercreditor agreements, and generally on the order of recordation of the
mortgage in the appropriate recording office. There are two parties to a
mortgage, the mortgagor, who is the borrower and homeowner, and the mortgagee,
who is the lender. Under the mortgage instrument, the mortgagor delivers to the
mortgagee a note or bond and the mortgage. In the case of a land trust, there
are three parties because title to the property is held by a land trustee under
a land trust agreement of which the borrower is the beneficiary; at origination
of a mortgage loan, the borrower executes a separate undertaking to make
payments on the mortgage note. Although a deed of trust is similar to a
mortgage, a deed of trust has three parties; the borrower-homeowner 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. The trustee's authority under a deed of trust and the mortgagee's
authority under a mortgage are governed by law, the express provisions of the
deed of trust or mortgage, and, in some cases, the directions of the
beneficiary.
Foreclosure
Foreclosure of a deed of trust is generally accomplished by a non-judicial
trustee's sale (private sale) under a specific provision in the deed of trust
and state laws which authorize the trustee to sell the property upon any default
by the borrower under the terms of the note or deed of trust. Beside the
non-judicial remedy, a deed of trust may be judicially foreclosed. In addition
to any notice requirements contained in a deed of trust, in some states, the
trustee must record a notice of default and within a certain period of time send
a copy to the borrower trustor and to any person who has recorded a request for
a copy of notice of default and notice of sale. In addition, the trustee must
provide notice in some states to any other individual having an interest of
record in the real property, including any junior lienholders. If the deed of
trust is not reinstated within a specified period, 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 local 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 of record in the real property.
Foreclosure of a mortgage is generally accomplished by judicial action.
Generally, the action is initiated by the service of legal pleadings upon all
parties having an interest of record in the real property. Delays in completion
56
of the foreclosure may occasionally result from difficulties in locating
necessary parties. Judicial foreclosure proceedings are often not contested by
any of the applicable parties. If the mortgagee's right to foreclose is
contested, the legal proceedings necessary to resolve the issue can be
time-consuming.
In some states, the borrower-trustor has the right to reinstate the loan at
any time following default until shortly before the trustee's sale. In general,
in such states, the borrower, or any other person having a junior encumbrance on
the real estate, may, during a reinstatement period, cure the default by paying
the entire amount in arrears plus the costs and expenses incurred in enforcing
the obligation.
In the case of foreclosure under either a mortgage or a deed of trust, the
sale by the referee or other designated officer or by the trustee is a public
sale. However, because of the difficulty a potential buyer at the sale would
have in determining the exact status of title and because the physical condition
of the property may have deteriorated during the foreclosure proceedings, it is
uncommon for a third party to purchase the property at a foreclosure sale unless
there is a great deal of economic incentive for new purchaser to purchase the
subject property at the sale. Rather, it is common for the lender to purchase
the property from the trustee or referee for a credit bid less than or equal to
the unpaid principal amount of the mortgage or deed of trust, accrued and unpaid
interest and the expense of foreclosure. Generally, state law controls the
amount of foreclosure costs and expenses, including attorneys' fees, which may
be recovered by a lender. Thereafter, subject to the right of the borrower in
some states to remain in possession during the redemption period, the lender
will assume the burdens 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 and, in some
states, the lender may be entitled to a deficiency judgment. Any loss may be
reduced by the receipt of any mortgage insurance proceeds.
Rights of Redemption
In some states, after sale pursuant to a deed of trust or foreclosure of a
mortgage, the borrower and foreclosed junior lienors or other parties 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 subsequent to foreclosure or
sale under a deed of trust. Consequently, the practical effect of the redemption
right is to force the lender to maintain the property and pay the expenses of
ownership until the redemption period has expired. In some states, there is no
right to redeem property after a Trustee's sale under a deed of trust.
Anti-Deficiency Legislation and Other Limitations on Lenders
Certain states have imposed statutory prohibitions that limit the remedies
of a beneficiary under a deed of trust or a mortgagee under a mortgage. In some
states including California, statutes limit the right of the beneficiary or
mortgagee to obtain a deficiency judgment against the borrower following
foreclosure. A deficiency judgment is a personal judgment against the former
borrower equal in most cases to the difference between the amount due to the
lender and the net amount realized upon the public sale of the real property. In
the case of a Mortgage Loan secured by a property owned by a trust where the
Mortgage Note is executed on behalf of the trust, a deficiency judgment against
the trust following foreclosure or sale under a deed of trust, even if
obtainable under applicable law, may be of little value to the mortgagee or
beneficiary if there are no trust assets against which such deficiency judgment
may be executed. Other statutes require the beneficiary or mortgagee to exhaust
the security afforded under a deed of trust or mortgage by foreclosure in an
attempt to satisfy the full debt before bringing a personal action against the
borrower. In certain other states, the lender has the option of bringing a
personal action against the borrower on the debt without first exhausting such
security; however, in some of these states the lender, following judgment on
such personal action, may be deemed to have elected a remedy and may be
precluded from exercising remedies with respect to the security. Consequently,
the practical effect of the election requirement, in those states permitting
such election, is that lenders will usually proceed against the security first
rather than bringing a personal action against the borrower. Finally, in certain
other states, statutory provisions limit any deficiency judgment against the
former borrower following a foreclosure to the excess of the outstanding debt
over the fair value of the property at the time of the public sale. The purpose
of these statutes is generally to prevent a beneficiary or mortgagee from
obtaining a large deficiency judgment against the former borrower as a result of
low or no bids at the judicial sale.
In addition to laws limiting or prohibiting deficiency judgments, numerous
other federal and state statutory provisions, including the federal bankruptcy
laws and state laws affording relief to debtors, may interfere with or affect
the ability of the secured mortgage lender to realize upon collateral or enforce
a deficiency judgment. For example, with respect to federal bankruptcy law, a
court with federal bankruptcy jurisdiction may permit a debtor through his or
her
57
Chapter 11 or Chapter 13 rehabilitative plan to cure a monetary default in
respect of a mortgage loan on a debtor's residence by paying arrearages within a
reasonable time period and reinstating the original mortgage loan payment
schedule even though the lender accelerated the mortgage loan and final judgment
of foreclosure had been entered in state court (provided no sale of the
residence had yet occurred) prior to the filing of the debtor's petition. Some
courts with federal bankruptcy jurisdiction have approved plans, based on the
particular facts of the reorganization case, that effected the curing of a
mortgage loan default by paying arrearages over a number of years.
Courts with federal bankruptcy jurisdiction also have indicated that the
terms of a mortgage loan secured by property of the debtor may be modified.
These courts have allowed modifications that include reducing the amount of each
monthly payment, changing the rate of interest, altering the repayment schedule,
forgiving all or a portion of the debt and reducing the lender's security
interest to the value of the residence, thus leaving the lender a general
unsecured creditor for the difference between the value of the residence and the
outstanding balance of the loan.
Certain state courts have imposed general equitable principles upon
judicial foreclosure. These equitable principles are generally designed to
relieve the borrower from the legal effect of the borrower's default under the
related loan documents. Examples of judicial remedies that have been fashioned
include judicial requirements that the lender undertake affirmative and
expensive actions to determine the causes for the borrower's default and the
likelihood that the borrower will be able to reinstate the loan. In some cases,
courts have required that lenders reinstate loans or recast payment schedules in
order to accommodate borrowers who are suffering from temporary financial
disabilities. In other cases, such courts have limited the right of the lender
to foreclose if the default under the loan is not monetary, such as the borrower
failing to adequately maintain the property or the borrower executing a second
deed of trust affecting the property.
Certain tax liens arising under the Internal Revenue Code of 1986, as
amended, may in certain circumstances provide priority over the lien of a
mortgage or deed of trust. In addition, substantive requirements are imposed
upon mortgage lenders in connection with the origination and the servicing of
mortgage loans by numerous federal and some state consumer protection laws.
These laws include, by example, 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 the California Fair Debt
Collection Practices Act. These laws and regulations impose specific statutory
liabilities upon lenders who originate mortgage loans and who fail to comply
with the provisions of the law. In some cases, this liability may affect
assignees of the mortgage loans.
Environmental Legislation
Certain states impose a statutory lien for associated costs on property
that is the subject of a cleanup action by the state on account of hazardous
wastes or hazardous substances released or disposed of on the property. Such a
lien generally will have priority over all subsequent liens on the property and,
in certain of these states, will have priority over prior recorded liens
including the lien of a mortgage. In some states, however, such a lien will not
have priority over prior recorded liens of a deed of trust. In addition, under
federal environmental legislation and under state law in a number of states, a
secured party which takes a deed in lieu of foreclosure or acquires a mortgaged
property at a foreclosure sale or assumes active control over the operation or
management of a property so as to be deemed an "owner" or "operator" of the
property may be liable for the costs of cleaning up a contaminated site.
Although such costs could be substantial, it is unclear whether they would be
imposed on a lender (such as a Trust Estate) secured by residential real
property. In the event that title to a Mortgaged Property securing a Mortgage
Loan in a Trust Estate was acquired by the Trust and cleanup costs were incurred
in respect of the Mortgaged Property, the holders of the related series of
Securities might realize a loss if such costs were required to be paid by the
Trust. The Servicer shall take into account the existence of any hazardous
substances, hazardous wastes or solid wastes, as such terms are defined in the
Comprehensive Environmental Response Compensation and Liability Act, the
Resource Conservation and Recovery Act of 1976, or other federal, state or local
environmental legislation, on a Mortgaged Property in determining whether to
foreclose upon or otherwise comparably convert the ownership of such Mortgaged
Property.
Enforceability of Certain Provisions
Unless the Prospectus Supplement indicates otherwise, generally all of the
Mortgage Loans contain due-on-sale clauses. These clauses permit the lender to
accelerate the maturity of the loan if the borrower sells, transfers or conveys
the property. The enforceability of these clauses has been the subject of
legislation or litigation in many states including California, and in some cases
the enforceability of these clauses was limited or denied. However, the Garn-St.
Germain Depository Institutions Act of 1982 (the "Garn-St.-Germain Act")
preempts state constitutional, statutory and case law that prohibits the
enforcement of due-on-sale clauses and permits lenders to enforce these clauses
in accordance with their terms, subject to certain limited exceptions. The
Garn-St. Germain Act does "encourage" lenders to permit assumption of loans at
the original rate of interest or at some other rate less than the average of the
original rate and the market rate.
58
The Garn-St. Germain Act also sets forth nine specific instances in which a
mortgage lender covered by the Garn-St. Germain Act may not exercise a
due-on-sale clause, notwithstanding the fact that a transfer of the property may
have occurred. These include intra-family transfers, certain transfers by
operation of law, leases of fewer than three years and the creation of a junior
encumbrance. Regulations promulgated under the Garn-St. Germain Act also
prohibit the imposition of a prepayment penalty upon the acceleration of a loan
pursuant to a due-on-sale clause.
The inability to enforce a due-on-sale clause may result in a mortgage loan
bearing an interest rate below the current market rate being assumed by a new
home buyer rather than being paid off, that may have an impact upon the average
life of the Mortgage Loans and the number of Mortgage Loans that may be
outstanding until maturity.
Upon foreclosure, courts have imposed general equitable principles. These
equitable principles generally are designed to relieve the borrower from the
legal effect of his defaults under the loan documents. Examples of judicial
remedies that have been fashioned include judicial requirements that the lender
undertake affirmative and expensive actions to determine the causes for the
borrower's default and the likelihood that the borrower will be able to
reinstate the loan. In some cases, courts have substituted their judgment for
the lender's judgment and have required that lenders reinstate loans or recast
payment schedules in order to accommodate borrowers who are suffering from
temporary financial disability. In other cases, courts have limited the right of
the lender to foreclose if the default under the mortgage instrument is not
monetary, such as the borrower failing to adequately maintain the property or
the borrower executing a second mortgage or deed of trust affecting the
property. Finally, some courts have been faced with the issue of whether or not
federal or state constitutional provisions reflecting due process concerns for
adequate notice require that borrowers under deeds of trust or mortgages receive
notices in addition to the statutorily prescribed minimum. For the most part,
these cases have upheld the notice provisions as being reasonable or have found
that the sale by a trustee under a deed of trust, or under a mortgage having a
power of sale, does not involve sufficient state action to afford constitutional
protections to the borrower.
Certain Provisions of California Deeds of Trust
Most institutional lenders in California, including the Company, use a form
of deed of trust that confers on the beneficiary the right both to receive all
proceeds collected under any hazard insurance policy and all awards made in
connection with any condemnation proceedings, and to apply such proceeds and
awards to any indebtedness secured by the deed of trust, in such order as the
beneficiary may determine; provided, however, that California law prohibits the
beneficiary from applying insurance and condemnation proceeds to the
indebtedness secured by the deed of trust unless the beneficiary's security has
been impaired by the casualty or condemnation, and, if such security has been
impaired, permits such proceeds to be so applied only to the extent of such
impairment. Thus, in the event improvements on the property are damaged or
destroyed by fire or other casualty, or in the event the property is taken by
condemnation, and, as a result thereof, the beneficiary's security is impaired,
the beneficiary under the underlying first deed of trust will have the prior
right to collect any insurance proceeds payable under a hazard insurance policy
and any award of damages in connection with the condemnation and to apply the
same to the indebtedness secured by the first deed of trust. Proceeds in excess
of the amount of indebtedness secured by a first deed of trust will, in most
cases, be applied to the indebtedness of a junior deed of trust.
Another provision typically found in the forms of deed of trust used by
most institutional lenders in California obligates the trustor to pay before
delinquency all taxes and assessments on the property and, when due, all
encumbrances, charges and liens on the property which appear prior to the deed
of trust, to provide and maintain fire insurance on the property, to maintain
and repair the property and not to commit or permit any waste thereof, and to
appear in and defend any action or proceeding purporting to affect the property
or the rights of the beneficiary under the deed of trust. Upon a failure of the
trustor to perform any of these obligations, the beneficiary is given the right
under the deed of trust to perform the obligation itself, at its election, with
the trustor agreeing to reimburse the beneficiary for any sums expended by the
beneficiary on behalf of the trustor. All sums so expended by the beneficiary
become part of the indebtedness secured by the deed of trust.
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. A similar federal statute
was in effect with respect to mortgage loans made during the first three months
of 1980. The Office of Thrift Supervision is authorized to issue rules and
regulations and to publish interpretations governing implementation of Title V.
The statute authorized any state to reimpose interest rate limits by adopting,
before April 1, 1983, a law or constitutional provision which expressly rejects
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 or to limit discount
points or other charges.
59
As indicated above under "Mortgage Loan Program--Representations by
Originators," each Originator of a Mortgage Loan will have represented that such
Mortgage Loan was originated in compliance with then applicable state laws,
including usury laws, in all material respects. However, the Mortgage Rates on
the Mortgage Loans will be subject to applicable usury laws as in effect from
time to time.
Alternative Mortgage Instruments
Alternative mortgage instruments, including ARM Loans and early ownership
mortgage loans, originated by non-federally chartered lenders have historically
been subjected to a variety of restrictions. Such restrictions differed from
state to state, resulting in difficulties in determining whether a particular
alternative mortgage instrument originated by a state-chartered lender was in
compliance with applicable law. These difficulties were alleviated substantially
as a result of the enactment of Title VIII of the Garn-St. Germain Act ("Title
VIII"). Title VIII provides that: notwithstanding any state law to the contrary,
state-chartered banks may originate alternative mortgage instruments in
accordance with regulations promulgated by the Comptroller of the Currency with
respect to origination of alternative mortgage instruments by national banks;
state-chartered credit unions may originate alternative mortgage instruments in
accordance with regulations promulgated by the National Credit Union
Administration with respect to origination of alternative mortgage instruments
by federal credit unions; and all other non-federally chartered housing
creditors, including state-chartered savings and loan associations,
state-chartered savings banks and mutual savings banks and mortgage banking
companies, may originate alterative mortgage instruments in accordance with the
regulations promulgated by the Federal Home Loan Bank Board, predecessor to the
Office of Thrift Supervision, with respect to origination of alternative
mortgage instruments by federal savings and loan associations. Title VIII
provides that any state may reject applicability of the provisions of Title VIII
by adopting, prior to October 15, 1985, a law or constitutional provision
expressly rejecting the applicability of such provisions. Certain states have
taken such action.
Soldiers' and Sailors' Civil Relief Act of 1940
Under the terms of the Soldiers' and Sailors' Civil Relief Act of 1940, as
amended (the "Relief Act"), a Mortgagor who enters military service after the
origination of such Mortgagor's Mortgage Loan (including a Mortgagor who was in
reserve status and is called to active duty after origination of the Mortgage
Loan), 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. The Relief Act applies to
Mortgagors who are members of the Army, Navy, Air Force, Marines, National
Guard, Reserves, Coast Guard, and officers of the U.S. Public Health Service
assigned to duty with the military. Because the Relief Act applies to Mortgagors
who enter military service (including reservists who are called to active duty)
after origination of the related Mortgage Loan, no information can be provided
as to the number of loans that may be effected by the Relief Act. Application of
the Relief Act would adversely affect, for an indeterminate period of time, the
ability of the Servicer to collect full amounts of interest on certain of the
Mortgage Loans. Any shortfall in interest collections resulting from the
application of the Relief Act or similar legislation or regulations, which would
not be recoverable from the related Mortgage Loans, would result in a reduction
of the amounts distributable to the holders of the related Securities, and would
not be covered by advances, any Letter of Credit or any other form of credit
enhancement (other than a Financial Guaranty Insurance Policy) provided in
connection with the related series of Securities. In addition, the Relief Act
imposes limitations that would impair the ability of the Servicer to foreclose
on an affected Mortgage Loan during the Mortgagor's period of active duty
status, and, under certain circumstances, during an additional three month
period thereafter. Thus, in the event that the Relief Act or similar legislation
or regulations applies to any Mortgage Loan which goes into default, there may
be delays in payment and losses on the related Securities in connection
therewith. Any other interest shortfalls, deferrals or forgiveness of payments
on the Mortgage Loans resulting from similar legislation or regulations may
result in delays in payments or losses to Securityholders of the related series.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
General
The following is based upon the opinion of Arter & Hadden LLP, special tax
counsel to the Company, with respect to the material federal income tax
consequences to investors of the purchase, ownership and disposition of the
Securities offered hereby. Opinions of counsel are not binding on the IRS,
however, and there is no assurance that the IRS could not challenge successfully
the opinions of counsel. The discussion is based upon laws, regulations, rulings
and decisions now in effect, all of which are subject to change. The discussion
below does not purport to deal with all federal tax consequences applicable to
all categories of investors, some of which may be subject to special rules.
Investors should consult their own tax advisors in determining the federal,
state, local and any other tax consequences to them of the purchase, ownership
and disposition of the Securities.
The following discussion addresses securities of three general types: (i)
securities ("Grantor Trust Securities") representing interests in a Trust Estate
(a "Grantor Trust Estate") which the Company will covenant not to elect to have
treated as a real estate mortgage investment conduit ("REMIC"),(ii) securities
("REMIC Securities") representing
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interests in a Trust Estate, or a portion thereof, which the Company will
covenant to elect to have treated as a REMIC under sections 860A through 860G of
the Internal Revenue Code of 1986, as amended (the "Code"); and (iii) securities
("Debt Securities") that are intended to be treated for federal income tax
purposes as indebtedness secured by the underlying Mortgage Loans. This
Prospectus does not address the tax treatment of partnership interests or
interests in a FASIT. Such a discussion will be set forth in the applicable
Prospectus Supplement for any Trust issuing Securities characterized as
partnership interests or interests in a FASIT. The Prospectus Supplement for
each Series of Securities will indicate whether a REMIC or FASIT election (or
elections) will be made for the related Trust Estate and, if a REMIC or FASIT
election is to be made, will identify all "regular interests" and "residual
interests" in the REMIC or all "regular interests," "high-yield interests" or
"ownership interest" in a FASIT. For purposes of this discussion, references to
a "Securityholder" or a "Holder" are to the beneficial owner of a Security.
Grantor Trust Securities
With respect to each Series of Grantor Trust Securities, Arter & Hadden
LLP, special tax counsel to the Company, will deliver its opinion to the Company
that (unless otherwise limited in the applicable Prospectus Supplement) the
related Grantor Trust Estate will be classified as a grantor trust and not as a
partnership or an association taxable as a corporation. Accordingly, each Holder
of a Grantor Trust Security will generally be treated as the owner of an
interest in the Mortgage Loans included in the Grantor Trust Estate.
For purposes of the following discussion, a Grantor Trust Security
representing an undivided equitable ownership interest in the principal of the
Mortgage Loans constituting the related Grantor Trust Estate, together with
interest thereon at a pass-through rate, will be referred to as a "Grantor Trust
Fractional Interest Security." A Grantor Trust Security representing ownership
of all or a portion of the difference between interest paid on the Mortgage
Loans constituting the related Grantor Trust Estate and interest paid to the
Holders of Grantor Trust Fractional Interest Securities issued with respect to
such Grantor Trust Estate will be referred to as a "Grantor Trust Strip
Security."
Special Tax Attributes
Unless otherwise disclosed in an applicable Prospectus Supplement, Arter &
Hadden LLP, special tax counsel to the Company, will deliver its opinion to the
Company that (a) Grantor Trust Fractional Interest Securities will represent
interests in (i) "qualifying real property loans" within the meaning of section
593(d) of the Code; (ii) "loans . . . secured by an interest in real property"
within the meaning of section 7701(a)(19)(C)(v) of the Code; and (iii)
"obligation[s] (including any participation or certificate of beneficial
ownership therein) which . . . [are] principally secured by an interest in real
"property" within the meaning of section 860G(a)(3)(A) of the Code; and (b)
interest on Grantor Trust Fractional Interest Securities will be considered
"interest on obligations secured by mortgages on real property or on interests
in real property" within the meaning of section 856(c)(3)(B) of the Code. In
addition, the Grantor Trust Strip Securities will be "obligation[s] (including
any participation or certificate of beneficial ownership therein) . . .
principally secured by an interest in real "property" within the meaning of
section 860G(a)(3)(A) of the Code.
Taxation of Holders of Grantor Trust Securities
Holders of Grantor Trust Fractional Interest Securities generally will be
required to report on their federal income tax returns their respective shares
of the income from the Mortgage Loans (including amounts used to pay reasonable
servicing fees and other expenses but excluding amounts payable to Holders of
any corresponding Grantor Trust Strip Securities) and, subject to the
limitations described below, will be entitled to deduct their shares of any such
reasonable servicing fees and other expenses. If a Holder acquires a Grantor
Trust Fractional Interest Security for an amount that differs from its
outstanding principal amount, the amount includible in income on a Grantor Trust
Fractional Interest Security may differ from the amount of interest
distributable thereon. See "Discount and Premium," below. Individuals holding a
Grantor Trust Fractional Interest Security directly or through certain
pass-through entities will be allowed a deduction for such reasonable servicing
fees and expenses only to the extent that the aggregate of such Holder's
miscellaneous itemized deductions exceeds two percent of such Holder's adjusted
gross income. Further, Holders (other than corporations) subject to the
alternative minimum tax may not deduct miscellaneous itemized deductions in
determining alternative minimum taxable income.
Holders of Grantor Trust Strip Securities generally will be required to
treat such Securities as "stripped coupons" under section 1286 of the Code.
Accordingly, such a Holder will be required to treat the excess of the total
amount of payments on such a Security over the amount paid for such Security as
original issue discount and to include such discount in income as it accrues
over the life of such Security. See "Discount and Premium," below.
Grantor Trust Fractional Interest Securities may also be subject to the
coupon stripping rules if a class of Grantor Trust Strip Securities is issued as
part of the same series of Securities. The consequences of the application of
the coupon stripping rules would appear to be that any discount arising upon the
purchase of such a Security (and perhaps all stated interest thereon) would be
classified as original issue discount and includible in the in the Holder's
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income as it accrues (regardless of the Holder's method of accounting), as
described below under "Discount and Premium." The coupon stripping rules will
not apply, however, if (i) the pass-through rate is no more than 100 basis
points lower than the gross rate of interest payable on the underlying Mortgage
Loans and (ii) the difference between the outstanding principal balance on the
Security and the amount paid for such Security is less than 0.25% of such
principal balance times the weighted average remaining maturity of the Security.
Sales of Grantor Trust Securities
Any gain or loss recognized on the sale of a Grantor Trust Security (equal
to the difference between the amount realized on the sale and the adjusted basis
of such Grantor Trust Security) will be capital gain or loss, except to the
extent of accrued and unrecognized market discount, which will be treated as
ordinary income, and in the case of banks and other financial institutions
except as provided under section 582(c) of the Code. The adjusted basis of a
Grantor Trust Security will generally equal its cost, increased by any income
reported by the seller (including original issue discount and market discount
income) and reduced (but not below zero) by any previously reported losses, any
amortized premium and by any distributions of principal.
Grantor Trust Reporting
The Trustee will furnish to each Holder of a Grantor Trust Fractional
Interest Security with each distribution a statement setting forth the amount of
such distribution allocable to principal on the underlying Mortgage Loans and to
interest thereon at the related Pass-Through Rate. In addition, within a
reasonable time after the end of each calendar year, based on information
provided by the Servicer, the Trustee will furnish to each Holder during such
year such customary factual information as the Servicer deems necessary or
desirable to enable Holders of Grantor Trust Securities to prepare their tax
returns and will furnish comparable information to the Internal Revenue Service
(the "IRS") as and when required to do so by law.
REMIC Securities
If provided in an applicable Prospectus Supplement, an election will be
made to treat a Trust Estate or one or more trusts or segregated pools of assets
therein as one or more REMICs under the Code. Qualification as a REMIC requires
ongoing compliance with certain conditions. A Trust Estate or a portion or
portions thereof as to which one or more REMIC elections will be made will be
referred to as a "REMIC Trust." With respect to each REMIC Trust for which such
an election is made, Arter & Hadden LLP, special tax counsel to the Company,
will deliver its opinion to the Company that (unless otherwise limited in the
applicable Prospectus Supplement), assuming compliance with the Pooling and
Servicing Agreement, the REMIC Trust will be treated as one or more REMICs for
federal income tax purposes. The Securities of each Class will be designated as
"regular interests" in the REMIC Trust except that a separate Class will be
designated as the "residual interest" in the REMIC Trust. The Prospectus
Supplement for each Series of Securities will state whether Securities of each
Class will constitute a regular interest (a "Regular Security") or a residual
interest (a "Residual Security").
A REMIC Trust will not be subject to federal income tax except with respect
to income from prohibited transactions and in certain other instances described
below. See "Taxes on a REMIC Trust". Generally, the total income from the
Mortgage Loans in a REMIC Trust will be taxable to the Holders of the Securities
of that Series, as described below.
Special Tax Attributes
Regular and Residual Securities will be "regular or residual interests in a
REMIC" within the meaning of section 7701(a)(19)(C)(xi) of the Code, "qualifying
real property loans" within the meaning of section 593(d) of the Code and "real
estate assets" within the meaning of section 856(c)(5)(A) of the Code. If at any
time during a calendar year less than 95 percent of the assets of a REMIC Trust
consist of "qualified mortgages" (within the meaning of section 860G(a)(3) of
the Code) then the portion of the Regular and Residual Securities that are
qualifying assets under those sections during such calendar year may be limited
to the portion of the assets of such REMIC Trust that are qualified mortgages.
Similarly, income on the Regular and Residual Securities 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 same limitation as
set forth in the preceding sentence. For purposes of applying this limitation, a
REMIC Trust should be treated as owning the assets represented by the qualified
mortgages. The assets of the Trust Estate will include, in addition to the
Mortgage Loans, payments on the Mortgage Loans held pending distribution on the
Regular and Residual Securities and any reinvestment income thereon. Regular and
Residual Securities held by a financial institution to which section 585, 586 or
593 of the Code applies will be treated as evidences of indebtedness for
purposes of section 582(c)(1) of the Code. Regular Securities will also be
qualified mortgages with respect to other REMICs.
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Taxation of Holders of Regular Securities
Except as indicated below in this federal income tax discussion, the
Regular Securities will be treated for federal income tax purposes as debt
instruments issued by the REMIC Trust on the date such Securities are first sold
to the public (the "Settlement Date") and not as ownership interests in the
REMIC Trust or its assets. Holders of Regular Securities that otherwise report
income under a cash method of accounting will be required to report income with
respect to such Securities under an accrual method. For additional tax
consequences relating to Regular Securities purchased at a discount or with
premium, see "Discount and Premium," below.
Taxation of Holders of Residual Securities
Daily Portions. Except as indicated below, a Holder of a Residual Security
for a REMIC Trust generally will be required to report its daily portion of the
taxable income or net loss of the REMIC Trust for each day during a calendar
quarter that the Holder owned such Residual Security. For this purpose, the
daily portion shall be determined by allocating to each day in the calendar
quarter its ratable portion of the taxable income or net loss of the REMIC Trust
for such quarter and by allocating the amount so allocated among the Residual
Holders (on such day) in accordance with their percentage interests on such day.
Any amount included in the gross income or allowed as a loss of any Residual
Holder by virtue of this paragraph will be treated as ordinary income or loss.
The requirement that each Holder of a Residual Security report its daily
portion of the taxable income or net loss of the REMIC Trust will continue until
there are no Securities of any Class outstanding, even though the Holder of the
Residual Security may have received full payment of the stated interest and
principal on its Residual Security.
The Trustee will provide to Holders of Residual Securities of each Series
of Securities (i) such information as is necessary to enable them to prepare
their federal income tax returns and (ii) any reports regarding the Securities
of such Series that may be required under the Code.
Taxable Income or Net Loss of a REMIC Trust. The taxable income or net loss
of a REMIC Trust will be the income from the qualified mortgages it holds and
any reinvestment earnings less deductions allowed to the REMIC Trust. Such
taxable income or net loss for a given calendar quarter will be determined in
the same manner as for an individual having the calendar year as the taxable
year and using the accrual method of accounting, with certain modifications. The
first modification is that a deduction will be allowed for accruals of interest
(including any original issue discount, but without regard to the investment
interest limitation in section 163(d) of the Code) on the Regular Securities
(but not the Residual Securities), even though Regular Securities are for
non-tax purposes evidences of beneficial ownership rather than indebtedness of a
REMIC Trust. Second, market discount or premium equal to the difference between
the total stated principal balances of the qualified mortgages and the basis to
the REMIC Trust therein generally will be included in income (in the case of
discount) or deductible (in the case of premium) by the REMIC Trust as it
accrues under a constant yield method, taking into account the Prepayment
Assumption. The basis to a REMIC Trust in the qualified mortgages is the
aggregate of the issue prices of all the Regular and Residual Securities in the
REMIC Trust on the Settlement Date. If, however, a substantial amount of a Class
of Regular or Residual Securities has not been sold to the public, then the fair
market value of all the Regular or Residual Securities in that Class as of the
date of the Prospectus Supplement should be substituted for the issue price.
Third, no item of income, gain, loss or deduction allocable to a prohibited
transaction (see "Taxes on a REMIC Trust--Prohibited Transactions" below) will
be taken into account. Fourth, a REMIC Trust generally may not deduct any item
that would not be allowed in calculating the taxable income of a partnership by
virtue of section 703(a)(2) of the Code. Finally, the limitation on
miscellaneous itemized deductions imposed on individuals by section 67 of the
Code will not be applied at the REMIC Trust level to any servicing and guaranty
fees. (See, however, "Pass-Through of Servicing and Guaranty Fees to
Individuals" below.) In addition, under the REMIC Regulations, any expenses that
are incurred in connection with the formation of a REMIC Trust and the issuance
of the Regular and Residual Securities are not treated as expenses of the REMIC
Trust for which a deduction is allowed. If the deductions allowed to a REMIC
Trust exceed its gross income for a calendar quarter, such excess will be a net
loss for the REMIC Trust for that calendar quarter. The REMIC Regulations also
provide that any gain or loss to a REMIC Trust from the disposition of any
asset, including a qualified mortgage or "permitted investment" (as defined in
section 86OG(a)(5) of the Code) will be treated as ordinary gain or loss.
A Holder of a Residual Security may be required to recognize taxable income
without being entitled to receive a corresponding amount of cash. This could
occur, for example, if the qualified mortgages are considered to be purchased by
the REMIC Trust at a discount, some or all of the Regular Securities are issued
at a discount, and the discount included as a result of a prepayment on a
Mortgage Loan that is used to pay principal on the Regular Securities exceeds
the REMIC Trust's deduction for unaccrued original issue discount relating to
such Regular Securities. Taxable income may also be greater in earlier years
because interest expense deductions, expressed as a percentage of the
outstanding principal amount of the Regular Securities, may increase over time
as the earlier Classes of Regular
63
Securities are paid, whereas interest income with respect to any given Mortgage
Loan expressed as a percentage of the outstanding principal amount of that
Mortgage Loan, will remain constant over time.
Basis Rules and Distributions
A Holder of a Residual Security has an initial basis in its Security equal
to the amount paid for such Residual Security. Such basis is increased by
amounts included in the income of the Holder and decreased by distributions and
by any net loss taken into account with respect to such Residual Security. A
distribution on a Residual Security to a Holder is not included in gross income
to the extent it does not exceed such Holder's basis in the Residual Security
(adjusted as described above) and, to the extent it exceeds the adjusted basis
of the Residual Security, shall be treated as gain from the sale of the Residual
Security.
A Holder of a Residual Security is not allowed to take into account any net
loss for any calendar quarter to the extent such net loss exceeds such Holder's
adjusted basis in its Residual Security as of the close of such calendar quarter
(determined without regard to such net loss). Any loss disallowed by reason of
this limitation may be carried forward indefinitely to future calendar quarters
and, subject to the same limitation, may be used only to offset income from the
Residual Security.
Excess Inclusions. Any excess inclusions with respect to a Residual
Security are subject to certain special tax rules. With respect to a Holder of a
Residual Security, the excess inclusion for any calendar quarter is defined as
the excess (if any) of the daily portions of taxable income over the sum of the
"daily accruals" for each day during such quarter that such Residual Security
was held by such Holder. The daily accruals are determined by allocating to each
day during a calendar quarter its ratable portion of the product of the
"adjusted issue price" of the Residual Security at the beginning of the calendar
quarter and 120 percent of the "federal long-term rate" in effect on the
Settlement Date, based on quarterly compounding, and properly adjusted for the
length of such quarter. For this purpose, the adjusted issue price of a Residual
Security as of the beginning of any calendar quarter is equal to the issue price
of the Residual Security, increased by the amount of daily accruals for all
prior quarters and decreased by any distributions made with respect to such
Residual Security before the beginning of such quarter. The issue price of a
Residual Security is the initial offering price to the public (excluding bond
houses and brokers) at which a substantial amount of the Residual Securities was
sold. The federal long-term rate is a blend of current yields on Treasury
securities having a maturity of more than nine years, computed and published
monthly by the IRS.
Any excess inclusions cannot be offset by losses from other activities. For
Holders that are subject to tax only on unrelated business taxable income (as
defined in section 511 of the Code), an excess inclusion of such Holder is
treated as unrelated business taxable income. With respect to variable contracts
(within the meaning of section 817 of the Code), a life insurance company cannot
adjust its reserve to the extent of any excess inclusion, except as provided in
regulations. The REMIC Regulations indicate that if a Holder of a Residual
Security is a member of an affiliated group filing a consolidated income tax
return, the taxable income of the affiliated group cannot be less than the sum
of the excess inclusions attributable to all residual interests in REMICs held
by members of the affiliated group. For a discussion of the effect of excess
inclusions on certain foreign investors that own Residual Securities, see
"Foreign Investors" below.
The Treasury Department also has the authority to issue regulations that
would treat all taxable income of a REMIC Trust as excess inclusions if the
Residual Security does not have "significant value." Although the Treasury
Department did not exercise this authority in the REMIC Regulations, future
regulations may contain such a rule. If such a rule were adopted, it is unclear
whether the test for "significant value" that is contained in the REMIC
Regulations would be applicable. If no such rule is applicable, excess
inclusions should be calculated as discussed above.
In the case of any Residual Securities that are held by a real estate
investment trust, the aggregate excess inclusions with respect to such Residual
Securities reduced (but not below zero) by the real estate investment trust
taxable income (within the meaning of section 857(b)(2) of the Code, excluding
any net capital gain) will be allocated among the shareholders of such trust in
proportion to the dividends received by such shareholders from such trust, and
any amount so allocated will be treated as an excess inclusion with respect to a
Residual Security as if held directly by such shareholder. Similar rules will
apply in the case of regulated investment companies, common trust funds and
certain cooperatives that hold a Residual Security.
Pass-Through of Servicing and Guaranty Fees to Individuals. A Holder of a
Residual Security who is an individual will be required to include in income a
share of any servicing and guaranty fees. A deduction for such fees will be
allowed to such Holder only to the extent that such fees, along with certain of
such Holder's other miscellaneous itemized deductions exceed 2 percent of such
Holder's adjusted gross income. In addition, a Holder of a Residual Security may
not be able to deduct any portion of such fees in computing such Holder's
alternative minimum tax liability. A Holder's share of such fees will generally
be determined by (i) allocating the amount of such expenses for
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each calendar quarter on a pro rata basis to each day in the calendar quarter,
and (ii) allocating the daily amount among the Holders in proportion to their
respective holdings on such day.
Taxes on a REMIC Trust
Prohibited Transactions. The Code imposes a tax on a REMIC equal to 100
percent of the net income derived from "prohibited transactions." In general, a
prohibited transaction means the disposition of a qualified mortgage other than
pursuant to certain specified exceptions, the receipt of investment income from
a source other than a Mortgage Loan or certain other permitted investments, the
receipt of compensation for services, or the disposition of an asset purchased
with the payments on the qualified mortgages for temporary investment pending
distribution on the regular and residual interests.
Contributions to a REMIC after the Startup Day. The Code imposes a tax on a
REMIC equal to 100 percent of the value of any property contributed to the REMIC
after the "startup day" (generally the same as the Settlement Date). Exceptions
are provided for cash contributions to a REMIC (i) during the three month period
beginning on the startup day, (ii) made to a qualified reserve fund by a Holder
of a residual interest, (iii) in the nature of a guarantee, (iv) made to
facilitate a qualified liquidation or clean-up call, and (v) as otherwise
permitted by Treasury regulations.
Net Income from Foreclosure Property. The Code imposes a tax on a REMIC
equal to the highest corporate rate on "net income from foreclosure property."
The terms "foreclosure property" (which includes property acquired by deed in
lieu of foreclosure) and "net income from foreclosure property" are defined by
reference to the rules applicable to real estate investment trusts. Generally,
foreclosure property would be treated as such for a period of three years, with
possible extensions. Net income from foreclosure property generally means gain
from the sale of foreclosure property that is inventory property and gross
income from foreclosure property other than qualifying rents and other
qualifying income for a real estate investment trust.
Sales of REMIC Securities
General. Except as provided below, if a Regular or Residual Security is
sold, the seller will recognize gain or loss equal to the difference between the
amount realized in the sale and its adjusted basis in the Security. The adjusted
basis of a Regular Security generally will equal the cost of such Security to
the seller, increased by any original issue discount or market discount included
in the seller's gross income with respect to such Security and reduced by
distributions on such Security previously received by the seller of amounts
included in the stated redemption price at maturity and by any premium that has
reduced the seller's interest income with respect to such Security. See
"Discount and Premium." The adjusted basis of a Residual Security is determined
as described above under "Taxation of Holders of Residual Securities-Basis Rules
and Distributions." Except as provided in the following paragraph or under
section 582(c) of the Code, any such gain or loss will be capital gain or loss,
provided such Security is held as a "capital asset" (generally, property held
for investment) within the meaning of section 1221 of the Code.
Gain from the sale of a Regular Security that might otherwise be capital
gain will be treated as ordinary income to the extent that such gain does not
exceed the excess, if any, of (i) the amount that would have been includible in
the income of the Holder of a Regular Security had income accrued at a rate
equal to 110 percent of the "applicable federal rate" (generally, an average of
current yields on Treasury securities) as of the date of purchase over (ii) the
amount actually includible in such Holder's income. In addition, gain recognized
on such a sale by a Holder of a Regular Security who purchased a such Security
at a market discount would also be taxable as ordinary income in an amount not
exceeding the portion of such discount that accrued during the period such
Security was held by such Holder, reduced by any market discount includible in
income under the rules described below under "Discount and Premium."
If a Holder of a Residual Security sells its Residual Security at a loss,
the loss will not be recognized if, within six months before or after the sale
of the Residual Security, such Holder purchases another residual interest in any
REMIC or any interest in a taxable mortgage pool (as defined in section 7701(i)
of the Code) comparable to a residual interest in a REMIC. Such disallowed loss
would be allowed upon the sale of the other residual interest (or comparable
interest) if the rule referred to in the preceding sentence does not apply to
that sale. While this rule may be modified by Treasury regulations, no such
regulations have yet been published.
Transfers of Residual Securities. Section 860E(e) of the Code imposes a
substantial tax, payable by the transferor (or, if a transfer is through a
broker, nominee, or other middleman as the transferee's agent, payable by that
agent) upon any transfer of a Residual Security to a disqualified organization
and upon a pass-through entity (including regulated investment companies, real
estate investment trusts, common trust funds, partnerships, trusts, estates,
certain cooperatives, and nominees) that owns a Residual Security if such
pass-through entity has a disqualified organization as a record-holder. For
purposes of the preceding sentence, a transfer includes any transfer of record
or beneficial ownership, whether pursuant to a purchase, a default under a
secured lending agreement or otherwise.
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The term "disqualified organization" includes the United States, any state
or political subdivision thereof, any foreign government, any international
organization, or any agency or instrumentality of the foregoing (other than
certain taxable instrumentalities), any cooperative organization furnishing
electric energy or providing telephone service to persons in rural areas, or any
organization (other than a farmers' cooperative) that is exempt from federal
income tax, unless such organization is subject to the tax on unrelated business
income. Moreover, an entity will not qualify as a REMIC unless there are
reasonable arrangements designed to ensure that (i) residual interests in such
entity are not held by disqualified organizations and (ii) information necessary
for the application of the tax described herein will be made available.
Restrictions on the transfer of a Residual Security and certain other provisions
that are intended to meet this requirement are described in the Pooling and
Servicing Agreement, and will be discussed more fully in the applicable
Prospectus Supplement relating to the offering of any Residual Security. In
addition, a pass-through entity (including a nominee) that holds a Residual
Security may be subject to additional taxes if a disqualified organization is a
record-holder therein. A transferor of a Residual Security (or an agent of a
transferee of a Residual Security, as the case may be) will be relieved of such
tax liability if (i) the transferee furnishes to the transferor (or the
transferee's agent) an affidavit that the transferee is not a disqualified
organization, and (ii) the transferor (or the transferee's agent) does not have
actual knowledge that the affidavit is false at the time of the transfer.
Similarly, no such tax will be imposed on a pass-through entity for a period
with respect to an interest therein owned by a disqualified organization if (i)
the record-holder of such interest furnishes to the pass-through entity an
affidavit that it is not a disqualified organization, and (ii) during such
period, the pass-through entity has no actual knowledge that the affidavit is
false.
Under the REMIC Regulations, a transfer of a "noneconomic residual
interest" to a U.S. Person (as defined below in "Foreign Investors--Grantor
Trust Securities and Regular Securities") will be disregarded for all federal
tax purposes unless no significant purpose of the transfer is to impede the
assessment or collection of tax. A Residual Security would be treated as
constituting a noneconomic residual interest unless, at the time of the
transfer, (i) the present value of the expected future distributions on the
Residual Security is no less than the product of the present value of the
"anticipated excess inclusions" with respect to such Security and the highest
corporate rate of tax for the year in which the transfer occurs, and (ii) the
transferor reasonably expects that the transferee will receive distributions
from the applicable REMIC Trust in an amount sufficient to satisfy the liability
for income tax on any "excess inclusions" at or after the time when such
liability accrues. Anticipated excess inclusions are the excess inclusions that
are anticipated to be allocated to each calendar quarter (or portion thereof)
following the transfer of a Residual Security, determined as of the date such
Security is transferred and based on events that have occurred as of that date
and on the Prepayment Assumption. See "Discount and Premium" and "Taxation of
Holders of Residual Securities--Excess Inclusions."
The REMIC Regulations provide that a significant purpose to impede the
assessment or collection of tax exists if, at the time of the transfer, a
transferor of a Residual Security has "improper knowledge" (i.e., either knew,
or should have known, that the transferee would be unwilling or unable to pay
taxes due on its share of the taxable income of the REMIC Trust). A transferor
is presumed not to have improper knowledge if (i) the transferor conducts, at
the time of a 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 come 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 makes certain
representations to the transferor in the affidavit relating to disqualified
organizations discussed above. Transferors of a Residual Security should consult
with their own tax advisors for further information regarding such transfers.
Reporting and Other Administrative Matters
For purposes of the administrative provisions of the Code, each REMIC Trust
will be treated as a partnership and the Holders of Residual Securities will be
treated as partners. The Trustee will prepare, sign and file federal income tax
returns for each REMIC Trust, which returns are subject to audit by the IRS.
Moreover, within a reasonable time after the end of each calendar year, the
Trustee will furnish to each Holder that received a distribution during such
year a statement setting forth the portions of any such distributions that
constitute interest distributions, original issue discount, and such other
information as is required by Treasury regulations and, with respect to Holders
of Residual Securities in a REMIC Trust, information necessary to compute the
daily portions of the taxable income (or net loss) of such REMIC Trust for each
day during such year. The Trustee will also act as the tax matters partner for
each REMIC Trust, either in its capacity as a Holder of a Residual Security or
in a fiduciary capacity. Each Holder of a Residual Security, by the acceptance
of its Residual Security, agrees that the Trustee will act as its fiduciary in
the performance of any duties required of it in the event that it is the tax
matters partner.
Each Holder of a Residual Security is required to treat items on its return
consistently with the treatment on the return of the REMIC Trust, unless the
Holder either files a statement identifying the inconsistency or establishes
that the inconsistency resulted from incorrect information received from the
REMIC Trust. The IRS may assert a deficiency resulting from a failure to comply
with the consistency requirement without instituting an administrative
proceeding
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at the REMIC Trust level. The Trustee does not intend to register any REMIC
Trust as a tax shelter pursuant to section 6111 of the Code.
Termination
In general, no special tax consequences will apply to a Holder of a Regular
Security upon the termination of a REMIC Trust by virtue of the final payment or
liquidation of the last Mortgage Loan remaining in the Trust Estate. If a Holder
of a Residual Security's adjusted basis in its Residual Security at the time
such termination occurs exceeds the amount of cash distributed to such Holder in
liquidation of its interest, although the matter is not entirely free from
doubt, it would appear that the Holder of the Residual Security is entitled to a
loss equal to the amount of such excess.
Debt Securities
General
With respect to each Series of Debt Securities, Arter & Hadden LLP, special
tax counsel to the Company, will deliver its opinion to the Company that (unless
otherwise limited in the applicable Prospectus Supplement) the Securities will
be classified as debt of the Company secured by the related Mortgage Loans.
Since different criteria are used to determine the non-tax accounting treatment
of the issuance of Debt Securities, the Company expects to treat such
transactions, for financial accounting purposes, as a transfer of an ownership
interest in the related Mortgage Loans to the related Trust and not as the
issuance of debt obligations. In this regard, it should be noted that the IRS
has issued a notice stating that, upon examination, it will scrutinize
instruments treated as debt for federal income tax purposes but as equity for
regulatory, rating agency or financial accounting purposes to determine if their
purported status as debt for federal income tax purposes is appropriate.
Consequently, the Debt Securities will not be treated as ownership interests in
the Mortgage Loans or the Trust. Assuming the Debt Securities are treated as
debt for federal income tax purposes, Holders will be required to report income
received with respect to the Debt Securities in accordance with their normal
method of accounting. For additional tax consequences relating to Debt
Securities purchased at a discount or with premium, see "Discount and Premium,"
below.
Special Tax Attributes
As described above, Grantor Trust Securities will possess certain special
tax attributes by virtue of their being ownership interests in the underlying
Mortgage Loans. Similarly, REMIC Securities will possess similar attributes by
virtue of the REMIC provisions of the Code. In general, Debt Securities will not
possess such special tax attributes. Investors to whom such attributes are
important should consult their own tax advisors regarding investment in Debt
Securities.
Sale or Exchange
If a Holder of a Debt Security sells or exchanges such Security, the Holder
will recognize gain or loss equal to the difference, in any, between the amount
received and the Holder's adjusted basis in the Security. The adjusted basis in
the Security generally will equal its initial cost, increased by any original
issue discount or market discount previously included in the seller's gross
income with respect to the Security and reduced by the payments previously
received on the Security, other than payments of qualified stated interest, and
by any amortized premium.
In general (except as described in "Discount and Premium--Market
Discount," below), except for certain financial institutions subject to section
582(c) of the Code, any gain or loss on the sale or exchange of a Debt Security
recognized by an investor who holds the Security as a capital asset (within the
meaning of section 1221 of the Code), will be capital gain or loss.
Discount and Premium
A Security purchased for an amount other than its outstanding principal
amount will be subject to the rules governing original issue discount, market
discount or premium. In addition, all Grantor Trust Strip Securities and certain
Grantor Trust Fractional Interest Securities will be treated as having original
issue discount by virtue of the coupon stripping rules in section 1286 of the
Code. In very general terms, (i) original issue discount is treated as a form of
interest and must be included in a Holder's income as it accrues (regardless of
the Holder's regular method of accounting) using a constant yield method; (ii)
market discount is treated as ordinary income and must be included in a Holder's
income as principal payments are made on the Security (or upon a sale of a
Security) and (iii) if a Holder so elects, premium may be amortized over the
life of the Security and offset against inclusions of interest income. These tax
consequences are discussed in greater detail below.
67
Original Issue Discount
In general, a Security will be considered to be issued with original issue
discount equal to the excess, if any, of its "stated redemption price at
maturity" over its "issue price." The issue price of a Security is the initial
offering price to the public (excluding bond houses and brokers) at which a
substantial amount of the Securities was sold. The issue price also includes any
accrued interest attributable to the period between the beginning of the first
Interest Accrual Period and the Settlement Date. The stated redemption price at
maturity of a Security that has a notional principal amount or receives
principal only or that is or may be an accrual Security is equal to the sum of
all distributions to be made under such Security. The stated redemption price at
maturity of any other Security is its stated principal amount, plus an amount
equal to the excess (if any) of the interest payable on the first Distribution
Date over the interest that accrues for the period from the Settlement Date to
the first Distribution Date.
Notwithstanding the general definition, original issue discount will be
treated as zero if such discount is less than 0.25 percent of the stated
redemption price at maturity multiplied by its weighted average life. The
weighted average life of a Security is apparently computed for this purpose as
the sum, for all distributions included in the stated redemption price at
maturity of the amounts determined by multiplying (i) the number of complete
years (rounding down for partial years) from the Settlement Date until the date
on which each such distribution is expected to be made under the assumption that
the Mortgage Loans prepay at the rate specified in the applicable Prospectus
Supplement (the Prepayment Assumption) by (ii) a fraction, the numerator of
which is the amount of such distribution and the denominator of which is the
Security's stated redemption price at maturity. If original issue discount is
treated as zero under this rule, the actual amount of original issue discount
must be allocated to the principal distributions on the Security and, when each
such distribution is received, gain equal to the discount allocated to such
distribution will be recognized.
Section 1272(a)(6) of the Code contains special original issue discount
rules directly applicable to REMIC Securities and Debt Securities and applicable
by analogy to Grantor Trust Securities. Investors in Grantor Trust Strip
Securities should be aware that there can be no assurance that the rules
described below will be applied to such Securities. Under these rules (described
in greater detail below), (i) the amount and rate of accrual of original issue
discount on each Series of Securities will be based on (x) the Prepayment
Assumption, and (y) in the case of a Security calling for a variable rate of
interest, an assumption that the value of the index upon which such variable
rate is based remains equal to the value of that rate on the Settlement Date,
and (ii) adjustments will be made in the amount of discount accruing in each
taxable year in which the actual prepayment rate differs from the Prepayment
Assumption.
Section 1272(a)(6)(B)(iii) of the Code requires that the prepayment
assumption used to calculate original issue discount be determined in the manner
prescribed in Treasury regulations. To date, no such regulations have been
promulgated. The legislative history of this Code provision indicates that the
assumed prepayment rate must be the rate used by the parties in pricing the
particular transaction. The Company anticipates that the Prepayment Assumption
for each Series of Securities will be consistent with this standard. The Company
makes no representation, however, that the Mortgage Loans for a given Series
will prepay at the rate reflected in the Prepayment Assumption for that Series
or at any other rate. Each investor must make its own decision as to the
appropriate prepayment assumption to be used in deciding whether or not to
purchase any of the Securities.
Each Securityholder must include in gross income the sum of the "daily
portions" of original issue discount on its Security for each day during its
taxable year on which it held such Security. For this purpose, in the case of an
original Holder, the daily portions of original issue discount will be
determined as follows. A calculation will first be made of the portion of the
original issue discount that accrued during each "accrual period." The Trustee
will supply, at the time and in the manner required by the IRS, to
Securityholders, brokers and middlemen information with respect to the original
issue discount accruing on the Securities. Unless otherwise disclosed in the
applicable Prospectus Supplement, the Trustee will report original issue
discount based on accrual periods of one month, each beginning on a payment date
(or, in the case of the first such period, the Settlement Date) and ending on
the day before the next payment date.
Under section 1272(a)(6) of the Code, the portion of original issue
discount treated as accruing for any accrual period will equal the excess, if
any, of (i) the sum of (A) the present values of all the distributions remaining
to be made on the Security, if any, as of the end of the accrual period and (B)
the distribution made on such Security during the accrual period of amounts
included in the stated redemption price at maturity, over (ii) the adjusted
issue price of such Security at the beginning of the accrual period. The present
value of the remaining distributions referred to in the preceding sentence will
be calculated based on (i) the yield to maturity of the Security, calculated as
of the Settlement Date, giving effect to the Prepayment Assumption, (ii) events
(including actual prepayments) that have occurred prior to the end of the
accrual period, (iii) the Prepayment Assumption, and (iv) in the case of a
Security calling for a variable rate of interest, an assumption that the value
of the index upon which such variable rate is based remains the same as its
value on the Settlement Date over the entire life of such Security. The adjusted
issue price of a Security at any time will equal the issue price of such
Security, increased by the aggregate amount of previously accrued original issue
68
discount with respect to such Security, and reduced by the amount of any
distributions made on such Security as of that time of amounts included in the
stated redemption price at maturity. The original issue discount accruing during
any accrual period will then be allocated ratably to each day during the period
to determine the daily portion of original issue discount.
In the case of Grantor Trust Strip Securities and certain REMIC Securities,
the calculation described in the preceding paragraph may produce a negative
amount of original issue discount for one or more accrual periods. No definitive
guidance has been issued regarding the treatment of such negative amounts. The
legislative history to section 1272(a)(6) indicates that such negative amounts
may be used to offset subsequent positive accruals but may not offset prior
accruals and may not be allowed as a deduction item in a taxable year in which
negative accruals exceed positive accruals. Holders of such Securities should
consult their own tax advisors concerning the treatment of such negative
accruals.
A subsequent purchaser of a Security that purchases such Security at a cost
less than its remaining stated redemption price at maturity also will be
required to include in gross income for each day on which it holds such
Security, the daily portion of original issue discount with respect to such
Security (but reduced, if the cost of such Security to such purchaser exceeds
its adjusted issue price, by an amount equal to the product of (i) such daily
portion and (ii) a constant fraction, the numerator of which is such excess and
the denominator of which is the sum of the daily portions of original issue
discount on such Security for all days on or after the day of purchase).
Market Discount
A Holder that purchases a Security at a market discount, that is, at a
purchase price less than the remaining stated redemption price at maturity of
such Security (or, in the case of a Security with original issue discount, its
adjusted issue price), will be required to allocate each principal distribution
first to accrued market discount on the Security, and recognize ordinary income
to the extent such distribution does not exceed the aggregate amount of accrued
market discount on such Security not previously included in income. With respect
to Securities that have unaccrued original issue discount, such market discount
must be included in income in addition to any original issue discount. A Holder
that incurs or continues indebtedness to acquire a Security at a market discount
may also be required to defer the deduction of all or a portion of the interest
on such indebtedness until the corresponding amount of market discount is
included in income. In general terms, market discount on a Security may be
treated as accruing either (i) under a constant yield method or (ii) in
proportion to remaining accruals of original issue discount, if any, or if none,
in proportion to remaining distributions of interest on the Security, in any
case taking into account the Prepayment Assumption. The Trustee will make
available, as required by the IRS, to Holders of Securities information
necessary to compute the accrual of market discount.
Notwithstanding the above rules, market discount on a Security will be
considered to be zero if such discount is less than 0.25 percent of the
remaining stated redemption price at maturity of such Security multiplied by its
weighted average remaining life. Weighted average remaining life presumably
would be calculated in a manner similar to weighted average life, taking into
account payments (including prepayments) prior to the date of acquisition of the
Security by the subsequent purchaser. If market discount on a Security is
treated as zero under this rule, the actual amount of market discount must be
allocated to the remaining principal distributions on the Security and, when
each such distribution is received, gain equal to the discount allocated to such
distribution will be recognized.
Securities Purchased at a Premium
A purchaser of a Security that purchases such Security at a cost greater
than its remaining stated redemption price at maturity will be considered to
have purchased such Security (a "Premium Security") at a premium. Such a
purchaser need not include in income any remaining original issue discount and
may elect, under section 171(c)(2) of the Code, to treat such premium as
"amortizable bond premium." If a Holder makes such an election, the amount of
any interest payment that must be included in such Holder's income for each
period ending on a Distribution Date will be reduced by the portion of the
premium allocable to such period based on the Premium Security's yield to
maturity. Under recently issued Treasury regulations, such premium amortization
will be made under principles analogous to those governing the accrual of market
discount (as discussed above under "Market Discount"). If such election is made
by the Holder, the election will also apply to all bonds the interest on which
is not excludible from gross income ("fully taxable bonds") held by the Holder
at the beginning of the first taxable year to which the election applies and to
all such fully taxable bonds thereafter acquired by it, and is irrevocable
without the consent of the IRS. If such an election is not made, (i) such a
Holder must include the full amount of each interest payment in income as it
accrues, and (ii) the premium must be allocated to the principal distributions
on the Premium Security and, when each such distribution is received, a loss
equal to the premium allocated to such distribution will be recognized. Any tax
benefit from the premium not previously recognized will be taken into account in
computing gain or loss upon the sale or disposition of the Premium Security.
69
Special Election
For any Security acquired on or after April 4, 1994, a Holder may elect to
include in gross income all "interest" that accrues on the Security by using a
constant yield method. For purposes of the election, the term "interest"
includes stated interest, acquisition discount, original issue discount, de
minimis original issue discount, market discount, de minimis market discount and
unstated interest as adjusted by any amortizable bond premium or acquisition
premium. A Holder should consult its own tax advisor regarding the time and
manner of making and the scope of the election and the implementation of the
constant yield method.
Backup Withholding
Distributions of interest and principal, as well as distributions of
proceeds from the sale of Securities, may be subject to the "backup withholding
tax" under section 3406 of the Code at a rate of 31 percent if recipients of
such distributions fail to furnish to the payor certain information, including
their taxpayer identification numbers, or otherwise fail to establish an
exemption from such tax. Any amounts deducted and withheld from a distribution
to a recipient would be allowed as a credit against such recipient's federal
income tax. Furthermore, certain penalties may be imposed by the IRS on a
recipient of distributions that is required to supply information but that does
not do so in the proper manner.
Foreign Investors
Grantor Trust Securities and Regular Securities
Distributions made on a Grantor Trust Security or a Regular Security to, or
on behalf of, a Holder that is not a U.S. Person generally will be exempt from
U.S. federal income and withholding taxes. The term "U.S. Person" means a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or any
political subdivision thereof, or an estate or trust that is subject to U.S.
federal income tax regardless of the source of its income. This exemption is
applicable provided (a) the Holder is not subject to U.S. tax as a result of a
connection to the United States other than ownership of the Security, (b) the
Holder signs a statement under penalties of perjury that certifies that such
Holder is not a U.S. Person, and provides the name and address of such Holder,
and (c) the last U.S. Person in the chain of payment to the Holder receives such
statement from such Holder or a financial institution holding on its behalf and
does not have actual knowledge that such statement is false. Holders should be
aware that the IRS might take the position that this exemption does not apply to
a Holder that also owns 10 percent or more of the Residual Securities, or to a
Holder that is a "controlled foreign corporation" described in section
881(c)(3)(C) of the Code.
REMIC Residual Securities
Amounts distributed to a Holder of a Residual Security that is a not a U.S.
Person generally will be treated as interest for purposes of applying the 30
percent (or lower treaty rate) withholding tax on income that is not effectively
connected with a U.S. trade or business. Treasury Regulations clarify that
amounts not constituting excess inclusions that are distributed on a Residual
Security to a Holder that is not a U.S. Person generally will be exempt from
U.S. federal income and withholding tax, subject to the same conditions
applicable to distributions on Grantor Trust Securities and Regular Securities,
as described above, but only to the extent that the obligations directly
underlying the REMIC Trust that issued the Residual Security (e.g., Mortgage
Loans or regular interests in another REMIC) were issued after July 18, 1984. In
no case will any portion of REMIC income that constitutes an excess inclusion be
entitled to any exemption from the withholding tax or a reduced treaty rate for
withholding. See "Taxation of Holders of Residual Securities--Excess Inclusions.
ERISA CONSIDERATIONS
The Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
imposes certain fiduciary and prohibited transaction restrictions on employee
pension and welfare benefit plans subject to ERISA ("ERISA Plans"). Section 4975
of the Code imposes essentially the same prohibited transaction restrictions on
tax-qualified retirement plans described in Section 401(a) of the Code
("Qualified Retirement Plans") and on Individual Retirement Accounts ("IRAs")
described in Section 408 of the Code (collectively, "Tax-Favored Plans").
Certain employee benefit plans, such as governmental plans (as defined in
Section 3(32) of ERISA), are not subject to the ERISA requirements discussed
herein. Accordingly, assets of such plans may be invested in Securities without
regard to the ERISA considerations described below, subject to the provisions of
applicable federal and state law. Any such plan that is a Qualified Retirement
Plan and exempt from taxation under Sections 401(a) and 501(a) of the Code,
however, is subject to the prohibited transaction rules set forth in Section 503
of the Code.
70
Section 404 of ERISA imposes general fiduciary requirements, including
those of investment prudence and diversification and the requirement that a
Plan's investment be made in accordance with the documents governing the Plan.
In addition, Section 406 of ERISA and Section 4975 of the Code prohibit a broad
range of transactions involving assets of ERISA Plans and Tax-Favored Plans
(collectively, "Plans") and persons ("Parties in Interest" under ERISA or
"Disqualified Persons" under the Code) who have certain specified relationships
to the Plans, unless a statutory or administrative exemption is available.
Certain Parties in Interest (or Disqualified Persons) that participate in a
prohibited transaction may be subject to a penalty (or an excise tax) imposed
pursuant to Section 502(i) of ERISA or Section 4975 of the Code, unless a
statutory or administrative exemption is available.
Plan Asset Regulations
A Plan's investment in Securities may cause the Mortgage Loans included in
a Mortgage Pool to be deemed Plan assets. The U.S. Department of Labor (the
"DOL") has promulgated regulations (the "DOL Regulations") concerning whether or
not a Plan's assets would be deemed to include an interest in the underlying
assets of an entity (such as a Trust Estate), for purposes of applying the
general fiduciary responsibility provisions of ERISA and the prohibited
transaction provisions of ERISA and the Code, when a Plan acquires an "equity
interest" (such as a Security) in such entity. Because of the factual nature of
certain of the rules set forth in the DOL Regulations, an investing Plan's
assets either may be deemed to include an interest in the assets of a Trust
Estate or may be deemed merely to include its interest in the Securities.
Therefore, Plans should not acquire or hold Securities in reliance upon the
availability of any exception under the DOL Regulations.
The prohibited transaction provisions of Section 406 of ERISA and Section
4975 of the Code may apply to a Trust Estate and cause the Company, the
Servicer, any Sub-Servicer, the Trustee, the obligor under any credit
enhancement mechanism or certain affiliates thereof, to be considered or become
Parties in Interest or Disqualified Persons with respect to an investing Plan.
If so, the acquisition or holding of Securities by or on behalf of the investing
Plan could also give rise to a prohibited transaction under ERISA and the Code,
unless some statutory or administrative exemption is available. Securities
acquired by a Plan would be assets of that Plan. Under the DOL Regulations, the
Trust Estate, including the Mortgage Loans and the other assets held in the
Trust Estate, may also be deemed to be assets of each Plan that acquires
Securities. Special caution should be exercised before the assets of a Plan are
used to acquire a Security in such circumstances, especially if, with respect to
such assets, the Company, the Servicer, any Sub-Servicer, the Trustee, the
obligor under any credit enhancement mechanism or an affiliate thereof either
(i) has investment discretion with respect to the investment of Plan assets; or
(ii) has authority or responsibility to give (or regularly gives) investment
advice with respect to Plan assets for a fee pursuant to an agreement or
understanding that such advice will serve as a primary basis for investment
decisions with respect to such assets.
Any person who has discretionary authority or control respecting the
management or disposition of Plan assets, and any person who provides investment
advice with respect to such assets for a fee (in the manner described above), is
a fiduciary of the investing Plan. If the Mortgage Loans were to constitute Plan
assets, then any party exercising management or discretionary control regarding
those assets may be deemed to be a Plan "fiduciary," and thus subject to the
fiduciary requirements of ERISA and the prohibited transaction provisions of
ERISA and Section 4975 of the Code with respect to the investing Plan. In
addition, if the Mortgage Loans were to constitute Plan assets, then the
acquisition or holding of Securities by a Plan, as well as the operation of the
Trust Estate, may constitute or involve a prohibited transaction under ERISA and
the Code.
Prohibited Transaction Class Exemption
The DOL has issued an administrative exemption, Prohibited Transaction
Class Exemption 83-1 ("PTCE 83-1"), which generally exempts from the prohibited
transaction provisions of Section 406(a) of ERISA, and from the excise taxes
imposed by Sections 4975(a) and (b) of the Code by reason of Section
4975(c)(1)(A) through (D) of the Code, certain transactions involving
residential mortgage pool investment trusts relating to the purchase, sale and
holding of securities in the initial issuance of Securities and the servicing
and operation of "mortgage pools" (as defined below). PTCE 83-1 permits, subject
to certain general and specific conditions, transactions which might otherwise
be prohibited between Plans and Parties in Interest (or Disqualified Persons)
with respect to those Plans, related to the origination, maintenance and
termination of mortgage pools and the acquisition and holding of certain
mortgage pool pass-through Securities representing interests in such mortgage
pools by Plans, whether or not the Plan's assets would be deemed to include an
ownership interest in the mortgage loans in the mortgage pool. PTCE 83-1 does
not provide an exemption for Subordinate Securities.
PTCE 83-1 defines the term "mortgage pool" as "an investment pool the
corpus of which (1) is held in trust; and (2) consists solely of (a) interest
bearing obligations secured by either first or second mortgages or deeds of
trust on one-to four-family, residential property; (b) property which had
secured obligations and which has been acquired by foreclosure; and (c)
undistributed cash." The Company expects that each pool of Mortgage Loans will
be a "mortgage pool" within the meaning of PTCE 83-1.
71
PTCE 83-1 defines the term "mortgage pool pass-through certificate" as a
"certificate representing a beneficial undivided fractional interest in a
mortgage pool and entitling the holder of such certificate to pass-through
payment of principal and interest from the pooled mortgage loans, less any fees
retained by the pool sponsor." The Company has been advised by Arter & Hadden
LLP that, for purposes of applying PTCE 83-1, the term "mortgage pool
pass-through certificate" would include (i) Securities representing interests in
a Trust Estate consisting of Mortgage Loans issued in a series consisting of
only a single class of Securities; and (ii) Senior Securities representing
interests in a Trust Estate consisting of Mortgage Loans issued in a series in
which there is only one class of Senior Securities; provided that the Securities
described in clauses (i) and (ii) evidence the beneficial ownership of a
specified portion of both future interest payments and future principal payments
with respect to the Mortgage Loans.
It is not clear whether all types of Securities that may be offered
hereunder would be "mortgage pass-through certificates" for purposes of applying
PTCE 83-1, including, but not limited to, (a) a class of Securities that
evidences the beneficial ownership of interest payments only or principal
payments only, disproportionate interest and principal payments, or nominal
principal or interest payments, such as the Strip Securities; or (b) Securities
in a series including classes of Securities which differ as to timing,
sequential order, rate or amount of distributions of principal or interest or
both, or as to which distributions of principal or interest or both on any class
may be made upon the occurrence of specified events, in accordance with a
schedule or formula, or on the basis of collections from designated portions of
the Mortgage Pool; or (c) Securities evidencing an interest in a Trust Estate as
to which two or more REMIC elections have been made; or (d) a series including
other types of multiple classes. Accordingly, until further clarification by the
DOL, Plans should not acquire or hold Securities representing interests
described in this paragraph in reliance upon the availability of PTCE 83-1
without first consulting with their counsel regarding the application of PTCE
83-1 to the proposed acquisition and holding of such Securities.
PTCE 83-1 sets forth three general conditions that must be satisfied for
any transaction involving the purchase, sale and holding of "mortgage pool
pass-through certificates" and the servicing and operation of the "mortgage
pool" to be eligible for exemption: (1) the pool trustee must not be an
affiliate of the pool sponsor; (2) a system of insurance or other protection for
the pooled mortgage loans and property securing such loans, and for indemnifying
securityholders against reductions in pass-through payments due to property
damage or defaults in loan payments in an amount not less than the greater of
one percent of the aggregate principal balance of all covered pooled mortgages,
or the principal balance of the largest covered mortgage, must be maintained;
and (3) the amount of the payment retained by the pool sponsor together with
other funds inuring to its benefit must be limited to not more than adequate
consideration for forming the mortgage pools plus reasonable compensation for
services provided by the pool sponsor to the mortgage pool. PTCE 83-1 also
imposes additional specific conditions for certain types of transactions
involving an investing Plan and for situations in which the Parties in Interest
or Disqualified Persons are fiduciaries.
The Prospectus Supplement for a series will set forth whether the Trustee
in respect of that series is affiliated with the Company. If the credit
enhancement mechanism for a series of Securities constitutes a system of
insurance or other protection within the meaning of PTCE 83-1 and is maintained
in an amount not less than the greater of one percent of the aggregate principal
balance of the Mortgage Loans or the principal balance of the largest Mortgage
Loan, then the Company has been advised that the second general condition
referred to above will be satisfied. The Company will not receive total
compensation for forming and providing services to the Mortgage Pools which will
be more than adequate consideration. Each Plan fiduciary responsible for making
the investment decision whether to acquire or hold Securities must make its own
determination as to whether (i) the Securities constitute "mortgage pool
pass-through certificates" for purposes of applying PTCE 83-1, (ii) the second
and third general conditions will be satisfied, and (iii) the specific
conditions, not discussed herein, of PTCE 83-1 have been satisfied.
It should be noted that in promulgating PTCE 83-1 and its predecessor, the
DOL did not have under its consideration interests in pools of the exact nature
described herein. There are other class and individual prohibited transaction
exemptions issued by the DOL that could apply to a Plan's acquisition or holding
of Securities. There can be no assurance that any of those exemptions will apply
with respect to any particular Plan that acquires or holds Securities or, even
if all of the conditions specified therein were satisfied, that the exemption
would apply to all transactions involving the Trust Estate. The applicable
Prospectus Supplement under "ERISA Considerations" may contain additional
information regarding the application of PTCE 83-1, or other prohibited
transaction exemptions that may be available, with respect to the series offered
thereby.
Tax Exempt Investors
A Plan that is exempt from federal income taxation pursuant to Section 501
of the Code (a "Tax Exempt Investor") nonetheless will be subject to federal
income taxation to the extent that its income is UBTI within the meaning of
Section 512 of the Code. All "excess inclusions" of a REMIC allocated to a REMIC
Residual Security held by a Tax Exempt Investor will be considered UBTI and thus
will be subject to federal income tax. See "Certain Federal Income Tax
Consequences--Taxation of Owners of REMIC Residual Securities--Excess
Inclusions."
72
Consultation With Counsel
Any Plan fiduciary that proposes to cause a Plan to acquire or hold
Securities should consult with its counsel with respect to the potential
applicability of the fiduciary responsibility provisions of ERISA and the
prohibited transaction provisions of ERISA and the Code to the proposed
investment and the availability of PTCE 83-1 or any other prohibited transaction
exemption.
LEGAL INVESTMENT MATTERS
Certain classes of Securities offered hereby and by the related Prospectus
Supplement will constitute "mortgage related securities" for purposes of the
Secondary Mortgage Market Enhancement Act of 1984 ("SMMEA") so long as they are
rated in at least the second highest rating category by any Rating Agency, and
as such may be legal investments for persons, trusts, corporations,
partnerships, associations, business trusts and business entities (including
depository institutions, life insurance companies and pension funds) created
pursuant to or existing under the laws of the United States or of any State
whose authorized investments are subject to state regulation to the same extent
that, under applicable law, obligations issued by or guaranteed as to principal
and interest by the United States or any agency or instrumentality thereof
constitute legal investments for such entities. Under SMMEA, if a State enacted
legislation on or prior to October 3, 1991 specifically limiting the legal
investment authority of any such entities with respect to "mortgage related
securities," such securities will constitute legal investments for entities
subject to such legislation only to the extent provided therein. Certain States
have enacted legislation which overrides the preemption provisions of SMMEA.
SMMEA provides, however, that in no event will the enactment of any such
legislation affect the validity of any contractual commitment to purchase, hold
or invest in "mortgage related securities," or require the sale or other
disposition of such securities, so long as such contractual commitment was made
or such securities acquired prior to the enactment of such legislation.
SMMEA also amended the legal investment authority of federally-chartered
depository institutions as follows: federal savings and loan associations and
federal savings banks may invest in, sell or otherwise deal with "mortgage
related securities" without limitation as to the percentage of their assets
represented thereby, federal credit unions may invest in such securities, and
national banks may purchase such securities for their own account without regard
to the limitations generally applicable to investment securities set forth in 12
U.S.C. 24 (Seventh), subject in each case to such regulations as the applicable
federal regulatory authority may prescribe.
The Federal Financial Institutions Examination Council has adopted a
supervisory policy statement (the "Policy Statement"), applicable to all
depository institutions, setting forth guidelines for and significant
restrictions on investments in "high-risk mortgage securities." The Policy
Statement has been adopted by the Federal Reserve Board, the Office of the
Comptroller of the Currency, the FDIC and the Office of Thrift Supervision. The
Policy Statement generally indicates that a mortgage derivative product will be
deemed to be high risk if it exhibits greater price volatility than a standard
fixed rate thirty-year mortgage security. According to the Policy Statement,
prior to purchase, a depository institution will be required to determine
whether a mortgage derivative product that it is considering acquiring is
high-risk, and if so that the proposed acquisition would reduce the
institution's overall interest rate risk. Reliance on analysis and documentation
obtained from a securities dealer or other outside party without internal
analysis by the institution would be unacceptable. There can be no assurance as
to which classes of Securities will be treated as high-risk under the Policy
Statement. In addition, although it has not adopted the Policy Statement, the
National Credit Union Administration has issued regulations governing federal
credit union investments which prohibit investment in certain specified types of
securities, which may include certain classes of Securities. Similar policy
statements have been issued by regulators having jurisdiction over other types
of depository institutions.
There may be other restrictions on the ability of certain investors either
to purchase certain classes of Securities or to purchase any class of Securities
representing more than a specified percentage of the investors assets. The
Company will make no representations as to the proper characterization of any
class of Securities for legal investment or other purposes, or as to the ability
of particular investors to purchase any class of Securities under applicable
legal investment restrictions. These uncertainties may adversely affect the
liquidity of any class of Securities. Accordingly, all investors whose
investment activities are subject to legal investment laws and regulations,
regulatory capital requirements or review by regulatory authorities should
consult with their own legal advisors in determining whether and to what extent
the Securities of any class constitute legal investments under SMMEA or are
subject to investment, capital or other restrictions, and whether SMMEA has been
overridden in any jurisdiction applicable to such investor.
USE OF PROCEEDS
Substantially all of the net proceeds to be received from the sale of
Securities will be applied by the Company to finance the origination or purchase
of, or to repay short-term loans incurred to finance the origination or purchase
of, the Mortgage Loans underlying the Securities or will be used by the Company
for general corporate purposes. The Company expects that it will make additional
sales of securities similar to the Securities from time to time, but the timing
and amount of any such additional offerings will be dependent upon a number of
factors, including the volume
73
of mortgage loans purchased by the Company, prevailing interest rates,
availability of funds and general market conditions.
METHODS OF DISTRIBUTION
The Securities offered hereby and by the related Prospectus Supplement will
be offered in series through one or more of the methods described below. The
Prospectus Supplement prepared for each series will describe the method of
offering being utilized for that series and will state the public offering or
purchase price of such series and the net proceeds to the Company from such
sale.
The Company intends that Securities will be offered through the following
methods from time to time and that offerings may be made concurrently through
more than one of these methods or that an offering of a particular series of
Securities may be made through a combination of two or more of these methods.
Such methods are as follows:
1. By negotiated firm commitment or best efforts underwriting and public
re-offering by underwriters (which may include affiliates of the Company);
2. By placements by the Company with institutional investors through
dealers; and
3. By direct placements by the Company with institutional investors.
In addition, if specified in the related Prospectus Supplement, a series of
Securities may be offered in whole or in part in exchange for the Mortgage Loans
(and other assets, if applicable) that would comprise the Mortgage Pool in
respect of such Securities.
If underwriters are used in a sale of any Securities (other than in
connection with an underwriting on a best efforts basis), such Securities will
be acquired by the underwriters for their own account and may be resold from
time to time in one or more transactions, including negotiated transactions, at
fixed public offering prices or at varying prices to be determined at the time
of sale or at the time of commitment therefor. Such underwriters may be
broker-dealers affiliated with the Company whose identities and relationships to
the Company will be as set forth in the related Prospectus Supplement. The
managing underwriter or underwriters with respect to the offer and sale of a
particular series of Securities will be set forth on the cover of the Prospectus
Supplement relating to such series and the members of the underwriting
syndicate, if any, will be named in such Prospectus Supplement.
In connection with the sale of the Securities, underwriters may receive
compensation from the Company or from purchasers of the Securities in the form
of discounts, concessions or commissions. Underwriters and dealers participating
in the distribution of the Securities may be deemed to be underwriters in
connection with such Securities, and any discounts or commissions received by
them from the Company and any profit on the resale of Securities by them may be
deemed to be underwriting discounts and commissions under the Securities Act of
1933, as amended. The Prospectus Supplement will describe any such compensation
paid by the Company.
It is anticipated that the underwriting agreement pertaining to the sale of
any series of Securities will provide that the obligations of the underwriters
will be subject to certain conditions precedent, that the underwriters will be
obligated to purchase all such Securities if any are purchased (other than in
connection with an underwriting on a best efforts basis) and that, in limited
circumstances, the Company will indemnify the several underwriters and the
underwriters will indemnify the Company against certain civil liabilities,
including liabilities under the Securities Act of 1933, as amended, or will
contribute to payments required to be made in respect thereof.
The Prospectus Supplement with respect to any series offered by placements
through dealers will contain information regarding the nature of such offering
and any agreements to be entered into between the Company and purchasers of
Securities of such series.
The Company anticipates that the Securities offered hereby will be sold
primarily to institutional investors or be placed with individuals by the
Company or an affiliate of the Company. Purchasers of Securities, including
dealers, may, depending on the facts and circumstances of such purchases, be
deemed to be "underwriters" within the meaning of the Securities Act of 1933, as
amended, in connection with reoffers and sales by them of Securities. Holders of
Securities should consult with their legal advisors in this regard prior to any
such reoffer or sale.
LEGAL MATTERS
Certain legal matters will be passed upon for the Company by Arter & Hadden
LLP, Washington, D.C..
74
FINANCIAL INFORMATION
The Company has determined that its financial statements are not material
to the offering made hereby.
A Prospectus Supplement and the related Form 8-K (which shall be
incorporated by reference to this Registration Statement) may contain the
financial statements of the related Credit Enhancer, if any.
RATING
It is a condition to the issuance of each class of Securities offered
hereby that they shall have been rated in one of the four highest rating
categories by the related Raging Agencies.
Ratings on mortgage pass-through certificates 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 certificates, the nature of the underlying mortgage loans
and the credit quality of the guarantor, if any. Ratings on mortgage
pass-through certificates do not represent any assessment of the likelihood of
principal prepayments by mortgagors or of degree by which such prepayments might
differ from those originally anticipated. As a result, Securityholders might
suffer a lower than anticipated yield and, in addition, holders of stripped
pass-through certificates in extreme cases might fail to recoup their underlying
investments.
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
organization. Each security rating should be evaluated independently of any
other security rating.
75
INDEX OF PRINCIPAL DEFINITIONS
Page
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Accrual Securities.........................................................7
Advance...................................................................11
Affiliated Originators.....................................................5
APR.......................................................................20
Approved Guidelines.......................................................10
ARM Loans.................................................................17
Balloon Amount............................................................23
Balloon Loans.............................................................15
Bankruptcy Bond...........................................................45
Bankruptcy Loss...........................................................44
Bankruptcy Loss Amount....................................................43
Book-Entry Securities.....................................................32
Bulk Acquisitions.........................................................10
Bulk Guidelines...........................................................24
Buydown Account...........................................................20
Buydown Agreement.........................................................37
Buydown Funds.............................................................20
Buydown Mortgage Loans....................................................19
Buydown Period............................................................19
Cede......................................................................12
Certificates...............................................................6
Closing Date..............................................................34
Code......................................................................61
Combined Loan-to-Value Ratio..............................................21
Company....................................................................1
Company's Guidelines.......................................................9
Compensating Interest.....................................................39
Contract Sub-Servicers....................................................27
Conventional Loans........................................................19
Credit Enhancer...........................................................19
Cut-Off Date..............................................................20
Debt Securities...........................................................12
Defaulted Mortgage Loss...................................................44
Deferred Interest.........................................................15
Deficient Valuation.......................................................45
Deleted Mortgage Loan.....................................................28
Delinquency Advances......................................................39
Designated Originator.....................................................26
Detailed Description......................................................19
Determination Date........................................................39
Direct or Indirect Participants...........................................18
Disqualified Persons......................................................71
Distribution Account......................................................36
DOL.......................................................................71
DOL Regulations...........................................................71
DTC.......................................................................12
Due Date..................................................................36
Due Period.................................................................8
Eligible Account..........................................................36
Equity Securities..........................................................7
ERISA.....................................................................12
ERISA Plans...............................................................70
Exchange Act..............................................................13
Extraordinary Losses......................................................44
FACO......................................................................49
FASIT High-Yield Securities...............................................12
FASIT Regular Securities..................................................12
FDIC......................................................................27
FHLMC.....................................................................15
Financial Guaranty Insurance Policy.......................................46
Financial Guaranty Insurer................................................46
Fixed-Income Securities....................................................7
FNMA......................................................................15
Forward Purchase Agreement................................................10
Fraud Loss................................................................44
Fraud Loss Amount.........................................................43
Funding Period............................................................10
Garn-St. Germain Act......................................................58
Grantor Trust Estate......................................................60
Grantor Trust Fractional Interest Security................................61
Grantor Trust Securities..................................................12
Page
----
Grantor Trust Strip Security..............................................61
Indenture..................................................................6
Indenture Trustee..........................................................5
Index.....................................................................23
Indirect Participant......................................................33
Insurance Paying Agent....................................................46
Insurance Proceeds........................................................36
Insured Payment...........................................................46
Interest Rate..............................................................7
Investment Company Act.....................................................9
IRAs......................................................................70
IRS.......................................................................62
Issuer.....................................................................5
Junior Lien Loans.........................................................21
Letter of Credit..........................................................44
Letter of Credit Bank.....................................................44
Liquidated Mortgage Loan..................................................16
Liquidation Proceeds......................................................16
Loan Purchase Price.......................................................28
Loan-to-Value Ratio.......................................................19
Master Commitments........................................................26
Master Servicer............................................................5
Modified Loans............................................................23
Mortgage Asset Schedule...................................................19
Mortgage Assets...........................................................19
Mortgage Loan Program.....................................................22
Mortgage Loans.............................................................1
Mortgage Notes............................................................22
Mortgage Pool..............................................................1
Mortgage Pool Insurance Policy............................................45
Mortgage Rate.............................................................19
Mortgaged Properties.......................................................9
Mortgages..................................................................9
Mortgagor.................................................................15
Net Liquidation Proceeds..................................................36
Net Mortgage Rate.........................................................53
Note Margin...............................................................23
Notes......................................................................6
Originator's Retained Yield...............................................22
Originators................................................................1
Owner Trustee..............................................................5
Participants..............................................................32
Participating Originator..................................................26
Parties in Interest.......................................................71
Partnership Interests.....................................................12
Pass-Through Rate.........................................................38
Paying Agent..............................................................38
Payment Dates..............................................................8
Percentage Interest.......................................................38
Permitted Investments.....................................................36
Physical Certificates.....................................................32
Physical Securities.......................................................33
Plan......................................................................12
Plans.....................................................................71
Policy Statement..........................................................73
Pool Factor...............................................................40
Pool Insurer..............................................................37
Pooling and Servicing Agreement............................................6
Pre-Funding Account.......................................................10
Premium Security..........................................................69
Principal Prepayments.....................................................36
PTCE 83-1.................................................................71
Purchase Obligation.......................................................14
Qualified Replacement Mortgage............................................28
Qualified Retirement Plans................................................70
Rating Agencies...........................................................13
REMIC......................................................................2
REMIC Regular Securities..................................................12
REMIC Residual Securities.................................................12
REMIC Securities..........................................................60
REMIC Trust...............................................................62
76
Realized Loss.............................................................43
Record Date................................................................8
Regular Security..........................................................62
Relief Act................................................................18
Remittance Date...........................................................36
Remittance Period..........................................................8
Reserve Fund..............................................................46
Residual Security.........................................................62
REO Property..............................................................42
Securities.................................................................1
Security Registrar........................................................32
Securityholders............................................................1
Senior Securities..........................................................7
Servicer...................................................................1
Servicing Advances........................................................42
Servicing Agreement........................................................6
Settlement Date...........................................................63
Single Family Loans.......................................................22
SMMEA.....................................................................11
Special Hazard Amount.....................................................43
Special Hazard Insurance Policy...........................................45
Special Hazard Insurer....................................................45
Special Hazard Loss.......................................................44
Statistic Calculation Date................................................20
Strip Securities..........................................................31
Sub-Servicer(s)............................................................1
Sub-Servicing Account.....................................................35
Sub-Servicing Agreement...................................................27
Subordinate Amount........................................................44
Subordinate Securities.....................................................7
Subsequent Cut-Off Date...................................................17
Subsequent Mortgage Loan..................................................10
Tax Exempt Investor.......................................................72
Tax-Favored Plans.........................................................70
Title V...................................................................59
Title VIII................................................................60
Trust......................................................................1
Trust Agreement............................................................6
Trust Estate...............................................................1
Trustee....................................................................5
U.S. Person...............................................................70
UCC.......................................................................32
Unaffiliated Originators...................................................5
77
$115,000,000
First Alliance Mortgage Loan Trust 1999-1
Mortgage Loan
Asset Backed Certificates
Series 1999-1
First Alliance Mortgage Company
as Seller and Servicer
---------------------
PROSPECTUS SUPPLEMENT
March 11, 1999
---------------------
Lehman Brothers