PROSPECTUS SUPPLEMENT
(To prospectus dated September 23, 2002)
$258,860,000
(Approximate)
ABFC Mortgage Loan Asset-Backed Certificates, Series 2002-WF2
ASSET BACKED FUNDING CORPORATION
Depositor
WELLS FARGO HOME MORTGAGE, INC.
Servicer
----------------
The Certificates
o The certificates represent ownership interests in a trust consisting
primarily of a pool of fixed-rate and adjustable-rate first-lien
residential mortgage loans.
o The class A-1, class A-2 and class AIO certificates are senior
certificates.
o The class M-1, class M-2, class M-3, class M-4 and class B certificates
are subordinated to and provide credit enhancement for the class A
certificates. Each class of class M certificates is further subordinated
to and provides credit enhancement for each class of class M certificates
with a lower numerical class designation. The class B certificates also
provide credit enhancement for each class of class M certificates.
o The classes of offered certificates are listed in the table on page S-5.
o The class A-2 certificates are subject to a mandatory auction in
September 2004, as described in this prospectus supplement.
Credit Enhancement
o Excess Cashflow--To the extent available, cashflow received from the
mortgage loans in excess of accrued interest on the certificates and
principal collections required to be passed through to the certificates
will also cover losses incurred on mortgage loans during the period the
excess cashflow was generated.
o Overcollateralization--As of the cut-off date, the assets of the trust
will exceed the aggregate principal balance of the certificates,
resulting in overcollateralization. To the extent available, excess
cashflow received from the mortgage loans will also be applied as
payments of principal on the certificates to maintain this level of
overcollateralization.
o Subordination--The subordinate certificates are subordinate in right of
certain payments to the senior certificates and to those classes of
subordinate certificates higher in order of payment priority.
Neither the Securities and Exchange Commission nor any state securities
commission has approved the offered certificates or determined that this
prospectus supplement or the accompanying prospectus is accurate or complete.
Any representation to the contrary is a criminal offense.
The underwriters will purchase and offer the offered certificates to investors
at varying prices to be determined at the time of sale. The depositor expects
that the offered certificates will be available for delivery to investors in
book-entry form through The Depository Trust Company, Clearstream Banking or
the Euroclear System on September 26, 2002. Total proceeds to the depositor
for the offered certificates will be approximately 100.27% of the initial
principal balance of the offered certificates, before deducting expenses
payable by the depositor.
Banc of America Securities LLC
Countrywide Securities Corporation
Greenwich Capital Markets, Inc.
The date of this prospectus supplement is September 23, 2002
- --------------------------------------------------------------------------------
Carefully consider the "Risk Factors" beginning on page S-12 of this prospectus
supplement and on page 10 in the accompanying prospectus.
The offered certificates are not insured or guaranteed by any governmental
agency or instrumentality.
The offered certificates represent interests in the trust only and will not be
obligations of or represent interests in any other entity. This prospectus
supplement may be used to offer and sell the offered certificates only if it is
accompanied by the prospectus.
- --------------------------------------------------------------------------------
IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN THIS
PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS
The depositor describes the 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 your
certificates, and
o this prospectus supplement, which describes the specific
terms of your certificates.
If the description of the terms of your certificates varies between
this prospectus supplement and the accompanying prospectus, you should rely on
the information in this prospectus supplement.
Cross-references are included in this prospectus supplement and the
accompanying prospectus to captions in these materials where you can find
further related discussions. The following Table of Contents and the Table of
Contents included in the accompanying prospectus provide the pages on which
these captions are located.
You can find a listing of the pages where capitalized terms used in
this prospectus supplement and the accompanying prospectus are defined under the
caption "Index of Principal Definitions" beginning on page S-86 in this document
and under the caption "Index of Significant Definitions" beginning on page 120
in the accompanying prospectus. Any capitalized terms used but not defined in
this prospectus supplement have the meanings assigned in the accompanying
prospectus.
----------------------
This prospectus supplement and the accompanying prospectus contain
forward-looking statements relating to future economic performance or
projections and other financial items. Such forward-looking statements, together
with related qualifying language and assumptions, are found in the material,
including each of the tables, set forth under "Risk Factors" and "Yield,
Prepayment and Maturity Considerations." Forward-looking statements are also
found elsewhere in this prospectus supplement and the accompanying prospectus,
and may be identified by, among other things, the use of forward-looking words
such as "expects," "intends," "anticipates," "estimates," "believes," "may" or
other comparable words. Such statements involve known and unknown risks,
uncertainties and other important factors that could cause the actual results or
performance to differ materially from such forward-looking statements. Those
risks, uncertainties and other factors include, among others, general economic
and business conditions, competition, changes in political, social and economic
conditions, regulatory initiatives and compliance with government regulations,
customer preference and various other matters, many of which are beyond the
depositor's control. These forward-looking statements speak only as of the date
of this prospectus supplement. The depositor expressly disclaims any obligation
or undertaking to update or revise forward-looking statements to reflect any
change in the depositor's expectations or any change in events, conditions or
circumstances on which any forward-looking statement is based.
S-2
TABLE OF CONTENTS
Page
----
ABFC 2002-WF2 ASSET-BACKED CERTIFICATES.........................................................................S-5
SUMMARY OF PROSPECTUS SUPPLEMENT................................................................................S-6
RISK FACTORS...................................................................................................S-12
THE MORTGAGE POOL..............................................................................................S-21
General...............................................................................................S-21
The Mortgage Pool Statistics..........................................................................S-21
The Index - Six-Month LIBOR...........................................................................S-34
Terms of the Mortgage Loans...........................................................................S-35
Primary Mortgage Insurance............................................................................S-35
THE SELLER.....................................................................................................S-36
THE ORIGINATOR AND THE SERVICER................................................................................S-36
UNDERWRITING STANDARDS.........................................................................................S-38
Underwriting Standards for First Lien Subprime Loans..................................................S-38
THE POOLING AND SERVICING AGREEMENT............................................................................S-40
General...............................................................................................S-40
Assignment of the Mortgage Loans......................................................................S-41
Payments on Mortgage Loans; Deposits to Collection Account and Distribution Account...................S-42
Advances..............................................................................................S-43
The Trustee...........................................................................................S-44
The Securities Administrator..........................................................................S-44
The Credit Risk Manager...............................................................................S-44
Servicing and Other Compensation and Payment of Expenses..............................................S-45
Optional Termination..................................................................................S-45
Optional Purchase of Defaulted Loans..................................................................S-45
Events of Servicing Termination.......................................................................S-46
Rights upon Event of Servicing Termination............................................................S-46
Voting Rights.........................................................................................S-46
Amendment.............................................................................................S-46
S-3
Page
----
DESCRIPTION OF THE CERTIFICATES................................................................................S-47
General...............................................................................................S-47
Book-Entry Certificates...............................................................................S-47
Allocation of Available Funds.........................................................................S-51
Interest Distributions................................................................................S-51
Principal Distributions...............................................................................S-53
Allocation of Losses..................................................................................S-57
Application of Monthly Excess Cashflow Amounts........................................................S-58
Pass-Through Rates....................................................................................S-59
Mandatory Auction of the Class A-2 Certificates.......................................................S-61
YIELD, PREPAYMENT AND MATURITY CONSIDERATIONS..................................................................S-62
Special Yield Considerations..........................................................................S-64
Yield Sensitivity of the Subordinate Certificates.....................................................S-65
Additional Information................................................................................S-65
Weighted Average Lives................................................................................S-66
Final Scheduled Distribution Dates....................................................................S-76
Special Yield Considerations relating to the Class AIO Certificates...................................S-76
USE OF PROCEEDS................................................................................................S-76
MATERIAL FEDERAL INCOME TAX CONSEQUENCES.......................................................................S-77
General...............................................................................................S-77
Taxation of Regular Certificates......................................................................S-77
Taxation of Notional Principal Arrangements...........................................................S-78
REMIC Taxes and Reporting.............................................................................S-79
STATE TAXES....................................................................................................S-79
ERISA CONSIDERATIONS...........................................................................................S-80
LEGAL INVESTMENT...............................................................................................S-82
METHOD OF DISTRIBUTION.........................................................................................S-82
LEGAL MATTERS..................................................................................................S-83
RATINGS........................................................................................................S-83
INDEX OF PRINCIPAL DEFINITIONS.................................................................................S-85
ANNEX I GLOBAL CLEARANCE, SETTLEMENT AND TAX DOCUMENTATION PROCEDURES.........................................S-87
S-4
ABFC 2002-WF2 ASSET-BACKED CERTIFICATES
Initial Certificate Pass-Through Principal Interest
Class Balance(1) Rate Types Types
A-1................. $ 29,072,000 2.705% (2) Senior Fixed Rate
A-2(3).............. $ 189,463,000 2.858%(4)(7) Senior Fixed/Floating Rate(3)
AIO................. $ 26,016,000(5) (6) Senior, Notional Amount Step Coupon, Interest
Only
M-1................. $ 14,309,000 LIBOR + 0.72% (7) Subordinated Floating Rate
M-2................. $ 13,008,000 LIBOR + 1.40% (7) Subordinated Floating Rate
M-3................. $ 7,805,000 LIBOR + 1.85% (7) Subordinated Floating Rate
M-4................. $ 3,252,000 LIBOR + 2.15% (7) Subordinated Floating Rate
B................... $ 1,951,000 LIBOR + 4.50% (7) Subordinated Floating Rate
- ------------------------------
(1) Plus or minus 5%.
(2) Subject to the net WAC rate of the mortgage loans.
(3) The class A-2 certificates are subject to a mandatory auction call in
September 2004.
(4) The class A-2 certificates will accrue interest at a fixed rate per annum
of 2.858% subject to the net WAC rate of the mortgage loans, until the
distribution date in September 2004. During such month, these certificates
will be auctioned off and transferred to third parties in return for a
distribution of the certificate principal balance then outstanding plus
accrued interest to such distribution date. After the interest accrual
period for the September 2004 distribution date, these certificates will
accrue interest at a variable rate, will be subject to the net WAC rate,
and will have a margin that will increase following the optional
termination date as described under "Description of the
Certificates--Pass-Through Rates" in this prospectus supplement.
(5) The notional amount of the class AIO certificates will be $26,016,000 on
the first distribution date, and on each distribution date thereafter will
be an amount equal to the lesser of (i) $26,016,000 and (ii) the aggregate
principal balance of the mortgage loans as of the first day of the related
due period. The notional amount for the class AIO certificates after the
March 2005 distribution date will be zero.
(6) The class AIO certificates will accrue interest at a per annum rate equal
to 6.00% for the first ten distribution dates, 4.50% for the next ten
distribution dates, 2.50% for the next ten distribution dates and will not
accrue interest with respect to any distribution date after March 2005.
(7) During each interest accrual period, the class M-1, class M-2, class M-3,
class M-4 and class B certificates (and the class A-2 certificates for
distribution dates after September 2004) will accrue interest at a variable
rate equal to one-month LIBOR as of the related LIBOR determination date
plus the margin rate per annum specified above for that class (or a margin
rate of 0.75% per annum for the class A-2 certificates), in each case
subject to an interest rate cap, as described in this prospectus
supplement. After the optional termination date, the margin rate for the
class A-2, class M-1, class M-2, class M-3 and class M-4 certificates will
increase to 1.5 times their initial margin rates.
S-5
SUMMARY OF PROSPECTUS SUPPLEMENT
Because this is a summary, it does not contain all the information that
may be important to you. You should read the entire accompanying prospectus and
this prospectus supplement carefully before you decide to purchase a
certificate. If capitalized terms are not defined in this summary, they are
defined later in this prospectus supplement or in the prospectus.
Issuer
The ABFC 2002-WF2 Trust, referred to in this prospectus supplement as the trust.
Title of Series
ABFC Mortgage Loan Asset-Backed Certificates, Series 2002-WF2.
The Certificates
The class A-1, class A-2, class AIO, class M-1, class M-2, class M-3, class M-4,
class B, class P, class CE and class R certificates are the entire ownership
interest in a trust fund which is composed of fixed-rate and adjustable-rate
first-lien mortgage loans. The trust will issue the certificates pursuant to a
pooling and servicing agreement among Asset Backed Funding Corporation, as
depositor, Wells Fargo Home Mortgage, Inc., as servicer, Wells Fargo Bank
Minnesota, National Association, as securities administrator, and Wachovia Bank,
National Association, as trustee. The trust is offering the class A-1, class
A-2, class AIO, class M-1, class M-2, class M-3, class M-4, and class B
certificates as book-entry securities clearing through The Depository Trust
Company, in the United States, or Clearstream Banking or the Euroclear System,
in Europe. See "Description of the Certificates--Book-Entry Certificates" in
this prospectus supplement.
The Offered Certificates
The underwriters are offering to sell the class A-1, class A-2, class AIO, class
M-1, class M-2, class M-3, class M-4 and class B certificates. The class P,
class CE and class R certificates are not being offered.
Depositor of Mortgage Loans
Asset Backed Funding Corporation will deposit the mortgage loans in the trust
fund. The depositor is a Delaware corporation and a wholly-owned, indirect
subsidiary of Bank of America Corporation. The depositor is an affiliate of Banc
of America Securities LLC, one of the underwriters.
Mortgage Loan Originator
The mortgage loans were originated or acquired by Wells Fargo Home Mortgage,
Inc. The mortgage loans were originated generally in accordance with the
underwriting standards described in "Underwriting Standards" in this prospectus
supplement.
Mortgage Loan Seller
On the closing date, the mortgage loans will be sold to the depositor by Banc of
America Mortgage Capital Corporation, an affiliate of the depositor, which
acquired the mortgage loans from Wells Fargo Home Mortgage, Inc.
Servicer
Wells Fargo Home Mortgage, Inc. will service the mortgage loans. Subject to
certain limitations, the servicer must advance delinquent payments of principal
and interest on the mortgage loans. See "The Pooling and Servicing
Agreement--Advances" in this prospectus supplement and "Description of the
Securities--Advances in Respect of Delinquencies" in the prospectus.
Trustee
Wachovia Bank, National Association.
Securities Administrator and Auction Administrator
Wells Fargo Bank Minnesota, National Association.
Credit Risk Manager
The Murrayhill Company, a Colorado corporation.
Cut-off Date
September 1, 2002.
Closing Date
On or about September 26, 2002.
S-6
Final Scheduled Distribution Dates
The final scheduled distribution date for each class of offered certificates is
set forth below:
Final Scheduled
Class Distribution Date(1)
- ----- -----------------
Class A-1 February 25, 2012
Class A-2 (2)
Class AIO March 25, 2005
Class M-1 March 25, 2032
Class M-2 February 25, 2032
Class M-3 November 25, 2031
Class M-4 March 25, 2031
Class B October 25, 2029
- ----------------
(1) The final scheduled distribution dates on the class A-1, class A-2, class
M-1, class M-2, class M-3, class M-4 and class B certificates have been
calculated as described under "Yield, Prepayment and Maturity
Considerations--Final Scheduled Distribution Dates" in this prospectus
supplement.
(2) The class A-2 certificates are subject to a mandatory auction call in
September 2004. This will be the final distribution on the class A-2
certificates to those who hold class A-2 certificates prior to the auction
distribution date. The final scheduled distribution date for the class A-2
certificates is May 25, 2032.
The Mortgage Pool
On the closing date, the trust will contain approximately 2,038 conventional,
one- to four-family, adjustable-rate and fixed-rate subprime mortgage loans
secured by first liens on residential real properties. The mortgage loans have
an aggregate principal balance of approximately $260,161,376 as of the cut-off
date.
The mortgage loans have original terms to maturity of not greater than 30 years
from the first due date and the following approximate characteristics as of the
cut-off date (percentages are based on the aggregate principal balance as of the
cut-off date):
Adjustable-rate mortgage loans 76.16%
Fixed-rate mortgage loans 23.84%
Fixed-rate balloon mortgage loans 7.54%
Average outstanding principal
balance $127,655
Range of outstanding principal $10,690 to
balances $584,318
Average original principal balance $128,019
Range of original principal balances $10,850 to
$587,000
Mortgage loans with prepayment
penalties 94.08%
Weighted average mortgage interest
rate 8.939%
Weighted average net mortgage
interest rate 8.439%
Range of mortgage interest rates 5.750% to
14.000%
Adjustable-rate weighted average
gross margin 6.296%
Adjustable-rate weighted average
minimum mortgage interest rates 9.186%
Adjustable-rate weighted average
maximum mortgage interest rate 15.187%
Adjustable-rate weighted average
next adjustment date July 2004
Weighted average original
loan-to-value ratio 78.15%
Range of original loan-to-value
ratios 12.83% to 95.00%
Weighted average remaining term to
stated maturity 338 months
Range of remaining terms to maturity 175 months to
358 months
Max ZIP code concentration (%) 0.43%
Geographic concentrations in excess
of 5%: 34.44%
California 23.92%
Colorado 5.52%
Minnesota 5.00%
See "The Mortgage Pool" in this prospectus supplement for more information about
the mortgage loans.
S-7
Distributions--General
The distribution date will be the 25th day of each month or, if such day is not
a business day, the next business day, beginning on October 25, 2002.
Distributions will generally include payments made on the mortgage loans during
the related due period. The due period for any distribution date is the period
from the second day of the calendar month preceding the month in which the
distribution date occurs through the first day of the calendar month in which
the distribution date occurs.
Record Date
The record date for each distribution date for the offered certificates other
than the class A-1 and class AIO certificates will be the business day before
that distribution date, and for the class A-1 and class AIO certificates (and
any other classes for which definitive certificates are issued) will be the last
business day of the month preceding the month in which the distribution date
occurs.
Interest Distributions
On each distribution date, you will be entitled to receive interest accrued on
your certificate during the related interest accrual period and any interest
which you earned previously but which you did not receive. The interest accrual
period for all offered certificates other than the class A-1 and class AIO
certificates for any distribution date is the period beginning on the previous
distribution date (or on the closing date, in the case of the first interest
accrual period) and ending on the day before the current distribution date.
Interest will be calculated for all offered certificates other than the class
A-1, class A-2 and class AIO certificates on the basis of the actual number of
days in the related interest accrual period over a 360-day year.
The interest accrual period for the class A-1 and class AIO certificates for any
distribution date is the preceding calendar month. Interest will be calculated
for the class A-1, class A-2 and class AIO certificates on the basis of a
360-day year comprised of twelve 30-day months.
There are certain circumstances which could reduce the amount of interest paid
to you. See "Description of the Certificates--Interest Distributions" in this
prospectus supplement.
Pass-Through Rates
Interest will accrue on the class A-1 certificates during each interest accrual
period at a rate equal to the lesser of (i) 2.705% per annum or (ii) the net WAC
rate as described under "Description of the Certificates--Pass-Through Rates" in
this prospectus supplement.
Interest will accrue on the class A-2 certificates through the interest accrual
period ending in September 2004 at a per annum rate equal to the lesser of (i)
2.858% per annum and (ii) the net WAC rate. During and after the interest
accrual periods beginning on the distribution date in September 2004, interest
will accrue on the class A-2 certificates at a per annum rate equal to the least
of (i) the sum of LIBOR as described below plus (a) 0.75% (during each interest
accrual period prior to the optional termination date) or (b) 1.125% (during
each interest accrual period following the optional termination date), (ii) a
rate equal to the maximum cap rate as described under "Description of the
Certificates--Pass-Through Rates" in this prospectus supplement, and (iii) the
net WAC rate.
Interest will accrue on the class AIO certificates during each interest accrual
period at a per annum rate equal to 6.00% during the first ten interest accrual
periods, 4.50% per annum during the next ten interest accrual periods and 2.50%
per annum during the following ten interest accrual periods. No interest will
accrue on the class AIO certificates thereafter.
The pass-through rates on the subordinate certificates (and the class A-2
certificates after the interest accrual period ending in September 2004) are
based on LIBOR. LIBOR is the rate for deposits in U.S. dollars for a one-month
period which appears on the Dow Jones Telerate page 3750, or similar replacement
page, as of 11:00 a.m. London time, on the related LIBOR determination date. The
LIBOR determination date for each interest accrual period is the second London
business day prior to the first day of that interest accrual period.
S-8
Interest will accrue on each class of the subordinate certificates during each
interest accrual period at a per annum rate equal to the least of (i) the sum of
LIBOR plus the margin set forth in the table below, (ii) a rate equal to the
maximum cap rate as described under "Description of the Certificates--Pass
Through Rates" in this prospectus supplement, and (iii) the net WAC rate as
described under "Description of the Certificates--Pass-Through Rates" in this
prospectus supplement. During each interest accrual period relating to the
distribution dates after the optional termination date, each of the margins in
the table below will "step-up" if the optional termination right is not
exercised.
Stepped-Up
Class Margin Margin
- ----- ------ ------
Class M-1 0.72% 1.080%
Class M-2 1.40% 2.100%
Class M-3 1.85% 2.775%
Class M-4 2.15% 3.225%
Class B 4.50% 4.500%
Principal Distributions
On each distribution date, unless you hold a class AIO certificate, you will
receive a distribution of principal if there are funds available on that date
for your class of certificates. You should review the priority of payments
described under "Description of the Certificates--Principal Distributions" in
this prospectus supplement.
Mandatory Auction of the Class A-2 Certificates
During the five business days prior to the distribution date in September 2004,
Wells Fargo Bank Minnesota, National Association, in its capacity as auction
administrator, will auction the class A-2 certificates, if such certificates are
still outstanding, to investors.
On the distribution date in September 2004, the class A-2 certificates will be
transferred to the successful auction bidder(s), and the holders of record of
the class A-2 certificates will be entitled to receive an aggregate amount equal
to the lesser of (i) the certificate principal balance of the class A-2
certificates plus accrued and unpaid interest (after giving effect to
distributions and allocations of realized losses on that distribution date) and
(ii) the sum of the amounts received from the successful bidder(s) and, if
applicable, the swap counterparty.
The auction administrator will enter into a swap agreement (the "Auction Swap
Agreement") pursuant to which Bank of America, N.A., as the swap counterparty,
will agree to pay the excess, if any, of the certificate principal balance of
the class A-2 certificates plus accrued and unpaid interest (after application
of all distributions and realized losses on the distribution date in September
2004), over the amount received from investors in the auction. In the event that
all or some of the class A-2 certificates are not sold in the auction, the
auction price for such certificates will be deemed to be zero and the swap
counterparty will pay the auction administrator the entire outstanding principal
balance of such certificates plus accrued and unpaid interest, after application
of all distributions and realized losses on the distribution date in September
2004. In the event that the amount received in the auction is greater than the
entire certificate principal balance of the class A-2 certificates plus accrued
and unpaid interest, after application of all distributions and realized losses
on the distribution date in September 2004, that excess will be paid to the swap
counterparty. In connection with the auction, the holders of the class A-2
certificates prior to the auction distribution date will not be entitled to
receive any unpaid net WAC rate carryover amounts.
See "Description of the Certificates--Mandatory Auction of the Class A-2
Certificates" in this prospectus supplement.
Credit Enhancement
Credit enhancement reduces the risk of harm caused to holders of certificates by
shortfalls in payments received on the mortgage loans. It can reduce the effect
of shortfalls on all classes, or it can allocate shortfalls so it affects some
classes before others. This transaction employs the following four forms of
credit enhancement. See "Description of the Certificates" in this prospectus
supplement.
Monthly Excess Cashflow. Because more interest is expected to be paid by the
mortgagors than is necessary to pay the interest earned on the offered
certificates and expenses of the trust, we expect there to be excess cashflow
each month. The monthly excess cashflow will be used to maintain
overcollateralization, to pay interest that was previously earned but not paid
to the offered certificates, and to reimburse the offered certificates for
losses and certain shortfalls that they may have experienced previously.
S-9
Overcollateralization. Although the total initial principal balance of the
mortgage loans is approximately $260,161,376, the total initial principal amount
of the offered certificates is only $258,860,000. The remaining approximately
0.50% of the total principal balance of the mortgage loans will absorb losses on
the mortgage loans before such losses affect the certificates. If the level of
overcollateralization falls below what is required under the pooling and
servicing agreement, the monthly excess cashflow described above will be paid to
the offered certificates as principal. This will have the effect of reducing the
principal balance of the certificates faster than the principal balance of the
mortgage loans until the required level of overcollateralization is reached.
Subordination. On each distribution date, classes that are lower in order of
payment priority will not receive payments until the classes that are higher in
order of payment priority have been paid amounts to which they are entitled on
that distribution date. If there are insufficient funds on a distribution date
to pay all classes and overcollateralization is insufficient to cover losses on
any mortgage loans, the subordinate classes are the first to forego payment.
Primary Mortgage Insurance. The servicer has acquired loan-level primary
mortgage insurance policies for approximately 37.28% of the mortgage loans,
representing most of the mortgage loans that had loan-to-value ratios at
origination in excess of 80%. However, primary mortgage insurance will provide
only limited protection against losses on defaulted mortgage loans. See "The
Mortgage Pool -- Primary Mortgage Insurance" in this prospectus supplement.
Allocation of Realized Losses. If, on any distribution date after the balances
of the offered certificates have been reduced by the amount of cash paid on that
date, the total principal balance of the offered certificates is greater than
the total principal balance of the mortgage loans, the principal balance of the
offered certificates that are lowest in order of payment priority will be
reduced by the amount of such excess.
Optional Termination
The holders of a majority of the class CE certificates have the option to
purchase all the mortgage loans and any properties that the trustee, or the
servicer on behalf of the trust fund, acquired in satisfaction of any of the
mortgage loans. This option can be exercised when the total principal balance of
the mortgage loans as of the end of the related due period, including the
mortgage loans related to the properties which the trustee has acquired, is 10%
or less of the total principal balance of the mortgage loans on the cut-off
date. If these holders do not exercise this option, then the servicer may do so.
If the option is exercised, your certificate will be retired early and you will
be entitled to the following amounts to the extent of available funds:
o the outstanding principal balance of your certificate;
o one month's interest on such balance at the related pass-through rate;
and
o any interest previously earned but not paid.
You will receive the last item only to the extent that there is enough cash to
make such payments. See "The Pooling and Servicing Agreement--Optional
Termination" in this prospectus supplement.
Material Federal Income Tax Consequences
The trustee will elect to treat the assets of the trust, exclusive of the
Auction Swap Agreement and the arrangement intended to protect against reduction
of the pass-through rate for the offered certificates to the net WAC rate, as
comprised of two or more real estate mortgage investment conduits, each a REMIC,
for federal income tax purposes.
For further information regarding the federal income tax consequences of
investing in the offered certificates, see "Material Federal Income Tax
Consequences" in this prospectus supplement and "Federal Income Tax
Consequences" in the prospectus.
Ratings
The trust will not issue the certificates unless they receive the respective
ratings set forth below from Moody's Investors Service, Inc. (referred to in
this prospectus supplement as Moody's), Fitch Ratings (referred to in this
prospectus supplement as Fitch) and Standard and Poor's Ratings Services
(referred to in this prospectus supplement as S&P):
S-10
Class Moody's S&P Fitch
----- ------- --- -----
A-1 Aaa AAA AAA
A-2 Aaa AAA AAA
AIO Aaa AAA AAA
M-1 Aa2 AA AA+
M-2 A2 A A
M-3 Baa2 BBB BBB
M-4 Baa3 BBB- BBB-
B Ba1 BBB- BBB-
The ratings on the certificates indicate the likelihood that you will receive
all funds to which you are entitled by the terms of your certificate. The rating
agency that issues the rating reviews the nature and credit quality of the
mortgage loans and the soundness of the structure which the depositor has
created to allow the payments on the mortgage loans to flow to the holders of
the certificates. A rating is not a recommendation to buy, sell or hold
securities and the rating agency can revise or withdraw it at any time. A rating
does not address the likelihood of the frequency of prepayments on the mortgage
loans, the effect of such prepayments on your yield or the likelihood that you
will receive any net WAC rate carryover amounts. See "Yield, Prepayment and
Maturity Considerations" and "Ratings" in this prospectus supplement and "Yield
Considerations" in the prospectus.
Legal Investment
You should consult with counsel to see if you are permitted to buy the offered
certificates, since legal investment rules will vary depending on the type of
entity purchasing the offered certificates, whether that entity is subject to
regulatory authority, and if so, by whom. The class A-1, class A-2, class AIO
and class M-1 certificates will constitute "mortgage related securities" for
purposes of the Secondary Mortgage Market Enhancement Act of 1984, as amended,
so long as they are rated in one of the two highest rating categories by at
least one nationally recognized rating agency. The class M-2, class M-3, class
M-4 and class B certificates will not be "mortgage related securities" for
purposes of the Secondary Mortgage Market Enhancement Act of 1984, as amended.
See "Legal Investment" in this prospectus supplement and in the prospectus.
ERISA Considerations
If you are a fiduciary of any employee benefit plan or other retirement
arrangement subject to the Employee Retirement Income Security Act of 1974, as
amended, or Section 4975 of the Internal Revenue Code of 1986 or any materially
similar provision of applicable federal, state or local law, you should consult
with counsel as to whether you can buy or hold an offered certificate. See
"ERISA Considerations" in this prospectus supplement and in the prospectus.
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RISK FACTORS
The following information, which you should carefully consider,
identifies significant sources of material risk associated with an investment in
the certificates. You should also carefully consider the information set forth
under "Risk Factors" in the prospectus.
The mortgage loans were underwritten to standards which do not conform
to the standards of Fannie Mae or Freddie Mac, which may result in losses on the
mortgage loans.
The originator's underwriting standards are intended to assess the
value of the mortgaged property and to evaluate the adequacy of the property as
collateral for the mortgage loan and consider, among other things, a mortgagor's
credit history, repayment ability and debt service-to-income ratio, as well as
the type and use of the mortgaged property. The originator's underwriting
standards do not prohibit a mortgagor from obtaining, at the time of origination
of the originator's first lien, additional financing which is subordinate to
that first lien, which subordinate financing would reduce the equity the
mortgagor would otherwise have in the related mortgaged property as indicated in
the originator's loan-to-value ratio determination for the originator's first
lien. The mortgage loans were made primarily to borrowers who did not qualify
for loans conforming to Fannie Mae and Freddie Mac standards.
The mortgage loans in the mortgage pool are likely to experience rates
of delinquency, foreclosure and bankruptcy that are higher, and that may be
substantially higher, than those experienced by mortgage loans underwritten in a
more traditional manner.
Furthermore, changes in values of mortgaged properties have a greater
effect on the delinquency, foreclosure, bankruptcy and loss experience of the
mortgage loans in the mortgage pool than on mortgage loans originated in a more
traditional manner. No assurance can be given that the values of the related
mortgaged properties have remained or will remain at the levels in effect on the
dates of origination of the related mortgage loans. See "Underwriting Standards"
in this prospectus supplement.
There are risks involving unpredictability of prepayments and the effect of
prepayments and other factors on yields.
Mortgagors may prepay their mortgage loans in whole or in part at any
time. We cannot predict the rate at which mortgagors will repay their mortgage
loans. A prepayment of a mortgage loan generally will result in a prepayment on
the certificates.
The yield to maturity on the offered certificates will depend upon a
variety of factors, including the following:
o If you purchase certificates with principal distribution
entitlements at a discount and principal is repaid more slowly
than you anticipate, then your yield may be lower than you
anticipate.
o If you purchase your certificates at a premium, or if you purchase
the class AIO certificates (which have no principal balance) and
principal is repaid faster than you anticipate, then your yield
may be lower than you anticipate. If you are purchasing class AIO
certificates, you should consider the risk that if a rapid rate of
principal payments on the mortgage loans reduces the aggregate
principal balance of the mortgage loans below $26,016,000 before
March 1, 2005, you may not recover your initial investment. See
"Yield, Prepayment and Maturity Considerations--Yield on the Class
AIO Certificates" in this prospectus supplement for a more
detailed description of risks associated with the purchase of the
class AIO certificates.
o The rate of prepayments on the mortgage loans will be sensitive to
prevailing interest rates. Generally, if prevailing interest rates
decline significantly below the interest rates on the mortgage
loans, those mortgage loans are more likely to prepay than if
prevailing rates remain above the interest rates on such mortgage
loans. Conversely, if prevailing interest rates rise
significantly, the prepayments on the mortgage loans are likely to
decrease. The prepayment behavior of the adjustable-rate mortgage
loans and of the fixed-rate mortgage loans may respond to
different factors, or may respond differently to the same factors.
If at the time of their first adjustment, the interest rates on
any of the adjustable-rate mortgage loans would be subject to
adjustment to a rate higher than the then prevailing mortgage
interest rates available to the related borrowers, such borrowers
may prepay their adjustable-rate mortgage loans. Adjustable-rate
mortgage loans may also suffer an increase in defaults and
liquidations following upward adjustments of their interest rates,
especially following their initial adjustments.
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o Approximately 94.08% of the mortgage loans require the mortgagor
to pay a penalty if the mortgagor prepays the mortgage loan during
periods ranging from one to five years after the mortgage loan was
originated. A prepayment penalty may discourage a mortgagor from
prepaying the mortgage loan during the applicable period. The
prepayment penalties will be distributed to holders of the class P
certificates and not to holders of the offered certificates.
o The seller may be required to purchase mortgage loans from the
trust in the event certain breaches of representations and
warranties occur and have not been cured. In addition, the
servicer, with the consent of the depositor, has the option to
purchase mortgage loans 60 days or more delinquent. These
purchases will have the same effect on the holders of the offered
certificates as a prepayment of the mortgage loans.
o If the rate or timing of defaults or the amount of losses on the
mortgage loans is higher than you expect, then your yield may be
lower than you expect.
o If the level of overcollateralization falls below what is required
under the pooling and servicing agreement, excess cashflow will be
paid to the certificates as principal. This will have the effect
of reducing the principal balance of the certificates faster than
the principal balance of the mortgage loans until the required
level of overcollateralization is reached.
o As a result of the absorption of realized losses on the mortgage
loans by excess cashflow and overcollateralization as described in
this prospectus supplement, liquidations of defaulted mortgage
loans, regardless of whether realized losses are incurred upon
these liquidations, will result in an earlier return of principal
to the offered certificates and will influence the yield on the
offered certificates in a manner similar to the manner in which
principal prepayments on the mortgage loans will influence the
yield on the offered certificates.
See "Yield, Prepayment and Maturity Considerations" for a description
of factors that may influence the rate and timing of prepayments on the mortgage
loans.
There are risks relating to alternatives to foreclosure
Certain of the mortgage loans may become delinquent after the closing
date. The servicer may either foreclose on any such mortgage loan or work out an
agreement with the mortgagor, which may involve waiving or modifying certain
terms of the mortgage loan. If the servicer extends the payment period or
accepts a lesser amount than stated in the mortgage note in satisfaction of the
mortgage note, your yield may be reduced. As of the cut-off date, none of the
mortgage loans were delinquent 30 days or more.
There is a risk that interest payments on the mortgage loans may be insufficient
to maintain or restore overcollateralization.
Because the weighted average of the interest rates on the mortgage
loans, net of the servicing fee rate, securities administration fee rate and
credit risk manager fee rate, is expected to be higher than the weighted average
of the pass-through rates on the certificates, the mortgage loans are expected
to generate more interest than is needed to pay interest owed on the
certificates as well as certain fees and expenses of the trust. After these
financial obligations of the trust are covered, the available excess cashflow
will be used to maintain overcollateralization. Any remaining excess cashflow
will then be used to compensate for any unpaid interest shortfall amount and net
WAC rate carryover amounts, and for losses that occur on the mortgage loans. We
cannot assure you, however, that enough excess cashflow will be generated to
maintain the overcollateralization level required by the rating agencies. The
factors described below will affect the amount of excess cashflow that the
mortgage loans will generate:
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o Every time a mortgage loan is liquidated or written off, excess
cashflow will be reduced because such mortgage loans will no
longer be outstanding and generating interest.
o If the rates of delinquencies, defaults or losses on the mortgage
loans are higher than expected, excess cashflow will be reduced by
the amount necessary to compensate for any shortfalls in cash
available on such date to pay certificateholders.
o The adjustable-rate mortgage loans have mortgage rates that adjust
less frequently than, and on the basis of an index that is
different from the index used to determine, the pass-through rates
on the subordinate certificates (and the class A-2 certificates
after September 2004), and the fixed-rate mortgage loans have
mortgage rates that do not adjust. As a result, the pass-through
rates on those offered certificates may increase relative to
mortgage rates on the mortgage loans, requiring that a greater
portion of the interest generated by the mortgage loans be applied
to cover interest on the offered certificates.
The difference between the pass-through rates on the offered certificates and
the mortgage interest rates on the mortgage loans may affect the yield on the
offered certificates.
If the net WAC rate is less than the fixed coupon rate of 2.705% per
annum on the class A-1 certificates, or the fixed coupon rate of 2.858% per
annum on the class A-2 certificates for the first 24 distribution dates, then
the pass-through rate on the class A-1 certificates and/or the class A-2
certificates, as the case may be, will be the lower net WAC rate, rather than
the applicable fixed coupon rate. In this event, the applicable class will
suffer a basis risk shortfall in the amount of the difference between interest
that would have accrued on that class at its fixed coupon rate and interest that
accrued on that class at the net WAC rate.
The yields to maturity on the subordinate certificates (and the class
A-2 certificates after the September 2004 distribution date) may be affected by
the inclusion of fixed-rate mortgage loans and the resetting of the mortgage
rates on the adjustable-rate mortgage loans on their related adjustment dates.
The mortgage rates on the fixed-rate mortgage loans are fixed and will not vary
with any index and the mortgage rates on the adjustable-rate mortgage loans are
generally based on six-month LIBOR and one-year CMT indices (and most of those
mortgage loans will not have their mortgage rates adjusted for two to three
years after the dates of their origination), while the pass-through rates on the
subordinate certificates (and the class A-2 certificates after the September
2004 distribution date) are based on one-month LIBOR, subject to a maximum cap
rate and to a net WAC rate, and are adjusted monthly beginning one month after
issuance. This mismatch of indices and adjustment frequency may cause the
one-month LIBOR-based formula rates on the subordinate certificates (and the
class A-2 certificates after the September 2004 distribution date) to increase
relative to the mortgage interest rates on the mortgage loans, which would
require a greater portion of the interest generated by the mortgage loans to be
applied to cover interest accrued on those offered certificates, and could
result in the reduction of the pass-through rate on some or all of those offered
certificates to the net WAC rate, and could therefore adversely affect the yield
to maturity on such certificates.
The net WAC rate is equal to the weighted average of the mortgage
interest rates on the mortgage loans, net of the servicing fee rate, securities
administration fee rate and credit risk manager fee rate, and net of interest
distributable on the class AIO certificates for the first 30 distribution dates.
In addition, investors should note that the net WAC rate will decrease if
mortgage loans with relatively high mortgage interest rates prepay at a faster
rate than mortgage loans with relatively low mortgage interest rates, which will
increase the likelihood that the net WAC rate will apply to reduce the
pass-through rate on one or more classes of the offered certificates (other than
the class A-1 and class AIO certificates, and other than the class A-2
certificates for the first 24 distribution dates).
The net WAC rate will also be affected by the fact that, for the first
30 distribution dates, interest accrues on the class AIO certificates at a fixed
pass-through rate on a specified notional principal amount. As the aggregate
principal balance of the mortgage loans is reduced by payments of principal,
including prepayments and collections upon defaults, liquidations and
repurchases of the mortgage loans, the percentage of the total amount of
interest generated by the mortgage pool that is used to pay interest on the
class AIO certificates will increase. A rapid rate of prepayments on the
mortgage loans before the 30th distribution date would lower the net WAC rate
applicable to the offered certificates (other than the class AIO certificates)
increasing the likelihood that the net WAC rate will limit the pass-through
rates on those certificates.
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If the pass-through rate on any class of the offered certificates is
limited by the net WAC rate for any distribution date, the resulting basis risk
shortfalls may be recovered by the holders of such classes of certificates on
that same distribution date or on future distribution dates, to the extent that
on that distribution date or future distribution dates there are any available
funds remaining after certain other distributions on the offered certificates
and the payment of certain fees and expenses of the trust. You should note,
however, that if the pass-through rate on any class of subordinate certificates
(or the class A-2 certificates after the September 2004 distribution date) is
based on the maximum cap rate, the amount of net WAC rate Carryover will be less
during such period on those certificates than if the pass-through rate were
based on one-month LIBOR plus the applicable gross margin. See "Description of
the Certificates--Application of Monthly Excess Cashflow Amounts" in this
prospectus supplement. The ratings on the offered certificates will not address
the likelihood of any such recovery of basis risk shortfalls by holders of such
certificates.
The credit enhancement may not be adequate to cover all losses on the offered
certificates.
The credit enhancement features described in this prospectus supplement
are intended to enhance the likelihood that holders of the class A-1, class A-2
and class AIO certificates, and to a limited extent the holders of the class
M-1, class M-2, class M-3, class M-4 and class B certificates, will receive
regular payments of interest and, except in the case of the class AIO
certificates, principal. However, there can be no assurance that the applicable
credit enhancement will adequately cover any shortfalls in cash available to pay
your certificates as a result of delinquencies or defaults on the mortgage
loans. If delinquencies or defaults occur on the mortgage loans, neither the
servicer nor any other entity will advance scheduled monthly payments of
interest on delinquent or defaulted mortgage loans if the servicer determines
that the advances are not likely to be recovered out of proceeds of the related
mortgage loan or mortgaged property. If the credit enhancement features are not
sufficient to cover any resulting shortfalls in excess of the amounts advanced
by the servicer, you may incur a loss on your certificates.
There are risks in holding subordinate certificates
The protections afforded the senior certificates in this transaction
create risks for the subordinate certificates. Prior to any purchase of any
subordinate certificates, consider the following factors that may adversely
impact your yield:
o Because the subordinate certificates receive interest and
principal distributions after the senior certificates receive such
distributions, there is a greater likelihood that the subordinate
certificates will not receive the distributions to which they are
entitled on any distribution date.
o If the servicer determines not to advance a delinquent payment on
a mortgage loan because such amount is not recoverable from a
mortgagor, there may be a shortfall in distributions on the
certificates which will impact the subordinate certificates.
o The portion of the shortfalls in the amount of interest
collections on mortgage loans that are attributable to prepayments
in full and are not covered by the servicer and shortfalls in
interest collections arising from the timing of partial principal
prepayments may result in a shortfall in distributions on the
certificates, which will disproportionately impact the subordinate
certificates.
o The subordinate certificates are not expected to receive principal
distributions until, at the earliest, October 2005.
o Losses resulting from the liquidation of defaulted mortgage loans
will first reduce monthly excess cashflow then reduce the level of
overcollateralization, if any, for the certificates. If there is
no overcollateralization, losses will be allocated to the
subordinate certificates. A loss allocation results in a reduction
in a certificate balance without a corresponding distribution of
cash to the holder. A lower certificate balance will result in
less interest accruing on the certificate.
o The earlier in the transaction that a loss on a mortgage loan
occurs, the greater the impact on yield.
See "Description of the Certificates" and "Yield, Prepayment and
Maturity Considerations" in this prospectus supplement for more detail.
S-15
There is a risk that interest payments on the mortgage loans may be insufficient
to pay interest on your certificates
When a mortgage loan is prepaid in full, the mortgagor is charged
interest only up to the date on which payment is made, rather than for an entire
month. This may result in a shortfall in interest collections available for
payment on the next distribution date. The servicer is required to cover a
portion of the shortfall in interest collections that are attributable to
prepayments in full on the mortgage loans, but only up to the servicing fee for
the related accrual period. If the credit enhancement is insufficient to cover
this shortfall in excess of the amount covered by the servicer, you may incur a
loss.
In addition, the servicer will not cover shortfalls in interest
collections arising from the application of the Soldiers' and Sailors' Civil
Relief Act of 1940, as amended, or similar state laws.
Amounts received from the auction and the auction swap agreement may be
insufficient.
If you are a holder of record of a class A-2 certificate on the
distribution date in September 2004, your certificate will be transferred to
successful auction bidders on that distribution date, thereby ending your
investment in that certificate. If the certificate principal balance of the
class A-2 certificates plus accrued and unpaid interest, after application of
distributions and realized losses on the distribution date in September 2004, is
greater than the amount received in the auction, Bank of America, N.A., an
affiliate of the depositor and an underwriter, will be obligated, pursuant to a
swap agreement (the "Auction Swap Agreement") entered into between Bank of
America, N.A. and the auction administrator, to pay the amount of that excess to
the auction administrator for distribution to the holders of the class A-2
certificates. In the event that all or a portion of the class A-2 certificates
are not sold in the auction, the auction price for such unsold certificates will
be deemed to be zero and Bank of America, N.A. will pay the auction
administrator the certificate principal balance of the unsold certificates plus
accrued and unpaid interest, after application of distributions and realized
losses on the distribution date in September 2004. If Bank of America, N.A.
defaults on its obligations under the swap agreement, you may receive an amount
less than the outstanding principal balance of your class A-2 certificate plus
accrued and unpaid interest, after application of distributions and realized
losses on the distribution date in September 2004. In addition, if Bank of
America, N.A. defaults and if not all of the class A-2 certificates are
purchased by bidders in the auction, then your certificate (or a portion of the
principal balance of your certificate) may not be transferred, in which case you
will not receive any or limited proceeds from the auction and the principal
balance of your certificate shall be reduced to the extent of any proceeds
received and applied thereon.
Underwriting criteria for adjustable-rate mortgage loans may adversely affect
credit-quality.
With respect to some mortgage loans, including ARMs, the mortgage
interest rate at origination may be below the rate that would result if the
index and gross margin relating thereto were applied at origination. Under the
underwriting procedures of the originator, the mortgagor under each mortgage
loan generally will be qualified on the basis of the mortgage interest rate in
effect at origination. The repayment of any such mortgage loan may thus be
dependent on the ability of the related mortgagor to make larger level monthly
payments following the adjustment of the mortgage interest rate.
High loan-to-value ratios increase risk of loss.
Mortgage loans with higher loan-to-value ratios may present a greater
risk of loss than mortgage loans with loan-to-value ratios of 80% or below.
Approximately 37.47% and approximately 8.01% of the mortgage loans (in each
case, by aggregate principal balance of the mortgage loans as of the cut-off
date) had a loan-to-value ratio at origination in excess of 80.00% and 90.00%,
respectively. An overall decline in the residential real estate market, a rise
in interest rates over a period of time and the general condition of a mortgaged
property, as well as other factors, may have the effect of reducing the value of
such mortgaged property from the appraised value at the time the mortgage loan
was originated. If there is a reduction in value of the mortgaged property, the
loan-to-value ratio may increase over what it was at the time of origination.
Such an increase may reduce the likelihood that liquidation proceeds or other
proceeds will be sufficient to pay off the mortgage loan fully. There can be no
assurance that the loan-to-ratio of any mortgage loan determined at any time
after origination is less than or equal to its original loan-to-value ratio.
Additionally, the originator's determination of the value of a mortgaged
property used in the calculation of the loan-to-value ratios of the mortgage
loans may differ from the appraised value of such mortgaged property or the
actual value of such mortgaged property. See "Underwriting Standards" in this
prospectus supplement.
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There is a risk because the certificates are not obligations of any entity.
The offered certificates represent an interest in the trust fund only.
No other person will insure or guarantee the offered certificates or will have
any obligation with respect to the certificates except for the obligations of
the depositor and the seller pursuant to certain limited representations and
warranties made with respect to the mortgage loans and of the servicer with
respect to its servicing obligations under the pooling and servicing agreement
and, in the case of the class A-2 certificates, the limited obligation of the
counterparty under the Auction Swap Agreement. No government agency or
instrumentality will guarantee or insure the certificates or the underlying
mortgage loans. Proceeds of the assets included in the trust fund (including the
mortgage loans) will be the sole source of payments on the offered certificates.
You will not be able to receive money from any entity in the event that such
proceeds are not enough to make all payments provided for under the offered
certificates.
Balloon mortgage loans present a special risk
Balloon mortgage loans pose a risk because a mortgagor must make a
large lump sum payment of principal at the end of the loan term. If the
mortgagor is unable to pay the lump sum or refinance such amount, you may suffer
a loss. The servicer will not be required to advance this lump sum.
Approximately 31.61% of the fixed rate mortgage loans (representing
approximately 7.54% of the mortgage pool as a whole) (by aggregate principal
balance as of the cut-off date) are balloon mortgage loans.
The geographic concentration of the mortgage loans could subject the offered
certificates to losses.
The following chart lists the states with the highest concentrations of
mortgage loans, based on the aggregate principal balance of the mortgage loans
as of the cut-off date.
The Mortgage Loans
California 23.92%
Colorado 5.52%
Minnesota 5.00%
Property in California may be particularly susceptible to some types of
uninsurable hazards, such as earthquakes, hurricanes, floods, mudslides and
other natural disasters.
In addition, the conditions below will have a disproportionate impact
on the mortgage loans in general:
o Economic conditions in states listed above which may or may not
affect real property values may affect the ability of mortgagors
to repay their loans on time.
o Declines in the residential real estate markets in the states
listed above may reduce the values of properties located in those
states, which would result in an increase in the loan-to-value
ratios.
o Any increase in the market value of properties located in the
states listed above would reduce the loan-to-value ratios and
could, therefore, make alternative sources of financing available
to the mortgagors at lower interest rates, which could result in
an increased rate of prepayment of the mortgage loans.
S-17
Recent terrorist attacks and military action could adversely affect the yield on
your certificates.
On September 11, 2001, the United States was subjected to multiple
terrorist attacks, resulting in the loss of many lives and massive property
damage and destruction in New York City and the Washington, D.C. metropolitan
area. Although the damaged and destroyed properties consisted primarily of
commercial and government buildings, these tragic events may nevertheless have
an adverse effect on the value of residential real estate in the United States,
particularly in the New York and Washington, D.C. metropolitan areas. In
addition, it is possible (although the depositor cannot predict the likelihood)
that these events, or any consequential events involving the United States, may
have a temporary or sustained adverse effect on the U.S. economy generally, or
economic conditions in the New York or Washington, D.C. metropolitan areas or
other areas of the United States.
The depositor has not made a determination as to whether any of the
mortgagors of the mortgage loans may have been adversely affected by the
terrorist attacks. However, it is possible that there may be an increase in the
number of delinquencies and foreclosures of the mortgage loans as a result of
these events.
As a result of the terrorist attacks, President Bush has authorized the
placement of military reservists on active duty status. To the extent that any
such person is a mortgagor of a mortgage loan, the interest rate limitations and
other provisions of the Soldiers' and Sailors' Civil Relief Act of 1940, as
amended, or similar state laws, would apply to such Mortgage Loan during the
period of active duty. Among the potential impacts of this legislation are a
reduction in interest payments made on the mortgage loans and a delay in any
applicable foreclosure proceedings, both of which would limit the funds
available to pay certificateholders. It is possible that the number of
reservists placed on active duty status in the near future may increase, and may
increase substantially. In addition, other borrowers who enter military service
after the origination of their mortgage loans (including borrowers who are
members of the National Guard at the time of the origination of their mortgage
loans and are later called to active duty) would be covered by the terms of the
Relief Act.
In June 2002, the California Military and Veterans Code was amended to
provide protection equivalent to that provided by the Soldiers' and Sailors'
Civil Relief Act of 1940, as amended, to California national guard members
called up to active service by the Governor, California national guard members
called up to active service by the President and reservists called to active
duty. The amendment could result in shortfalls in interest and could affect the
ability of the servicers to foreclose on defaulted mortgage loans in a timely
fashion. In addition, the amendment, like the Soldiers' and Sailors' Civil
Relief Act of 1940, as amended, provides broad discretion for a court to modify
a mortgage loan upon application by the mortgagor. None of the depositor or the
servicer has undertaken a determination as to which mortgage loans, if any, may
be affected by the amendment or the Soldiers' and Sailors' Civil Relief Act of
1940. See "Description of the Certificates--Interest Distributions" in this
prospectus supplement and "Certain Legal Aspects of the Mortgage
Loans--Soldiers' and Sailors' Civil Relief Act of 1940" in the prospectus.
The lack of a secondary market may limit your ability to sell your certificates.
The underwriters intend to make a secondary market in the certificates
they purchase, but they have no obligation to do so. There is no assurance that
such a secondary market will develop or, if it develops, that it will continue
to exist. Consequently, you may not be able to sell your certificates readily or
at prices that will enable you to realize your desired yield. The market values
of the 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.
Violations of consumer protection laws may cause losses on your certificates.
Federal and state laws regulate the underwriting, origination,
servicing and collection of the loans. These laws have changed over time and
have become more restrictive or stringent with respect to specific activities of
the servicer and the originators. Actual or alleged violations of these federal
and state laws may, among other things:
o limit the ability of the servicer to collect principal or interest
on the mortgage loans,
o provide the mortgagors with a right to rescind the loans,
S-18
o entitle the mortgagors to refunds of amounts previously paid or to
set-off those amounts against their mortgage loan obligations,
o result in a litigation proceeding being brought against the trust,
and
o subject the trust (and other assignees of the mortgage loans) to
liability for expenses, penalties and damages resulting from the
violations.
Depending on the provisions of the applicable law and the specific
facts and circumstances involved, actual or alleged violations of applicable
federal or state laws, policies and principles may limit the ability of the
servicer to collect all or part of the interest on or principal of a mortgage
loan, may provide mortgagors with rights to rescind their mortgage loans, may
entitle a borrower to a refund of amounts previously paid or to set off those
amounts against his monthly payment and, in addition, could subject the trust to
litigation or liability for expenses, penalties and damages resulting from the
violations. As a result, these violations could result in shortfalls in the
payments due on the offered certificates. See "Legal Aspects of Mortgage
Loans--Anti-Deficiency Legislation, the Bankruptcy Code and Other Limitations on
Lenders" in the prospectus.
The seller will make representations and warranties with respect to
each mortgage loan relating to compliance with federal and state laws at the
time of origination. The seller will be required to repurchase or replace any
mortgage loan that is not originated or serviced in compliance with all federal,
state or local laws. However, repurchase or replacement of the affected mortgage
loans will not necessarily fully compensate the trust or certificateholders for
any losses arising from the related breach. For example, if a mortgagor brings a
legal action against the trust, the trustee will be entitled to indemnification
from trust property for its defense costs. The seller will not indemnify the
trust or have any other responsibility to the trust or certificateholders (other
than to repurchase or replace such loan) for any losses and liabilities the
trust may suffer with respect to mortgage loans as to which the representation
as to compliance with laws is breached. As a result, shortfalls in the
distributions due on your certificates could occur.
In the event the seller is not able to repurchase or replace defective mortgage
loans you may suffer losses on your certificates.
The seller will make various representations and warranties related to
the mortgage loans in the mortgage loan purchase agreement which will be
assigned by the depositor to the trustee, for the benefit of certificateholders.
If the seller fails to cure a material breach of its representations
and warranties with respect to any mortgage loan in a timely manner, the seller
will be required to repurchase or replace the defective loan. See "The Pooling
and Servicing Agreement--Assignment of the Mortgage Loans" in this prospectus
supplement. In the event that the seller is not able to repurchase or replace
any defective mortgage loans at the date such action is required, for financial
or other reasons, you may suffer losses on your certificates. The inability of
the seller to repurchase or replace defective mortgage loans would likely cause
the mortgage loans to experience higher rates of delinquencies, defaults and
losses. As a result, shortfalls in the distributions due on your certificates
could occur.
The originator may be subject to legal actions.
Because the nature of the originator's business involves the collection
of numerous accounts and compliance with state and federal lending laws, the
originator may be subject to claims and legal actions in the ordinary course of
its business. Several class-action lawsuits have been filed against a number of
consumer finance companies alleging violations of various federal and state
consumer protection laws.
Possible reduction or withdrawal of ratings on the offered certificates.
Each rating agency rating the offered certificates may change or
withdraw its initial ratings at any time in the future, if, in its judgment,
circumstances warrant a change. No person is obligated to maintain the ratings
at their initial levels. If a rating agency reduces or withdraws its ratings on
one or more classes of the offered certificates, the liquidity and market value
of the affected certificates is likely to be reduced.
S-19
Suitability of the offered certificates as investments.
The offered certificates are not suitable investments for any investor
that requires a regular or predictable schedule of monthly payments or payment
on any specific date. The offered certificates are complex investments that
should be considered only by investors who, either alone or with their
financial, tax and legal advisors, have the expertise to analyze the prepayment,
reinvestment, default and market risk, the tax consequences of an investment and
the interaction of these factors.
S-20
THE MORTGAGE POOL
Certain information with respect to the Mortgage Loans is set forth
herein. Prior to the Closing Date, Mortgage Loans may be removed and other
Mortgage Loans may be substituted therefor. The Depositor believes that the
information set forth herein is representative of the characteristics of the
Mortgage Loans as they will be comprised at the Closing Date, although certain
characteristics of the Mortgage Loans may vary.
General
The assets included in the trust (the "Trust Fund") will consist of a
pool of 2,038 fixed-rate and adjustable-rate mortgage loans (the "Mortgage
Pool") having original terms to maturity ranging from 180 months to 360 months
(the "Mortgage Loans") and an aggregate principal balance as of September 1,
2002 (the "Cut-off Date") of approximately $260,161,376. All Mortgage Loan
statistics set forth herein are based on principal balances, interest rates,
terms to maturity, mortgage loan counts and similar statistics as of the Cut-off
Date. All weighted averages specified herein are based on the principal balances
of the related Mortgage Loans as of the Cut-off Date, as adjusted for the
principal payments received or advanced on or before such date (each, a "Cut-off
Date Principal Balance"). The "Principal Balance" of a Mortgage Loan, as of any
date, is equal to the principal balance of such Mortgage Loan at its
origination, less the sum of scheduled and unscheduled payments and other
recoveries in respect of principal made or advanced on such Mortgage Loan.
References to percentages of the Mortgage Loans mean percentages based on the
aggregate of the Cut-off Date Principal Balances of the Mortgage Loans unless
otherwise specified. The "Pool Balance" as of any date means the sum of the
Principal Balances of the Mortgage Loans.
The Depositor will purchase the Mortgage Loans from the Seller pursuant
to the Mortgage Loan Purchase Agreement (the "Mortgage Loan Purchase
Agreement"), dated the Closing Date, between the Seller and the Depositor.
Pursuant to the Pooling and Servicing Agreement, the Depositor will cause the
Mortgage Loans to be assigned to the Trustee for the benefit of the
Certificateholders. See "The Pooling and Servicing Agreement" in this prospectus
supplement.
Each of the Mortgage Loans in the Mortgage Pool was originated or
acquired by the Originator in accordance with its underwriting standards as
described in "Underwriting Standards."
Pursuant to the terms of the Pooling and Servicing Agreement, the
Depositor will assign the representations and warranties made by the Seller in
the Mortgage Loan Purchase Agreement to the Trustee, for the benefit of the
Certificateholders. The Seller, subject to certain limitations, will be
obligated under the Mortgage Loan Purchase Agreement to repurchase or substitute
a similar mortgage loan for any Mortgage Loan as to which there exists deficient
documentation or an uncured breach of any such representation or warranty, if
such breach of any such representation or warranty materially and adversely
affects the Certificateholders' interests in such Mortgage Loan. The Depositor
will make no representations or warranties with respect to the Mortgage Loans
and will have no obligation to repurchase or substitute for Mortgage Loans with
deficient documentation or that are otherwise defective. The Seller is selling
the Mortgage Loans without recourse and will have no obligation with respect to
the Certificates in its capacity as Seller other than the repurchase or
substitution obligations described above.
The Mortgage Pool Statistics
The Pool Balance as of the Cut-off Date is equal to approximately
$260,161,376. The Mortgage Loans have original terms to maturity ranging from
180 to 360 months. The following statistical information, unless otherwise
specified, is based upon the Pool Balance as of the Cut-off Date.
The Mortgage Loans are secured by mortgages, deeds of trust or other
similar security instruments (each, a "Mortgage") creating first liens on one-
to four-family residential properties consisting of attached or detached one- to
four-family dwelling units and individual condominium units (each, a "Mortgaged
Property"). Approximately 37.47% of the Mortgage Loans had Loan-to-Value Ratios
at origination in excess of 80%, 99.46% of which are insured by primary mortgage
insurance policies issued by various primary mortgage insurers. See "--Primary
Mortgage Insurance" below. There can be no assurance that the current
loan-to-value ratio of any Mortgage Loan determined at any time after
origination is less than or equal to its original Loan-to-Value Ratio.
S-21
All of the Mortgage Loans have scheduled Monthly Payments due on the
first day of the month (with respect to each Mortgage Loan, a "Due Date").
Approximately 23.84% of the Mortgage Loans are fixed-rate loans (the "Fixed-Rate
Mortgage Loans") and approximately 76.16% of the Mortgage Loans are
adjustable-rate loans (the "Adjustable-Rate Mortgage Loans").
Approximately 31.61% of the Fixed Rate Mortgage Loans (representing
approximately 7.54% of the mortgage pool as a whole) will not fully amortize by
their respective maturity dates (each, a "Balloon Mortgage Loan"). With respect
to the majority of the Balloon Mortgage Loans, the Monthly Payments for such
Balloon Mortgage Loans amortize over 360 months, but the final payment (the
"Balloon Payment") is due in the 180th month following origination. The amount
of the Balloon Payment on each Balloon Mortgage Loan is substantially in excess
of the amount of the scheduled Monthly Payment for such Mortgage Loan.
None of the Mortgage Loans will have been originated with interest
rates or fees which make them subject to the Home Ownership and Equity
Protection Act of 1994. However, the Mortgage Loans may be subject to comparable
state laws with lower threshold tests.
Approximately 94.08% of the Mortgage Loans provide for payment by the
mortgagor of a prepayment penalty in limited circumstances on certain
prepayments. The term of any prepayment penalty on the Mortgage Loans varies
from one to five years and the majority of the Mortgage Loans with prepayment
penalties charge a penalty of six months interest on the prepaid balance greater
than 20% of the Principal Balance at origination over a rolling 12 month period.
Any such prepayment penalty will be distributed to the holders of the Class P
Certificates. No such prepayment penalty will be distributed to the holders of
the Offered Certificates.
Each Fixed-Rate Mortgage Loan accrues interest at a per annum rate (a
"Mortgage Interest Rate") of not less than 5.750% per annum and not more than
14.000% per annum, and as of the Cut-off Date the weighted average Mortgage
Interest Rate of the Fixed-Rate Mortgage Loans was approximately 8.147% per
annum.
The Adjustable-Rate Mortgage Loans accrue interest at Mortgage Interest
Rates ranging between a minimum per annum interest rate of 6.375% and a maximum
per annum interest rate of 13.625% as of the Cut-Off Date, and as of the Cut-off
Date the weighted average Mortgage Interest Rate of the Adjustable-Rate Mortgage
Loans was approximately 9.186% per annum.
The weighted average remaining term to maturity of the Mortgage Loans
will be approximately 338 months as of the Cut-off Date. None of the Mortgage
Loans had a first Due Date prior to January 1, 2002 or after August 1, 2002 or
will have a remaining term to maturity of less than 175 months or greater than
358 months as of the Cut-off Date. The month of the latest maturity date of any
Mortgage Loan is July 2032.
The average Principal Balance of the Fixed-Rate Mortgage Loans at
origination was approximately $124,331. No Fixed-Rate Mortgage Loan had a
Cut-off Date Principal Balance of greater than $584,318 or less than
approximately $10,690. The average Cut-off Date Principal Balance of the
Fixed-Rate Mortgage Loans was approximately $123,797.
The average Principal Balance of the Adjustable-Rate Mortgage Loans at
origination was approximately $129,221. No Adjustable-Rate Mortgage Loan had a
Cut-off Date Principal Balance of greater than approximately $527,034 or less
than approximately $17,972. The average Cut-off Date Principal Balance of the
Adjustable-Rate Mortgage Loans was approximately $128,913.
Each Mortgage Loan had a Net Mortgage Interest Rate of not less than
5.250% per annum, and not more than 13.500% per annum and as of the Cut-off
Date, the weighted average Net Mortgage Interest Rate of the Mortgage Loans was
approximately 8.439%. The "Net Mortgage Interest Rate" for each Mortgage Loan is
the applicable Mortgage Interest Rate less the sum of (i) the Servicing Fee
Rate, (ii) the Securities Administration Fee Rate and (iii) the Credit Risk
Manager Fee Rate.
S-22
The Mortgage Loans are expected to have the characteristics as of the
Cut-off Date set forth in the tables below. (The sum in any column may not equal
the total indicated due to rounding). Statistics in an "FRMs" column relate
solely to the Fixed-Rate Mortgage Loans included in the Mortgage Pool, and
statistics in an "ARMs" column relate solely to the Adjustable-Rate Mortgage
Loans included in the Mortgage Pool.
S-23
Cut-off Date Principal Balances of the Mortgage Loans(1)
% of Aggregate
Number of Principal Balance Principal Balance Outstanding
Mortgage Loans Outstanding as of the Cut-off Date as of the Cut-off Date
--------------------- ------------------------------------------ -----------------------------
Principal Balance FRMs ARMs Total FRMs ARMs Total FRMs ARMs Total
- ---------------------------- ---- ---- ----- ---- ---- ----- ---- ---- -----
$ .01 to $ 50,000.00 119 172 291 $4,417,367.24 $6,682,826.86 $11,100,194.10 7.12% 3.37% 4.27%
$ 50,000.01 to $100,000.00 151 508 659 10,931,677.21 38,162,890.15 49,094,567.36 17.63 19.26 18.87
$100,000.01 to $150,000.00 86 364 450 10,930,670.66 45,099,238.40 56,029,909.06 17.62 22.76 21.54
$150,000.01 to $200,000.00 56 237 293 9,804,070.17 40,866,974.75 50,671,044.92 15.81 20.63 19.48
$200,000.01 to $250,000.00 32 140 172 7,164,832.49 31,156,600.92 38,321,433.41 11.55 15.72 14.73
$250,000.01 to $300,000.00 20 64 84 5,472,528.73 17,409,924.83 22,882,453.56 8.82 8.79 8.80
$300,000.01 to $350,000.00 21 27 48 6,778,087.05 8,695,543.83 15,473,630.88 10.93 4.39 5.95
$350,000.01 to $400,000.00 12 14 26 4,610,816.03 5,222,288.88 9,833,104.91 7.43 2.64 3.78
$400,000.01 to $450,000.00 2 9 11 877,570.43 3,860,202.02 4,737,772.45 1.41 1.95 1.82
$450,000.01 to $500,000.00 1 1 2 450,430.14 455,484.07 905,914.21 0.73 0.23 0.35
$500,000.01 to $550,000.00 -- 1 1 -- 527,033.57 527,033.57 -- 0.27 0.20
$550,000.01 to $600,000.00 1 -- 1 584,317.81 -- 584,317.81 0.94 -- 0.22
--- ----- ----- -------------- --------------- --------------- ------ ------ ------
Total 501 1,537 2,038 $62,022,367.96 $198,139,008.28 $260,161,376.24 100.00% 100.00% 100.00%
=== ===== ===== ============== =============== =============== ====== ====== ======
- ---------------
(1) The average Cut-off Date Principal Balance of the Mortgage Loans was
approximately $127,655.
Original Terms to Maturity of the Mortgage Loans(1)
% of Aggregate
Number of Principal Balance Principal Balance Outstanding
Mortgage Loans Outstanding as of the Cut-off Date as of the Cut-off Date
Original Term --------------------- ------------------------------------------------- --------------------------------
(Months) FRMs ARMs Total FRMs ARMs Total FRMs ARMs Total
- ---------------------- ----- ---- ----- ---- ---- ----- ---- ---- -----
180 233 -- 233 $26,926,946.17 $ -- $ 26,926,946.17 43.41% --% 10.35%
360 268 1,537 1,805 35,095,421.79 198,139,008.28 233,234,430.07 56.59 100.00 89.65
--- ----- ----- -------------- --------------- ---------------- ------ ------ ------
Total 501 1,537 2,038 $62,022,367.96 $198,139,008.28 $ 260,161,376.24 100.00% 100.00% 100.00%
=== ===== ===== ============== =============== ================ ====== ====== ======
- ---------------
(1) The weighted average original term of the Mortgage Loans as of the Cut-off
Date was approximately 341 months.
S-24
Property Types of the Mortgage Loans
% of Aggregate
Number of Principal Balance Principal Balance Outstanding
Mortgage Loans Outstanding as of the Cut-off Date as of the Cut-off Date
------------------------ ------------------------------------------------ ------------------------------
Property Type FRMs ARMs Total FRMs ARMs Total FRMs ARMs Total
- ----------------------- ---- ---- ----- ---- ---- ----- ---- ---- -----
Single Family 452 1,365 1,817 $56,111,320.07 $176,712,723.91 $232,824,043.98 90.47% 89.19% 89.49%
Condominium 15 71 86 1,654,352.20 8,563,127.84 10,217,480.04 2.67 4.32 3.93
Planned Unit Development 19 60 79 2,708,630.47 7,320,414.12 10,029,044.59 4.37 3.69 3.85
Two- to Four-Family 5 32 37 978,418.72 4,929,848.21 5,908,266.93 1.58 2.49 2.27
Manufactured Housing 10 9 19 569,646.50 612,894.20 1,182,540.70 0.92 0.31 0.45
----------------------- ------------------------------------------------ ---------------------------
Total 501 1,537 2,038 $62,022,367.96 $198,139,008.28 $260,161,376.24 100.00% 100.00% 100.00%
======================= ================================================ ===========================
FICO Score(1)
% of Aggregate
Number of Principal Balance Principal Balance Outstanding
Mortgage Loans Outstanding as of the Cut-off Date as of the Cut-off Date
---------------------------- ---------------------------------------------- -----------------------------
Range of FICO Scores FRMs ARMs Total FRMs ARMs Total FRMs ARMs Total
- ---------------------- ---- ---- ----- ---- ---- ----- ---- ---- -----
801 to 850 2 2 4 $ 524,393.48 $ 405,020.54 $ 929,414.02 0.85% 0.20% 0.36%
751 to 800 19 32 51 4,437,854.34 5,146,152.00 9,584,006.34 7.16 2.60 3.68
701 to 750 41 57 98 7,522,712.02 9,478,779.45 17,001,491.47 12.13 4.78 6.53
651 to 700 119 198 317 17,878,002.80 29,394,664.73 47,272,667.53 28.83 14.84 18.17
601 to 650 159 399 558 18,797,549.20 53,018,629.44 71,816,178.64 30.31 26.76 27.60
551 to 600 104 498 602 8,381,685.57 61,034,368.78 69,416,054.35 13.51 30.80 26.68
501 to 550 52 310 362 4,226,702.98 36,057,717.31 40,284,420.29 6.81 18.20 15.48
451 to 500 4 38 42 203,918.71 3,371,375.29 3,575,294.00 0.33 1.70 1.37
401 to 450 1 1 2 49,548.86 163,793.06 213,341.92 0.08 0.08 0.08
Not Available -- 2 2 -- 68,507.68 68,507.68 -- 0.03 0.03
--------------------------- ------------------------------------------------ ----------------------------
Total 501 1,537 2,038 $62,022,367.96 $198,139,008.28 $260,161,376.24 100.00% 100.00% 100.00%
=========================== ================================================ ============================
- ---------------
(1) The weighted average FICO Score of the Mortgage Loans as of the Cut-off
Date was approximately 617. "FICO Scores" are statistical credit scores
obtained by many mortgage lenders in connection with the loan application
to help assess a borrower's credit-worthiness. FICO Scores are generated by
models developed by a third party and are made available to lenders through
three national credit bureaus. The models were derived by analyzing data on
consumers in order to establish patterns which are believed to be
indicative of the borrower's probability of default. The FICO Score is
based on a borrower's historical credit data, including, among other
things, payment history, delinquencies on accounts, levels of outstanding
indebtedness, length of credit history, types of credit, and bankruptcy
experience. FICO Scores range from approximately 401 to approximately 850,
with higher scores indicating an individual with a more favorable credit
history compared to an individual with a lower score. However, a FICO Score
purports only to be a measurement of the relative degree of risk a borrower
represents to a lender, i.e., that a borrower with a higher score is
statistically expected to be less likely to default in payment than a
borrower with a lower score. In addition, it should be noted that FICO
Scores were developed to indicate a level of default probability over a
two-year period which does not correspond to the life of a mortgage loan.
Furthermore, FICO Scores were not developed specifically for use in
connection with mortgage loans, but for consumer loans in general.
Therefore, a FICO Score does not take into consideration the effect of
mortgage loan characteristics on the probability of repayment by the
borrower. The FICO Scores set forth in the table above were obtained at
either the time of origination of the Mortgage Loan or more recently. The
Depositor makes no representations or warranties as to the actual
performance of any Mortgage Loan or that a particular FICO Score should be
relied upon as a basis for an expectation that the borrower will repay the
Mortgage Loan according to its terms.
S-25
Credit Grades(1)
% of Aggregate
Number of Principal Balance Principal Balance Outstanding
Mortgage Loans Outstanding as of the Cut-off Date as of the Cut-off Date
-------------------------- ------------------------------------------------ -------------------------------
Credit Grade FRMs ARMs Total FRMs ARMs Total FRMs ARMs Total
-------------- ---- ---- ----- ---- ---- ----- ---- ---- -----
Y9 150 202 352 $25,898,019.45 $ 32,404,530.29 $ 58,302,549.74 41.76% 16.35% 22.41%
Y8 65 121 186 9,321,977.51 18,136,618.29 27,458,595.80 15.03 9.15 10.55
Y7 76 149 225 9,511,953.60 21,940,605.53 31,452,559.13 15.34 11.07 12.09
Y6 50 192 242 5,365,765.85 25,223,576.61 30,589,342.46 8.65 12.73 11.76
Y5 44 183 227 4,682,847.59 23,883,526.85 28,566,374.44 7.55 12.05 10.98
Y4 60 332 392 4,399,936.20 39,856,458.52 44,256,394.72 7.09 20.12 17.01
Y3 22 145 167 1,006,509.19 17,171,536.75 18,178,045.94 1.62 8.67 6.99
Y2 23 171 194 1,140,344.71 16,076,486.44 17,216,831.15 1.84 8.11 6.62
Y1 10 41 51 507,388.19 3,230,121.25 3,737,509.44 0.82 1.63 1.44
F1 1 1 2 187,625.67 215,547.75 403,173.42 0.30 0.11 0.15
--- ----- ----- -------------- --------------- --------------- ------ ------ ------
Total 501 1,537 2,038 $62,022,367.96 $198,139,008.28 $260,161,376.24 100.00% 100.00% 100.00%
=== ===== ===== ============== =============== =============== ====== ====== ======
- ---------------
(1) See "Underwriting Standards" in this prospectus supplement for an
explanation of the credit grades presented in this table.
Prepayment Penalty Term(1)
% of Aggregate
Number of Principal Balance Principal Balance Outstanding
Mortgage Loans Outstanding as of the Cut-off Date as of the Cut-off Date
--------------------------- ------------------------------------------------- -----------------------------
Prepayment Penalty Term FRMs ARMs Total FRMs ARMs Total FRMs ARMs Total
- ------------------------ ---- ---- ----- ---- ---- ----- ---- ---- -----
No Prepayment Penalty 32 83 115 $ 2,939,416.06 $ 12,465,030.87 $ 15,404,446.93 4.74% 6.29% 5.92%
1 year 12 1 13 2,162,753.35 359,264.24 2,522,017.59 3.49 0.18 0.97
2 years 16 1,115 1,131 1,423,458.13 144,619,839.93 146,043,298.06 2.30 72.99 56.14
3 years 195 274 469 21,755,468.12 34,286,964.44 56,042,432.56 35.08 17.30 21.54
5 years 246 64 310 33,741,272.30 6,407,908.80 40,149,181.10 54.40 3.23 15.43
--- ----- ----- -------------- --------------- --------------- ------ ------ ------
Total 501 1,537 2,038 $62,022,367.96 $198,139,008.28 $260,161,376.24 100.00% 100.00% 100.00%
=== ===== ===== ============== =============== =============== ====== ====== ======
- ---------------
(1) The weighted average Prepayment Penalty Term of the Mortgage Loans as of
the Cut-off Date was approximately 2.6 years. The majority of the Mortgage
Loans with Prepayment Penalties Charge a penalty of six months interest on
the prepaid balance greater than 20% of the Principal Balance at
origination over a rolling twelve-month period.
S-26
Occupancy Status of the Mortgage Loans(1)
% of Aggregate
Number of Principal Balance Principal Balance Outstanding
Mortgage Loans Outstanding as of the Cut-off Date as of the Cut-off Date
---------------------------- ------------------------------------------------ -------------------------------
Occupancy Status FRMs ARMs Total FRMs ARMs Total FRMs ARMs Total
- --------------------- ---- ---- ----- ---- ---- ----- ---- ---- -----
Owner-Occupied 472 1,492 1,964 $60,004,505.78 $193,264,486.74 $253,268,992.52 96.75% 97.54% 97.35%
Non Owner-Occupied 24 33 57 1,397,594.17 3,550,999.88 4,948,594.05 2.25 1.79 1.90
Second Home 5 12 17 620,268.01 1,323,521.66 1,943,789.67 1.00 0.67 0.75
--- ----- ----- -------------- --------------- --------------- ------ ------ ------
Total 501 1,537 2,038 $62,022,367.96 $198,139,008.28 $260,161,376.24 100.00% 100.00% 100.00%
=== ===== ===== ============== =============== =============== ====== ====== ======
- ---------------
(1) Based on a representation made by the borrower at the time of origination.
Purpose of the Mortgage Loans
% of Aggregate
Number of Principal Balance Principal Balance Outstanding
Mortgage Loans Outstanding as of the Cut-off Date as of the Cut-off Date
-------------------------- ------------------------------------------------ -------------------------------
Purpose FRMs ARMs Total FRMs ARMs Total FRMs ARMs Total
- -------------------- ------ ---- ----- ---- ---- ----- ---- ---- -----
Equity-out Refinance 339 720 1,059 $39,250,058.98 $90,335,228.91 $129,585,287.89 63.28% 45.59% 49.81%
Purchase 103 692 795 13,855,697.80 90,549,557.38 104,405,255.18 22.34 45.70 40.13
Rate/Term Refinance 59 125 184 8,916,611.18 17,254,221.99 26,170,833.17 14.38 8.71 10.06
----- --------- ---------- --------------- ---------------- --------------- --------- ---------- ----------
Total 501 1,537 2,038 $62,022,367.96 $198,139,008.28 $260,161,376.24 100.00% 100.00% 100.00%
===== ========= ========== =============== ================ =============== ========= ========== ==========
S-27
Mortgage Interest Rates of the Mortgage Loans as of the Cut-off Date(1)
% of Aggregate
Number of Principal Balance Principal Balance Outstanding
Mortgage Loans Outstanding as of the Cut-off Date as of the Cut-off Date
------------------------- ------------------------------------------------ -----------------------------
Mortgage Interest Rate FRMs ARMs Total FRMs ARMs Total FRMs ARMs Total
- ------------------------- ---- ---- ----- ---- ---- ----- ---- ---- -----
5.501% to 6.000% 2 -- 2 $ 319,874.88 $ -- $ 319,874.88 0.52% --% 0.12%
6.001% to 6.500% 22 3 25 6,152,964.66 871,241.17 7,024,205.83 9.92 0.44 2.70
6.501% to 7.000% 32 20 52 7,014,081.48 3,601,193.98 10,615,275.46 11.31 1.82 4.08
7.001% to 7.500% 49 66 115 7,826,229.01 12,058,455.81 19,884,684.82 12.62 6.09 7.64
7.501% to 8.000% 77 155 232 12,360,447.73 25,357,304.20 37,717,751.93 19.93 12.80 14.50
8.001% to 8.500% 55 197 252 7,013,008.55 27,188,955.70 34,201,964.25 11.31 13.72 13.15
8.501% to 9.000% 87 241 328 9,247,493.10 34,311,659.21 43,559,152.31 14.91 17.32 16.74
9.001% to 9.500% 54 185 239 4,317,839.73 24,038,451.18 28,356,290.91 6.96 12.13 10.90
9.501% to 10.000% 40 194 234 3,113,502.51 25,231,573.11 28,345,075.62 5.02 12.73 10.90
10.001% to 10.500% 21 138 159 1,269,417.66 13,993,063.95 15,262,481.61 2.05 7.06 5.87
10.501% to 11.000% 14 121 135 926,198.41 12,656,369.32 13,582,567.73 1.49 6.39 5.22
11.001% to 11.500% 12 75 87 778,054.70 6,831,007.35 7,609,062.05 1.25 3.45 2.92
11.501% to 12.000% 11 67 78 486,585.05 5,854,318.79 6,340,903.84 0.78 2.95 2.44
12.001% to 12.500% 14 46 60 659,349.01 4,280,846.38 4,940,195.39 1.06 2.16 1.90
12.501% to 13.000% 7 21 28 371,394.65 1,287,552.52 1,658,947.17 0.60 0.65 0.64
13.001% to 13.500% 2 7 9 111,110.44 504,823.96 615,934.40 0.18 0.25 0.24
13.501% to 14.000% 2 1 3 54,816.39 72,191.65 127,008.04 0.09 0.04 0.05
--- ----- ----- -------------- --------------- --------------- ------ ------ ------
Total 501 1,537 2,038 $62,022,367.96 $198,139,008.28 $260,161,376.24 100.00% 100.00% 100.00%
=== ===== ===== ============== =============== =============== ====== ====== ======
- ---------------
(1) The weighted average Mortgage Interest Rate of the Mortgage Loans as of the
Cut-off Date was approximately 8.939% per annum.
S-28
Loan-to-Value Ratios of the Mortgage Loans(1)
% of Aggregate
Number of Principal Balance Principal Balance Outstanding
Mortgage Loans Outstanding as of the Cut-off Date as of the Cut-off Date
------------------------- ----------------------------------------------- --------------------------------
Loan-to-Value Ratio FRMs ARMs Total FRMs ARMs Total FRMs ARMs Total
- --------------------- ---- ---- ----- ---- ---- ----- ---- ---- -----
10.01% to 15.00% 1 -- 1 $ 38,225.31 $ -- $ 38.225.31 0.06% --% 0.01%
15.01% to 20.00% 4 1 5 141,320.26 49,644.96 190,965.22 0.23 0.03 0.07
20.01% to 25.00% 2 2 4 184,497.79 91,052.23 275,550.02 0.30 0.05 0.11
25.01% to 30.00% 6 3 9 1,473,541.51 240,490.99 1,714,032.50 2.38 0.12 0.66
30.01% to 35.00% 5 4 9 375,756.43 548,926.51 924,682.94 0.61 0.28 0.36
35.01% to 40.00% 9 6 15 733,078.69 494,506.09 1,227,584.78 1.18 0.25 0.47
40.01% to 45.00% 15 10 25 1,312,844.98 1,065,148.29 2,377,993.27 2.12 0.54 0.91
45.01% to 50.00% 14 21 35 1,264,857.33 2,443,283.78 3,708,141.11 2.04 1.23 1.43
50.01% to 55.00% 17 16 33 2,063,225.02 1,998,240.65 4,061,465.67 3.33 1.01 1.56
55.01% to 60.00% 23 37 60 2,399,159.47 4,047,752.10 6,446,911.57 3.87 2.04 2.48
60.01% to 65.00% 45 77 122 6,766,811.95 8,966,236.37 15,733,048.32 10.91 4.53 6.05
65.01% to 70.00% 59 111 170 6,214,786.56 12,713,897.50 18,928,684.06 10.02 6.42 7.28
70.01% to 75.00% 77 165 242 8,987,031.91 21,288,676.93 30,275,708.84 14.49 10.74 11.64
75.01% to 80.00% 132 395 527 20,054,621.69 56,726,002.18 76,780,623.87 32.33 28.63 29.51
80.01% to 85.00% 42 257 299 5,285,125.41 30,702,762.07 35,987,887.48 8.52 15.50 13.83
85.01% to 90.00% 39 279 318 3,882,964.28 36,780,491.42 40,663,455.70 6.26 18.56 15.63
90.01% to 95.00% 11 153 164 844,519.37 19,981,896.21 20,826,415.58 1.36 10.08 8.01
----- --------- --------- --------------- --------------- --------------- ---------- ----------- ---------
Total 501 1,537 2,038 $62,022,367.96 $198,139,008.28 $260,161,376.24 100.00% 100.00% 100.00%
===== ========= ========= =============== =============== =============== ========== =========== =========
- ---------------
(1) The weighted average Loan-to-Value Ratio of the Mortgage Loans as of the
Cut-off Date was approximately 78.16%.
The "Loan-to-Value Ratio" of a Mortgage Loan shall generally mean the
ratio, expressed as a percentage of (i) the principal amount of the Mortgage
Loan at origination over (ii) the appraised value of the related Mortgaged
Property at origination or the sale price, if the appraised value is not
available.
S-29
Geographic Distribution of the Mortgage Loans(1)
Number of Principal Balance
Mortgage Loans Outstanding as of the Cut-off Date
---------------------------- -----------------------------------------------
Location FRMs ARMs Total FRMs ARMs Total
- ---------------------------- ---- ---- ----- ---- ---- -----
Alabama 1 3 4 $ 210,762.57 $ 240,458.22 $ 451,220.79
Alaska 2 6 8 351,631.19 790,700.74 1,142,331.93
Arizona 12 71 83 1,083,999.26 9,819,858.49 10,903,857.75
Arkansas 1 3 4 84,885.03 501,028.97 585,914.00
California 99 219 318 18,952,323.75 43,267,724.75 62,220,048.50
Colorado 15 77 92 2,294,341.68 12,056,512.61 14,350,854.29
Connecticut 1 12 13 186,493.07 2,171,714.83 2,358,207.90
Delaware 1 3 4 59,908.38 313,289.28 373,197.66
Florida 39 68 107 3,518,024.80 7,448,952.50 10,966,977.30
Georgia 7 17 24 985,769.70 2,126,771.17 3,112,540.87
Hawaii 2 -- 2 162,913.99 -- 162,913.99
Idaho 3 28 31 299,086.26 2,607,718.84 2,906,805.10
Illinois 6 54 60 682,197.81 6,033,787.54 6,715,985.35
Indiana 16 47 63 1,120,226.78 4,351,483.04 5,471,709.82
Iowa 12 38 50 1,010,559.80 3,002,752.89 4,013,312.69
Kansas -- 12 12 -- 1,316,130.10 1,316,130.10
Kentucky 5 12 17 544,279.46 1,259,296.91 1,803,576.37
Louisiana 27 19 46 1,561,069.51 1,752,949.69 3,314,019.20
Maine 1 4 5 40,374.97 415,707.82 456,082.79
Maryland 9 43 52 919,684.38 6,894,536.31 7,814,220.69
Massachusetts 8 18 26 1,346,722.39 3,133,724.10 4,480,446.49
Michigan 14 69 83 1,058,771.34 6,908,495.13 7,967,266.47
Minnesota 25 79 104 2,744,242.53 10,263,065.82 13,007,308.35
Mississippi 7 5 12 339,291.11 240,231.13 579,522.24
Missouri 9 51 60 555,630.02 4,134,099.06 4,689,729.08
Montana 2 21 23 334,780.00 2,017,388.18 2,352,168.18
Nebraska 3 22 25 322,358.78 2,301,327.32 2,623,686.10
Nevada 4 18 22 558,864.17 2,446,396.39 3,005,260.56
New Hampshire 1 6 7 316,115.65 803,659.31 1,119,774.96
New Jersey 6 25 31 1,060,364.88 4,339,544.88 5,399,909.76
New Mexico 2 7 9 245,262.34 680,526.77 925,789.11
New York 15 39 54 2,812,282.79 5,097,956.00 7,910,238.79
North Carolina 4 21 25 228,680.77 2,735,820.99 2,964,501.76
North Dakota -- 4 4 -- 196,940.39 196,940.39
Ohio 27 47 74 2,516,991.31 4,649,206.27 7,166,197.58
Oklahoma 3 14 17 197,977.58 1,226,454.93 1,424,432.51
Oregon 6 21 27 1,257,355.56 3,090,143.70 4,347,499.26
Pennsylvania 23 57 80 3,001,694.84 5,951,783.62 8,953,478.46
Rhode Island -- 5 5 -- 593,995.95 593,995.95
South Carolina 6 22 28 1,440,442.28 2,364,658.81 3,805,101.09
South Dakota 1 13 14 47,079.72 1,314,816.82 1,361,896.54
Tennessee 9 25 34 516,088.99 2,460,755.96 2,976,844.95
Texas 38 82 120 3,467,906.12 8,505,422.32 11,973,328.44
Utah -- 13 13 -- 2,108,894.84 2,108,894.84
Vermont -- 1 1 -- 49,799.97 49,799.97
Virginia 9 25 34 1,148,316.70 3,773,198.37 4,921,515.07
Washington 12 47 59 2,120,634.46 6,425,146.20 8,545,780.66
West Virginia 3 5 8 99,721.32 355,147.03 454,868.35
Wisconsin 5 33 38 216,259.92 3,116,704.11 3,332,964.03
Wyoming -- 6 6 -- 482,329.21 482,329.21
--- ----- ----- -------------- --------------- ---------------
Total 501 1,537 2,038 $62,022,367.96 $198,139,008.28 $260,161,376.24
=== ===== ===== ============== =============== ===============
% of Aggregate
Principal Balance Outstanding
as of the Cut-off Date
------------------------------
Location FRMs ARMs Total
- ---------------------------- ---- ---- -----
Alabama 0.34% 0.12% 0.17%
Alaska 0.57 0.40 0.44
Arizona 1.75 4.96 4.19
Arkansas 0.14 0.25 0.23
California 30.56 21.84 23.92
Colorado 3.70 6.08 5.52
Connecticut 0.30 1.10 0.91
Delaware 0.10 0.16 0.14
Florida 5.67 3.76 4.22
Georgia 1.59 1.07 1.20
Hawaii 0.26 -- 0.06
Idaho 0.48 1.32 1.12
Illinois 1.10 3.05 2.58
Indiana 1.81 2.20 2.10
Iowa 1.63 1.52 1.54
Kansas -- 0.66 0.51
Kentucky 0.88 0.64 0.69
Louisiana 2.52 0.88 1.27
Maine 0.07 0.21 0.18
Maryland 1.48 3.48 3.00
Massachusetts 2.17 1.58 1.72
Michigan 1.71 3.49 3.06
Minnesota 4.42 5.18 5.00
Mississippi 0.55 0.12 0.22
Missouri 0.90 2.09 1.80
Montana 0.54 1.02 0.90
Nebraska 0.52 1.16 1.01
Nevada 0.90 1.23 1.16
New Hampshire 0.51 0.41 0.43
New Jersey 1.71 2.19 2.08
New Mexico 0.40 0.34 0.36
New York 4.53 2.57 3.04
North Carolina 0.37 1.38 1.14
North Dakota -- 0.10 0.08
Ohio 4.06 2.35 2.75
Oklahoma 0.32 0.62 0.55
Oregon 2.03 1.56 1.67
Pennsylvania 4.84 3.00 3.44
Rhode Island -- 0.30 0.23
South Carolina 2.32 1.19 1.46
South Dakota 0.08 0.66 0.52
Tennessee 0.83 1.24 1.14
Texas 5.59 4.29 4.60
Utah -- 1.06 0.81
Vermont -- 0.03 0.02
Virginia 1.85 1.90 1.89
Washington 3.42 3.24 3.28
West Virginia 0.16 0.18 0.17
Wisconsin 0.35 1.57 1.28
Wyoming -- 0.24 0.19
------ ------ ------
Total 100.00% 100.00% 100.00%
====== ====== ======
- ---------------
(1) The greatest ZIP Code geographic concentration of the Mortgage Loans, by
Principal Balance as of the Cut-off Date, was approximately 0.43% in the
92505 ZIP Code, located in Riverside, California.
S-30
Documentation Levels of the Mortgage Loans(1)
% of Aggregate
Number of Principal Balance Principal Balance Outstanding
Mortgage Loans Outstanding as of the Cut-off Date as of the Cut-off Date
------------------------ --------------------------------------------- ----------------------------
Documentation Level FRMs ARMs Total FRMs ARMs Total FRMs ARMs Total
- ---------------------- ---- ---- ----- ---- ---- ----- ---- ---- -----
Full Documentation 364 1,223 1,587 $41,465,270.65 $151,838,383.06 $193,303,653.71 66.86% 76.63% 74.30%
Stated Asset - Stated Income 81 213 294 10,626,551.09 30,840,657.21 41,467,208.30 17.13 15.57 15.94
Lite Documentation (24 Months 44 69 113 8,567,982.79 11,315,640.26 19,883,623.05 13.81 5.71 7.64
Income Verified)
Lite Documentation
(Six Months Income Verified) 12 32 44 1,362,563.43 4,144,327.75 5,506,891.18 2.20 2.09 2.12
--- ----- ----- -------------- --------------- --------------- ------ ------ ------
Total 501 1,537 2,038 $62,022,367.96 $198,139,008.28 $260,161,376.24 100.00% 100.00% 100.00%
=== ===== ===== ============== =============== =============== ====== ====== ======
- ---------------
(1) For a description of each documentation level, see "Underwriting
Standards" in this prospectus supplement.
S-31
The following tables present certain statistics relevant only to the
Adjustable-Rate Mortgage loans included in the Mortgage Pool.
Maximum Mortgage Loan Interest Rate
% of Aggregate
Number of Principal Balance Principal Balance
Range of Maximum Mortgage Mortgage Outstanding as of Outstanding as of the
Loan Interest Rates Loans the Cut-off Date Cut-off Date
------------------- ----- ---------------- ------------
12.500% and Below 3 $ 871,241.17 0.44%
12.501% to 13.000% 20 3,601,193.98 1.82
13.001% to 13.500% 66 12,058,455.81 6.09
13.501% to 14.000% 155 25,357,304.20 12.80
14.001% to 14.500% 197 27,188,955.70 13.72
14.501% to 15.000% 241 34,311,659.21 17.32
15.501% to 15.500% 185 24,038,451.18 12.13
15.501% to 16.000% 194 25,231,573.11 12.73
16.001% to 16.500% 138 13,993,063.95 7.06
16.501% to 17.000% 121 12,656,369.32 6.39
17.001% to 17.500% 75 6,831,007.35 3.45
17.501% to 18.000% 67 5,854,318.79 2.95
18.001% to 18.500% 46 4,280,846.38 2.16
18.501% to 19.000% 21 1,287,552.52 0.65
19.001% to 19.500% 7 504,823.96 0.25
19.501% to 20.000% 1 72,191.65 0.04
----- --------------- ------
Total 1,537 $198,139,008.28 100.00%
===== =============== ======
Minimum Mortgage Loan Interest Rate
% of Aggregate
Number of Principal Balance Principal Balance
Range of Minimum Mortgage Mortgage Outstanding as of Outstanding as of the
Loan Interest Rates Loans the Cut-off Date Cut-off Date
------------------------- --------- ----------------- ---------------------
6.500% and Below 3 $ 871,241.17 0.44%
6.501% to 7.000% 20 3,601,193.98 1.82
7.001% to 7.500% 66 12,058,455.81 6.09
7.501% to 8.000% 155 25,357,304.20 12.80
8.001% to 8.500% 197 27,188,955.70 13.72
8.501% to 9.000% 241 34,311,659.21 17.32
9.001% to 9.500% 185 24,038,451.18 12.13
9.501% to 10.000% 194 25,231,573.11 12.73
10.001% to 10.500% 138 13,993,063.95 7.06
10.501% to 11.000% 121 12,656,369.32 6.39
11.001% to 11.500% 75 6,831,007.35 3.45
11.501% to 12.000% 67 5,854,318.79 2.95
12.001% to 12.500% 46 4,280,846.38 2.16
12.501% to 13.000% 21 1,287,552.52 0.65
13.001% to 13.500% 7 504,823.96 0.25
13.501% to 14.000% 1 72,191.65 0.04
----- --------------- ------
Total 1,537 $198,139,008.28 100.00%
===== =============== ======
S-32
Gross Margins
% of Aggregate
Number of Principal Balance Principal Balance
Mortgage Outstanding as of Outstanding as of the
Range of Gross Margins Loans the Cut-off Date Cut-off Date
---------------------- --------- ----------------- ---------------------
3.501% to 4.000% 1 $ 133,139.46 0.07%
4.001% to 4.500% 33 4,825,697.04 2.44
4.501% to 5.000% 174 25,638,818.68 12.94
5.001% to 5.500% 192 26,893,509.69 13.57
5.501% to 6.000% 269 38,964,148.48 19.67
6.001% to 6.500% 207 27,336,772.66 13.80
6.501% to 7.000% 168 21,992,145.25 11.10
7.001% to 7.500% 198 22,488,853.51 11.35
7.501% to 8.000% 123 13,894,974.74 7.01
8.001% to 8.500% 49 4,760,116.75 2.40
8.501% to 9.000% 69 6,151,141.97 3.10
9.001% to 9.500% 49 4,602,473.63 2.32
9.501% to 10.000% 5 457,216.42 0.23
----- --------------- ------
Total 1,537 $198,139,008.28 100.00%
===== =============== ======
S-33
Month of Next Mortgage Interest Rate Change
Number of Principal Balance % of Aggregate Principal
Number of Months to Next Mortgage Outstanding as of Balance Outstanding as of
Mortgage Interest Rate Change Loans the Cut-off Date the Cut-off Date
----------------------------- --------- ------------------ -------------------------
5 1 $ 215,110.77 0.11%
8 2 187,474.65 0.09
15 5 1,064,744.06 0.54
16 2 112,059.41 0.06
17 4 668,818.13 0.34
18 21 2,423,669.95 1.22
19 83 12,523,974.32 6.32
20 755 94,279,711.85 47.58
21 420 56,249,709.40 28.39
27 1 28,644.61 0.01
30 2 204,315.68 0.10
31 18 1,981,964.42 1.00
32 153 20,148,302.57 10.17
33 70 8,050,508.46 4.06
----- ---------------- ------
Total 1,537 $ 198,139,008.28 100.00%
===== ================ ======
The months shown in the preceding table are the months in which the
Mortgage Interest Rates on the related Mortgage Loans were scheduled to be
adjusted. In the case of a Mortgage Loan which was Delinquent in the month in
which such adjustment was scheduled to occur, the adjustment will not occur
until the Mortgage Loan has become current.
The Index - Six-Month LIBOR
The Index for approximately 99.80% of the Adjustable-Rate Mortgage
Loans is the average of interbank offered rates for six-month U.S. dollar
deposits in the London market based on quotations of major banks, and most
recently available as of a day specified in the related note as published by
Fannie Mae ("Six-Month LIBOR"). Listed below are some historical values for the
months indicated of Six-Month LIBOR.
Six-Month LIBOR
Year
------------------------------------------------------------------------------
Month 2002 2001 2000 1999 1998 1997 1996
- ----- ---- ---- ---- ---- ---- ---- ----
January 2.03% 5.26% 6.29% 4.97% 5.63% 5.69% 5.27%
February 2.03% 4.91% 6.33% 5.13% 5.70% 5.69% 5.30%
March 2.33% 4.61% 6.53% 5.06% 5.75% 5.94% 5.50%
April 2.12% 4.30% 6.73% 5.04% 5.81% 6.00% 5.56%
May 2.08% 3.98% 7.11% 5.25% 5.75% 6.00% 5.63%
June 1.96% 3.91% 7.00% 5.65% 5.78% 5.91% 5.79%
July 1.87% 3.69% 6.89% 5.71% 5.75% 5.80% 5.88%
August 1.80% 3.45% 6.83% 5.92% 5.59% 5.84% 5.77%
September -- 2.52% 6.76% 5.96% 5.25% 5.84% 5.73%
October -- 2.15% 6.72% 6.12% 4.98% 5.79% 5.57%
November -- 2.03% 6.64% 6.06% 5.15% 5.91% 5.54%
December -- 1.98% 6.20% 6.13% 5.07% 5.84% 5.60%
If Six-Month LIBOR becomes unpublished or is otherwise unavailable, the
Servicer will select an alternative index which is based upon comparable
information.
S-34
Terms of the Mortgage Loans
The Mortgage Loans accrue interest on an actuarial basis over the
original terms thereof (or in the case of the Balloon Mortgage Loans, over a
term of 30 years). Interest will be calculated for all offered certificates
other than the Class A-1, Class A-2 and Class AIO Certificates on the basis of
the actual number of days in the related interest accrual period over a 360-day
year. Interest will be calculated for the Class A-1, Class A-2 and Class AIO
Certificates on a basis of a 360-day year comprised of twelve 30-day months When
a full prepayment of principal is made on a Mortgage Loan during a month, the
mortgagor is charged interest only on the days of the month actually elapsed up
to the date of such prepayment, at a daily interest rate that is applied to the
principal amount of the loan so prepaid. When a partial prepayment of principal
is made on a Mortgage Loan during a month, the mortgagor generally is not
charged interest on the amount of the partial prepayment during the month in
which such prepayment is made.
Primary Mortgage Insurance
Approximately 37.47% of the Mortgage Loans had Loan-to-Value Ratios at
origination in excess of 80%, 99.46% of which are insured by primary mortgage
insurance policies issued by various primary mortgage insurers. Under the
Pooling and Servicing Agreement, the Servicer is required to maintain coverage
under each primary mortgage insurance policy, and pay all premiums thereon, at
its own expense, until such time as the insurance expires as described below.
The information contained in the next few paragraphs describe general provisions
of standard primary mortgage insurance polices.
A primary mortgage insurance policy generally insures against default
on the subject mortgage loan up to an amount set forth therein, unless and until
the principal balance of the mortgage loan is reduced to a level that would
produce a Loan-to-Value Ratio equal to or less than 78%. However, the foregoing
standard may vary significantly depending on the characteristics of the subject
mortgage loans and the applicable underwriting standards. A mortgage loan will
not be considered to be an exception to the foregoing standard if no primary
mortgage insurance policy was obtained at origination but the mortgage loan has
amortized to a 78% or less Loan-to-Value Ratio level as of the Cut-off Date. In
most cases, the Servicer will have the ability to cancel any primary mortgage
insurance policy if the Loan-to-Value Ratio of the subject Mortgage Loan is
reduced to 78% or less, or a lesser specified percentage, based on an appraisal
of the Mortgaged Property after the Closing Date or as a result of principal
payments that reduce the principal balance of the subject Mortgage Loan after
the Closing Date.
While the terms and conditions of primary mortgage insurance policies
issued by one primary mortgage insurer will usually differ from those in primary
mortgage insurance policies issued by other primary mortgage insurers, each
primary mortgage insurance policy generally will pay either:
o the insured percentage of the loss on the related Mortgaged
Property;
o the entire amount of the loss, after receipt by the primary
mortgage insurer of good and merchantable title to, and possession
of, the Mortgaged Property; or
o at the option of the primary mortgage insurer under certain
primary mortgage insurance policies, the sum of the delinquent
monthly payments plus any advances made by the insured, both to
the date of the claim payment and, thereafter, monthly payments in
the amount that would have become due under the Mortgage Loan if
it had not been discharged plus any advances made by the insured
until the earlier of (a) the date the Mortgage Loan would have
been discharged in full if the default had not occurred or (b) an
approved sale.
The amount of the loss as calculated under a primary mortgage insurance
policy covering a Mortgage Loan will in most cases consist of the unpaid
principal amount of such Mortgage Loan and accrued and unpaid interest thereon
and reimbursement of some expenses, less:
o rents or other payments received by the insured, other than the
proceeds of hazard insurance, that are derived from the related
Mortgaged Property;
o hazard insurance proceeds received by the insured in excess of the
amount required to restore the Mortgaged Property and which have
not been applied to the payment of the Mortgage Loan;
o amounts expended but not approved by the primary mortgage insurer;
o claim payments previously made on the Mortgage Loan; and
S-35
o unpaid premiums and other amounts.
As conditions precedent to the filing or payment of a claim under a
primary mortgage insurance policy, in the event of default by the mortgagor, the
insured will typically be required, among other things, to:
o advance or discharge (a) hazard insurance premiums and (b) as
necessary and approved in advance by the primary mortgage
insurer, real estate taxes, protection and preservation
expenses and foreclosure and related costs;
o in the event of any physical loss or damage to the Mortgaged
Property, have the Mortgaged Property restored to at least its
condition at the effective date of the primary mortgage
insurance policy, ordinary wear and tear expected; and
o tender to the primary insurer good and merchantable title to,
and possession of, the Mortgaged Property.
THE SELLER
Banc of America Mortgage Capital Corporation (the "Seller") is a North
Carolina Corporation with its principal office located at 100 North Tryon
Street, Charlotte, North Carolina 28225. The Seller is engaged in the business
of purchasing, selling and originating residential mortgage loans. The Seller is
an affiliate of the Depositor and Banc of America Securities LLC, one of the
underwriters.
THE ORIGINATOR AND THE SERVICER
The information in this section has been provided by Wells Fargo Home
Mortgage, Inc. (in its capacity as servicer, the "Servicer"), and none of the
Depositor, the Seller, the Trustee, the Credit Risk Manager, the Securities
Administrator or any affiliates of the foregoing parties makes any
representation as to the accuracy or completeness of this information.
In its capacity as originator of the Mortgage Loans, Wells Fargo Home
Mortgage, Inc. is referred to herein as the "Originator."
The Servicer is a direct, wholly-owned subsidiary of Wells Fargo Bank,
National Association, and an indirect wholly-owned subsidiary of Wells Fargo &
Company. The Servicer is engaged principally in the business of (i) originating,
purchasing and selling residential mortgage loans in its own name and through
its affiliates and (ii) servicing residential mortgage loans for its own account
and for the account of others. The Servicer is an approved Servicer for Freddie
Mac and Fannie Mae. The Servicer's principal office is located at 1 Home Campus,
Des Moines, Iowa 50328-0001. The Servicer conducts its sub-prime mortgage loan
servicing activities primarily at its offices in Charlotte, North Carolina and
Frederick, Maryland. The address of its Charlotte, North Carolina office is 5024
Parkway Plaza Boulevard, Charlotte, North Carolina 28217-1962. The address of
its Frederick, Maryland office is 7485 New Horizon Way, Frederick, Maryland
21703.
The following table sets forth certain information regarding the
delinquency experience of the Servicer with respect to all sub-prime mortgage
loans serviced by it.
S-36
Wells Fargo Delinquency Experience -- Subprime Portfolio
By Dollar By Dollar By Dollar
By No. Amount By No. Amount By No. Amount
of Loans of Loans of Loans of Loans of Loans of Loans
-------- -------- -------- -------- -------- --------
(Dollar Amounts in
Thousands) As of December 31, 2000 As of December 31, 2001 As of June 30, 2002
----------------------- ----------------------- -------------------
Total Portfolio 26,286 $2,608,374 29,948 $3,162,549 37,621 $4,241,348
====== ========== ====== ========== ====== ==========
Period of Delinquency
(1)
30-59 Days 2,181 $ 200,613 2,215 $ 208,337 2,335 $ 234,665
60-89 Days 712 $ 64,403 673 $ 61,334 542 $ 53,999
90 days or more 641 $ 57,391 865 $ 82,379 893 $ 84,899
------ ---------- ------ ---------- ------ ----------
Total Delinquent Loans 3,534 $ 322,407 3,753 $ 352,050 3,770 $ 373,563
====== ========== ====== ========== ====== ==========
Percent of Total Loans 13.44% 12.36% 12.53% 11.13% 10.02% 8.81%
Foreclosures (2) 635 $ 58,220 1,287 $ 116,943 1,128 $ 104,499
Foreclosure Ratio (3) 2.23% 3.70% 2.46%
REO 207 $ 16,363 527 $ 46,881 791 $ 67,683
0.63% 1.48% 1.60%
(1) The indicated periods of delinquency are based on the number of days past
due, based on a 30-day month. No mortgage loan is considered delinquent for
these purposes until one month has passed since its contractual due date. A
mortgage loan is no longer considered delinquent once foreclosure
proceedings have commenced.
(2) Includes loans in the applicable portfolio for which foreclosure
proceedings had been instituted or with respect to which the related
property had been acquired as of the dates indicated.
(3) Foreclosure as a percentage of total loans in the applicable portfolio at
the end of each period.
S-37
UNDERWRITING STANDARDS
The Originator originates subprime first lien mortgage loans, referred
to in this prospectus supplement as the "First Lien Home Mortgage Loans,"
through a network of retail and wholesale offices located throughout all 50
states.
The Originator's underwriting guidelines that were utilized in
originating and acquiring the Mortgage Loans are less stringent than the
standards generally acceptable to Fannie Mae and Freddie Mac with regard to the
property offered as collateral and the applicant's credit standing and repayment
ability. Applicants who qualify under these underwriting guidelines generally
have payment histories and debt ratios which would not satisfy Fannie Mae and
Freddie Mac underwriting guidelines and may have a record of major derogatory
credit items such as outstanding judgments or prior bankruptcies. These
underwriting guidelines establish the maximum permitted Loan-to-Value Ratio for
each loan type based upon these and other risk factors.
The Originator provided the information in the following paragraphs.
None of the Depositor, the Seller, the Trustee, the Securities Administrator,
the Underwriters, or any of their respective affiliates have made or will make
any representations as to the accuracy or completeness of such information. The
following is a description of the underwriting standards used by the Originator
in connection with its acquisition of the Mortgage Loans.
All of the Mortgage Loans were originated or acquired by the
Originator, generally in accordance with the underwriting criteria described
below.
Underwriting Standards for First Lien Subprime Loans
The underwriting functions of the Originator are performed in its
California, Louisiana and Minnesota offices. The Originator does not delegate
underwriting authority to any broker or correspondent. The Originator employs
loan credit underwriters to scrutinize the applicant's credit profile and to
evaluate whether an impaired credit history is a result of adverse circumstances
or a continuing inability or unwillingness to meet credit obligations in a
timely manner. Personal circumstances such as divorce, family illnesses or
deaths and temporary job loss due to layoffs and corporate downsizing will often
impair an applicant's credit record. The underwriting guidelines used by the
Originator are primarily intended to evaluate the prospective borrower's credit
standing and ability to repay the loan, as well as the value and adequacy of the
proposed mortgaged property as collateral. A prospective borrower applying for a
mortgage loan is required to complete a detailed application. The loan
application elicits pertinent information about the applicant, with particular
emphasis on the applicant's financial condition (assets, liabilities, income and
expenses), the property being financed and the type of loan desired. With
respect to every applicant, a credit report summarizing the applicant's credit
history with merchants and lenders is obtained. Significant unfavorable credit
information reported by the applicant or by a credit reporting agency is taken
into account in the credit decision. Loan applications are classified according
to certain characteristics, including but not limited to: condition and location
of the collateral, credit history of the applicant, ability to pay,
loan-to-value ratio and general stability of the applicant in terms of
employment history and time in residence.
The Originator has established classifications with respect to the
credit profile of the applicant, and each loan is placed into one of nine credit
levels denoted as "Y9 through Y1" (see the table below). Terms of First Lien
Home Mortgage Loans made by the Originator, as well as maximum loan-to-value
ratios and debt-to-income ratios, vary depending on the classification of the
applicant. Generally, the loan-to-value ratio is the ratio, expressed as a
percentage, of the principal amount of the mortgage loan at origination to the
lesser of (i) the appraised value of the related mortgaged property, as
established by an appraisal obtained by the originator generally no more than
four months prior to origination (or, with respect to newly constructed
properties, no more than six months prior to origination) or (ii) the sale price
for such property. In some instances, the loan-to-value ratio may be based on
the value determined by an appraisal that was obtained by the originator more
than four months prior to origination, provided that (i) a recertification of
the original appraisal is obtained and (ii) the original appraisal was obtained
no more than six months prior to origination. Loan applicants with less
favorable credit ratings generally are restricted to consideration for loans
with higher interest rates and lower loan-to-value ratios than applicants with
more favorable credit ratings. Subject to the consideration of certain
compensating factors described below, the general criteria used by the
Originator's underwriting staff in classifying loan applicants are as follows:
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Total Debt Credit Bankruptcy Filings/ Maximum Combined
Credit Level Service to Bureau Foreclosure Loan to Value
Income Ratio Existing Mortgage History Score* Proceedings Ratio**
Y9 55% or less 0 x 30; Current at 660+ 3/3; Discharged/ 100% CLTV @
application time and no completed more than LTV less than or equal to 80%
mortgage late payments three years ago. 95% CLTV @
in the last 12 months LTV less than or equal to 80%
Y8 55% or less 1 x 30; No more than 30 640-659 3/3; Discharged/ 100% CLTV @
days late at application completed more than LTV greater than or equal to 80%
time and a maximum of three years ago. 95% CLTV @
one 30-day late payment LTV less than or equal to 80%
in the last 12 months
Y7 55% or less 1 x 30; No more than 30 620-639 2/2; Discharged/ 100% CLTV @
days late at application completed more than LTV less than or equal to 80%
time and a maximum of two years ago. 95% CLTV @
one 30-day late payment LTV greater than 80%
in the last 12 months
Y6 55% or less 2 x 30; No more than 30 600-619 2/2; Discharged/ 100% CLTV @
days late at application completed more than LTV less than or equal to 75%
time and a maximum of two years ago. 95% CLTV @
two 30-day late payments LTV greater than 75%
in the last 12 months
Y5 55% or less 2 x 30; No more than 30 580-599 2/2; Discharged/ 100% CLTV @
days late at application completed more than LTV less than or equal to 75%
time and a maximum of two years ago. 95% CLTV @
two 30-day late payments LTV greater than 75%
in the last 12 months
Y4 55% or less 1 x 60; No more than 60 560-579 1/1; Discharged/ 100% CLTV @
days late at application completed more than LTV less than or equal to 75%
time and a maximum of up one year ago. 95% CLTV @
to one 60-day late in LTV greater than 75%
the last 12 months
Y3 55% or less 2 x 60 or 1 x 60 and 1 x 540-559 1/1; Discharged/ 80% CLTV @
90; No more than 60 days completed more than LTV less than or equal to 70%
late at application time one year ago.
and a maximum of up to
two 60-day late payments
or one 60-day and one
90-day late payment.
Y2 55% or less 90+; No more than 60 520-539 less than 1 year; 80% CLTV @
days late at application Discharged/completed LTV less than or equal to 70%
time. 1 year ago.
Y1 55% or less 90+; No more than 60 less than less than 1 year; 80% CLTV @ LTV less than or
days late at application or equal Discharged/completed equal to 70%
time. to 519 1 year ago.
* Lower of two, middle of three credit bureau scores used.
** The maximum loan-to-value ratios and combined loan-to-value ratios are
subject to downward adjustment based upon a number of factors including
without limitation, mortgage loan amount, the mortgage loan program, the
purpose of the mortgage loan, the level of documentation, the type of
mortgaged property and whether or not the mortgaged property is
owner-occupied.
For the purpose of placing a prospective mortgage loan in any of the
credit levels, consecutive or "rolling" late payments having the same
delinquency characterization (e.g., 30-day late or 60-day late) are counted as a
single late payment of such delinquency characterization. The Originator uses
the foregoing categories and characteristics as guidelines only. On a
case-by-case basis, the Originator makes the determination that the prospective
borrower warrants loan parameters beyond those shown above based upon the
presence of acceptable compensating factors. Examples of compensating factors
include, but are not limited to, loan-to-value ratio, debt-to-income ratio,
long-term stability of employment and/or residence, statistical credit scores,
verified cash reserves or reduction in overall monthly expenses.
Except for Balloon Loans, the First Lien Home Mortgage Loans originated
or acquired by the Originator have loan terms of 15, 20 or 30 years and fully
amortize over such terms. The principal amounts of the loans originated or
acquired by the Originator generally range from a minimum of $10,000 to a
maximum of $500,000. The Originator generally does not originate or acquire any
mortgage loans where the combined loan-to-value ratio at origination exceeds
100% in the event of concurrent secondary financing. The loans originated or
acquired by the Originator are generally secured by single-family detached
residences, condominium units or two-to four-family residences, and such
properties may or may not be occupied by the owner. It is the Originator's
policy not to accept commercial properties or unimproved land as collateral for
First Lien Home Mortgage Loans. The Originator, will, however, accept mixed-use
properties such as a property where more than 80% is used for residential
purposes and the balance is used for commercial purposes.
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The Originator's subprime mortgage loan programs include a full
documentation program, a "stated income, stated asset" program and a "lite"
documentation program. Under the full documentation program, loans to borrowers
who are salaried employees must be supported by current employment information
in the form of one current pay-stub with year-to-date information and W-2 tax
forms for the last two years (a complete verification of employment may be
substituted for W-2 forms). The Originator also performs a telephone
verification of employment for salaried employees prior to funding. In some
cases, employment histories may be obtained through V.I.E., Inc., an entity
jointly owned by the Originator and an affiliated third party, that obtains
employment data from state unemployment insurance departments or other state
agencies. Under the full documentation program, borrowers who are self-employed
must provide signed individual federal tax returns and, if applicable, signed
year-to-date income statements and/or business federal tax returns. Evidence
must be provided that the business has been in existence for at least one year.
If the business has been in existence less than two years, evidence must be
provided that the applicant had previously been in the same line of work for at
least one year. Under the full documentation program, at certain loan-to-value
ratio levels and under certain circumstances not all sources of funds for
closing are verified as the borrowers.
Under the Originator's "Stated Income, Stated Asset" program, the
applicant's employment, income sources and assets must be stated on the initial
signed application. The applicant's income as stated must be reasonable for the
applicant's occupation as determined in the discretion of the loan underwriter;
however, such income is not independently verified. Similarly the applicant's
assets as stated must be reasonable for the applicant's occupation as determined
in the discretion of the loan underwriter; however, such assets are not
independently verified. Except under the Stated Asset Program, verification of
funds sufficient to close the mortgage loan is performed. Under the "LITE"
Documentation program, the Originator reviews the deposit activity reflected in
the most recent six or twenty-four consecutive months of the applicant's bank
statements as an alternative method of establishing income. Maximum
loan-to-value ratios within each credit level are lower under the stated income,
stated asset program than under the full documentation program.
The Originator's underwriting of every mortgage loan submitted consists
of not only a thorough credit review, but also a separate appraisal conducted by
(i) Value Information Technology, Inc., ("Value I.T."), an entity jointly owned
by the Originator and an unaffiliated third party, (ii) an appraiser approved by
Value I.T. or (iii) another third-party appraiser. Appraisals generally conform
to current Fannie Mae and Freddie Mac secondary market requirements for
residential property appraisals. All appraisals are subject to an internal
appraisal review by the loan underwriter irrespective of the loan-to-value
ratio, the mortgage loan amount or the identity of the appraiser. By policy,
certain loans require a third party review in the form of either a desk review
or field review. Additionally, at the discretion of the Originator, any mortgage
loan is subject to further review in the form of a desk review, field review or
additional full appraisal.
THE POOLING AND SERVICING AGREEMENT
General
The Certificates will be issued pursuant to the Pooling and Servicing
Agreement, dated September 1, 2002 (the "Pooling and Servicing Agreement"),
among the Depositor, the Servicer, the Securities Administrator and the Trustee.
The Trust Fund created under the Pooling and Servicing Agreement will consist of
(i) all of the Depositor's right, title and interest in the Mortgage Loans, the
related mortgage notes, mortgages and other related documents, (ii) all payments
on or collections in respect of the Mortgage Loans due after the Cut-off Date,
together with any proceeds thereof, (iii) any Mortgaged Properties acquired on
behalf of Certificateholders by foreclosure or by deed in lieu of foreclosure,
and any revenues received thereon, (iv) the rights of the Trustee under all
insurance policies required to be maintained pursuant to the Pooling and
Servicing Agreement, (v) the rights of the Trustee under the Auction Swap
Agreement and (vi) the rights of the Depositor under the Mortgage Loan Purchase
Agreement. The Offered Certificates will be transferable and exchangeable at the
corporate trust offices of the Trustee.
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Assignment of the Mortgage Loans
On or about September 26, 2002 (the "Closing Date") the Depositor will
transfer to the Trust Fund all of its right, title and interest in and to each
Mortgage Loan, the related mortgage notes, mortgages and other related documents
(collectively, the "Related Documents"), including all scheduled payments with
respect to each such Mortgage Loan due after the Cut-off Date. The Trustee,
concurrently with such transfer, will deliver the Certificates to the Depositor.
Each Mortgage Loan transferred to the Trust Fund will be identified on a
schedule (the "Mortgage Loan Schedule") delivered to the Trustee pursuant to the
Pooling and Servicing Agreement. Such Mortgage Loan Schedule will include
information such as the Principal Balance of each Mortgage Loan as of the
Cut-off Date, its Mortgage Interest Rate as well as other information.
The Pooling and Servicing Agreement will require that, within the time
period specified therein, the Depositor will deliver or cause to be delivered to
the Trustee (or a custodian, as the Trustee's agent for such purpose) the
mortgage notes endorsed to the Trustee on behalf of the Certificateholders and
the Related Documents. In lieu of delivery of original mortgages or mortgage
notes, if such original is not available or lost, the Depositor may deliver or
cause to be delivered true and correct copies thereof, or, with respect to a
lost mortgage note, a lost note affidavit executed by the Seller or the
originator of such Mortgage Loan.
Assignments of the Mortgage Loans to the Trustee (or its nominee) will
not be recorded in any jurisdiction, but will be delivered to the Trustee in
recordable form, so that they can be recorded in the event recordation is
necessary in connection with servicing a Mortgage Loan.
Within 60 days following the Closing Date, the Trustee will review the
Mortgage Loans and the Related Documents pursuant to the Pooling and Servicing
Agreement and if any Mortgage Loan or Related Document is found to be defective
in any material respect and such defect has a material and adverse effect on the
Certificateholders and is not cured within 120 days following notification
thereof to the Seller (or within 90 days of the earlier of the Seller's
discovery or receipt of notification if such defect would cause the Mortgage
Loan not to be a "qualified mortgage" for REMIC purposes) (or 365 days following
the Closing Date, in the case of missing mortgages or assignments), the Seller
will be obligated to either (i) substitute for such Mortgage Loan an Eligible
Substitute Mortgage Loan; however, such substitution is permitted only within
two years of the Closing Date and may not be made unless an opinion of counsel
is provided to the effect that such substitution will not disqualify any of the
REMICs comprising the Trust Fund as a REMIC or result in a prohibited
transaction tax under the Code or (ii) purchase such Mortgage Loan at a price
(the "Purchase Price") equal to the outstanding Principal Balance of such
Mortgage Loan as of the date of purchase, plus all accrued and unpaid interest
thereon, computed at the Mortgage Interest Rate through the end of the calendar
month in which the purchase is effected, plus the amount of any unreimbursed
Advances and Servicing Advances made by the Servicer. If, however, a Mortgage
Loan is discovered to be defective in a manner that would cause it to be a
"defective obligation" within the meaning of Treasury regulations relating to
REMICs, the Seller will be obligated to cure the defect or make the required
purchase or substitution no later than 90 days after the earlier of its
discovery or receipt of notification of the defect. The Purchase Price will be
deposited in the Collection Account on or prior to the next succeeding
Determination Date after such obligation arises. The obligation of the Seller to
repurchase or substitute for a Defective Mortgage Loan is the sole remedy
regarding any defects in the Mortgage Loans and Related Documents available to
the Trustee or the Certificateholders.
In connection with the substitution of an Eligible Substitute Mortgage
Loan, the Seller will be required to deposit in the Collection Account on or
prior to the next succeeding Determination Date after such obligation arises an
amount (the "Substitution Adjustment") equal to the excess of the Principal
Balance of the related Defective Mortgage Loan over the Principal Balance of
such Eligible Substitute Mortgage Loan.
An "Eligible Substitute Mortgage Loan" is a mortgage loan substituted
by the Seller for a Defective Mortgage Loan which must, on the date of such
substitution, (i) have an outstanding Principal Balance (or in the case of a
substitution of more than one Mortgage Loan for a Defective Mortgage Loan, an
aggregate Principal Balance), not in excess of, and not more than 5% less than,
the Principal Balance of the Defective Mortgage Loan; (ii) have a Mortgage
Interest Rate not less than the Mortgage Interest Rate of the Defective Mortgage
Loan and not more than 1% in excess of the Mortgage Interest Rate of such
Defective Mortgage Loan; (iii) have the same Due Date as the Defective Mortgage
Loan; (iv) have a remaining term to maturity not more than one year earlier and
not later than the remaining term to maturity of the Defective Mortgage Loan;
(v) if an Adjustable-Rate Mortgage Loan, have maximum and minimum Mortgage
Interest Rates and a gross margin not less than those for such Defective
Mortgage Loan, have a next interest rate adjustment date not more than two
months later than the next interest rate adjustment date for such Defective
Mortgage Loan, and have the same index and interest rate adjustment date
frequency as those for such defective Mortgage Loan; (vi) comply with each
representation and warranty as to the Mortgage Loans set forth in the Pooling
and Servicing Agreement (deemed to be made as of the date of substitution);
(vii) have been underwritten or re-underwritten by the Seller in accordance with
the same underwriting criteria and guidelines as the Mortgage Loans being
replaced; (viii) must be of the same or better credit quality as the Mortgage
Loan being replaced; and (ix) satisfy certain other conditions specified in the
Pooling and Servicing Agreement.
S-41
In the Mortgage Loan Purchase Agreement, the Seller will make certain
representations and warranties which will be assigned by the Depositor to the
Trustee, for the benefit of Certificateholders, as to the accuracy in all
material respects of certain information furnished to the Trustee with respect
to each Mortgage Loan (e.g., Cut-off Date Principal Balance and the Mortgage
Interest Rate). In addition, the Seller will represent and warrant, on the
Closing Date, that, among other things: (i) at the time of transfer to the
Depositor, the Seller has transferred or assigned all of its right, title and
interest in each Mortgage Loan and the Related Documents, free of any lien; and
(ii) each Mortgage Loan complied, at the time of origination, in all material
respects with applicable state and federal laws. Upon discovery of a breach of
any such representation and warranty which materially and adversely affects the
interests of the Certificateholders in the related Mortgage Loan and Related
Documents, the Seller will have a period of 90 days after discovery or notice of
the breach to effect a cure. If the breach cannot be cured within the 90-day
period, the Seller will be obligated to (i) substitute for such Defective
Mortgage Loan an Eligible Substitute Mortgage Loan or (ii) purchase such
Defective Mortgage Loan from the Trust Fund. The same procedure and limitations
that are set forth above for the substitution or purchase of Defective Mortgage
Loans as a result of deficient documentation relating thereto will apply to the
substitution or purchase of a Defective Mortgage Loan as a result of a breach of
a representation or warranty that materially and adversely affects the interests
of the Certificateholders.
Mortgage Loans required to be transferred to the Seller as described in
the preceding paragraphs are referred to as "Defective Mortgage Loans."
Pursuant to the Pooling and Servicing Agreement, the Servicer will
service and administer the Mortgage Loans as more fully set forth therein.
Payments on Mortgage Loans; Deposits to Collection Account and Distribution
Account
The Servicer will establish and maintain or cause to be maintained a
separate trust account (the "Collection Account") for the benefit of the holders
of the Certificates. The Collection Account will be an Eligible Account (as
defined herein). Upon receipt by the Servicer of amounts in respect of the
Mortgage Loans (excluding amounts representing the Servicing Fee, reimbursement
for Advances and Servicing Advances, REO disposition fees and ancillary
servicing income, and insurance proceeds to be applied to the restoration or
repair of a Mortgaged Property or similar items), the Servicer will deposit such
amounts in the Collection Account. Amounts so deposited may be invested in
Eligible Investments (as described in the Pooling and Servicing Agreement)
maturing no later than one Business Day prior to the date on which the amount on
deposit therein is required to be deposited in the Distribution Account. A
"Business Day" is any day other than a Saturday, a Sunday or a day on which
banking institutions in the jurisdictions in which the Securities Administrator
is located (initially the States of Maryland and Minnesota) or in the city in
which the corporate trust office of the Trustee is located are authorized or
obligated by law or executive order to be closed. The Trustee will establish an
account (the "Distribution Account") into which will be deposited amounts
withdrawn from the Collection Account for distribution to Certificateholders on
a Distribution Date. The Distribution Account will be an Eligible Account.
Amounts on deposit therein may be invested in Eligible Investments maturing on
or before the Business Day prior to the related Distribution Date unless such
Eligible Investments are invested in investments managed or advised by the
Trustee or an affiliate thereof, in which case such Eligible Investments may
mature on the related Distribution Date.
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An "Eligible Account" is a segregated account that is (i) an account or
accounts maintained with a federal or state chartered depository institution or
trust company the short-term unsecured debt obligations of which (or, in the
case of a depository institution or trust company that is the principal
subsidiary of a holding company, the short-term unsecured debt obligations of
such holding company) are rated by the Rating Agencies at a level specified in
the Pooling and Servicing Agreement at the time any amounts are held on deposit
therein, (ii) an account or accounts the deposits in which are fully insured by
the Federal Deposit Insurance Corporation (to the limits established by such
corporation), (iii) a trust account or accounts maintained with the trust
department of a federal or state chartered depository institution, national
banking association or trust company acting in its fiduciary capacity or (iv)
otherwise acceptable to each Rating Agency without reduction or withdrawal of
their then current ratings of the Certificates as evidenced by a letter from
each Rating Agency to the Trustee. Eligible Investments are specified in the
Pooling and Servicing Agreement and are limited to investments which meet the
criteria of the Rating Agencies from time to time as being consistent with their
then current ratings of the Certificates.
Advances
Subject to the following limitations, the Servicer will be obligated to
advance or cause to be advanced at least one Business Day prior to each
Distribution Date its own funds, or funds in the Collection Account that are not
included in the Available Funds for such Distribution Date, in an amount equal
to the aggregate of all payments of principal and interest, net of the Servicing
Fee (any such advance, an "Advance").
The Servicer will not make any Advances of principal or interest with
respect to REO Properties. With respect to Balloon Mortgage Loans, the Servicer
will not make an Advance of a delinquent Balloon Payment but will instead
advance an assumed monthly payment that would have been due on the related Due
Date based on the original principal amortization schedule for such Balloon
Mortgage Loan.
Advances with respect to Mortgage Loans are required to be made only to
the extent the Servicer deems them to be recoverable from related late
collections, insurance proceeds or liquidation proceeds. The purpose of making
such Advances is to maintain a regular cash flow to the Certificateholders,
rather than to guarantee or insure against losses. The Servicer will not be
required, however, to make any Advances with respect to reductions in the amount
of the Monthly Payments on the Mortgage Loans due to bankruptcy proceedings or
the application of the Soldiers' and Sailors' Civil Relief Act of 1940, as
amended (the "Relief Act"), or any similar state law. Subject to the
recoverability standard above, the Servicer's obligation to make Advances as to
any Mortgage Loan will continue until the earlier of such time as the Trust
acquires title to the related Mortgaged Property or such Mortgage Loan is paid
in full by the mortgagor or disposed of by the Trust.
All Advances will be reimbursable to the Servicer from late
collections, insurance proceeds and liquidation proceeds from the Mortgage Loan
as to which such unreimbursed Advance was made. In addition, any Advances
previously made in respect of any Mortgage Loan that the Servicer deems to be
nonrecoverable from related late collections, insurance proceeds or liquidation
proceeds may be reimbursed to the Servicer out of any funds in the Collection
Account prior to the distributions on the Certificates. In the event the
Servicer fails in its obligation to make any such Advance, the Securities
Administrator, solely in its capacity as successor Servicer, will be obligated
to make any such Advance, to the extent required in the Pooling and Servicing
Agreement.
In the course of performing its servicing obligations, the Servicer
will pay all reasonable and customary "out-of-pocket" costs and expenses
incurred in the performance of its servicing obligations, including, but not
limited to, the cost of (i) the preservation, restoration and protection of the
Mortgaged Properties, (ii) any enforcement or judicial proceedings, including
foreclosures, and (iii) the management and liquidation of Mortgaged Properties
acquired in satisfaction of the related mortgage. Each such expenditure will
constitute a "Servicing Advance."
The Servicer's right to reimbursement for Servicing Advances is limited
to late collections on the related Mortgage Loan, including liquidation
proceeds, released mortgaged property proceeds, insurance proceeds and such
other amounts the Servicer may collect from the related mortgagor or otherwise
relating to the Mortgage Loan in respect of which such unreimbursed amounts are
owed, unless such amounts are deemed to be nonrecoverable by the Servicer, in
which event reimbursement will be made to the Servicer from general funds in the
Collection Account.
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The Trustee
Wachovia Bank, National Association will act as trustee (the "Trustee")
for the Certificates pursuant to the Pooling and Servicing Agreement. The
Trustee's offices for notices under the Pooling and Servicing Agreement are
located at 401 South Tryon Street, 12th Floor, NC1179, Charlotte, North Carolina
28288-1179, Attention: Structured Finance Trust Services - ABFC 2002-WF2 and its
telephone number is (704) 715-2398. The principal compensation to be paid to the
Trustee in respect of its obligations under the Pooling and Servicing Agreement
will be the "Trustee Fee", and will be paid by the Securities Administrator
pursuant to an agreement between the Trustee and the Securities Administrator.
The Pooling and Servicing Agreement will provide that the Trustee and any
director, officer, employee or agent of the Trustee will be reimbursed for all
reasonable expenses, disbursements and advances, and will be indemnified by the
Trust Fund and will be held harmless against any loss, liability or expense (not
including expenses, disbursements and advances incurred or made by the Trustee
in the ordinary course of the Trustee's performance in accordance with the
provisions of the Pooling and Servicing Agreement) the Trustee incurs arising
out of or in connection with the acceptance or administration of its obligations
and duties under the Pooling and Servicing Agreement, other than any loss,
liability or expense (i) that constitutes a specific liability of the Trustee
under the Pooling and Servicing Agreement or (ii) incurred by reason of willful
misfeasance, bad faith or negligence in the performance of the Trustee's duties
under the Pooling and Servicing Agreement, or by reason of reckless disregard of
the Trustee's obligations and duties under the Pooling and Servicing Agreement.
The Securities Administrator
Wells Fargo Bank Minnesota, National Association will act as securities
administrator (the "Securities Administrator") for the certificates pursuant to
the Pooling and Servicing Agreement. The Securities Administrator will be
responsible for calculating the amounts of interest and principal required to be
distributed on, and losses to be allocated to, each Class of Certificates on
each Distribution Date, and for making available monthly reports to the Trustee
and Certificateholders, in each case based upon Mortgage Loan information
provided by the Servicer. The Securities Administrator's monthly compensation
will consist of (i) a "Securities Administration Fee" of 0.0125% per annum of
the aggregate Principal Balance of the Mortgage Loans, plus (ii) investment
income on funds on deposit in the Distribution Account. The Securities
Administration Fee includes compensation for the Securities Administrator's
duties as Auction Administrator. The Pooling and Servicing Agreement will
provide that the Securities Administrator and any director, officer, employee or
agent of the Securities Administrator will be reimbursed for all reasonable
expenses, disbursements and advances, and will be indemnified by the Trust Fund
and will be held harmless against any loss, liability or expense (not including
expenses, disbursements and advances incurred or made by the Securities
Administrator in the ordinary course of the Securities Administrator's
performance in accordance with the provisions of the Pooling and Servicing
Agreement) the Securities Administrator incurs arising out of or in connection
with the acceptance or administration of its obligations and duties under the
Pooling and Servicing Agreement, other than any loss, liability or expense (i)
that constitutes a specific liability of the Securities Administrator under the
Pooling and Servicing Agreement or (ii) incurred by reason of willful
misfeasance, bad faith or negligence in the performance of the Securities
Administrator's duties under the Pooling and Servicing Agreement, or by reason
of reckless disregard of the Securities Administrator's obligations and duties
under the Pooling and Servicing Agreement.
The Credit Risk Manager
The Murrayhill Company, a Colorado corporation (the "Credit Risk
Manager") will act as the Trust Fund's representative in advising the Servicer
regarding certain delinquent and defaulted Mortgage Loans, and in monitoring and
reporting to the Trustee on the performance of such Mortgage Loans. The Credit
Risk Manager will rely upon mortgage loan data that is provided to it by the
Servicer in performing its advisory and monitoring functions.
No assurance can be given that the Credit Risk Manager will be able to
influence servicing procedures.
The Credit Risk Manager will be entitled to receive a fee (the "Credit
Risk Manager Fee") until the termination of the Trust Fund or until its removal
by a vote of at least 66-2/3% of the Certificateholders by voting rights. This
fee will be paid monthly by the Trust Fund and will be calculated as 0.0175%
annually (the "Credit Risk Manager Fee Rate") of the Principal Balance of each
Mortgage Loan.
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Servicing and Other Compensation and Payment of Expenses
The principal compensation (the "Servicing Fee") to be paid to the
Servicer in respect of its servicing activities for the Certificates will be
payable monthly in an amount equal to 0.50% per annum ("Servicing Fee Rate") of
the Principal Balance of each Mortgage Loan. As additional servicing
compensation, the Servicer is entitled to retain all servicing-related fees,
including assumption fees, modification fees, extension fees and late payment
charges, to the extent collected from mortgagors, together with any interest or
other income earned on funds held in the Collection Account and any escrow
accounts, and a fee upon disposition of any REO property equal to the greater of
1.00% of the sales price and $1,500, subject to a cap equal to the related net
liquidation proceeds. The Servicer is obligated to pay certain insurance
premiums and certain ongoing expenses associated with the Mortgage Pool and
incurred by the Servicer in connection with its responsibilities under the
Pooling and Servicing Agreement and is entitled to reimbursement therefor as
provided in the Pooling and Servicing Agreement.
The "Determination Date" with respect to any Distribution Date will be
the 18th day of the calendar month in which such Distribution Date occurs or, if
such day is not a Business Day, the Business Day immediately preceding such 18th
day. With respect to any Determination Date and each Mortgage Loan as to which a
principal prepayment in full or in part was applied during the prior calendar
month, the "Prepayment Interest Shortfall" is an amount equal to the interest at
the Mortgage Interest Rate for such Mortgage Loan (net of the Servicing Fee
Rate) on the amount of such principal prepayment for the number of days
commencing on the date on which the principal prepayment is applied and ending
on the last day of the prior calendar month. The Servicer is obligated to offset
any Prepayment Interest Shortfall on Mortgage Loans on any Distribution Date
(payments made by the Servicer in satisfaction of such obligation, "Compensating
Interest") by an amount not in excess of its Servicing Fee relating to such
Distribution Date.
Optional Termination
The holders of a majority in interest of the Class CE Certificates (the
"Class CE Majority Holders") will have the right to purchase all of the Mortgage
Loans and REO Properties in the Trust Fund and thereby effect the early
retirement of the Certificates, on or after the Distribution Date on which the
aggregate Principal Balance of the Mortgage Loans and REO Properties as of the
end of the related Due Period is less than 10% of the Cut-Off Date Principal
Balance. The first Distribution Date on which such option could be exercised is
referred to herein as the "Optional Termination Date." In the event that the
option is exercised, the purchase will be made at a price (the "Termination
Price") generally equal to par plus accrued interest for each Mortgage Loan at
the related Mortgage Interest Rate to but not including the first day of the
month in which such purchase price is distributed plus the amount of any
unreimbursed Advances and Servicing Advances made by the Servicer. Proceeds from
such purchase will be included in Available Funds and will be distributed to the
holders of the Certificates in accordance with the Pooling and Servicing
Agreement. Any such purchase of Mortgage Loans and REO Properties will result in
the early retirement of the Certificates. If the Class CE Majority Holders do
not exercise this option on any Distribution Date on or after the Optional
Termination Date, then the Servicer may exercise the option.
Optional Purchase of Defaulted Loans
As to any Mortgage Loan which is Delinquent in payment by 60 days or
more, the Servicer may, with the consent of the Depositor, at its option,
purchase such Mortgage Loan from the Trust Fund at the Purchase Price for such
Mortgage Loan.
A Mortgage Loan is "Delinquent" if the scheduled monthly payment of
principal and interest on such Mortgage Loan which is payable by the related
mortgagor under the related Mortgage Note (the "Monthly Payment") due on a due
date is not paid by the close of business on the next scheduled due date for
such Mortgage Loan. Thus, a Mortgage Loan for which the mortgagor failed to make
the Monthly Payment due on September 1, 2002 will be reported as Delinquent on
October 2, 2002 if the payment is not made by the close of business on October
1, 2002. As of the Cut-off Date, none of the Mortgage Loans were Delinquent.
S-45
Events of Servicing Termination
Events of Servicing Termination will consist, among other things, of:
(i) any failure by the Servicer to deposit in the Collection Account or
Distribution Account the required amounts or remit to the Trustee any payment
which continues unremedied for one Business Day following written notice to the
Servicer from the Trustee or any Holder(s) of Certificates evidencing at least
25% of the aggregate voting rights of all Certificates; (ii) any failure of the
Servicer to make any Advance with respect to a Mortgage Loan which failure
continues unremedied for one Business Day following written notice to the
Servicer from the Trustee or any Holder(s) of Certificates evidencing at least
25% of the aggregate voting rights of all Certificates; (iii) any failure by the
Servicer to observe or perform in any material respect any other of its
covenants or agreements in the Pooling and Servicing Agreement, which continues
unremedied for 30 days after the first date on which (x) the Servicer has
knowledge of such failure or (y) written notice of such failure is given to the
Servicer from the Trustee or any Holder(s) of Certificates evidencing at least
25% of the aggregate voting rights of all Certificates; (iv) insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, and certain actions by or on behalf of the Servicer indicating its
insolvency or inability to pay its obligations; or (v) if so provided in the
Pooling and Servicing Agreement, cumulative Realized Losses or delinquencies as
of any Distribution Date exceed the amount specified in the Pooling and
Servicing Agreement.
Rights upon Event of Servicing Termination
So long as an Event of Servicing Termination under the Pooling and
Servicing Agreement remains unremedied, the Trustee may, and at the direction of
the holders of the Offered Certificates evidencing not less than 51% of the
Voting Rights is required to (except in the case of a failure by the Servicer to
make an Advance), terminate all of the rights and obligations of the Servicer in
its capacity as Servicer with respect to the Mortgage Loans, as provided in the
Pooling and Servicing Agreement, whereupon the Securities Administrator will
succeed to all of the responsibilities and duties of the Servicer pursuant to
the Pooling and Servicing Agreement. No assurance can be given that termination
of the rights and obligations of the Servicer under the Pooling and Servicing
Agreement would not adversely affect the servicing of the related Mortgage
Loans, including the delinquency experience of such Mortgage Loans.
No holder of an Offered Certificate, solely by virtue of such holder's
status as a holder of an Offered Certificate, will have any right under the
Pooling and Servicing Agreement to institute any proceeding with respect
thereto, unless such holder previously has given to the Trustee written notice
of default and unless the holders of Offered Certificates having not less than
51% of the Voting Rights evidenced by the Offered Certificates so agree and have
offered indemnity satisfactory to the Trustee.
Voting Rights
At all times 97.00% of all of the voting rights of the Trust will be
allocated among the holders of the Class A-1 Certificates, the Class A-2
Certificates, the Mezzanine Certificates and the Class B Certificates in
proportion with the outstanding Certificate Principal Balances of those
respective Classes. At all times 1.00% of all voting rights will be allocated to
the holders of the Class AIO Certificates until their notional principal amount
has been reduced to zero, 1.00% of all voting rights will be allocated to the
holders of the Class CE Certificates (and 2.00% after the notional principal
amount of the Class AIO Certificates has been reduced to zero), and 1.00% of the
voting rights will be allocated to the holders of the Class P Certificates. The
voting rights allocated to any Class of Certificates shall be allocated among
all Certificateholders of such class in proportion to the respective percentage
interests of such holders in such Class. The Class R Certificates will not have
any Voting Rights.
Amendment
The Pooling and Servicing Agreement may be amended by the Depositor,
the Servicer, the Securities Administrator and the Trustee, without the consent
of the holders of the Certificates, for any of the purposes set forth under
"Description of the Agreements--Material Terms of the Pooling and Servicing
Agreements and Underlying Servicing Agreements--Amendment" in the prospectus. In
addition, the Pooling and Servicing Agreement may be amended by the Seller, the
Depositor, the Servicer, the Securities Administrator, the Trustee and the
holders of a majority in interest of any class of Certificates affected thereby
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Pooling and Servicing Agreement or of
modifying in any manner the rights of the holders of any class of Offered
Certificates; provided, however, that no such amendment may (i) reduce in any
manner the amount of, or delay the timing of, distributions required to be made
on any class of Certificates without the consent of the holders of such
Certificates; (ii) adversely affect in any material respect the interests of the
holders of any class of Certificates in a manner other than as described in
clause (i) above, without the consent of the holders of such class evidencing
percentage interests aggregating at least 66% of such Class; or (iii) reduce the
aforesaid percentage of aggregate outstanding principal amounts of Certificates,
the holders of which are required to consent to any such amendment, without the
consent of the holders of all such Certificates.
S-46
DESCRIPTION OF THE CERTIFICATES
General
The Certificates will be issued pursuant to the Pooling and Servicing
Agreement. Set forth below are summaries of the specific terms and provisions
pursuant to which the Offered Certificates will be issued. The following
summaries do not purport to be complete and are subject to provisions of the
Pooling and Servicing Agreement. When particular provisions or terms used in the
Pooling and Servicing Agreement are referenced, the actual provisions (including
definitions of terms) are incorporated by reference.
The Trust will issue the Class A-1, Class A-2 and Class AIO
Certificates (the "Senior Certificates"), the Class M-1, Class M-2, Class M-3
and Class M-4 Certificates (the "Mezzanine Certificates"), the Class B
Certificates (together with the Mezzanine Certificates, the "Subordinate
Certificates"), the Class CE Certificates, the Class R Certificates (the
"Residual Certificates") and the Class P Certificates. The Senior Certificates,
the Subordinate Certificates, the Residual Certificates and the Class P
Certificates are collectively referred to herein as the "Certificates." Only the
Class A-1, Class A-2, Class AIO, Class M-1, Class M-2, Class M-3, Class M-4 and
Class B Certificates are offered hereby (the "Offered Certificates").
The Offered Certificates will have the respective original Certificate
Principal Balances specified on page S-5 hereof, subject to a permitted variance
of plus or minus five percent.
The Offered Certificates will be issued in book-entry form as described
below. The Offered Certificates will be issued in minimum dollar denominations
of $25,000 and integral multiples of $1 in excess thereof.
Distributions on the Offered Certificates will be made by the Trustee
on the 25th day of each month, or if such day is not a Business Day, on the
first Business Day thereafter, commencing in October 2002 (each, a "Distribution
Date"), to the persons in whose names such Certificates are registered at the
close of business on the Record Date. With respect to the Offered Certificates
other than the Class A-1 Certificates and the Class AIO Certificates, the
"Record Date" for a Distribution Date is the Business Day before that
Distribution Date, and for the Class A-1 Certificates and the Class AIO
Certificates (and any other classes for which definitive certificates are
issued) is the last Business Day of the month immediately preceding the month in
which the related Distribution Date occurs.
Book-Entry Certificates
The Offered Certificates will be book-entry Certificates (the
"Book-Entry Certificates"). Persons acquiring beneficial ownership interests in
the Offered Certificates ("Certificate Owners") will hold such Certificates
through DTC in the United States, or Clearstream or Euroclear (in Europe) if
they are participants of such systems (the "Participants"), or indirectly
through organizations which are participants in such systems (the "Indirect
Participants"). The Book-Entry Certificates will be issued in one or more
certificates which equal the aggregate Certificate Principal Balance of such
Certificates and will initially be registered in the name of Cede & Co., the
nominee of DTC. Clearstream and Euroclear will hold omnibus positions on behalf
of their participants through customers' securities accounts in Clearstream's
and Euroclear's names on the books of their respective depositaries which in
turn will hold such positions in customers' securities accounts in the
depositaries' names on the books of DTC. Citibank will act as depositary for
Clearstream and JPMorgan Chase Bank 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 of $25,000. Except as described
below, no person acquiring a Book-Entry Certificate (each, a "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 "Certificateholder" of the Offered
Certificates will be Cede & Co., as nominee of DTC. Certificate Owners will not
be Certificateholders as that term is used in the Pooling and Servicing
Agreement. Certificate Owners are only permitted to exercise their rights
indirectly through Participants and DTC.
S-47
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 Clearstream or Euroclear, as appropriate).
Certificate Owners will receive all distributions of principal of and
interest on the Book-Entry Certificates from the Trustee through DTC and DTC
Participants. While the Book-Entry 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 the Book-Entry Certificates and is required to receive and transmit
distributions of principal of, and interest on, the Book-Entry Certificates.
Participants and Indirect Participants with whom Certificate 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 Certificate Owners. Accordingly, although Certificate Owners
will not possess certificates representing their respective interests in the
Book-Entry Certificates, the Rules provide a mechanism by which Certificate
Owners will receive distributions and will be able to transfer their interest.
Certificateholders will not receive or be entitled to receive
certificates representing their respective interests in the Book-Entry
Certificates, except under the limited circumstances described below. Unless and
until Definitive Certificates are issued, Certificateholders who are not
Participants may transfer ownership of Book-Entry Certificates only through
Participants and Indirect Participants by instructing such Participants and
Indirect Participants to transfer Book-Entry Certificates, by book-entry
transfer, through DTC for the account of the purchasers of such Book-Entry
Certificates, which account is maintained with their respective Participants.
Under the Rules and in accordance with DTC's normal procedures, transfers of
ownership of Book-Entry 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 Certificateholders.
Because of time zone differences, credits of securities received in
Clearstream 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 Clearstream Participants on such Business Day. Cash received in
Clearstream or Euroclear as a result of sales of securities by or through a
Clearstream Participant or Euroclear Participant to a DTC Participant will be
received with value on the DTC settlement date but will be available in the
relevant Clearstream or Euroclear cash account only as of the Business Day
following settlement in DTC. For information with respect to tax documentation
procedures relating to the Certificates, see "Federal Income Tax
Consequences--Partnership Trust Funds--Tax Consequences to Foreign
Securityholders" and "--Backup Withholding" in the prospectus and "Global
Clearance, Settlement and Tax Documentation Procedures--Certain U.S. Federal
Income Tax Documentation Requirements" in Annex I to this prospectus supplement.
Transfers between Participants will occur in accordance with DTC rules.
Transfers between Clearstream Participants and Euroclear Participants will occur
in accordance with their respective rules and operating procedures.
S-48
Cross-market transfers between persons holding directly or indirectly
through DTC, on the one hand, and directly or indirectly through Clearstream
Participants or Euroclear Participants, on the other, will be effected 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. Clearstream Participants and Euroclear Participants may not deliver
instructions directly to the European Depositaries.
DTC which is a New York-chartered limited purpose trust company,
performs services for its Participants, some of which (and/or their
representatives) own DTC. In accordance with its normal procedures, DTC is
expected to record the positions held by each DTC Participant in the Book-Entry
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, as in effect from time to time.
Clearstream, 67 Bd Grande-Duchesse Charlotte, L-1331 Luxembourg, was
incorporated in 1970 as a limited company under Luxembourg law. Clearstream is
owned by banks, securities dealers and financial institutions, and currently has
about 100 shareholders, including U.S. financial institutions or their
subsidiaries. No single entity may own more than five percent of Clearstream's
stock.
Clearstream is registered as a bank in Luxembourg, and as such is
subject to regulation by the Institute Monetaire Luxembourgeois ("IML"), the
Luxembourg Monetary Authority, which supervises Luxembourg banks.
Clearstream holds securities for its customers ("Clearstream
Participants") and facilitates the clearance and settlement of securities
transactions by electronic book-entry transfers between their accounts.
Clearstream provides various services, including safekeeping, administration,
clearance and settlement of internationally traded securities and securities
lending and borrowing. Clearstream also deals with domestic securities markets
in several countries through established depository and custodial relationships.
Clearstream has established an electronic bridge with Euroclear Bank S.A./N.V.
as the Euroclear Operator in Brussels to facilitate settlement of trades between
systems. Clearstream currently accepts over 70,000 securities issues on its
books.
Clearstream's customers are world-wide financial institutions including
underwriters, securities brokers and dealers, banks, trust companies and
clearing corporations. Clearstream's United States customers are limited to
securities brokers and dealers and banks. Currently, Clearstream has
approximately 3,000 customers located in over 60 countries, including all major
European countries, Canada, and the United States. Indirect access to
Clearstream is available to other institutions which clear through or maintain a
custodial relationship with an account holder of Clearstream.
The Euroclear System ("Euroclear") was created in 1968 to hold
securities for its participants ("Euroclear Participants") and to clear and
settle transactions between Euroclear Participants through simultaneous
electronic book-entry delivery against payment, thereby eliminating the need for
physical movement of certificates and any risk from lack of simultaneous
transfers of securities and cash. Transactions may be settled in any of 29
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
Euroclear Bank S.A./N.V. (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-49
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
Distribution Date by the Trustee to Cede & Co., as nominee of DTC. DTC will be
responsible for crediting the amount of such payments to the accounts of the
applicable DTC Participants in accordance with DTC's normal procedures. Each DTC
Participant will be responsible for disbursing such payments to the beneficial
owners of the Book-Entry 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 & Co. Distributions with
respect to Certificates held through Clearstream or Euroclear will be credited
to the cash accounts of Clearstream 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.
See "Federal Income Tax Consequences--Partnership Trust Funds--Tax Consequences
to Foreign Securityholders" and "--Backup Withholding" in the prospectus.
Because DTC can only act on behalf of DTC Participants, 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 Fund will be provided to Cede &
Co., as nominee of DTC, and may be made available by Cede & Co. to beneficial
owners upon request, in accordance with the rules, regulations and procedures
creating and affecting the DTC Participants 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 the holders of the Book-Entry
Certificates are permitted to take 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. Clearstream or the Euroclear Operator, as the case
may be, will take any other action permitted to be taken by a Certificateholder
under the Agreement on behalf of a Clearstream 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 Book-Entry Certificates which conflict with
actions taken with respect to other Book-Entry Certificates.
Definitive Certificates will be issued to beneficial owners of the
Book-Entry Certificates, or their nominees, rather than to DTC, only if (a) DTC
or the Depositor advises the Trustee in writing that DTC is no longer willing,
qualified or able to discharge properly its responsibilities as nominee and
depository with respect to the Book-Entry Certificates and the Depositor or the
Trustee is unable to locate a qualified successor, (b) the Depositor, at its
sole option, with the consent of the Trustee, elects to terminate a book-entry
system through DTC or (c) after the occurrence of an Event of Default,
beneficial owners having Percentage Interests aggregating not less than 51% of
the Book-Entry Certificates advise the Trustee and DTC through the Financial
Intermediaries and the DTC Participants in writing that the continuation of a
book-entry system through DTC (or a successor thereto) is no longer in the best
interests of beneficial owners.
S-50
Upon the occurrence of any of the events described in the immediately
preceding paragraph, the Trustee will be required to notify all beneficial
owners of the occurrence of such event and the availability through DTC of
Definitive Certificates. Upon surrender by DTC of the global certificate or
certificates representing the Book-Entry Certificates and instructions for
re-registration, the Trustee will issue Definitive Certificates, and thereafter
the Trustee will recognize the holders of such Definitive Certificates as
Certificateholders under the Agreement.
Although DTC, Clearstream and Euroclear have agreed to the foregoing
procedures in order to facilitate transfers of Book-Entry Certificates among
participants of DTC, Clearstream and Euroclear, they are under no obligation to
perform or continue to perform such procedures and such procedures may be
discontinued at any time.
Neither the Depositor, the Servicer, the Securities Administrator nor
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 & Co., as nominee for DTC, or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
Allocation of Available Funds
Distributions to holders of each class of Offered Certificates will be
made on each Distribution Date from Available Funds. "Available Funds" will be
equal to the sum of the following amounts with respect to the Mortgage Loans,
net of amounts reimbursable therefrom to the Servicer, the Trustee and the
Securities Administrator: (i) the aggregate amount of Monthly Payments on the
Mortgage Loans due during the related Due Period and received by the Servicer by
the determination date, after deduction of the Servicing Fee for such
Distribution Date, the Securities Administration Fee for such Distribution Date,
the Credit Risk Manager Fees for such Distribution Date, and any accrued and
unpaid Servicing Fees, Securities Administration Fees and Credit Risk Manager
Fees in respect of any prior Distribution Dates, (ii) certain unscheduled
payments in respect of the Mortgage Loans, including prepayments (but excluding
any prepayment penalties collected or payments made in respect of prepayment
penalties), Insurance Proceeds and Net Liquidation Proceeds, (iii) payments from
the Servicer in connection with Advances and Prepayment Interest Shortfalls for
such Distribution Date, (iv) collections in respect of any REO Property
deposited into the Collection Account for such Distribution Date, (v) the
Purchase Price for any repurchased Mortgage Loan deposited to the Collection
Account during the related Prepayment Period, (vi) any Substitution Adjustments
deposited in the Collection Account during the related Prepayment Period, and
(vii) on the Distribution Date on which the Trust is to be terminated in
accordance with the Pooling and Servicing Agreement, the Termination Price. The
holders of the Class P Certificates will be entitled to receive all prepayment
penalties received on the Mortgage Loans and such amounts will not be available
for distribution to the Offered Certificates.
The "Due Period" with respect to any Distribution Date means the period
from the second day of the calendar month preceding the month in which such
Distribution Date occurs through the first day of the month in which such
Distribution Date occurs.
"Insurance Proceeds" means proceeds of any title policy, hazard policy
or other insurance policy covering a Mortgage Loan or the related mortgaged
property, to the extent such funds are not applied to the restoration of the
related mortgaged property or released to the mortgagor in accordance with the
procedures that the Servicer would follow in servicing mortgage loans held for
its own account, subject to the terms of the related mortgage note and mortgage.
"Net Liquidation Proceeds" means for any Mortgage Loan or related REO
property that has been liquidated, the related liquidation proceeds net of
Advances, Servicing Advances, the Servicing Fee, the Securities Administration
Fee, the Credit Risk Manager Fee and any other accrued and unpaid servicing fees
received and retained in connection with the liquidation of such Mortgage Loan
or property.
The "Prepayment Period" with respect to any Distribution Date means the
calendar month preceding the month in which such Distribution Date occurs.
Interest Distributions
On each Distribution Date, based upon the information provided to it in
the Remittance Report, the Trustee will distribute the Interest Remittance
Amount in the following order of priority to the extent available:
S-51
first, concurrently, to the Class A-1, Class A-2 and Class AIO
Certificates, pro rata, the applicable Accrued Certificate Interest for such
Distribution Date;
second, concurrently, to the Class A-1, Class A-2 and Class AIO
Certificates, pro rata, the applicable Unpaid Interest Shortfall Amount for such
Certificates for such Distribution Date, respectively;
third, to the Class M-1 Certificates, the Accrued Certificate Interest
thereon for such Distribution Date;
fourth, to the Class M-2 Certificates, the Accrued Certificate Interest
thereon for such Distribution Date;
fifth, to the Class M-3 Certificates, the Accrued Certificate Interest
thereon for such Distribution Date;
sixth, to the Class M-4 Certificates, the Accrued Certificate Interest
thereon for such Distribution Date;
seventh, to the Class B Certificates, the Accrued Certificate Interest
thereon for such Distribution Date; and
eighth, the amount, if any, of the Interest Remittance Amount remaining
after application with respect to the priorities set forth above will be
included in the Monthly Excess Cashflow Amount and will be applied as described
below under "--Application of Monthly Excess Cashflow Amounts."
"Accrued Certificate Interest" for each class of Offered Certificates
and each Distribution Date means an amount equal to the interest accrued during
the related Interest Accrual Period on the Certificate Principal Balance of such
class of Certificates (or the notional principal amount, in the case of the
Class AIO Certificates), minus each class's Interest Percentage of shortfalls
caused by the Relief Act for such Distribution Date.
"Unpaid Interest Shortfall Amount" means for any class of Certificates
and any Distribution Date the sum of (a) the excess, if any, of the Accrued
Certificate Interest, any Unpaid Interest Shortfall Amount for the prior
Distribution Date, over the amount in respect of interest actually distributed
on each class on such prior Distribution Date and (b) interest on such excess at
the applicable Pass-Through Rate, without regard to the Net WAC Rate, with
respect to such Class on the basis of the actual number of days in the related
Interest Accrual Period over a 360-day year (or on the basis of a 360-day year
comprised of twelve 30-day months, in the case of the Class A-1, Class A-2 and
Class AIO Certificates).
"Interest Remittance Amount" means, as of any Distribution Date, the
sum, without duplication, of (i) all interest collected or advanced with respect
to the related Due Period on the Mortgage Loans (less the Servicing Fee,
Securities Administration Fee, Credit Risk Manager Fee, certain amounts
available for reimbursement of Advances and Servicing Advances as described
above under "The Pooling and Servicing Agreement--Advances" and certain other
reimbursable expenses of the Servicer, the Trustee and the Securities
Administrator pursuant to the Pooling and Servicing Agreement), (ii) all
Compensating Interest paid by the Servicer on such Determination Date with
respect to the Mortgage Loans and (iii) the portion of any payment in connection
with any substitution, Purchase Price, Termination Price, liquidation proceeds
(net of certain expenses) or insurance proceeds relating to interest with
respect to the Mortgage Loans received during the related Due Period.
The "Interest Accrual Period" for any Distribution Date and each class
of Offered Certificates (other than the Class A-1 and the Class AIO
Certificates) will be from and including the previous Distribution Date (or the
Closing Date in the case of the first Interest Accrual Period) to and including
the day preceding the current Distribution Date, and for the Class A-1 and the
Class AIO Certificates will be the preceding calendar month. All calculations of
interest will be made on the basis of the actual number of days in the related
Interest Accrual Period over a 360-day year, except that calculations of
interest on the Class A-1, the Class A-2 and the Class AIO Certificates will be
made on the basis of a 360-day year comprised of twelve 30-day months.
The "Interest Percentage" is, with respect to any class of Offered
Certificates and any Distribution Date, the ratio (expressed as a decimal
carried to six places) of the Accrued Certificate Interest for such class to the
Accrued Certificate Interest for all classes of Offered Certificates, in each
case with respect to such Distribution Date.
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The "Net WAC Rate Carryover Amount" for any Distribution Date for the
Class A-1, Class A-2, Class M-1, Class M-2, Class M-3, Class M-4 and Class B
Certificates equals the sum of (a) the amount, if any, by which (i) the amount
of Accrued Certificate Interest that would have been payable on that class for
that Distribution Date had its Pass-Through Rate been equal to the related fixed
coupon rate or Formula Rate, as applicable, exceeds (ii) the actual amount of
the Accrued Certificate Interest for that class and Distribution Date, because
the related Pass-Through Rate was limited to the Net WAC Rate, plus (b) any such
amount from a previous Distribution Date that remains unpaid, with interest
thereon at the applicable Formula Rate since that Distribution Date, to the
extent such interest remains unpaid.
If the Interest Remittance Amount is insufficient on any Distribution
Date to distribute the aggregate Accrued Certificate Interest on the Senior
Certificates, any shortfall in available amounts will be allocated to the Senior
Certificates pro rata in accordance with their Interest Percentages. Amounts
paid in respect of any Unpaid Interest Shortfall Amount or Net WAC Rate
Carryover Amount shall be applied first to pay unpaid accrued interest on
shortfall amounts and thereafter to pay the shortfall amounts, beginning with
those that were incurred earliest.
Principal Distributions
With respect to each Distribution Date (a) before the Stepdown Date or
(b) if a Trigger Event is in effect, Holders of the Class A-1 Certificates will
be entitled to receive the entire Principal Distribution Amount for such
Distribution Date. Once the Certificate Principal Balance of the Class A-1
Certificates has been reduced to zero, Holders of the Class A-2 Certificates
will be entitled to receive 100% of the remaining Principal Distribution Amount
for such Distribution Date until the Certificate Principal Balance of the Class
A-2 Certificates has been reduced to zero. Once the Certificate Principal
Balance of the Class A-2 Certificates has been reduced to zero, the Holders of
the Class M-1 Certificates will be entitled to receive 100% of the remaining
Principal Distribution Amount for such Distribution Date until the Certificate
Principal Balance of the Class M-1 Certificates has been reduced to zero. Once
the Certificate Principal Balance of the Class M-1 Certificates has been reduced
to zero, the Holders of the Class M-2 Certificates will be entitled to receive
100% of the remaining Principal Distribution Amount until the Certificate
Principal Balance of the Class M-2 Certificates has been reduced to zero. Once
the Certificate Principal Balance of the Class M-2 Certificates has been reduced
to zero, the Holders of the Class M-3 Certificates will be entitled to receive
100% of the remaining Principal Distribution Amount until the Certificate
Principal Balance of the Class M-3 Certificates has been reduced to zero. Once
the Certificate Principal Balance of the Class M-3 Certificates has been reduced
to zero, the Holders of the Class M-4 Certificates will be entitled to receive
100% of the remaining Principal Distribution Amount for such Distribution Date
until the Certificate Principal Balance of the Class M-4 Certificates has been
reduced to zero. Finally, once the Certificate Principal Balance of the Class
M-4 Certificates has been reduced to zero, the Holders of the Class B
Certificates will be entitled to receive 100% of the remaining Principal
Distribution Amount until the Certificate Principal Balance of the Class B
Certificates has been reduced to zero. In no event will principal be distributed
on a Class after its Certificate Principal Balance has been reduced to zero.
With respect to each Distribution Date (a) on or after the Stepdown
Date and (b) as long as a Trigger Event is not in effect, the Principal
Distribution Amount, to the extent available, will be distributed to the Holders
of all classes of Certificates as payments of principal, in the order of
priority and in the amounts set forth below:
first, the lesser of (x) the Principal Distribution Amount and (y)
Class A Principal Distribution Amount will be distributed to the Class A-1
Certificates until the Certificate Principal Balance of the Class A-1
Certificates has been reduced to zero;
second, the lesser of (x) the excess of (i) the Principal Distribution
Amount over (ii) the amount distributed pursuant to priority first above and (y)
the Class A Principal Distribution Amount remaining after distributions pursuant
to priority first above, will be distributed to the Class A-2 Certificates until
the Certificate Principal Balance of the Class A-2 Certificates has been reduced
to zero.
third, the lesser of (x) the excess of (i) the Principal Distribution
Amount over (ii) the amounts distributed pursuant to priorities first and second
above, and (y) the Class M-1 Principal Distribution Amount, will be distributed
to the Class M-1 Certificates, until the Certificate Principal Balance of the
Class M-1 Certificates has been reduced to zero;
S-53
fourth, the lesser of (x) the excess of (i) the Principal Distribution
Amount over (ii) the amounts distributed pursuant to priorities first through
third above, and (y) the Class M-2 Principal Distribution Amount, will be
distributed to the Class M-2 Certificates, until the Certificate Principal
Balance of the Class M-2 Certificates has been reduced to zero;
fifth, the lesser of (x) the excess of (i) the Principal Distribution
Amount over (ii) the amounts distributed pursuant to priorities first through
fourth above, and (y) the Class M-3 Principal Distribution Amount, will be
distributed to the Class M-3 Certificates, until the Certificate Principal
Balance of the Class M-3 Certificates has been reduced to zero;
sixth, the lesser of (x) the excess of (i) the Principal Distribution
Amount over (ii) the amounts distributed pursuant to priorities first through
fifth above, and (y) the Class M-4 Principal Distribution Amount, will be
distributed to the Class M-4 Certificates, until the Certificate Principal
Balance of the Class M-4 Certificates has been reduced to zero;
seventh, the lesser of (x) the excess of (i) the Principal Distribution
Amount over (ii) the amounts distributed pursuant to priorities first through
sixth above, and (y) the Class B Principal Distribution Amount, will be
distributed to the Class B Certificates, until the Certificate Principal Balance
of the Class B Certificates has been reduced to zero; and
eighth, any amount of the Principal Distribution Amount remaining after
making all of the distributions pursuant to priorities first through seventh
above will be included as part of the Monthly Excess Cashflow Amount and will be
applied as described below under "--Application of Monthly Excess Cashflow
Amounts."
For purposes of the foregoing, the following terms will have the
respective meanings set forth below.
"Basic Principal Distribution Amount" means as of any Distribution
Date, the excess of (i) the Principal Remittance Amount for such Distribution
Date over (ii) the Overcollateralization Release Amount, if any, for such
Distribution Date.
"Certificate Principal Balance" with respect to any class of
Certificates and any Distribution Date, will equal the principal balance of such
class on the date of the initial issuance of the Certificates as reduced, but
not below zero, by:
o all amounts distributed on previous Distribution Dates on such
class on account of principal; and
o except for the Class A-1, Class A-2 and Class AIO Certificates,
such class's share of any Applied Realized Loss Amount for
previous Distribution Dates.
"Class A Principal Distribution Amount" means as of any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event is not in
effect, the excess of (x) the Certificate Principal Balance of the Class A
Certificates immediately prior to such Distribution Date over (y) the lesser of
(A) the product of (i) approximately 68.00% and (ii) the Pool Balance as of the
last day of the related Due Period and (B) the Pool Balance as of the last day
of the related Due Period, minus the product of (i) 0.50% and (ii) the Pool
Balance on the Cut-off Date.
"Class M-1 Principal Distribution Amount" means as of any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event is not in
effect, the excess of (x) the sum of (i) the combined Certificate Principal
Balance of the Class A-1 and Class A-2 Certificates (after taking into account
the payment of the Class A Principal Distribution Amount on such Distribution
Date) and (ii) the Certificate Principal Balance of the Class M-1 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) approximately 79.00% and (ii) the Pool Balance as of the last day
of the related Due Period and (B) the Pool Balance as of the last day of the
related Due Period, minus the product of (i) 0.50% and (ii) the Pool Balance on
the Cut-off Date.
S-54
"Class M-2 Principal Distribution Amount" means as of any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event is not in
effect, the excess of (x) the sum of (i) the combined Certificate Principal
Balance of the Class A-1 and Class A-2 Certificates (after taking into account
the payment of the Class A Principal Distribution Amount on such Distribution
Date), (ii) the Certificate Principal Balance of the Class M-1 Certificates
(after taking into account the payment of the Class M-1 Principal Distribution
Amount on such Distribution Date) and (iii) the Certificate Principal Balance of
the Class M-2 Certificates immediately prior to such Distribution Date over (y)
the lesser of (A) the product of (i) approximately 89.00% and (ii) the Pool
Balance as of the last day of the related Due Period, and (B) the Pool Balance
as of the last day of the related Due Period, minus the product of (i) 0.50% and
(ii) the Pool Balance on the Cut-off Date.
"Class M-3 Principal Distribution Amount" means as of any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event is not in
effect, the excess of (x) the sum of (i) the combined Certificate Principal
Balance of the Class A-1 and Class A-2 Certificates (after taking into account
the payment of the Class A Principal Distribution Amount on such Distribution
Date), (ii) the Certificate Principal Balance of the Class M-1 Certificates
(after taking into account the payment of the Class M-1 Principal Distribution
Amount on such Distribution Date), (iii) the Certificate Principal Balance of
the Class M-2 Certificates (after taking into account the payment of the Class
M-2 Principal Distribution Amount on such Distribution Date), and (iv) the
Certificate Principal Balance of the Class M-3 Certificates immediately prior to
such Distribution Date over (y) the lesser of (A) the product of (i)
approximately 95.00% and (ii) the Pool Balance as of the last day of the related
Due Period, and (B) the Pool Balance as of the last day of the related Due
Period, minus the product of (i) 0.50% and (ii) the Pool Balance on the Cut-off
Date.
"Class M-4 Principal Distribution Amount" means as of any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event is not in
effect, the excess of (x) the sum of (i) the combined Certificate Principal
Balance of the Class A-1 and Class A-2 Certificates (after taking into account
the payment of the Class A Principal Distribution Amount on such Distribution
Date), (ii) the Certificate Principal Balance of the Class M-1 Certificates
(after taking into account the payment of the Class M-1 Principal Distribution
Amount on such Distribution Date), (iii) the Certificate Principal Balance of
the Class M-2 Certificates (after taking into account the payment of the Class
M-2 Principal Distribution Amount on such Distribution Date), (iv) the
Certificate Principal Balance of the Class M-3 Certificates (after taking into
account the payment of the Class M-3 Principal Distribution Amount on such
Distribution Date), and (v) the Certificate Principal Balance of the Class M-4
Certificates immediately prior to such Distribution Date over (y) the lesser of
(A) the product of (i) approximately 97.50% and (ii) the Pool Balance as of the
last day of the related Due Period, and (B) the Pool Balance as of the last day
of the related Due Period, minus the product of (i) 0.50% and (ii) the Pool
Balance on the Cut-off Date.
"Class B Principal Distribution Amount" means as of any Distribution
Date on or after the Stepdown Date and as long as a Trigger Event is not in
effect, the excess of (x) the sum of (i) the combined Certificate Principal
Balance of the Class A-1 and Class A-2 Certificates (after taking into account
the payment of the Class A Principal Distribution Amount on such Distribution
Date), (ii) the Certificate Principal Balance of the Class M-1 Certificates
(after taking into account the payment of the Class M-1 Principal Distribution
Amount on such Distribution Date), (iii) the Certificate Principal Balance of
the Class M-2 Certificates (after taking into account the payment of the Class
M-2 Principal Distribution Amount on such Distribution Date), (iv) the
Certificate Principal Balance of the Class M-3 Certificates (after taking into
account the payment of the Class M-3 Principal Distribution Amount on such
Distribution Date), (v) the Certificate Principal Balance of the Class M-4
Certificates (after taking into account the payment of the Class M-4 Principal
Distribution Amount on such Distribution Date), and (vi) the Certificate
Principal Balance of the Class B Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) approximately
99.00% and (ii) the Pool Balance as of the last day of the related Due Period,
and (B) the Pool Balance as of the last day of the related Due Period, minus the
product of (i) 0.50% and (ii) the Pool Balance on the Cut-off Date.
"Credit Enhancement Percentage" for any Distribution Date is the
percentage obtained by dividing (x) the Pool Balance as of the first day of the
related Due Period minus the balance of the Class A Certificates (prior to
making any principal distributions of such Distribution Date) by (y) the Pool
Balance as of the last day of the related Due Period.
"Cumulative Realized Loss Percentage" for any Distribution Date means
the quotient, expressed as a percentage, which is obtained by dividing (i) the
total amount of Realized Losses incurred on the Mortgage Loans from and after
the Cut-off Date by (ii) the Cut-off Date Principal Balance.
S-55
"Extra Principal Distribution Amount" means, as of any Distribution
Date, the lesser of (x) the Monthly Excess Cashflow Amount for such Distribution
Date and (y) the Overcollateralization Deficiency Amount for such Distribution
Date.
"Overcollateralization Amount" means, as of any Distribution Date, the
excess, if any, of (x) the Pool Balance as of the last day of the related Due
Period over (y) the aggregate Certificate Principal Balance of all classes of
Offered Certificates (after taking into account all distributions of principal
on such Distribution Date).
"Overcollateralization Deficiency Amount" means, as of any Distribution
Date, the excess, if any, of (x) the Overcollateralization Target Amount for
such Distribution Date over (y) the Overcollateralization Amount for such
Distribution Date, calculated for this purpose after taking into account the
reduction on such Distribution Date of the Certificate Principal Balances of all
classes of Certificates resulting from the distribution of the Basic Principal
Distribution Amount (but not the Extra Principal Distribution Amount) on such
Distribution Date, but prior to taking into account any Applied Realized Loss
Amounts on such Distribution Date.
"Overcollateralization Release Amount" means, with respect to any
Distribution Date on or after the Stepdown Date on which a Trigger Event is not
in effect, the lesser of (x) the Principal Remittance Amount for such
Distribution Date and (y) the excess, if any, of (i) the Overcollateralization
Amount for such Distribution Date, assuming that 100% of the Principal
Remittance Amount is applied as a principal payment on the Certificates on such
Distribution Date, over (ii) the Overcollateralization Target Amount for such
Distribution Date.
"Overcollateralization Target Amount" means as of any Distribution
Date, (x) prior to the Stepdown Date, approximately 0.50% of the Cut-off Date
Principal Balance and (y) on and after the Stepdown Date, (i) if a Trigger Event
has not occurred, the greater of (A) approximately 1.00% of the Pool Balance as
of the last day of the related Due Period and (B) 0.50% of the initial Pool
Balance and (ii) if a Trigger Event has occurred, the Overcollateralization
Target Amount for the immediately preceding Distribution Date.
"Principal Distribution Amount" means as of any Distribution Date, the
sum of (i) the Basic Principal Remittance Amount for such Distribution Date and
(ii) the Extra Principal Distribution Amount for such Distribution Date, if any.
"Principal Remittance Amount" means, with respect to any Distribution
Date, to the extent of funds available therefor as described herein, the amount
equal to the sum of the following amounts (without duplication): (i) each
payment of principal on a Mortgage Loan due during such Due Period and received
by the Servicer on or prior to the related Determination Date, including any
Advances with respect thereto, (ii) all full and partial principal prepayments
received by the Servicer during the related Prepayment Period, (iii) the
principal portion of all related Net Liquidation Proceeds and Insurance Proceeds
received during such Prepayment Period with respect to the Mortgage Loans, (iv)
the portion of the Purchase Price allocable to principal of all repurchased
Defective Mortgage Loans collected by the Servicer during the related Prepayment
Period, (v) any Substitution Adjustments received on or prior to the previous
Determination Date and not yet distributed, and (vi) on the Distribution Date on
which the Trust is to be terminated in accordance with the Pooling and Servicing
Agreement, that portion of the Termination Price in respect of principal.
"60+ Day Delinquent Loan" means each Mortgage Loan with respect to
which any portion of a Monthly Payment is, as of the last day of the prior Due
Period, two months or more past due (without giving effect to any grace period),
each Mortgage Loan in foreclosure, all REO Property and each Mortgage Loan for
which the mortgagor has filed for bankruptcy after the Closing Date.
"Stepdown Date" means the earlier to occur of (x) the Distribution Date
on which the Certificate Principal Balance of the Class A Certificates is
reduced to zero and (y) the later to occur of (A) the Distribution Date in
October 2005 and (B) the first Distribution Date on which the Credit Enhancement
Percentage is greater than or equal to 32.00%.
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A "Trigger Event" has occurred on a Distribution Date on or after the
Stepdown Date if (i) the three-month rolling average of 60+ Day Delinquent Loans
equals or exceeds 50% of the Credit Enhancement Percentage or (ii) during such
period, the Cumulative Realized Loss Percentage exceeds the amounts set forth
below:
Distribution Dates Cumulative Realized Loss Percentage
------------------ -----------------------------------
October 2005 - September 2006 2.25%
October 2006 - September 2007 3.50%
October 2007 - September 2008 4.25%
October 2008 - September 2009 4.75%
October 2009 and after 5.00%
Allocation of Losses
A "Realized Loss" is:
o as to any Liquidated Mortgage Loan, the amount by which the
remaining unpaid Principal Balance thereof exceeds the amount of
net proceeds from the liquidation of, and any insurance proceeds
from, such Mortgage Loan and the related Mortgaged Property
applied to the Principal Balance of that Liquidated Mortgage Loan.
o as to any Mortgage Loan, a Deficient Valuation.
o as to any Mortgage Loan, a reduction in the Principal Balance
thereof resulting from a Servicer Modification.
A "Liquidated Mortgage Loan" is any defaulted Mortgage Loan as to which
the Servicer has determined that all amounts which it expects to recover from or
on account of such Mortgage Loan have been recovered.
A Realized Loss may result from the personal bankruptcy of a mortgagor
if the bankruptcy court establishes the value of the Mortgaged Property at an
amount less than the then outstanding Principal Balance of the Mortgage Loan
secured by such Mortgaged Property and reduces the secured debt to such value.
In such case, the Trust, as the holder of such Mortgage Loan, would become an
unsecured creditor to the extent of the difference between the outstanding
Principal Balance of such mortgage loan and such reduced secured debt (such
difference, a "Deficient Valuation").
If a Mortgage Loan is in default, or if default is reasonably
foreseeable, the Servicer may permit a modification of such Mortgage Loan to
reduce its Principal Balance and/or extend its term to a term not longer than
the latest maturity date of any other Mortgage Loan (any such modification, a
"Servicer Modification"). Any such principal reduction will constitute a
Realized Loss at the time of such reduction. An extension of the term will not
result in a Realized Loss unless coupled with a principal reduction.
Realized Losses will, in effect, be absorbed first by the Class CE
Certificates (through a reduction in the Overcollateralization Amount). The
Pooling and Servicing Agreement does not permit the allocation of Realized
Losses to the Class P Certificates.
If, after giving effect to the distribution of the Principal
Distribution Amount on any Distribution Date the aggregate Certificate Principal
Balance of the Offered Certificates exceeds the Pool Balance as of the end of
the related Due Period, such excess will be allocated against the Class B, Class
M-4, Class M-3, Class M-2 and Class M-1 Certificates, in that order and until
the respective Certificate Principal Balances thereof are reduced to zero. Any
allocation of such excess in reduction of a Certificate Principal Balance is
referred to as an "Applied Realized Loss Amount." Any such reduction of a
Certificate Principal Balance will not be reversed or reinstated, and no
interest will accrue on any such reduction amount. The amount of any such
reduction may be recovered by the Holders of the related Certificates on the
same Distribution Date or on a subsequent Distribution Date, but only out of
Monthly Excess Cashflow Amounts to the extent such amounts are available after
payment of other amounts due on the Offered Certificates, as described under
"--Application of Monthly Excess Cashflow Amounts" below. Realized Losses will
not be allocated to the Class A-1, Class A-2 or Class AIO Certificates. However,
it is possible that under certain loss scenarios there will not be enough
principal and interest in the Mortgage Loans to pay the Class A-1 or Class A-2
Certificates all interest and principal amounts to which that class is then
entitled, or enough interest on the Mortgage Loans to pay the Class AIO
Certificates all interest amounts to which that class is then entitled. Because
the Class A-2 Certificates will not receive any principal distributions until
the Certificate Principal Balance of the Class A-1 Certificates has been reduced
to zero, under extreme loss scenarios the Class A-2 Certificates will
effectively be subordinated to the Class A-1 Certificates with respect to
principal distributions.
S-57
Application of Monthly Excess Cashflow Amounts
The Net WAC Rate for the Offered Certificates (other than the Class AIO
Certificates) is generally expected to be higher than the weighted average of
the Pass-Through Rates on the Offered Certificates (other than the Class AIO
Certificates), thus generating certain excess interest collections which, in the
absence of losses, will not be necessary to fund interest distributions on the
Certificates. See "--Pass-Through Rates" below.
The required level of overcollateralization for any Distribution Date
is the Overcollateralization Target Amount. The Overcollateralization Target
Amount is initially approximately $1,301,376.
If Realized Losses occur that are not covered by an application of the
Monthly Excess Cashflow Amount, such Realized Losses will result in an
Overcollateralization Deficiency Amount (since they will reduce the Pool Balance
without giving rise to a corresponding reduction of the aggregate Certificate
Principal Balance of the Certificates). The cashflow priorities of the Trust
Fund require that, in this situation, an Extra Principal Distribution Amount be
paid (subject to the availability of any Monthly Excess Cashflow Amount in
subsequent months) for the purpose of re-establishing the Overcollateralization
Amount at the then-required Overcollateralization Target Amount.
On and after the Stepdown Date and assuming that a Trigger Event is not
in effect, the Overcollateralization Target Amount may be permitted to decrease
or "step-down." If the Overcollateralization Target Amount is permitted to
"step-down" on a Distribution Date, the Pooling and Servicing Agreement permits
a portion of the Principal Remittance Amount for such Distribution Date not to
be passed through as a distribution of principal on the Offered Certificates on
such Distribution Date. This has the effect of decelerating the amortization of
the Certificates relative to the Pool Balance, thereby reducing the actual level
of the Overcollateralization Amount to the new, lower Overcollateralization
Target Amount. This portion of the Principal Remittance Amount not distributed
as principal on the Certificates therefore releases overcollateralization from
the Trust Fund. The amount of such releases are the "Overcollateralization
Release Amounts."
On any Distribution Date, the sum of (x) the Overcollateralization
Release Amount and (y) the excess of the Available Funds over the sum of (i) the
interest paid on the Offered Certificates on that Distribution Date and (ii) the
Basic Principal Distribution Amount is the "Monthly Excess Cashflow Amount,"
which is required to be applied in the following order of priority (the "Monthly
Excess Cashflow Amount") on such Distribution Date:
(i) to fund the Extra Principal Distribution Amount for such
Distribution Date in order to maintain or build the Overcollateralization Amount
to the Overcollateralization Target Amount;
(ii) to fund any remaining Accrued Certificate Interest for such
Distribution Date for the Class M-1 Certificates;
(iii) to fund the Unpaid Interest Shortfall Amount for the Class M-1
Certificates, if any;
(iv) to reimburse the Class M-1 Certificates for Applied Realized Loss
Amounts allocated to the Class M-1 Certificates and not previously reimbursed;
(v) to fund any remaining Accrued Certificate Interest for such
Distribution Date for the Class M-2 Certificates;
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(vi) to fund the Unpaid Interest Shortfall Amount for the Class M-2
Certificates, if any;
(vii) to reimburse the Class M-2 Certificates for Applied Realized Loss
Amounts allocated to the Class M-2 Certificates and not previously reimbursed;
(viii) to fund any remaining Accrued Certificate Interest for such
Distribution Date for the Class M-3 Certificates;
(ix) to fund the Unpaid Interest Shortfall Amount for the Class M-3
Certificates, if any;
(x) to reimburse the Class M-3 Certificates for Applied Realized Loss
Amounts allocated to the Class M-3 Certificates and not previously reimbursed;
(xi) to fund any remaining Accrued Certificate Interest for such
Distribution Date for the Class M-4 Certificates;
(xii) to fund the Unpaid Interest Shortfall Amount for the Class M-4
Certificates, if any;
(xiii) to reimburse the Class M-4 Certificates for Applied Realized
Loss Amounts allocated to the Class M-3 Certificates and not previously
reimbursed;
(xiv) to fund any remaining Accrued Certificate Interest for such
Distribution Date for the Class B Certificates;
(xv) to fund the Unpaid Interest Shortfall Amount for the Class B
Certificates, if any;
(xvi) to reimburse the Class B Certificates for Applied Realized Loss
Amounts allocated to the Class B Certificates and not previously reimbursed;
(xvii) to fund the Net WAC Rate Carryover Amount, if any, for the Class
A-1, Class A-2, Class M-1, Class M-2, Class M-3, Class M-4 and Class B
Certificates, in that order, until such amount is paid in full for each such
class;
(xviii) to fund distributions to the Holders of the Class CE
Certificates in the amounts specified in the Pooling and Servicing Agreement;
and
(xix) any remaining amounts to the Holders of the Class R Certificates.
Pass-Through Rates
The "Pass-Through Rate" for each class of the Offered Certificates for
any Interest Accrual Period will be, with respect to:
(i) the Class A-1 Certificates, the lesser of (x) its fixed coupon rate
of 2.705% per annum and (y) the Net WAC Rate for the related Distribution Date;
(ii) the Class A-2 Certificates for the first 24 Distribution Dates,
the lesser of (x) its fixed coupon rate of 2.858% per annum and (y) the Net WAC
Rate for the related Distribution Date;
(iii) the Subordinate Certificates (and the Class A-2 Certificates
after the 24th Distribution Date), the lesser of (x) the related Formula Rate
for such Distribution Date and (y) the related Net WAC Rate, if applicable, for
such Distribution Date; and
(iv) the Class AIO Certificates on any of the first 30 Distribution
Dates, (i) in the case of the October 2002 Distribution Date through the July
2003 Distribution Date, 6.00% per annum, (ii) in the case of the August 2003
Distribution Date through the May 2004 Distribution Date, 4.50% per annum and
(iii) in the case of the June 2004 Distribution Date through the March 2005
Distribution Date, 2.50% per annum. After the Accrual Period for the March 2005
Distribution Date, no interest will accrue on the Class AIO Certificates.
S-59
With respect to the Offered Certificates (other than the Class A-1,
Class A-2 and Class AIO Certificates), interest in respect of any Distribution
Date will accrue during the related Interest Accrual Period on the basis of the
actual number of days in such Interest Accrual Period over a 360-day year. With
respect to the Class A-1, Class A-2 and Class AIO Certificates, interest in
respect of any Distribution Date will accrue during the related Interest Accrual
Period on the basis of a 360-day year comprised of twelve 30-day months.
The "Adjusted Net Mortgage Rate" for each Mortgage Loan is equal to the
related Mortgage Interest Rate less the sum of (i) the Servicing Fee Rate, (ii)
the Securities Administration Fee Rate and (iii) the Credit Risk Manager Fee
Rate.
The "Adjusted Net Maximum Mortgage Rate" for any Mortgage Loan for any
Distribution Date shall be a per annum rate equal to the applicable Maximum
Mortgage Interest Rate for such Mortgage Loan (if it is an adjustable-rate
Mortgage Loan) or the fixed Mortgage Interest Rate for such Mortgage Loan, if it
is a fixed-rate Mortgage Loan, as of the beginning of the related Due Period,
minus the sum of (i) the Servicing Fee Rate, (ii) the Securities Administration
Fee Rate, and (iii) the Credit Risk Manager Fee Rate.
The "Credit Risk Management Fee Rate" for any Distribution Date equals
0.0175% per annum.
The "Formula Rate" for any Distribution Date and any Class of
Subordinate Certificates (and for the Class A-2 Certificates after the
Distribution Date in September 2004) is the lesser of (i) the sum of (A)
one-month LIBOR ("LIBOR") as of the related LIBOR Determination Date and (B) the
per annum margin rate for such Class in the table below (the applicable
"Certificate Margin") and (ii) the Maximum Cap Rate for such Distribution Date.
During each Interest Accrual Period relating to the Distribution Dates
after the Optional Termination Date, each of the Certificate Margins in the
table below will "step-up" if the optional termination right is not exercised.
Certificate Margin Certificate Margin Stepped-Up Certificate
- ------------------ ------------------ ----------------------
Class A-2 Margin (after the September 0.75% 1.125%
2004 Distribution Date)
Class M-1 Margin 0.72% 1.080%
Class M-2 Margin 1.40% 2.100%
Class M-3 Margin 1.85% 2.775%
Class M-4 Margin 2.15% 3.225%
Class B Margin 4.50% 4.500%
The "Maximum Cap Rate" for any Distribution Date is a per annum rate
(not less than zero and subject to adjustment based on the actual number of days
in the related Interest Accrual Period) equal to (a) the weighted average of the
Adjusted Net Maximum Mortgage Rates of the Mortgage Loans as of the beginning of
the related Due Period less (b) for the first 30 Distribution Dates, the
Pass-Through Rate for the Class AIO Certificates for such Distribution Date
multiplied by a fraction, the numerator of which is the Notional Amount of the
Class AIO Certificates immediately prior to such Distribution Date and the
denominator of which is the aggregate outstanding principal balance of the
Mortgage Loans as of the beginning of the related Due Period.
The "Net WAC Rate" for any Distribution Date is a per annum rate (not
less than zero and subject to adjustment based on the actual number of days in
the related Interest Accrual Period) equal to (a) the weighted average of the
Adjusted Net Mortgage Rates of the Mortgage Loans as of the beginning of the
related Due Period less (b) for the first 30 Distribution Dates, the
Pass-Through Rate on the Class AIO Certificates for such Distribution Date
multiplied by a fraction, the numerator of which is the Notional Amount of the
Class AIO Certificates immediately prior to that Distribution Date and the
denominator of which is the aggregate outstanding principal balance of the
Mortgage Loans as of the beginning of the related Due Period.
S-60
The "Net WAC Cap" for any Distribution Date will equal the related Net
WAC Rate.
The "Securities Administration Fee Rate" for any Distribution Date
equals 0.0125% per annum.
Calculation of LIBOR. On each "LIBOR Determination Date" (meaning the
second London business day before the beginning of each Interest Accrual
Period), the Securities Administrator will determine LIBOR for the next Interest
Accrual Period for the Offered Certificates (other than the Class AIO
Certificates) on the basis of the British Bankers' Association or BBA Interest
Settlement Rate for one-month deposits in U.S. dollars as found on Telerate page
3750 as of 11:00 a.m. London time on such LIBOR Determination Date. These
Interest Settlement Rates currently are based on rates quoted by 16 BBA
designated banks as being, in the view of such banks, the offered rate at which
deposits are being quoted to prime banks in the London interbank market. These
BBA Interest Settlement Rates are calculated by eliminating the four highest
rates and the four lowest rates, averaging the eight remaining rates, carrying
the results, expressed as a percentage, out to six decimal places, and rounding
to five decimal places. As used in this prospectus supplement, "Telerate page
3750" means the display designated as page 3750 on the Dow Jones Telerate
Service.
If, on any LIBOR Determination Date, the Securities Administrator is
unable to determine LIBOR on the basis of the method set forth in the preceding
paragraph, LIBOR will be determined on the basis of the rates at which deposits
in United States dollars are offered by the reference banks at approximately
11:00 a.m., London time, on that day to prime banks in the London interbank
market for a period equal to the related Interest Accrual Period commencing on
the first day of the related Interest Accrual Period. The Securities
Administrator 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, LIBOR will be the arithmetic mean of the quotations. If fewer than two
quotations are provided as requested, LIBOR will be the arithmetic mean of the
rates quoted by major banks in New York City, selected by the trustee, at
approximately 11:00 a.m., New York City time, on that day for loans in United
States dollars to leading European banks for a period equal to the related
accrual period immediately commencing on the first day of such accrual period.
"Reference Banks" means four major banks in the London interbank market
selected by the Securities Administrator.
Notional Amount of Class AIO Certificates. The Notional Amount of the
Class AIO Certificates will be $26,016,000 on the first Distribution Date, and
on each Distribution Date thereafter will equal the lesser of (i) $26,016,000
and (ii) the aggregate Pool Balance as of the first day of the related Due
Period. The Notional Amount is used to calculate interest distributions on the
Class AIO Certificates only, and does not represent the right to receive any
distributions of principal. No interest on the Class AIO Certificates will be
distributed after the Distribution Date in March 2005.
Mandatory Auction of the Class A-2 Certificates
During the five business days prior to the Distribution Date in
September 2004 (the "Auction Distribution Date"), Wells Fargo Bank Minnesota,
National Association, in its capacity as Auction Administrator, will auction the
Class A-2 Certificates to investors in the mortgage-backed securities market.
On the Auction Distribution Date, the Class A-2 Certificates still
outstanding for which bids are received will be transferred to the highest
successful bidder. Assuming such Certificates are held in book-entry form, the
Trustee, as directed by the Auction Administrator, will direct DTC to transfer
the Class A-2 Certificates from the holders to the applicable investors. In the
event that such Certificates are no longer held in book-entry form, the holders
of the Class A-2 Certificates will be required to deliver their certificates to
the certificate registrar for transfer to the successful bidders. The Trustee,
as directed by the Auction Administrator, will distribute to the holders of the
Class A-2 Certificates the sum of (x) the distributions of principal and
interest otherwise due on the Auction Distribution Date (to the extent not
distributed by the Trustee pursuant to the Pooling and Servicing Agreement) and
(y) the Par Price (as defined below) for such Certificates (to the extent that
amount is received from the successful bidders and from Bank of America, N.A.,
as counterparty (the "Swap Counterparty") under the Auction Swap Agreement (as
defined below)).
S-61
On or before the Closing Date, the Auction Administrator will enter
into a swap agreement (the "Auction Swap Agreement") with the Swap Counterparty.
Pursuant to the Swap Agreement, the Swap Counterparty will be obligated to pay
to the Auction Administrator the excess, if any, of the Par Price over the
Auction Price (as defined below) for the Class A-2 Certificates; and the Auction
Administrator will be obligated to pay to the Swap Counterparty or its designee
the excess, if any, of the Auction Price over the Par Price for the Class A-2
Certificates. In the event that no bids are received for all or a portion of the
Class A-2 Certificates in the manner set forth in the auction administration
agreement, the Auction Price for such Certificates will be deemed to be zero and
the Swap Counterparty will pay the Auction Administrator the Par Price (as
defined below). Upon such payment, any such unsold Class A-2 Certificates will
be transferred to the Swap Counterparty without payment of any additional
consideration.
The "Auction Price" is the price at which the Auction Administrator
sells the Class A-2 Certificates to the successful bidders. The "Par Price" for
the Class A-2 Certificates on the Auction Distribution Date is equal to the sum,
calculated after the application of all distributions and Realized Losses, if
any, on the Distribution Date in September 2004, of (i) the Certificate
Principal Balance of the Class A-2 Certificates, (ii) Accrued Certificate
Interest for the Auction Distribution Date on the Class A-2 Certificates for
which there are insufficient funds available in the Distribution Account for
distribution on Accrued Certificate Interest on the Class A-2 Certificates and
(iii) any Unpaid Interest Shortfall Amount for the Class A-2 Certificates. In
connection with the auction, the holders of the Class A-2 Certificate will not
be entitled to receive any unpaid Net WAC Rate Carryover Amounts.
The Pooling and Servicing Agreement will provide that the Auction
Administrator and any director, officer, employee or agent of the Auction
Administrator will be indemnified by the Trust Fund and will be held harmless
against any loss, liability or expense (not including expenses, disbursements
and advances incurred or made by the Auction Administrator in the ordinary
course of the Auction Administrator's performance in accordance with the
provisions of the Pooling and Servicing Agreement) incurred by the Auction
Administrator arising out of or in connection with the acceptance or
administration of its obligations and duties under the auction administration
agreement, other than any loss, liability or expense (i) that constitutes a
specific liability of the Auction Administrator under the auction administration
agreement or (ii) incurred by reason of willful misfeasance, bad faith or
negligence in the performance of the Auction Administrator's duties under the
auction administration agreement or by result of reckless disregard of the
Auction Administrator's obligations and duties under the auction administration
agreement.
YIELD, PREPAYMENT AND MATURITY CONSIDERATIONS
The yields to maturity and, as applicable, weighted average lives of
the Offered Certificates will depend upon, among other things, the prices at
which such Offered Certificates are purchased, the amount and timing of
principal payments on the Mortgage Loans, the allocation of Available Funds to
various classes of Offered Certificates, the amount and timing of mortgagor
delinquencies and defaults on the Mortgage Loans, the rate of liquidations and
Realized Losses and the allocation of Realized Losses to various classes of
Offered Certificates.
The rate of payment of principal, the aggregate amount of distributions
and the yield to maturity of the Offered Certificates will be affected by the
rate of defaults resulting in Realized Losses, by the severity of these losses
and by the timing thereof. If a purchaser of an Offered Certificate calculates
its anticipated yield based on an assumed rate of default and amount of Realized
Losses that is lower than the default rate and amount of losses actually
incurred, its actual yield to maturity will be lower than that so calculated.
The timing of Realized Losses will also affect an investor's actual yield to
maturity, even if the average rate of defaults and severity of losses are
consistent with an investor's expectations. In general, the earlier a loss
occurs, the greater is the effect on an investor's yield to maturity. There can
be no assurance as to the delinquency, foreclosure or loss experience with
respect to the Mortgage Loans. See "The Mortgage Pool--General" in this
prospectus supplement.
S-62
The rate of principal payments, the aggregate amount of distributions
and the yields to maturity of the Offered Certificates will be related to the
rate and timing of payments of principal on the Mortgage Loans. The rate of
principal payments on the Mortgage Loans will in turn be affected by the
amortization schedules of the Mortgage Loans and by the rate of principal
prepayments (including for this purpose prepayments resulting from refinancing,
liquidations of the Mortgage Loans due to defaults, casualties or condemnations
and repurchases by the Seller or Servicer). Because certain of the Mortgage
Loans contain prepayment penalties, the rate of principal payments may be less
than the rate of principal payments for mortgage loans which did not have
prepayment penalties. The Mortgage Loans are subject to the "due-on-sale"
provisions included therein which generally provide that a Mortgage Loan is due
upon the sale of the related Mortgaged Property or is assumable by a
creditworthy purchaser of the related Mortgaged Property. See "The Mortgage
Pool" in this prospectus supplement.
Unscheduled payments of principal (whether resulting from prepayments,
repurchases, liquidations, casualties or condemnations) will result in
distributions on the Offered Certificates that are entitled to principal
distributions of principal amounts which would otherwise be distributed over the
remaining terms of the Mortgage Loans. Since the rate of payment of principal on
the Mortgage Loans will depend on future events and a variety of other factors,
no assurance can be given as to such rate or the rate of principal prepayments.
The extent to which the yield to maturity of a class of Offered Certificates may
vary from the anticipated yield will depend upon the degree to which such class
of Offered Certificates is purchased at a discount or premium, and the degree to
which the timing of payments thereon is sensitive to prepayments, liquidations
and purchases of the Mortgage Loans. Further, an investor should consider the
risk that, in the case of any Offered Certificate that is entitled to principal
distributions and is purchased at a discount, a slower than anticipated rate of
principal payments (including prepayments) on the Mortgage Loans could result in
an actual yield to such investor that is lower than the anticipated yield and,
in the case of any Offered Certificate that is entitled to principal
distributions and is purchased at a premium, a faster than anticipated rate of
principal payments on the Mortgage Loans could result in an actual yield to such
investor that is lower than the anticipated yield.
The rate of principal payments (including prepayments) on pools of
mortgage loans may vary significantly over time and may be influenced by a
variety of economic, geographic, social and other factors, including changes in
mortgagors' housing needs, job transfers, unemployment, mortgagors' net equity
in the mortgaged properties and servicing decisions. In general, if prevailing
interest rates were to fall significantly below the Mortgage Interest Rates on
the Mortgage Loans, such Mortgage Loans could be subject to higher prepayment
rates than if prevailing interest rates were to remain at or above the Mortgage
Interest Rates on such Mortgage Loans. Conversely, if prevailing interest rates
were to rise significantly, the rate of prepayments on such Mortgage Loans would
generally be expected to decrease. No assurances can be given as to the rate of
prepayments on the Mortgage Loans in stable or changing interest rate
environments.
As with fixed rate obligations generally, the rate of prepayment on a
pool of mortgage loans with fixed rates, such as the Fixed-Rate Mortgage Loans
included in the Mortgage Pool, are affected by prevailing market rates for
mortgage loans of a comparable term and risk level. When the market interest
rate is below a mortgagor's mortgage interest rate, that mortgagor may have an
increased incentive to refinance his mortgage loan. Depending on prevailing
market rates, the future outlook for market rates and economic conditions
generally, some mortgagors may sell or refinance mortgaged properties in order
to realize their equity in the mortgage properties, to meet cash flow needs or
to make other investments. No assurance can be given as to the level of
prepayments that the Mortgage Loans will experience.
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 "lock in" a lower fixed interest rate. Substantially all of
the Adjustable-Rate Mortgage Loans included in the Mortgage Pool have Mortgage
Interest Rates that were fixed for a substantial period of time after
origination and, only after that substantial period are or were subject to
adjustment. As the Adjustable-Rate Mortgage Loans with delayed first adjustment
dates approach their first adjustment dates, they may prepay at faster rates
than other adjustable-rate mortgage loans, even if prevailing interest rates are
higher than the initial fixed rates on these loans because the borrowers may
refinance in an attempt to limit changes in their monthly payments. However, the
existence of periodic and lifetime limitations on changes to the Mortgage
Interest Rates may reduce a borrower's incentive to refinance. No assurance can
be given as to the level of prepayments that the Adjustable-Rate Mortgage Loans
will experience.
S-63
Approximately 94.08% of the Mortgage Loans (by aggregate principal
balance of the Mortgage Loans as of Cut-off Date) require the mortgagor to pay a
prepayment charge under certain circumstances if the mortgagor prepays the
Mortgage Loan during specified periods not in excess of five years after the
Mortgage Loan was originated. The holders of the Class P Certificates will be
entitled to all prepayment charges received on the Mortgage Loans, and such
amounts will not be available for distribution on the other classes of
Certificates. Under certain circumstances, as set forth in the Pooling and
Servicing Agreement, the Servicer may waive the payment of any otherwise
applicable prepayment charge. Investors should conduct their own analysis of the
effect, if any, that the prepayment charges, and decisions by the Servicer with
respect to the waiver thereof, may have on the prepayment performance of the
Mortgage Loans. The Depositor makes no representations as to the effect that the
prepayment charges, and decisions by the Servicer with respect to the waiver
thereof, may have on the prepayment performance of the Mortgage Loans.
The weighted average life and yield to maturity of each class of
Offered Certificates entitled to principal distributions will also be influenced
by the amount of Monthly Excess Cashflow Amounts generated by the Mortgage Loans
and applied in reduction of the Certificate Principal Balances of such Offered
Certificates. The level of Monthly Excess Cashflow Amounts available on any
Distribution Date to be applied in reduction of the Certificate Principal
Balance of the Offered Certificates entitled to principal distributions will be
influenced by, among other factors, (i) the overcollateralization level of the
Mortgage Loans at such time (i.e., the extent to which interest on the Mortgage
Loans is accruing on a higher Principal Balance than the aggregate Certificate
Principal Balance of the Certificates); and (ii) the delinquency and default
experience of the Mortgage Loans. To the extent that greater amounts of Monthly
Excess Cashflow Amounts are distributed in reduction of the Certificate
Principal Balance of a class of Certificates, the weighted average life thereof
can be expected to shorten. No assurance can be given as to the amount of
Monthly Excess Cashflow Amounts distributed at any time or in the aggregate.
Special Yield Considerations
The Mortgage Interest Rates on the Fixed-Rate Mortgage Loans are fixed
and will not vary with any index and the Mortgage Interest Rates on the
Adjustable-Rate Mortgage Loans adjust semi-annually, following an initial period
of one, two or three years after their origination dates, based generally upon
six-month LIBOR and one-year CMT indices, whereas the Pass-Through Rates on the
Subordinate Certificates (and of the Class A-2 Certificates, after the
Distribution Date in September 2004) adjust monthly based upon one-month LIBOR
as described under "Description of the Certificates--Pass-Through
Rates--Calculation of LIBOR" herein, subject to the Net WAC Rate. As a result,
increases in the Pass-Through Rates on the Subordinate Certificates (and of the
Class A-2 Certificates, after the Distribution Date in September 2004) may be
limited for extended periods in a rising interest rate environment. The interest
due on the Mortgage Loans during any Due Period, net of the expenses of the
Trust, may not equal the amount of interest that would accrue (i) at one-month
LIBOR plus the applicable margin on the adjustable-rate Certificates or (ii) at
the applicable fixed coupon rate, in the case of the A-1 Certificates and, for
the first 24 Distribution Dates, the Class A-2 Certificates, during the related
Interest Accrual Period (as defined herein). In addition, the Mortgage Interest
Rate may respond differently to economic and market factors than one-month LIBOR
does. Thus, it is possible, for example, that if both one-month LIBOR and the
Mortgage Interest Rate index rise during the same period, one-month LIBOR may
rise more rapidly than that index or may rise higher than the index, potentially
resulting in the application of the Net WAC Rate to reduce the Pass-Through Rate
on one or more classes of the Offered Certificates (other than the Class AIO
Certificates), which may adversely affect the yield to maturity on the Offered
Certificates (other than the Class AIO Certificates). In addition, the Net WAC
Rate will be reduced by the repayment of Mortgage Loans with high Mortgage
Interest Rates.
If the Pass-Through Rate on the Offered Certificates (other than the
Class AIO Certificates) is limited by the Net WAC Rate for any Distribution
Date, the resulting basis risk shortfalls may be recovered by the holders of the
Offered Certificates on such Distribution Date or on future Distribution Dates,
to the extent that on such Distribution Date or future Distribution Dates there
are any Monthly Excess Cashflow Amounts remaining after certain other
distributions on the Offered Certificates and the payment of certain fees and
expenses of the Trust. See "Description of the Certificates--Application of
Monthly Excess Cashflow Amounts" in this prospectus supplement. The ratings on
the Offered Certificates do not address the likelihood of any such recovery of
basis risk shortfalls by holders of the Offered Certificates.
S-64
Yield Sensitivity of the Subordinate Certificates
If the Certificate Principal Balances of the Class B Certificates, the
Class M-4 Certificates, the Class M-3 Certificates and the Class M-2
Certificates have been reduced to zero, the yield to maturity on the Class M-1
Certificates will become extremely sensitive to losses on the Mortgage Loans
(and the timing thereof) that are covered by subordination, because the entire
amount of any Realized Losses (to the extent not covered by Monthly Excess
Cashflow Amounts), will be allocated to the Class M-1 Certificates. If the
Certificate Principal Balance of the Class B Certificates, the Class M-4
Certificates, and the Class M-3 Certificates has been reduced to zero, the yield
to maturity on the Class M-2 Certificates will become extremely sensitive to
losses on the Mortgage Loans (and the timing thereof) that are covered by
subordination, because the entire amount of any Realized Losses (to the extent
not covered by Monthly Excess Cashflow Amounts), will be allocated first to the
Class M-2 Certificates. If the Certificate Principal Balance of the Class B
Certificates and the Class M-4 Certificates has been reduced to zero, the yield
to maturity of the Class M-3 Certificates will become extremely sensitive to
losses on the Mortgage Loans (and the timing thereof) that are covered by
subordination, because the entire amount of any Realized Losses (to the extent
not covered by Monthly Excess Cashflow Amounts), will be allocated first to the
Class M-3 Certificates. If the Certificate Principal Balance of the Class B
Certificates has been reduced to zero, the yield to maturity on the Class M-4
Certificates will become extremely sensitive to losses on the Mortgage Loans
(and the timing thereof) that are covered by subordination, because the entire
amount of any Realized Losses (to the extent not covered by Monthly Excess
Cashflow Amounts), will be allocated to the Class M-4 Certificates. The yield to
maturity on the Class B Certificates will be extremely sensitive to losses on
the Mortgage Loans (and the timing thereof) that are covered by subordination,
because the entire amount of Realized Losses (to the extent not covered by
Monthly Excess Cashflow Amounts), will be allocated first to the Class B
Certificates. Investors in the Subordinate Certificates should fully consider
the risk that Realized Losses on the Mortgage Loans could result in the failure
of such investors to fully recover their investments. In addition, once Realized
Losses have been allocated to a Subordinate Certificate, such amounts with
respect to such Certificates will no longer accrue interest and will not be
reinstated thereafter. The amounts of any Realized Loss allocated to a Class of
Certificates on a Distribution Date may be recovered by related Holders on the
same Distribution Date or on a subsequent Distribution Date, but only out of
Monthly Excess Cashflow Amounts to the extent such amounts are available after
payment of other amounts due on the Offered Certificates and certain expenses of
the Trust, as described under "Description of the Certificates--Application of
Monthly Excess Cashflow Amounts" in this prospectus supplement.
Unless the combined Certificate Principal Balance of the Class A-1 and
Class A-2 Certificates has been reduced to zero, the Subordinate Certificates
will not be entitled to any principal distributions until the Stepdown Date
(which will not occur until October 2005 at the earliest unless the combined
Certificate Principal Balance of the Class A-1 and Class A-2 Certificates has
been reduced to zero before October 2005) or during any period in which a
Trigger Event is in effect. As a result, the weighted average lives of the
Subordinate Certificates will be longer than would otherwise be the case if
distributions of principal were allocated on a pro rata basis among the Senior
Certificates and the Subordinate Certificates. As a result of the longer
weighted average lives of the Subordinate Certificates, the holders of such
Certificates have a greater risk of suffering a loss on their investments.
Further, because a Trigger Event is based on delinquencies and not losses, it is
possible for the Subordinate Certificates to receive no principal distributions
(unless the combined Certificate Principal Balance of the Class A-1 and Class
A-2 Certificates has been reduced to zero) on and after the Stepdown Date even
if no losses have occurred on the Mortgage Pool.
Additional Information
The Depositor has filed certain yield tables and other computational
materials with respect to certain classes of the Offered Certificates with the
Commission in a report on Form 8-K and may file certain additional yield tables
and other computational materials with respect to one or more classes of Offered
Certificates with the Commission in a report on Form 8-K. Such tables and
materials were prepared by the Underwriters 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 Structuring Assumptions.
Accordingly, such tables and other materials may not be relevant to or
appropriate for investors other than those specifically requesting them.
S-65
Weighted Average Lives
The timing of changes in the rate of principal prepayments on the
Mortgage Loans may significantly affect an investor's actual yield to maturity,
even if the average rate of principal prepayments is consistent with such
investor's expectation. In general, the earlier a principal prepayment on the
Mortgage Loans occurs, the greater the effect of such principal prepayment on an
investor's yield to maturity. The effect on an investor's yield of principal
prepayments occurring at a rate higher (or lower) than the rate anticipated by
the investor during the period immediately following the issuance of the Offered
Certificates may not be offset by a subsequent like decrease (or increase) in
the rate of principal prepayments.
The projected weighted average life of any class of Offered
Certificates is the average amount of time that will elapse from the Closing
Date, until each dollar of principal is scheduled to be repaid to the investors
in such class of Offered Certificates. Because it is expected that there will be
prepayments and defaults on the Mortgage Loans, the actual weighted average
lives of the classes of Offered Certificates are expected to vary substantially
from the weighted average remaining terms to stated maturity of the Mortgage
Loans as set forth in this prospectus supplement under "The Mortgage Pool."
Prepayments on mortgage loans are commonly measured relative to a
prepayment model or standard. The prepayment models used in this prospectus
supplement ("Prepayment Models") are based on an assumed rate of prepayment each
month of the then unpaid principal balance of a pool of mortgage loans similar
to the Mortgage Loans. The Prepayment Models used in this prospectus supplement
with respect to the adjustable-rate Mortgage Loans is the "ARM PPC" model." 100%
ARM PPC assumes a prepayment rate of 4.00% "CPR" per annum of the
then-outstanding principal balance of the adjustable-rate mortgage loans in the
first month of the life of such mortgage loans, and an additional approximately
1.348% per annum in each month thereafter until 35% CPR is reached in the 24th
month. Beginning in the 24th month and in each month thereafter during the life
of the mortgage loans, 100% ARM PPC assumes a constant prepayment rate of 35%
CPR per annum each month. "CPR" represents a constant assumed rate of prepayment
each month relative to the then outstanding principal balance of a pool of
mortgage loans for the life of such mortgage loans. The Prepayment Model used in
this prospectus supplement with respect to the fixed-rate Mortgage Loans is the
"FRM PPC" model." 100% FRM PPC assumes a prepayment rate of 4.00% CPR per annum
of the then-outstanding principal balance of the mortgage loans in the first
month of the life of the mortgage loans and an additional approximately 1.8181%
per annum in each month thereafter until 24.0% CPR is reached in the twelfth
month. Beginning in the twelfth month and in each month thereafter during the
life of the mortgage loans, 100% FRM PPC assumes a constant prepayment rate of
24.0% CPR per annum each month. The prepayment rates assumed in pricing the
offered certificates are 100% ARM PPC with respect to the adjustable-rate
mortgage loans and 100% FRM PPC with respect to the fixed-rate mortgage loans.
No prepayment assumption purports to be a 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 tables on pages S-69 through S-75 (the "DEC Tables") were prepared
on the basis of the assumptions in the following paragraph and the tables set
forth below. There may be certain differences between the loan characteristics
included in such assumptions and the characteristics of the actual Mortgage
Loans. Any such discrepancy may have an effect upon the percentages of Original
Certificate Principal Balances outstanding and weighted average lives of the
Offered Certificates set forth in the DEC Tables. In addition, since the actual
Mortgage Loans in the Trust Fund will have characteristics that differ from
those assumed in preparing the tables set forth below, the distributions of
principal of the Offered Certificates may be made earlier or later than
indicated in the tables.
S-66
The percentages and weighted average lives in the DEC Tables were
determined using the following assumptions collectively (the "Structuring
Assumptions"): (i) the Mortgage Loans consist of loans with the characteristics
set forth in the table below, (ii) the closing date for the Offered Certificates
occurs on September 26, 2002 and the Offered Certificates were sold to investors
on such date, (iii) distributions on the Certificates are made on the 25th day
of each month regardless of the day on which the Distribution Date actually
occurs, commencing in October 2002, in accordance with the allocation of
Available Funds set forth above under "Description of the Certificates," (iv)
the Mortgage Loans prepay in accordance with the Prepayment Models indicated,
(v) prepayments include thirty days' interest thereon, (vi) the Seller is not
required to substitute or repurchase any or all of the Mortgage Loans pursuant
to the Pooling and Servicing Agreement and no optional termination is exercised,
except with respect to (A) the entries identified by the row heading "Weighted
Average Life to Call" in the tables below and (B) the entries identified by the
row heading "Weighted Average Life to Auction" for the Class A-2 Certificates in
the applicable table, (vii) the Overcollateralization Target Amount is set
initially as specified herein, (viii) scheduled payments for all Mortgage Loans
are received on the Due Date commencing in October 2002, the principal portion
of such payments is computed prior to giving effect to prepayments received in
the prior month and there are no losses or delinquencies with respect to such
Mortgage Loans, (ix) all Mortgage Loans prepay at the same rate and all such
payments are treated as prepayments in full of individual Mortgage Loans, with
no shortfalls in collection of interest, (x) such prepayments are received on
the last day of each month commencing in September 2002, (xi) the aggregate of
the annualized rates at which the Servicing Fee, the Securities Administration
Fee and the Credit Risk Manager Fee are calculated is 0.53%, (xii) the mortgage
interest rate for each adjustable-rate Mortgage Loan is adjusted on its next
interest rate adjustment date and on subsequent interest rate adjustment dates,
if necessary, to equal the sum of (a) with respect to 76.01% of the Mortgage
Loans an assumed level of six-month LIBOR, which remains constant at 1.83125%
per annum, and with respect to 0.15% of the Mortgage Loans, an assumed level of
one-year CMT, which remains constant at 1.74% per annum, plus in either case (b)
the applicable gross margin, this sum being subject to the applicable periodic
rate cap, maximum interest rate and minimum interest rate, (xiii) one-month
LIBOR remains constant at 1.82% per annum, (xiv) the Pass-Through Rates for the
Offered Certificates are as set forth or described on the cover of this
prospectus supplement, and (xv) the numbers under the "Months to Next Rate
Adjustment" heading in the table below for the adjustable-rate Mortgage Loans
indicate the number of months from the Cut-off Date to the first interest rate
adjustment date for such adjustable-rate Mortgage Loans. Nothing contained in
the foregoing assumptions should be construed as a representation that the
Mortgage Loans will not experience delinquencies or losses.
Based on the foregoing assumptions and the following prepayment
scenarios and assumed mortgage loan characteristics, the tables indicate the
projected weighted average lives of each class of Offered Certificates, and set
forth the percentages of the original Certificate Principal Balance of each such
class that would be outstanding after each of the dates shown.
S-67
Assumed Mortgage Loan Characteristics
(Adjustable-Rate Mortgage Loans)
Original Original Remaining
Term to Amortization Term to Current
Product Current Maturity Term Maturity Gross
Type Balance (months) (months) (months) Coupon Index
---- ------- -------- -------- -------- ------ -----
1/29 ARM $ 215,110.77 360 360 353 8.750% One-Year CMT
1/29 ARM $ 187,474.65 360 360 356 0.166% One-Year CMT
2/28 ARM $ 782,274.68 360 360 354 9.859% Six-Month LIBOR
2/28 ARM $ 3,412,428.63 360 360 353 9.651% Six-Month LIBOR
2/28 ARM $ 74,588.24 360 360 351 1.750% Six-Month LIBOR
2/28 ARM $ 10,925,897.06 360 360 356 9.139% Six-Month LIBOR
2/28 ARM $ 359,264.24 360 360 356 9.375% Six-Month LIBOR
2/28 ARM $139,727,019.42 360 360 356 9.226% Six-Month LIBOR
2/28 ARM $ 5,870,207.47 360 360 356 9.153% Six-Month LIBOR
2/28 ARM $ 6,171,007.38 360 360 356 9.228% Six-Month LIBOR
3/27 ARM $ 232,960.29 360 360 354 9.673% Six-Month LIBOR
3/27 ARM $ 569,384.48 360 360 356 8.820% Six-Month LIBOR
3/27 ARM $ 1,265,281.11 360 360 356 9.217% Six-Month LIBOR
3/27 ARM $ 28,109,208.44 360 360 356 8.918% Six-Month LIBOR
3/27 ARM $ 236,901.42 360 360 357 9.310% Six-Month LIBOR
Months Payment Rate
to Next Reset Reset Initial Periodic
Product Adjustment Frequency Frequency Adjustment Adjustment Maximum Minimum
Type Margin Date (months) (months) Cap Cap Rate Rate
------- ------ ---------- --------- --------- ---------- ---------- ------- -------
1/29 ARM 5.750% 5 12 12 2.000% 2.000% 14.750% 8.750%
1/29 ARM 7.598% 8 12 12 2.000% 2.000% 16.166% 10.166%
2/28 ARM 6.528% 18 6 6 3.000% 1.000% 15.859% 9.859%
2/28 ARM 6.592% 17 6 6 3.000% 1.000% 15.651% 9.651%
2/28 ARM 9.125% 15 6 6 3.000% 1.000% 17.750% 11.750%
2/28 ARM 6.519% 20 6 6 3.000% 1.000% 15.139% 9.139%
2/28 ARM 6.875% 20 6 6 3.000% 1.000% 15.375% 9.375%
2/28 ARM 6.305% 20 6 6 3.000% 1.000% 15.227% 9.226%
2/28 ARM 6.125% 20 6 6 3.000% 1.000% 15.153% 9.153%
2/28 ARM 6.043% 20 6 6 3.000% 1.000% 15.228% 9.228%
3/27 ARM 6.704% 30 6 6 3.000% 1.000% 15.673% 9.673%
3/27 ARM 6.282% 32 6 6 3.000% 1.000% 14.820% 8.820%
3/27 ARM 6.092% 32 6 6 3.000% 1.000% 15.217% 9.217%
3/27 ARM 6.192% 32 6 6 3.000% 1.000% 14.918% 8.918%
3/27 ARM 7.300% 33 6 6 3.000% 1.000% 15.310% 9.310%
Assumed Mortgage Loan Characteristics
(Fixed-Rate Mortgage Loans)
Original Original Remaining
Term to Amortization Term to
Current Maturity Term Maturity Gross
Product Type Balance (months) (months) (months) Coupon
------------ ------- -------- ------------ --------- ------
15 YR FIXED $ 738,955.17 180 180 176 9.419%
15 YR FIXED $ 317,249.95 180 180 176 8.159%
15 YR FIXED $ 2,665,862.44 180 180 176 8.820%
15 YR FIXED $ 3,601,034.31 180 180 176 8.153%
15/30 BALLOON $ 428,266.81 180 360 176 7.686%
15/30 BALLOON $ 579,515.20 180 360 176 7.908%
15/30 BALLOON $ 294,104.07 180 360 177 8.562%
15/30 BALLOON $ 5,910,306.37 180 360 176 8.370%
15/30 BALLOON $12,391,651.85 180 360 176 7.562%
30 YR FIXED $ 1,772,194.08 360 360 356 9.564%
30 YR FIXED $ 1,583,238.15 360 360 356 8.332%
30 YR FIXED $ 812,104.11 360 360 356 9.287%
30 YR FIXED $13,179,299.31 360 360 356 8.645%
30 YR FIXED $17,748,586.14 360 360 356 7.759%
S-68
Percentage of Original Principal Balance Outstanding(1)
Class A-1
Percentage of PPC
-------- --------- ---------- ---------- ----------- ---------- ----------
Distribution ARM: ARM PPC 0.00% 50.00% 75.00% 100.00% 125.00% 150.00% 200.00%
Date Fixed: FRM PPC 0.00% 50.00% 75.00% 100.00% 125.00% 150.00% 200.00%
- ---- -------- --------- ---------- ---------- ----------- ---------- ----------
Initial Percentage............ 100 100 100 100 100 100 100
September 25, 2003............ 93 15 0 0 0 0 0
September 25, 2004............ 85 0 0 0 0 0 0
September 25, 2005............ 77 0 0 0 0 0 0
September 25, 2006............ 67 0 0 0 0 0 0
September 25, 2007............ 57 0 0 0 0 0 0
September 25, 2008............ 46 0 0 0 0 0 0
September 25, 2009............ 34 0 0 0 0 0 0
September 25, 2010............ 21 0 0 0 0 0 0
September 25, 2011............ 6 0 0 0 0 0 0
September 25, 2012............ 0 0 0 0 0 0 0
September 25, 2013............ 0 0 0 0 0 0 0
September 25, 2014............ 0 0 0 0 0 0 0
September 25, 2015............ 0 0 0 0 0 0 0
September 25, 2016............ 0 0 0 0 0 0 0
September 25, 2017............ 0 0 0 0 0 0 0
September 25, 2018............ 0 0 0 0 0 0 0
September 25, 2019............ 0 0 0 0 0 0 0
September 25, 2020............ 0 0 0 0 0 0 0
September 25, 2021............ 0 0 0 0 0 0 0
September 25, 2022............ 0 0 0 0 0 0 0
September 25, 2023............ 0 0 0 0 0 0 0
September 25, 2024............ 0 0 0 0 0 0 0
September 25, 2025............ 0 0 0 0 0 0 0
September 25, 2026............ 0 0 0 0 0 0 0
September 25, 2027............ 0 0 0 0 0 0 0
September 25, 2028............ 0 0 0 0 0 0 0
September 25, 2029............ 0 0 0 0 0 0 0
September 25, 2030............ 0 0 0 0 0 0 0
September 25, 2031............ 0 0 0 0 0 0 0
September 25, 2032............ 0 0 0 0 0 0 0
Weighted Avg. Life to Maturity
(in years) (2)................ 5.39 0.68 0.51 0.42 0.36 0.31 0.25
Weighted Avg. Life to
Call (in years) (2)........... 5.39 0.68 0.51 0.42 0.36 0.31 0.25
- ---------------
(1) Rounded to the nearest whole percentage.
(2) The weighted average life of any class of Certificates is determined by (i)
multiplying the assumed net reduction, if any, in the Certificate Principal
Balance on each Distribution Date of such class of Certificates by the
number of years from the date of issuance of the Certificates to the
related Distribution Date, (ii) summing the results, and (iii) dividing the
sum by the aggregate amount of the assumed net reduction in the Certificate
Principal Balance of such class of Certificates.
S-69
Percentage of Original Principal Balance Outstanding(1)
Class A-2
Percentage of PPC
-------- --------- ---------- ---------- ----------- ---------- ----------
Distribution ARM: ARM PPC 0.00% 50.00% 75.00% 100.00% 125.00% 150.00% 200.00%
Date Fixed: FRM PPC 0.00% 50.00% 75.00% 100.00% 125.00% 150.00% 200.00%
- ---- -------- --------- ---------- ---------- ----------- ---------- ----------
Initial Percentage............ 100 100 100 100 100 100 100
September 25, 2003............ 100 100 96 90 84 78 65
September 25, 2004............ 100 83 69 56 43 32 12
September 25, 2005............ 100 65 46 30 17 6 0
September 25, 2006............ 100 50 35 24 16 6 0
September 25, 2007............ 100 41 26 16 9 5 0
September 25, 2008............ 100 34 20 11 6 3 0
September 25, 2009............ 100 28 15 7 4 2 0
September 25, 2010............ 100 23 11 5 2 1 0
September 25, 2011............ 100 19 8 3 1 * 0
September 25, 2012............ 99 16 6 2 1 0 0
September 25, 2013............ 96 13 5 2 * 0 0
September 25, 2014............ 93 11 4 1 0 0 0
September 25, 2015............ 90 9 3 * 0 0 0
September 25, 2016............ 86 7 2 * 0 0 0
September 25, 2017............ 75 5 1 0 0 0 0
September 25, 2018............ 72 4 1 0 0 0 0
September 25, 2019............ 68 3 * 0 0 0 0
September 25, 2020............ 64 3 * 0 0 0 0
September 25, 2021............ 60 2 0 0 0 0 0
September 25, 2022............ 55 2 0 0 0 0 0
September 25, 2023............ 50 1 0 0 0 0 0
September 25, 2024............ 45 1 0 0 0 0 0
September 25, 2025............ 41 * 0 0 0 0 0
September 25, 2026............ 36 * 0 0 0 0 0
September 25, 2027............ 31 0 0 0 0 0 0
September 25, 2028............ 25 0 0 0 0 0 0
September 25, 2029............ 19 0 0 0 0 0 0
September 25, 2030............ 13 0 0 0 0 0 0
September 25, 2031............ 5 0 0 0 0 0 0
September 25, 2032............ 0 0 0 0 0 0 0
Weighted Avg. Life to Maturity
(in years) (2)................ 20.75 5.72 4.01 3.05 2.40 1.89 1.33
Weighted Avg. Life to
Call (in years) (2)........... 20.70 5.36 3.73 2.82 2.22 1.77 1.33
Weighted Avg. Life to Auction
(in years) (2)................ 2.00 1.93 1.83 1.73 1.62 1.51 1.30
- ---------------
* Greater than 0.0% but less than 0.5%.
(1) Rounded to the nearest whole percentage.
(2) The weighted average life of any class of Certificates is determined by (i)
multiplying the assumed net reduction, if any, in the Certificate Principal
Balance on each Distribution Date of such class of Certificates by the
number of years from the date of issuance of the Certificates to the
related Distribution Date, (ii) summing the results, and (iii) dividing the
sum by the aggregate amount of the assumed net reduction in the Certificate
Principal Balance of such class of Certificates.
S-70
Percentage of Original Principal Balance Outstanding(1)
Class M-1
Percentage of PPC
-------- --------- ---------- ---------- ----------- ---------- ----------
Distribution ARM: ARM PPC 0.00% 50.00% 75.00% 100.00% 125.00% 150.00% 200.00%
Date Fixed: FRM PPC 0.00% 50.00% 75.00% 100.00% 125.00% 150.00% 200.00%
- ---- -------- --------- ---------- ---------- ----------- ---------- ----------
Initial Percentage............ 100 100 100 100 100 100 100
September 25, 2003............ 100 100 100 100 100 100 100
September 25, 2004............ 100 100 100 100 100 100 100
September 25, 2005............ 100 100 100 100 100 100 77
September 25, 2006............ 100 100 74 51 34 75 50
September 25, 2007............ 100 87 56 34 20 11 17
September 25, 2008............ 100 72 42 23 12 6 2
September 25, 2009............ 100 60 32 16 8 1 0
September 25, 2010............ 100 49 24 11 5 0 0
September 25, 2011............ 100 41 18 7 0 0 0
September 25, 2012............ 100 34 14 5 0 0 0
September 25, 2013............ 100 28 10 1 0 0 0
September 25, 2014............ 100 23 8 0 0 0 0
September 25, 2015............ 100 19 6 0 0 0 0
September 25, 2016............ 100 15 3 0 0 0 0
September 25, 2017............ 100 11 0 0 0 0 0
September 25, 2018............ 100 9 0 0 0 0 0
September 25, 2019............ 100 7 0 0 0 0 0
September 25, 2020............ 100 6 0 0 0 0 0
September 25, 2021............ 100 4 0 0 0 0 0
September 25, 2022............ 100 1 0 0 0 0 0
September 25, 2023............ 100 0 0 0 0 0 0
September 25, 2024............ 96 0 0 0 0 0 0
September 25, 2025............ 87 0 0 0 0 0 0
September 25, 2026............ 77 0 0 0 0 0 0
September 25, 2027............ 66 0 0 0 0 0 0
September 25, 2028............ 54 0 0 0 0 0 0
September 25, 2029............ 41 0 0 0 0 0 0
September 25, 2030............ 27 0 0 0 0 0 0
September 25, 2031............ 11 0 0 0 0 0 0
September 25, 2032............ 0 0 0 0 0 0 0
Weighted Avg. Life to Maturity
(in years) (2)................ 26.12 9.19 6.38 4.98 4.41 4.49 4.02
Weighted Avg. Life to
Call (in years) (2)........... 26.01 8.50 5.81 4.54 4.09 4.09 2.82
- ---------------
(1) Rounded to the nearest whole percentage.
(2) The weighted average life of any class of Certificates is determined by (i)
multiplying the assumed net reduction, if any, in the Certificate Principal
Balance on each Distribution Date of such class of Certificates by the
number of years from the date of issuance of the Certificates to the
related Distribution Date, (ii) summing the results, and (iii) dividing the
sum by the aggregate amount of the assumed net reduction in the Certificate
Principal Balance of such class of Certificates.
S-71
Percentage of Original Principal Balance Outstanding(1)
Class M-2
Percentage of PPC
-------- --------- ---------- ---------- ----------- ---------- ----------
Distribution ARM: ARM PPC 0.00% 50.00% 75.00% 100.00% 125.00% 150.00% 200.00%
Date Fixed: FRM PPC 0.00% 50.00% 75.00% 100.00% 125.00% 150.00% 200.00%
- ---- -------- --------- ---------- ---------- ----------- ---------- ----------
Initial Percentage............ 100 100 100 100 100 100 100
September 25, 2003............ 100 100 100 100 100 100 100
September 25, 2004............ 100 100 100 100 100 100 100
September 25, 2005............ 100 100 100 100 100 100 74
September 25, 2006............ 100 100 74 51 34 21 4
September 25, 2007............ 100 87 56 34 20 11 0
September 25, 2008............ 100 72 42 23 12 3 0
September 25, 2009............ 100 60 32 16 6 0 0
September 25, 2010............ 100 49 24 11 0 0 0
September 25, 2011............ 100 41 18 6 0 0 0
September 25, 2012............ 100 34 14 1 0 0 0
September 25, 2013............ 100 28 10 0 0 0 0
September 25, 2014............ 100 23 6 0 0 0 0
September 25, 2015............ 100 19 2 0 0 0 0
September 25, 2016............ 100 15 0 0 0 0 0
September 25, 2017............ 100 11 0 0 0 0 0
September 25, 2018............ 100 8 0 0 0 0 0
September 25, 2019............ 100 5 0 0 0 0 0
September 25, 2020............ 100 2 0 0 0 0 0
September 25, 2021............ 100 0 0 0 0 0 0
September 25, 2022............ 100 0 0 0 0 0 0
September 25, 2023............ 100 0 0 0 0 0 0
September 25, 2024............ 96 0 0 0 0 0 0
September 25, 2025............ 87 0 0 0 0 0 0
September 25, 2026............ 77 0 0 0 0 0 0
September 25, 2027............ 66 0 0 0 0 0 0
September 25, 2028............ 54 0 0 0 0 0 0
September 25, 2029............ 41 0 0 0 0 0 0
September 25, 2030............ 27 0 0 0 0 0 0
September 25, 2031............ 11 0 0 0 0 0 0
September 25, 2032............ 0 0 0 0 0 0 0
Weighted Avg. Life to Maturity
(in years) (2)................ 26.12 9.07 6.29 4.86 4.17 3.91 3.27
Weighted Avg. Life to
Call (in years) (2)........... 26.01 8.50 5.81 4.50 3.90 3.70 2.91
- ---------------
(1) Rounded to the nearest whole percentage.
(2) The weighted average life of any class of Certificates is determined by (i)
multiplying the assumed net reduction, if any, in the Certificate Principal
Balance on each Distribution Date of such class of Certificates by the
number of years from the date of issuance of the Certificates to the
related Distribution Date, (ii) summing the results, and (iii) dividing the
sum by the aggregate amount of the assumed net reduction in the Certificate
Principal Balance of such class of Certificates.
S-72
Percentage of Original Principal Balance Outstanding(1)
Class M-3
Percentage of PPC
-------- --------- ---------- ---------- ----------- ---------- ----------
Distribution ARM: ARM PPC 0.00% 50.00% 75.00% 100.00% 125.00% 150.00% 200.00%
Date Fixed: FRM PPC 0.00% 50.00% 75.00% 100.00% 125.00% 150.00% 200.00%
- ---- -------- --------- ---------- ---------- ----------- ---------- ----------
Initial Percentage............ 100 100 100 100 100 100 100
September 25, 2003............ 100 100 100 100 100 100 100
September 25, 2004............ 100 100 100 100 100 100 100
September 25, 2005............ 100 100 100 100 100 100 16
September 25, 2006............ 100 100 74 51 34 21 0
September 25, 2007............ 100 87 56 34 20 4 0
September 25, 2008............ 100 72 42 23 6 0 0
September 25, 2009............ 100 60 32 13 0 0 0
September 25, 2010............ 100 49 24 3 0 0 0
September 25, 2011............ 100 41 16 0 0 0 0
September 25, 2012............ 100 34 8 0 0 0 0
September 25, 2013............ 100 28 2 0 0 0 0
September 25, 2014............ 100 23 0 0 0 0 0
September 25, 2015............ 100 18 0 0 0 0 0
September 25, 2016............ 100 11 0 0 0 0 0
September 25, 2017............ 100 3 0 0 0 0 0
September 25, 2018............ 100 0 0 0 0 0 0
September 25, 2019............ 100 0 0 0 0 0 0
September 25, 2020............ 100 0 0 0 0 0 0
September 25, 2021............ 100 0 0 0 0 0 0
September 25, 2022............ 100 0 0 0 0 0 0
September 25, 2023............ 100 0 0 0 0 0 0
September 25, 2024............ 96 0 0 0 0 0 0
September 25, 2025............ 87 0 0 0 0 0 0
September 25, 2026............ 77 0 0 0 0 0 0
September 25, 2027............ 66 0 0 0 0 0 0
September 25, 2028............ 54 0 0 0 0 0 0
September 25, 2029............ 41 0 0 0 0 0 0
September 25, 2030............ 27 0 0 0 0 0 0
September 25, 2031............ 4 0 0 0 0 0 0
September 25, 2032............ 0 0 0 0 0 0 0
Weighted Avg. Life to Maturity
(in years) (2)................ 26.07 8.80 6.05 4.66 3.95 3.59 2.87
Weighted Avg. Life to
Call (in years) (2)........... 26.01 8.50 5.81 4.47 3.82 3.49 2.80
- ---------------
(1) Rounded to the nearest whole percentage.
(2) The weighted average life of any class of Certificates is determined by (i)
multiplying the assumed net reduction, if any, in the Certificate Principal
Balance on each Distribution Date of such class of Certificates by the
number of years from the date of issuance of the Certificates to the
related Distribution Date, (ii) summing the results, and (iii) dividing the
sum by the aggregate amount of the assumed net reduction in the Certificate
Principal Balance of such class of Certificates.
S-73
Percentage of Original Principal Balance Outstanding(1)
Class M-4
Percentage of PPC
-------- --------- ---------- ---------- ----------- ---------- ----------
Distribution ARM: ARM PPC 0.00% 50.00% 75.00% 100.00% 125.00% 150.00% 200.00%
Date Fixed: FRM PPC 0.00% 50.00% 75.00% 100.00% 125.00% 150.00% 200.00%
- ---- -------- --------- ---------- ---------- ----------- ---------- ----------
Initial Percentage............ 100 100 100 100 100 100 100
September 25, 2003............ 100 100 100 100 100 100 100
September 25, 2004............ 100 100 100 100 100 100 100
September 25, 2005............ 100 100 100 100 100 100 0
September 25, 2006............ 100 100 74 51 27 2 0
September 25, 2007............ 100 87 56 29 1 0 0
September 25, 2008............ 100 72 42 7 0 0 0
September 25, 2009............ 100 60 23 0 0 0 0
September 25, 2010............ 100 49 8 0 0 0 0
September 25, 2011............ 100 41 0 0 0 0 0
September 25, 2012............ 100 27 0 0 0 0 0
September 25, 2013............ 100 16 0 0 0 0 0
September 25, 2014............ 100 6 0 0 0 0 0
September 25, 2015............ 100 0 0 0 0 0 0
September 25, 2016............ 100 0 0 0 0 0 0
September 25, 2017............ 100 0 0 0 0 0 0
September 25, 2018............ 100 0 0 0 0 0 0
September 25, 2019............ 100 0 0 0 0 0 0
September 25, 2020............ 100 0 0 0 0 0 0
September 25, 2021............ 100 0 0 0 0 0 0
September 25, 2022............ 100 0 0 0 0 0 0
September 25, 2023............ 100 0 0 0 0 0 0
September 25, 2024............ 96 0 0 0 0 0 0
September 25, 2025............ 87 0 0 0 0 0 0
September 25, 2026............ 77 0 0 0 0 0 0
September 25, 2027............ 66 0 0 0 0 0 0
September 25, 2028............ 54 0 0 0 0 0 0
September 25, 2029............ 41 0 0 0 0 0 0
September 25, 2030............ 14 0 0 0 0 0 0
September 25, 2031............ 0 0 0 0 0 0 0
September 25, 2032............ 0 0 0 0 0 0 0
Weighted Avg. Life to Maturity
(in years) (2)................ 25.87 8.11 5.54 4.27 3.61 3.29 2.65
Weighted Avg. Life to
Call (in years) (2)........... 25.87 8.11 5.54 4.27 3.61 3.29 2.65
- ---------------
(1) Rounded to the nearest whole percentage.
(2) The weighted average life of any class of Certificates is determined by (i)
multiplying the assumed net reduction, if any, in the Certificate Principal
Balance on each Distribution Date of such class of Certificates by the
number of years from the date of issuance of the Certificates to the
related Distribution Date, (ii) summing the results, and (iii) dividing the
sum by the aggregate amount of the assumed net reduction in the Certificate
Principal Balance of such class of Certificates.
S-74
Percentage of Original Principal Balance Outstanding(1)
Class B
Percentage of PPC
-------- --------- ---------- ---------- ----------- ---------- ----------
Distribution ARM: ARM PPC 0.00% 50.00% 75.00% 100.00% 125.00% 150.00% 200.00%
Date Fixed: FRM PPC 0.00% 50.00% 75.00% 100.00% 125.00% 150.00% 200.00%
- ---- -------- --------- ---------- ---------- ----------- ---------- ----------
Initial Percentage............ 100 100 100 100 100 100 100
September 25, 2003............ 100 100 100 100 100 100 100
September 25, 2004............ 100 100 100 100 100 100 100
September 25, 2005............ 100 100 100 100 100 100 0
September 25, 2006............ 100 100 57 18 0 0 0
September 25, 2007............ 100 78 27 0 0 0 0
September 25, 2008............ 100 54 3 0 0 0 0
September 25, 2009............ 100 33 0 0 0 0 0
September 25, 2010............ 100 16 0 0 0 0 0
September 25, 2011............ 100 1 0 0 0 0 0
September 25, 2012............ 100 0 0 0 0 0 0
September 25, 2013............ 100 0 0 0 0 0 0
September 25, 2014............ 100 0 0 0 0 0 0
September 25, 2015............ 100 0 0 0 0 0 0
September 25, 2016............ 100 0 0 0 0 0 0
September 25, 2017............ 100 0 0 0 0 0 0
September 25, 2018............ 100 0 0 0 0 0 0
September 25, 2019............ 100 0 0 0 0 0 0
September 25, 2020............ 100 0 0 0 0 0 0
September 25, 2021............ 100 0 0 0 0 0 0
September 25, 2022............ 100 0 0 0 0 0 0
September 25, 2023............ 100 0 0 0 0 0 0
September 25, 2024............ 93 0 0 0 0 0 0
September 25, 2025............ 78 0 0 0 0 0 0
September 25, 2026............ 62 0 0 0 0 0 0
September 25, 2027............ 43 0 0 0 0 0 0
September 25, 2028............ 24 0 0 0 0 0 0
September 25, 2029............ 2 0 0 0 0 0 0
September 25, 2030............ 0 0 0 0 0 0 0
September 25, 2031............ 0 0 0 0 0 0 0
September 25, 2032............ 0 0 0 0 0 0 0
Weighted Avg. Life to Maturity
(in years) (2)................ 24.58 6.37 4.37 3.49 3.15 3.08 2.58
Weighted Avg. Life to
Call (in years) (2)........... 24.58 6.37 4.37 3.49 3.15 3.08 2.58
- ---------------
(1) Rounded to the nearest whole percentage.
(2) The weighted average life of any class of Certificates is determined by (i)
multiplying the assumed net reduction, if any, in the Certificate Principal
Balance on each Distribution Date of such class of Certificates by the
number of years from the date of issuance of the Certificates to the
related Distribution Date, (ii) summing the results, and (iii) dividing the
sum by the aggregate amount of the assumed net reduction in the Certificate
Principal Balance of such class of Certificates.
S-75
Final Scheduled Distribution Dates
The Final Scheduled Distribution Date of each class of Offered
Certificates is set forth under "Summary of Prospectus Supplement" in this
prospectus supplement. The Final Scheduled Distribution Date for the Class A-1,
Class A-2, Class M-1, Class M-2, Class M-3, Class M-4 and Class B Certificates
has been calculated on the basis of the Structuring Assumptions and the
assumption that there are no prepayments. The Class A-2 Certificates will be
subject to the mandatory auction call and will be required to be sold for their
Par Price, in September 2004. See "Description of the Certificates--Mandatory
Auction Call of the Class A-2 Certificates" in this prospectus supplement. Since
the rate of distributions in reduction of the Certificate Principal Balance of
each class of Offered Certificates will depend on the rate of payment (including
prepayments) of the Mortgage Loans, the Certificate Principal Balance of any
such Class could be reduced to zero significantly earlier or later than the
Final Scheduled Distribution Date. The Final Scheduled Distribution Date for the
Class AIO Certificates is in March 2005. The rate of payments on the Mortgage
Loans will depend on their particular characteristics, as well as on prevailing
interest rates from time to time and other economic factors, and no assurance
can be given as to the actual payment experience of the Mortgage Loans.
Special Yield Considerations relating to the Class AIO Certificates
Investors should note that the Class AIO Certificates are entitled to
distributions only through the Distribution Date in March 2005. In addition, if,
at any time on or prior to March 1, 2005, the aggregate principal balance of the
Mortgage Loans is reduced to or below $26,016,000, the yield to investors in the
Class AIO Certificates will become extremely sensitive to the rate and timing of
principal payments on the Mortgage Loans (including prepayments, defaults and
liquidations), which rate may fluctuate significantly over time. Further, if the
Optional Termination Date occurs prior to the Distribution Date in March 2005
and the Class CE Majority Holders or the Servicer effect an optional
termination, then the Class AIO Certificates will receive no further
distributions. Investors in the Class AIO Certificates should consider the risk
that an extremely rapid rate of prepayments on the Mortgage Loans could result
in the failure of such investors to fully recover their investments.
Based on the Structuring Assumptions, and further assuming prepayments
on all the Mortgage Loans at a rate of approximately 63% CPR and also that the
optional termination is exercised at the earliest date possible, and an assumed
purchase price for the Class AIO Certificates of $2,698,865.15 (which includes
accrued interest), the pre-tax yield to maturity of the Class AIO Certificates
would be approximately 0%. If the actual prepayment rate on the Mortgage Loans
were to exceed such rate, then assuming the Mortgage Loans behave in conformity
with all other Structuring Assumptions, initial investors in the Class AIO
Certificates would not fully recover their initial investment. 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. Investors must make their own decisions as to the
appropriate prepayment assumption to be used in deciding whether to purchase any
Class AIO Certificates.
The 0% pre-tax yield described above was calculated by determining the
monthly discount rates which, when applied to the assumed stream of cash flow to
be paid on the Class AIO Certificates, would cause the discounted present value
of such assumed stream of cash flow to the Closing Date to equal the assumed
purchase price (which includes accrued interest), and converting such monthly
rate to a corporate bond equivalent rate. Such calculations do not take into
account the interest rates at which funds received by holders of the Class AIO
Certificates may be reinvested and consequently does not purport to reflect the
return on any investment in the Class AIO Certificates when such reinvestment
rates are considered.
USE OF PROCEEDS
The Depositor will apply the net proceeds of the sale of the Offered
Certificates to the purchase price of the Mortgage Loans transferred to the
Trust Fund. See "Method of Distribution" in this prospectus supplement.
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MATERIAL FEDERAL INCOME TAX CONSEQUENCES
General
The Pooling and Servicing Agreement provides that the Trust Fund will
comprise multiple REMICs organized in a tiered REMIC structure consisting of one
or more Lower Tier REMICs and one Upper Tier REMIC. Each Lower Tier REMIC will
issue uncertificated regular interests and those interests will be held entirely
by the REMIC immediately above it in the tiered structure. Each of the Lower
Tier REMICs and the Upper Tier REMIC will designate a single class of interests
as the residual interest in that REMIC. The Class R Certificate will represent
beneficial ownership of the residual interests in each of the REMICs. Elections
will be made to treat each Lower Tier REMIC and the Upper Tier REMIC as a REMIC
for federal income tax purposes. The Class AIO Certificates will represent a
class of regular interests issued by the Upper Tier REMIC. Except to the extent
described in the next paragraph, each of the other classes of Offered
Certificates will represent beneficial ownership of the corresponding class of
regular interests issued by the Upper Tier REMIC. The Trust Fund also will
include a grantor trust which will hold certain of the uncertificated interests
in the Upper Tier REMIC and the Notional Principal Arrangements, as defined
below.
The Offered Certificates (other than the Class AIO Certificates) will
represent beneficial ownership of the corresponding class of regular interests
issued by the Upper Tier REMIC and of the right to receive Net WAC Rate
Carryover Amounts from amounts otherwise distributable to the Class CE
Certificates as part of the Monthly Excess Cashflow Amount. Holders of such
Offered Certificates must allocate their tax basis between their regular
interest and their right to receive such Net WAC Rate Carryover Amounts. Prior
to the Distribution Date in September 2004, the Class A-2 Certificates also will
represent beneficial ownership of certain rights and obligations under the
Auction Swap Agreement. Holders of the Class A-2 Certificates prior to the
Distribution Date in September 2004 must allocate their tax basis among their
regular interest, their right to receive Net WAC Rate Carryover Amounts, and
their rights and obligations under the Auction Swap Agreement. See "--Taxation
of Notional Principal Arrangements."
Upon the issuance of the Offered Certificates, Hunton & Williams ("Tax
Counsel") will deliver its opinion to the effect that, assuming compliance with
the Pooling and Servicing Agreement, for federal income tax purposes, each Lower
Tier REMIC and the Upper Tier REMIC will qualify as a REMIC within the meaning
of Section 860D of the Internal Revenue Code of 1986, as amended (the "Code")
and the portion of the Trust Fund exclusive of the REMICs, representing (i)
certain uncertificated regular interests in the Upper Tier REMIC, (ii) the right
to receive Net WAC Rate Carryover Amounts, (iii) certain rights and obligations
under the Auction Swap Agreement, and (iv) the right of the Class P Certificates
to receive prepayment premiums, will qualify as one or more grantor trusts under
subpart E, Part 1 of Subchapter J of the Code.
Taxation of Regular Certificates
For federal income tax reporting purposes, the Class AIO Certificates
will be issued with original issue discount and the regular interest portion of
the other classes of Offered Certificates may be treated as having been issued
with original issue discount ("OID"). The prepayment assumption that will be
used in determining the rate of accrual of original issue discount, premium and
market discount, if any, for federal income tax purposes will be based on the
assumption that subsequent to the date of any determination the adjustable-rate
Mortgage Loans will prepay at a constant rate of 100% ARM PPC and the fixed-rate
Mortgage Loans will prepay at a rate equal to 100% FRM PPC. No representation is
made that the Mortgage Loans will prepay at such rate or at any other rate. See
"Federal Income Tax Consequences--REMICs--Taxation of Owners of Regular
Securities--Original Issue Discount" in the prospectus.
Although unclear for federal income tax purposes, it is anticipated
that the Class AIO Certificates will be considered to be issued with OID in an
amount equal to the excess of all distributions of interest expected to be
received thereon over their issue price (including accrued interest). Any
"negative" amounts of OID on the Class AIO Certificates attributable to rapid
repayments with respect to the Mortgage Loans will not be deductible currently,
but may be offset against future positive accruals of OID, if any. Finally, a
holder of a Class AIO Certificate may be entitled to a loss deduction to the
extent it becomes certain that such holder will not recover a portion of its
basis in such Certificate, assuming no further prepayments. In the alternative,
it is possible that rules similar to the "noncontingent bond method" of the
contingent payment debt obligation rules in the OID Regulations (as defined
below) may be promulgated with respect to the Class AIO Certificates. See
"Federal Income Tax Consequences--REMICs--Taxation of Owners of Regular
Securities--Original Issue Discount" in the prospectus. Investors should consult
their own tax advisors as to the application of the noncontingent bond method.
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The IRS has issued regulations (the "OID Regulations") under Sections
1271 to 1275 of the Code generally addressing the treatment of debt instruments
issued with original issue discount. Purchasers of the Offered Certificates
should be aware that the OID Regulations do not adequately address certain
issues relevant to, or are not applicable to, securities such as the Offered
Certificates. Because of the uncertainty concerning the application of Section
1272(a)(6) of the Code to such Certificates, and because the rules of the OID
Regulations are limited in their application in ways that could preclude their
application to such Certificates even in the absence of Section 1272(a)(6) of
the Code, the IRS could assert that the Offered Certificates should be treated
as issued with original issue discount or should be governed by the rules
applicable to debt instruments having contingent payments or by some other
manner not yet set forth in regulations. Prospective purchasers of the Offered
Certificates are advised to consult their tax advisors concerning the tax
treatment of such Certificates.
The REMIC regular interests represented by the Offered Certificates
generally will be treated as assets described in Section 7701(a)(19)(C) of the
Code and "real estate assets" under Section 856(c)(4)(A) of the Code, in the
same proportion that the assets in the related REMICs would be so treated. In
addition, interest on the Offered Certificates that is attributable to interest
on the underlying REMIC regular interests generally will be treated as "interest
on obligations secured by mortgages on real property" under Section 856(c)(3)(B)
of the Code, to the extent that such regular interests are treated as "real
estate assets" under Section 856(c)(4)(A) of the Code. See "Federal Income Tax
Consequences--REMICs--Characterization of Investments in REMIC Securities" in
the prospectus. If more than 95% of the regular interests and income qualify for
these treatments, the regular interests generally will qualify for such
treatments in their entirety. The foregoing tax treatments, however, will not
apply to the right to receive Net WAC Rate Carryover Amounts or payments under
the Auction Swap Agreement or any income attributable thereto. In addition,
because the Offered Certificates (other than the Class AIO Certificates) include
rights under these arrangements, those Certificates are not suitable for
inclusion in another REMIC.
Taxation of Notional Principal Arrangements
General. Each holder of an Offered Certificate (other than a Class AIO
Certificate) will be treated for federal income tax purposes as having entered
into a notional principal contract pursuant to its rights to receive payment
with respect to Net WAC Rate Carryover Amounts on the date it purchases its
Certificates. Each holder of Class A-2 Certificates prior to the Distribution
Date in September 2004 also will be treated for federal income tax purposes as
having entered into a notional principal contract pursuant to its rights and
obligations under the Auction Swap Agreement on the date it purchases its
Certificates. The rights to receive such payments (referred to as the "Notional
Principal Arrangements") are beneficially owned by holders of Offered
Certificates in the portion of the Trust Fund, exclusive of the REMICs, which is
treated as a grantor trust for federal income tax purposes. The Internal Revenue
Service (the "IRS") has issued final regulations under Section 446 of the Code
relating to notional principal contracts (the "Swap Regulations").
In general, the holders of the Offered Certificates (other than the
Class AIO Certificates) must allocate the price they pay for such Offered
Certificates between their REMIC regular interest and the applicable Notional
Principal Arrangements based on their relative fair market values. To the extent
that the Notional Principal Arrangements are determined to have a value on the
acquisition date for an Offered Certificate (other than a Class AIO Certificate)
that is greater than zero, a portion of such purchase price will be allocable to
such rights, and such portion will be treated as a notional principal contract
premium (the "NPC Premium") paid by the holder of such Offered Certificate. A
holder of such an Offered Certificate will be required to amortize the NPC
Premium under a level payment method as if the NPC Premium represented the
present value of a series of equal payments made over the life of the applicable
Notional Principal Arrangement (adjusted to take into account decreases in
notional principal amount), discounted at a rate equal to the rate used to
determine the amount of the NPC Premium (or some other reasonable rate).
Prospective purchasers of Offered Certificates (other than the Class AIO
Certificates) should consult their own tax advisors regarding the appropriate
method of amortizing any NPC Premium. The Swap Regulations treat a nonperiodic
payment made under a cap contract as a loan for federal income tax purposes if
the payment is "significant." It is not known whether any NPC Premium would be
treated in part as a loan under the Swap Regulations.
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Under the Swap Regulations (i) all taxpayers must recognize periodic
payments with respect to a notional principal contract under the accrual method
of accounting, and (ii) any periodic payments received under the applicable
Notional Principal Arrangement must be netted against payments, if any, deemed
made as a result of the NPC Premiums over the recipient's taxable year, rather
than accounted for on a gross basis. Net income or deduction with respect to net
periodic payments under a notional principal contract for a taxable year should
constitute ordinary income or ordinary deduction. The IRS could contend the
amount is capital gain or loss, but such treatment is unlikely, at least in the
absence of further regulations. Any regulations requiring capital gain or loss
treatment presumably should apply only prospectively. Individuals may be limited
in their ability to deduct any such net deduction and should consult their tax
advisors prior to investing in the Offered Certificates.
Any amount of proceeds from the sale, redemption or retirement of an
Offered Certificate that is considered to be allocated to rights under a
Notional Principal Arrangement would be considered a "termination payment" under
the Swap Regulations. It is anticipated that the Trustee will account for any
termination payments for reporting purposes in accordance with the Swap
Regulations, as described below.
Termination Payments. Any amount of sales proceeds that is considered
to be allocated to the selling beneficial owner's rights under the applicable
Notional Principal Arrangement in connection with the sale or exchange of an
Offered Certificate would be considered a "termination payment" under the Swap
Regulations allocable to that Offered Certificate. A holder of an Offered
Certificate will have gain or loss from such a termination of a Notional
Principal Arrangement equal to (i) any termination payment it receives or is
deemed to have received minus (ii) the unamortized portion of any NPC Premium
paid (or deemed paid) by the beneficial owner upon entering into or acquiring
its interest in a Notional Principal Arrangement.
Gain or loss realized upon the termination of a Notional Principal
Arrangement will generally be treated as capital gain or loss. Moreover, in the
case of a bank or thrift institution, Code Section 582(c) would likely not apply
to treat such gain or loss as ordinary income or loss.
REMIC Taxes and Reporting
It is not anticipated that any REMIC will engage in any transactions
that would subject it to the prohibited transactions tax as defined in Section
860F(a)(2) of the Code, the prohibited contributions tax as defined in Section
860G(d) of the Code or the tax on net income from foreclosure property as
defined in Section 860G(c) of the Code. However, in the event that any such tax
is imposed on any REMIC, such tax will be borne (i) by the Trustee or the
Securities Administrator, if the Trustee or the Securities Administrator,
respectively, has breached its obligations with respect to REMIC compliance
under the Agreement, (ii) the Servicer, if the Servicer has breached its
obligations with respect to REMIC compliance under the Agreement, and (iii)
otherwise by the REMIC, with a resulting reduction in amounts otherwise
distributable to Holders of the Offered Certificates. See "Description of the
Securities--General" and "Federal Income Tax Consequences--REMICs--Taxes That
May Be Imposed on the REMIC Pool--Prohibited Transactions" in the prospectus.
The responsibility for filing annual federal information returns and
other reports will be borne by the Securities Administrator. See "Federal Income
Tax Consequences--REMICs--Taxes That May Be Imposed on the REMIC
Pool--Administrative Matters" in the prospectus.
For further information regarding the federal income tax consequences
of investing in the Offered Certificates, see "Federal Income Tax
Consequences--REMICs" in the prospectus.
STATE TAXES
The Depositor makes no representations regarding the tax consequences
of purchase, ownership or disposition of the Offered Certificates under the tax
laws of any state. Investors considering an investment in the Offered
Certificates should consult their own tax advisors regarding such tax
consequences.
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All investors should consult their own tax advisors regarding the
federal, state, local or foreign income tax consequences of the purchase,
ownership and disposition of the Offered Certificates.
ERISA CONSIDERATIONS
Section 406 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), prohibits "parties in interest" with respect to an employee
benefit plan subject to ERISA and/or a plan or other arrangement subject to the
excise tax provisions set forth under Section 4975 of the Code (each of the
foregoing, an "ERISA Plan") from engaging in certain transactions involving such
ERISA Plan and its assets unless a statutory, regulatory or administrative
exemption applies to the transaction. Section 4975 of the Code imposes certain
excise taxes on prohibited transactions involving plans described under that
Section; ERISA authorizes the imposition of civil penalties for prohibited
transactions involving plans not covered under Section 4975 of the Code. Any
ERISA Plan fiduciary which proposes to cause an ERISA Plan to acquire any of the
Offered Certificates should consult with its counsel with respect to the
potential consequences under ERISA and the Code of the ERISA Plan's acquisition
and ownership of such Certificates. See "ERISA Considerations" in the
prospectus.
Certain employee benefit plans, including governmental plans and
certain church plans (collectively with ERISA Plans, "Plans"), are not subject
to ERISA's requirements. However, such plans may be subject to the provisions of
other applicable federal, state or local law ("Similar Law") materially similar
o the foregoing provisions of ERISA or the Code. Any such plan which is
qualified and exempt from taxation under Sections 401(a) and 501(a) of the Code
may nonetheless be subject to the prohibited transaction rules set forth in
Section 503 of the Code.
Except as noted above, investments by Plans are subject to ERISA's
general fiduciary requirements, including the requirement of investment prudence
and diversification and the requirement that a Plan's investments be made in
accordance with the documents governing the Plan. A fiduciary which decides to
invest the assets of a Plan in the Offered Certificates should consider, among
other factors, the extreme sensitivity of the investments to the rate of
principal payments (including prepayments) on the Mortgage Loans.
On May 14, 1993, the DOL granted to NationsBank Corporation, the
predecessor to Bank of America Corporation, the corporate parent of Banc of
America Securities LLC ("Banc of America Securities"), an individual
administrative exemption, Prohibited Transaction Exemption 93-31 (the "Banc of
America Securities Exemption"), on November 13, 2000, the DOL issued to
Countrywide Securities Corporation ("Countrywide") an individual administrative
exemption, Prohibited Transaction Exemption 2000-55 (the "Countrywide
Exemption") and on September 6, 1990, the DOL issued to Greenwich Capital
Markets, Inc., ("Greenwich"), an individual administrative exemption, Prohibited
Transaction Exemption 90-59 (the "Greenwich Exemption," and, together with the
Banc of America Securities Exemption and the Countrywide Exemption, the
"Exemptions" and each as amended by Prohibited Transaction Exemption 2000-58 and
Prohibited Transaction Exemption 2002-41, an "Exemption") from certain of the
prohibited transaction rules of ERISA and the related excise tax provisions of
Section 4975 of the Code with respect to the servicing, management and operation
of the Trust Fund and 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 Exemptions. The Exemptions can apply to certificates in a
pass-through trust holding mortgage loans, and the Exemptions may apply to the
Offered Certificates to the extent the conditions of the Exemptions are met.
Among the conditions that must be satisfied for the Exemptions 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 certificates acquired by the Plan have received a rating at the
time of such acquisition that is one of the four highest generic rating
categories from Standard and Poor's Ratings Services, Moody's or Fitch
(collectively, the "Exemption Rating Agencies");
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(3) the trustee must not be an affiliate of any other member of the
Restricted Group (as defined below) other than an Underwriter;
(4) 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 the servicer represents not more
than reasonable compensation for such person's services under the agreement
pursuant to which the loans are pooled and reimbursements of such person's
reasonable expenses in connection therewith; and
(5) 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 four highest generic rating categories by an
Exemption Rating Agency 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 any Plan's acquisition of the
certificates.
Moreover, the Exemptions provide 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 holding
receivables as to which the fiduciary (or its affiliate) is an obligor provided
that, among other requirements, (i) in the case of an acquisition in connection
with the initial issuance of certificates, at least fifty percent (50%) of each
class of certificates in which Plans have invested is acquired by persons
independent of the Restricted Group; (ii) such fiduciary (or its affiliate) is
an obligor with respect to five percent (5%) 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 (25%) 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 (25%)
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 Exemptions do not
apply to Plans sponsored by the Underwriters, the Trustee, the Servicer, the
Securities Administrator, 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").
The Exemptions will apply to the acquisition and holding by Plans of
the Offered Certificates (except as described below with respect to the Class
A-2 Certificates) if all conditions of the Exemptions are met.
Prospective Plan investors should consult with their legal advisors
concerning the impact of ERISA, the Code and Similar Law, the applicability of
PTCE 83-1 described in the prospectus and the Exemptions, and the potential
consequences in their specific circumstances, prior to making an investment in
the Offered Certificates. Moreover, each Plan fiduciary should determine whether
under the general fiduciary standards of investment prudence and
diversification, an investment in the Offered Certificates is appropriate for
the Plan, taking into account the overall investment policy of the Plan and the
composition of the Plan's investment portfolio.
It should be noted that in promulgating the Exemptions (and PTCE 83-1),
the DOL may not have had under its consideration pools with features of the
exact nature as those of the Mortgage Pool.
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ERISA Considerations With Respect to a Class A-2 Certificateholder's Interest in
the Auction Swap Agreement
The beneficial ownership of certain rights and obligations under the
Auction Swap Agreement by holders of the Class A-2 Certificates prior to the
Distribution Date in September 2004 is not eligible for the exemptive relief
available under the Exemptions. The transactions under the Auction Swap
Agreement are likely to be characterized under ERISA and Section 4975 of the
Code as principal transactions between the owner of a Class A-2 Certificate and
the Swap Counterparty. Therefore, the purchase of a Class A-2 Certificate before
the Distribution Date in September 2004 by a Plan under certain circumstances
could be characterized as, or result in, a prohibited transaction under ERISA
and Section 4975 of the Code between a Plan that holds the Class A-2 Certificate
and the Swap Counterparty (if it is a "party in interest" with respect to the
Plan under ERISA and Section 4975 of the Code), unless an exemption is
available. Accordingly, no Plan or other person investing the assets of a Plan
subject to ERISA or Section 4975 of the Code may acquire or hold a Class A-2
Certificate before the Distribution Date in September 2004 unless such
acquisition or holding is eligible for the exemptive relief available under
Department of Labor Prohibited Transaction Class Exemption ("PTCE") 84-14 (for
transactions by independent "qualified professional asset managers"), PTCE 91-38
(for transactions by bank collective investment funds), PTCE 90-1 (for
transactions by insurance company pooled separate accounts), PTCE 95-60 (for
transactions by insurance company general accounts) or PTCE 96-23 (for
transactions effected by "in-house asset managers") (collectively, the "Investor
Based Exemptions"). Plan fiduciaries should consult their legal counsel
concerning these issues. Each beneficial owner of a Class A-2 Certificate, or
any interest therein, prior to the Distribution Date in September 2004, shall be
deemed to have represented, by virtue of its acquisition or holding of that
certificate, or interest therein, that either (i) it is not a Plan or person
investing the assets of a Plan subject to ERISA or Section 4975 of the Code or
(ii) the acquisition and holding of the Class A-2 Certificate are eligible for
the exemptive relief available under one or more of the Investor Based
Exemptions.
Any purported acquisition or holding of the Class A-2 Certificates, or
interest therein, in violation of the provisions of the preceding paragraph
shall be void ab initio and any purchaser or transferee of a Class A-2
Certificate before the Distribution Date in September 2004 shall indemnify and
hold harmless the Depositor, the Trustee, the Securities Administrator, the
Auction Administrator, the Seller, the Servicer and the Trust from and against
any and all liabilities, claims, costs or expenses incurred by such parties as a
result of such acquisition or holding.
LEGAL INVESTMENT
The Class A-1, Class A-2, Class AIO and Class M-1 Certificates will
constitute "mortgage related securities" for purposes of the Secondary Mortgage
Market Enhancement Act of 1984, as amended ("SMMEA"), so long as they are rated
in one of the two highest rating categories by at least one nationally
recognized statistical rating organization. The Class M-2, Class M-3, Class M-4
and Class B Certificates will not constitute "mortgage related securities" under
SMMEA.
There may be restrictions on the ability of certain investors,
including depository institutions, either to purchase the Offered Certificates
or to purchase Offered Certificates representing more than a specified
percentage of the investor's assets. Investors should consult their own legal
advisors in determining whether and to what extent the Offered Certificates
constitute legal investments for such investors. See "Legal Investment" in the
prospectus.
METHOD OF DISTRIBUTION
Subject to the terms and conditions set forth in the Underwriting
Agreement, among the Depositor, Banc of America Securities, Countrywide
Securities Corporation and Greenwich Capital Markets, Inc. (each an
"Underwriter" and collectively, the "Underwriters"), the Underwriters have
agreed to purchase and the Depositor has agreed to sell to the Underwriters the
Offered Certificates as follows: Banc of America Securities will acquire
approximately 80% of the Class A-1 Certificates, the Class A-2 Certificates, the
Class M-1 Certificates, the Class M-2 Certificates and the Class M-3
Certificates and 100% of the Class AIO Certificates, the Class M-4 Certificates
and the Class B Certificates; Countrywide Securities Corporation will acquire
approximately 10% of the Class A-1 Certificates, the Class A-2 Certificates, the
Class M-1 Certificates, the Class M-2 Certificates and the Class M-3
Certificates; and Greenwich Capital Markets, Inc. will acquire approximately 10%
of the Class A-1 Certificates, the Class A-2 Certificates, the Class M-1
Certificates, the Class M-2 Certificates and the Class M-3 Certificates.
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Distribution of the Offered Certificates will be made by the
Underwriters from time to time in negotiated transactions or otherwise at
varying prices to be determined at the times of sale. The Underwriters may
effect such transactions by selling Offered Certificates to or through dealers
and such dealers may receive from the Underwriters, for which it acts as agent,
compensation in the form of underwriting discounts, concessions or commissions.
The Underwriters and any dealers that participate with the Underwriters in the
distribution of such Offered Certificates may be deemed to be underwriters, and
any discounts, commissions or concessions received by them, and any profits on
resale of the Offered Certificates purchased by them, may be deemed to be
underwriting discounts and commissions under the 1933 Act.
The Depositor has been advised by the Underwriters that they intend to
make a market in the Offered Certificates but have no obligation to do so. There
can be no assurance that a secondary market for the Offered Certificates will
develop or, if it does develop, that it will continue.
Banc of America Securities is an affiliate of the Depositor. This
prospectus supplement and the prospectus may be used by Banc of America
Securities, to the extent required, in connection with market making
transactions in the Offered Certificates. Banc of America Securities may act as
principal or agent in such transactions.
The Depositor has agreed to indemnify the Underwriters and certain of
their controlling persons against, or make contributions to the Underwriters and
such controlling persons with respect to, certain liabilities, including
liabilities under the Act.
LEGAL MATTERS
Certain matters relating to the validity of the Offered Certificates
and certain tax matters will be passed upon for the Depositor and Underwriters
by Hunton & Williams.
RATINGS
It is a condition to the issuance of the Offered Certificates that the
Certificates receive the following ratings from Moody's, Fitch and S&P:
Class Moody's S&P Fitch
----- ------- --- -----
A-1 Aaa AAA AAA
A-2 Aaa AAA AAA
AIO Aaa AAA AAA
M-1 Aa2 AA AA+
M-2 A2 A A
M-3 Baa2 BBB BBB
M-4 Baa3 BBB- BBB-
B Ba1 BBB- BBB-
A securities rating addresses the likelihood of the receipt by a
Certificateholder of distributions on the Mortgage Loans. The rating takes into
consideration the characteristics of the Mortgage Loans and the structural,
legal and tax aspects associated with the certificates. The ratings on the
Offered Certificates do not, however, constitute statements regarding the
frequency of prepayments on the Mortgage Loans, the possibility that a holder of
an Offered Certificate might realize a lower than anticipated yield or the
likelihood that you will receive any Net WAC Rate Carryover Amounts.
S-83
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. In the event that the ratings
initially assigned to any of the Offered Certificates by the Rating Agencies are
subsequently lowered for any reason, no person or entity is obligated to provide
any additional support or credit enhancement with respect to such Offered
Certificates.
S-84
INDEX OF PRINCIPAL DEFINITIONS
60+ Day Delinquent Loan..........................S-56
Accrued Certificate Interest.....................S-52
Adjustable-Rate Mortgage Loans...................S-22
Adjusted Net Maximum Mortgage Rate...............S-60
Adjusted Net Mortgage Rate.......................S-60
Advance..........................................S-43
Applied Realized Loss Amount.....................S-57
ARM PPC..........................................S-66
Auction Distribution Date........................S-61
Auction Price....................................S-62
Auction Swap Agreement................S-9, S-16, S-62
Available Funds..................................S-51
Balloon Mortgage Loan............................S-22
Balloon Payment..................................S-22
Banc of America Securities.......................S-80
Banc of America Securities Exemption.............S-80
Basic Principal Distribution Amount..............S-54
BBA Interest Settlement Rate.....................S-61
beneficial owner.................................S-48
Book-Entry Certificates..........................S-47
Business Day.....................................S-42
Certificate Margin...............................S-60
Certificate Owners...............................S-47
Certificate Principal Balance....................S-54
Certificateholder................................S-48
Certificates.....................................S-47
Class A Principal Distribution Amount............S-54
Class B Principal Distribution Amount............S-55
Class CE Majority Holders........................S-45
Class M-1 Principal Distribution Amount..........S-54
Class M-2 Principal Distribution Amount..........S-54
Class M-3 Principal Distribution Amount..........S-55
Class M-4 Principal Distribution Amount..........S-55
Clearstream Participants.........................S-49
Closing Date.....................................S-41
Code.............................................S-77
Collection Account...............................S-42
Compensating Interest............................S-45
Cooperative......................................S-49
Countrywide......................................S-80
Countrywide Exemption............................S-80
CPR..............................................S-66
Credit Enhancement Percentage....................S-55
Credit Risk Management Fee Rate..................S-60
Credit Risk Manager..............................S-44
Credit Risk Manager Fee..........................S-44
Credit Risk Manager Fee Rate.....................S-44
Cumulative Realized Loss Percentage..............S-55
Cut-off Date.....................................S-21
Cut-off Date Principal Balance...................S-21
DEC Tables.......................................S-66
Defective Mortgage Loans.........................S-42
Deficient Valuation..............................S-57
Definitive Certificate...........................S-48
Delinquent.......................................S-45
Determination Date...............................S-45
Distribution Account.............................S-42
Distribution Date................................S-47
DTC..............................................S-87
Due Date.........................................S-22
Due Period.......................................S-51
Eligible Account.................................S-42
Eligible Substitute Mortgage Loan................S-41
ERISA............................................S-80
ERISA Plan.......................................S-80
Euroclear........................................S-49
Euroclear Operator...............................S-49
Euroclear Participants...........................S-49
European Depositaries............................S-48
Exemption........................................S-80
Exemption Rating Agencies........................S-80
Extra Principal Distribution Amount..............S-56
FICO Scores......................................S-25
Financial Intermediary...........................S-48
Fitch............................................S-10
Fixed-Rate Mortgage Loans........................S-22
Formula Rate.....................................S-60
FRM PPC..........................................S-66
Global Securities................................S-87
Greenwich........................................S-80
Greenwich Exemption..............................S-80
IML..............................................S-49
Indirect Participants............................S-47
Insurance Proceeds...............................S-51
Interest Accrual Period..........................S-52
Interest Percentage..............................S-52
Interest Remittance Amount.......................S-52
Investor Based Exemptions........................S-82
IRS..............................................S-78
LIBOR............................................S-60
LIBOR Determination Date.........................S-61
Liquidated Mortgage Loan.........................S-57
Loan-to-Value Ratio..............................S-29
Maximum Cap Rate.................................S-60
Mezzanine Certificates...........................S-47
Monthly Excess Cashflow Amount...................S-58
Monthly Payment..................................S-45
Moody's..........................................S-10
Mortgage.........................................S-21
Mortgage Interest Rate...........................S-22
Mortgage Loan Purchase Agreement.................S-21
Mortgage Loan Schedule...........................S-41
Mortgage Loans...................................S-21
Mortgage Pool....................................S-21
Mortgaged Property...............................S-21
Net Liquidation Proceeds.........................S-51
S-85
Net Mortgage Interest Rate.......................S-22
Net WAC Cap......................................S-61
Net WAC Rate.....................................S-60
Net WAC Rate Carryover Amount....................S-53
New Regulations..................................S-90
Notional Principal Arrangements..................S-78
NPC Premium......................................S-78
Offered Certificates.............................S-47
OID..............................................S-77
OID Regulations..................................S-78
Optional Termination Date........................S-45
Originator.......................................S-36
Overcollateralization Amount.....................S-56
Overcollateralization Deficiency Amount..........S-56
Overcollateralization Release Amount.............S-56
Overcollateralization Release Amounts............S-58
Overcollateralization Target Amount..............S-56
Par Price........................................S-62
Participants.....................................S-47
Pass-Through Rate................................S-59
Plans............................................S-80
Pool Balance.....................................S-21
Pooling and Servicing Agreement..................S-40
Prepayment Interest Shortfall....................S-45
Prepayment Models................................S-66
Prepayment Period................................S-51
Principal Balance................................S-21
Principal Distribution Amount....................S-56
Principal Remittance Amount......................S-56
PTCE.............................................S-82
Purchase Price...................................S-41
Realized Loss....................................S-57
Record Date......................................S-47
Reference Banks..................................S-61
Related Documents................................S-41
Relevant Depositary..............................S-48
Relief Act.......................................S-43
REMIC............................................S-10
Residual Certificates............................S-47
Restricted Group.................................S-81
Rules............................................S-48
S&P..............................................S-10
Securities Administration Fee....................S-44
Securities Administration Fee Rate...............S-61
Securities Administrator.........................S-44
Seller...........................................S-36
Senior Certificates..............................S-47
Servicer.........................................S-36
Servicer Modification............................S-57
Servicing Advance................................S-43
Servicing Fee....................................S-45
Servicing Fee Rate...............................S-45
Similar Law......................................S-80
Six-Month LIBOR..................................S-34
SMMEA............................................S-82
Stepdown Date....................................S-56
Structuring Assumptions..........................S-66
Subordinate Certificates.........................S-47
Substitution Adjustment..........................S-41
Swap Counterparty................................S-62
Swap Regulations.................................S-78
Tax Counsel......................................S-77
Telerate page 3750...............................S-61
Termination Price................................S-45
Terms and Conditions.............................S-49
Trigger Event....................................S-57
Trust Fund.......................................S-21
Trustee..........................................S-44
Trustee Fee......................................S-44
U.S. Person......................................S-90
Underwriter......................................S-82
Underwriters.....................................S-82
Unpaid Interest Shortfall Amount.................S-52
Value I.T........................................S-40
S-86
ANNEX I
GLOBAL CLEARANCE, SETTLEMENT AND TAX DOCUMENTATION PROCEDURES
Except in certain limited circumstances, the Offered Certificates will
be offered globally (the "Global Securities") and 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"), Clearstream or
Euroclear. The Global Securities will be tradable as home market instruments in
both the European and U.S. domestic markets. Initial settlement and all
secondary trades will settle in same-day funds.
Secondary market trading between investors holding Global Securities
through Clearstream and Euroclear will be conducted in the ordinary way in
accordance with their normal rules and operating procedures and in accordance
with conventional eurobond practice (i.e., seven calendar day settlement).
Secondary market trading between investors holding Global Securities
through DTC will be conducted according to the rules and procedures applicable
to U.S. corporate debt obligations.
Secondary cross-market trading between Clearstream or Euroclear and DTC
Participants holding Certificates will be effected on a delivery-against-payment
basis through the respective Depositaries of Clearstream 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, Clearstream and
Euroclear will hold positions on behalf of their participants through their
respective Depositaries, which in turn will hold such positions in accounts as
DTC Participants.
Investors electing to hold their Global Securities through DTC will
follow the settlement practices applicable to conventional eurobonds, except
that there will be no temporary global security and no "lock-up" or restricted
period. 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 Clearstream
or Euroclear accounts will follow the settlement procedures applicable to
conventional eurobonds, except that there will be no temporary global security
and no `lock-up' or restricted period. Global Securities will be credited to the
securities custody accounts on the settlement date against payment in same-day
funds.
Secondary Market Trading
Since the purchaser determines the place of delivery, it is important
to establish at the time of the trade where both the purchaser's and seller's
accounts are located to ensure that settlement can be made on the desired value
date.
Trading between DTC Participants. Secondary market trading between DTC
Participants will be settled using the procedures applicable to prior mortgage
loan asset backed certificates issues in same-day funds.
S-87
Trading between Clearstream and/or Euroclear Participants. Secondary
market trading between Clearstream Participants or Euroclear Participants will
be settled using the procedures applicable to conventional eurobonds in same-day
funds.
Trading between DTC seller and Clearstream or Euroclear purchaser. When
Global Securities are to be transferred from the account of a DTC Participant to
the account of a Clearstream Participant or a Euroclear Participant, the
purchaser will send instructions to Clearstream or Euroclear through a
Clearstream Participant or Euroclear Participant at least one business day prior
to settlement. Clearstream or Euroclear will instruct the respective Depositary,
as the case may be, to receive the Global Securities against payment. Payment
will include interest accrued on the Global Securities from and including the
last coupon payment date to and excluding the settlement date, on the basis of
either a 360-day year comprised of 30-day months or the actual number of days in
such accrual period and a year assumed to consist of 360 days, 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 respective Depositary of the DTC Participant's account
against delivery of the Global Securities. After settlement has been completed,
the Global Securities will be system and by the clearing system, in accordance
with its usual procedures, to the Clearstream 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 Clearstream or Euroclear cash
debt will be valued instead as of the actual settlement date.
Clearstream 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 Clearstream or Euroclear. Under
this approach, they may take on credit exposure to Clearstream or Euroclear
until the Global Securities are credited to their accounts one day later.
As an alternative, if Clearstream or Euroclear has extended a line of
credit to them, Clearstream Participants or Euroclear Participants can elect not
to preposition funds and allow that credit line to be drawn upon the finance
settlement. Under this procedure, Clearstream Participants or Euroclear
Participants purchasing Global Securities would incur overdraft charges for one
day, assuming they cleared the overdraft when the Global Securities were
credited to their accounts. However, interest on the Global Securities would
accrue from the value date. Therefore, in many cases the investment income on
the Global Securities earned during that one-day period may substantially reduce
or offset the amount of such overdraft charges, although this result will depend
on each Clearstream Participant's or Euroclear Participant's particular cost of
funds.
Since the settlement is taking place during New York business hours,
DTC Participants can employ their usual procedures for sending Global Securities
to the respective European Depositary for the benefit of Clearstream
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 Clearstream or Euroclear Seller and DTC Purchaser. Due
to time zone differences in their favor, Clearstream 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 Clearstream or Euroclear through a Clearstream Participant or
Euroclear Participant at least one business day prior to settlement. In these
cases Clearstream or Euroclear will instruct the respective Depositary, as
appropriate, to deliver the Global Securities to the DTC Participant's account
against payment. Payment will include interest accrued on the Global Securities
from and including the last coupon payment to and excluding the settlement date
on the basis of either a 360-day year comprised of 30-day months or the actual
number of days in such accrual period and a year assumed to consist of 360 days,
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.
The payment will then be reflected in the account of the Clearstream Participant
or Euroclear Participant the following day, and receipt of the cash proceeds in
the Clearstream 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 Clearstream 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 Clearstream Participant's or
Euroclear Participant's account would instead be valued as of the actual
settlement date.
S-88
Finally, day traders that use Clearstream or Euroclear and that
purchase Global Securities from DTC Participants for delivery to Clearstream
Participants or Euroclear Participants should note that these trades would
automatically fail on the sale side unless affirmative action were taken. At
least three techniques should be readily available to eliminate this potential
problem:
(a) borrowing through Clearstream or Euroclear for one day
(until the purchase side of the day trade is reflected in their
Clearstream 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
Clearstream 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 Clearstream Participant or Euroclear Participant.
Certain U.S. Federal Income Tax Documentation Requirements
A beneficial owner of Global Securities holding securities through
Clearstream or Euroclear (or through DTC if the holder has an address outside
the U.S.) will be subject to the 30% U.S. withholding tax that generally applies
to payments of interest (including original issue discount) on registered debt
issued by U.S. Persons, unless (i) each clearing system, bank or other financial
institution that holds customers' securities in the ordinary course of its trade
or business in the chain of intermediaries between such beneficial owner and the
U.S. entity required to withhold tax complies with applicable certification
requirements and (ii) such beneficial owner takes one of the following steps to
obtain an exemption or reduced tax rate:
Exemption for non-U.S. Persons (Form W-8BEN). Beneficial owners of
Global Securities that are non-U.S. Persons can obtain a complete exemption from
the withholding tax by filing a signed Form W-8BEN (Certificate of Foreign
Status of Beneficial Owner for United States Tax Withholding). If the
information shown on Form W-8BEN changes, a new Form W-8BEN must be filed within
30 days of such change.
Exemption for non-U.S. Persons with effectively connected income (Form
W-8ECI). A non-U.S. Person, including a non-U.S. corporation or bank with a U.S.
branch, for which the interest income is effectively connected with its conduct
of a trade or business in the United States, can obtain an exemption from the
withholding tax by filing Form W-8ECI (Certificate of Foreign Person's Claim for
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 W-8BEN). Non-U.S. Persons that are Certificate Owners residing
in a country that has a tax treaty with the United States can obtain an
exemption or reduced tax rate (depending on the treaty terms) by filing Form
W-8BEN.
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 Certificate Owner of a
Global Security or, in the case of a Form W-8ECI filer, his agent, files by
submitting the appropriate form to the person through whom it holds the Global
Security (the clearing agency, in the case of persons holding directly on the
books of the clearing agency). Form W-8BEN and Form W-8ECI are effective until
the third succeeding calendar year from the date the form is signed.
S-89
Final withholding regulations (the "New Regulations") effective January
1, 2001 affect the documentation required from non-U.S. Persons. The New
Regulations replace a number of prior tax certification forms (including IRS
Form W-8, 1001 and 4224) with a new series of IRS Form W-8 and generally
standardize the period of time for which withholding agents can rely on such
forms (although certain of the new forms may remain valid indefinitely if the
beneficial owner provides a United States taxpayer identification number and the
information on the form does not change).
The term "U.S. Person" means (i) a citizen or resident of the United
States, (ii) a corporation, partnership or other entity treated as a corporation
or partnership for United States federal income tax purposes that is organized
in or under the laws of the United States or any state thereof or the District
of Columbia (unless, in the case of a partnership, Treasury regulations provide
otherwise) or (iii) an estate the income of which is includible in gross income
for United States tax purposes, regardless of its source, or (iv) a trust 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 the preceding
sentence, to the extent provided in Treasury 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 treated as United States persons will also be
U.S. Persons. 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.
S-90
PROSPECTUS
ASSET BACKED FUNDING CORPORATION
Depositor
Asset Backed Certificates
Asset Backed Notes
(Issuable in Series)
Each Trust--
o will issue a series of asset-backed certificates or
asset-backed notes that will consist of one or more classes;
and
o may own--
o a pool or pools of single family and/or multifamily mortgage
loans, which may include sub-prime mortgage loans, and are
secured by either first or junior liens on one- to four-family
residential properties or primarily residential properties
consisting of five or more residential dwelling units and
which may include limited retail, office or other commercial
space;
o a pool or pools of home improvement installment sales
contracts or installment loans that are unsecured;
o a pool or pools of manufactured housing installment sales
contracts and installment loan agreements secured by a
security interest in a new or used manufactured home, and if
indicated in the accompanying prospectus supplement, by real
property; and
o other assets described in this prospectus and the accompanying
prospectus supplement.
Each Series of Securities--
o will represent ownership interest in the related trust or will
represent debt obligations of the related trust;
o may be entitled to one or more of the other types of credit
support described in this prospectus; and
o will be paid only from the assets of the related trust.
Neither the SEC nor any state securities commission has approved the securities
or determined that this prospectus is accurate or complete. Any representation
to the contrary is a criminal offense.
- --------------------------------------------------------------------------------
You should carefully consider the risk factors beginning on page 10 of this
prospectus.
The securities of any series will not be insured or guaranteed by any
governmental agency or instrumentality other than as expressly described in the
prospectus supplement for that series.
The securities of each series will represent interests in, or will represent
debt obligations of, the related trust only and will not represent interests in
or obligations of any other entity.
This prospectus may be used to offer and sell any series of securities only if
accompanied by the prospectus supplement for that series. The securities of each
series are not deposits or other obligations of a bank and are not insured by
the FDIC.
- --------------------------------------------------------------------------------
--------------------
The date of this prospectus is September 23, 2002.
TABLE OF CONTENTS
IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN THIS
PROSPECTUS AND THE ACCOMPANYING PROSPECTUS
SUPPLEMENT.......................................5
SUMMARY OF PROSPECTUS...............................6
RISK FACTORS.......................................10
Risks Associated with the Securities............10
Risks Associated with the Assets................12
Violations of Federal Laws May Adversely Affect
Ability to Collect on Loans ................15
Market Values of Manufactured Homes May
Increase the Risk of Loss ..............16
Risk of Loss May Be Greater on Unsecured
Home Improvement Loans .....................16
Risks of Loss May Increase Due to Defective
Security Interest and Effects of Certain Other
Legal Aspects of the Contracts..............17
DESCRIPTION OF THE TRUST FUNDS.....................17
Assets..........................................17
Mortgage Loans..................................18
General.....................................18
Loan-to-Value Ratio.........................19
Mortgage Loan Information in Prospectus
Supplements.............................19
Payment Provisions of the Mortgage Loans....20
Revolving Credit Line Loans.................20
Unsecured Home Improvement Loans................20
Unsecured Home Improvement Loan Information
in Prospectus Supplements...............21
Contracts.......................................21
General.....................................21
Contract Information in Prospectus
Supplements.............................21
Payment Provisions of the Contracts.........22
Pre-Funding Account.............................22
Accounts........................................22
Credit Support..................................22
Cash Flow Agreements............................23
USE OF PROCEEDS....................................23
YIELD CONSIDERATIONS...............................23
General.........................................23
Pass-Through Rate and Interest Rate.............23
Timing of Payment of Interest...................24
Payments of Principal; Prepayments..............24
Prepayments--Maturity and Weighted Average Life.25
Other Factors Affecting Weighted Average Life...26
Type of Asset...............................26
Termination.................................27
Defaults....................................27
Foreclosures................................27
Refinancing.................................28
Due-on-Sale Clauses.........................28
THE DEPOSITOR......................................28
DESCRIPTION OF THE SECURITIES......................29
General.........................................29
Distributions...................................29
Available Distribution Amount...................30
Distributions of Interest on the Securities.....31
Distributions of Principal of the Securities....31
Categories of Classes of Securities.............32
Components......................................35
Distributions on the Securities of Prepayment
Premiums....................................35
Allocation of Losses and Shortfalls.............35
Advances in Respect of Delinquencies............35
Reports to Securityholders......................36
Termination.....................................38
Optional Purchases..............................38
Definitive Form.................................39
Book-Entry Registration and Definitive
Securities..................................39
DESCRIPTION OF THE AGREEMENTS......................42
Agreements Applicable to a Series...............42
REMIC Securities, FASIT Securities, Grantor
Trust Securities........................42
Securities That Are Partnership Interests
for Tax Purposes and Notes..............42
Material Terms of the Pooling and Servicing
Agreements and Underlying Servicing
Agreements..................................42
General.....................................42
Assignment of Assets; Repurchases...........43
Representations and Warranties; Repurchases.44
Collection Account and Related Accounts.....45
Realization Upon Defaulted Assets...........49
Hazard Insurance Policies...................51
Contracts...................................52
Fidelity Bonds and Errors and Omissions
Insurance...................................52
Due-on-Sale Provisions......................52
Retained Interest; Servicing Compensation
and Payment of Expenses.....................53
Evidence as to Compliance...................53
Certain Matters Regarding Servicers, the
Master Servicer and the Depositor...........54
Special Servicers...........................54
2
Events of Default under the Agreements......55
Rights Upon Event of Default under the
Agreements..............................55
Amendment...................................56
The Trustee.................................56
Duties of the Trustee.......................56
Certain Matters Regarding the Trustee.......57
Resignation and Removal of the Trustee......57
Material Terms of the Indenture.................57
General.....................................57
Events of Default...........................58
Discharge of Indenture......................59
Indenture Trustee's Annual Report...........59
The Indenture Trustee.......................59
DESCRIPTION OF CREDIT SUPPORT......................60
General.........................................60
Subordinate Securities..........................60
Cross-Support Provisions........................60
Limited Guarantee...............................61
Financial Guaranty Insurance Policy or
Surety Bond.................................61
Letter of Credit................................61
Pool Insurance Policies.........................61
Special Hazard Insurance Policies...............61
Mortgagor Bankruptcy Bond.......................61
Reserve Funds...................................61
Overcollateralization...........................62
CERTAIN LEGAL ASPECTS OF MORTGAGE LOANS............62
General.........................................62
Types of Mortgage Instruments...................63
Interest in Real Property.......................63
Cooperative Loans...............................63
Land Sale Contracts.............................64
Foreclosure.....................................65
General.....................................65
Judicial Foreclosure........................65
Equitable Limitations on Enforceability of
Certain Provisions......................65
Non-Judicial Foreclosure/Power of Sale......66
Public Sale.................................66
Rights of Redemption........................67
Cooperative Loans...........................67
Junior Mortgages................................68
Rights of Redemption............................68
Anti-Deficiency Legislation, the Bankruptcy
Code and Other Limitations on Lenders.......69
Enforceability of Certain Provisions............71
Environmental Considerations....................71
Due-on-Sale Clauses.............................73
Prepayment Charges..............................74
Subordinate Financing...........................74
Applicability of Usury Laws.....................74
Alternative Mortgage Instruments................75
Homeowners Protection Act of 1998...............75
Texas Home Equity Loans.........................75
Soldiers' and Sailors' Civil Relief Act
of 1940.....................................76
Forfeiture for Drug, RICO and Money Laundering
Violations..................................76
CERTAIN LEGAL ASPECTS OF THE CONTRACTS.............76
General.........................................76
Security Interests in the Manufactured Homes....77
Enforcement of Security Interests in
Manufactured Homes..........................78
Soldiers' and Sailors' Civil Relief Act
of 1940.....................................79
Consumer Protection Laws........................79
Transfers of Manufactured Homes;
Enforceability of Due-on-Sale Clauses.......79
Applicability of Usury Laws.....................79
FEDERAL INCOME TAX CONSEQUENCES....................80
General.........................................80
Taxable Mortgage Pools......................80
REMICS..........................................81
Classification of REMICs....................81
Characterization of Investments in REMIC
Securities..............................82
Tiered REMIC Structures.....................83
Taxation of Owners of Regular Securities....83
Taxes That May Be Imposed on the REMIC
Pool....................................97
Taxation of Certain Foreign Investors.......98
Grantor Trust Funds............................100
Classification of Grantor Trust Funds......100
Standard Securities............................101
General....................................101
Stripped Securities............................103
General....................................103
Status of Stripped Securities..............105
Taxation of Stripped Securities............105
Reporting Requirements and Backup
Withholding................................106
Taxation of Certain Foreign Investors......106
Partnership Trust Funds........................107
Classification of Partnership Trust Funds..107
Characterization of Investments in
Partnership Securities and Debt
Securities.............................107
Taxation of Debt Securityholders...........107
3
Taxation of Owners of Partnership
Securities.............................108
STATE AND OTHER TAX CONSEQUENCES..................112
ERISA CONSIDERATIONS..............................113
LEGAL INVESTMENT..................................116
METHODS OF DISTRIBUTION...........................117
LEGAL MATTERS.....................................118
FINANCIAL INFORMATION.............................118
RATING............................................118
WHERE YOU CAN FIND MORE INFORMATION...............119
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE.119
INDEX OF SIGNIFICANT DEFINITIONS..................120
4
IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN THIS
PROSPECTUS AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT
Information is provided to you about the securities in two separate
documents that progressively provide more detail: (a) this prospectus, which
provides general information, some of which may not apply to a particular series
of securities, including your series, and (b) the accompanying prospectus
supplement, which will describe the specific terms of your series of securities,
including:
o the principal balances and/or interest rates of each class;
o the timing and priority of interest and principal payments;
o statistical and other information about the mortgage loans;
o information about credit enhancement, if any, for each class;
o the ratings for each class; and
o the method for selling the securities.
If the terms of a particular series of securities vary between this
prospectus and the accompanying prospectus supplement, you should rely on the
information in the accompanying prospectus supplement.
You should rely only on the information provided in this prospectus and
the accompanying prospectus supplement including the information incorporated by
reference. No one has been authorized to provide you with different information.
The securities are not being offered in any state where the offer is not
permitted. The depositor does not claim the accuracy of the information in this
prospectus or the accompanying prospectus supplement as of any date other than
the dates stated on their respective covers.
Cross-references are included in this prospectus and in the
accompanying prospectus supplement to captions in these materials where you can
find further related discussions. The foregoing Table of Contents and the Table
of Contents included in the accompanying prospectus supplement provide the pages
on which these captions are located.
You can find a listing of the pages where capitalized terms used in
this prospectus are defined under the caption "Index of Significant Definitions"
beginning on page 123 in this prospectus.
The depositor's principal executive office is located at Bank of
America Corporate Center, 100 North Tryon Street, Charlotte, NC 28255-0001 and
the depositor's telephone number is (704) 386-2400.
5
SUMMARY OF PROSPECTUS
This summary highlights selected information from this document and
does not contain all of the information that you need to consider in making an
investment decision. Please read this entire prospectus and the accompanying
prospectus supplement carefully to understand all of the terms of a series of
certificates.
This summary provides an overview of certain calculations, cash flows
and other information to aid your understanding of the terms of the certificates
and is qualified by the full description of these calculations, cash flows and
other information in the prospectus and the prospectus supplement.
RELEVANT PARTIES FOR EACH SERIES OF SECURITIES
Title of Securities
Asset backed certificates and asset backed notes issuable in series.
Depositor
Asset Backed Funding Corporation, a wholly-owned indirect subsidiary of Bank of
America Corporation. The depositor is an affiliate of Banc of America Securities
LLC.
Issuer
With respect to each series of certificates and/or notes, the trust fund to be
formed pursuant to either a pooling and servicing agreement or a deposit trust
agreement.
Servicer
The entity or entities named as servicer in the related prospectus supplement. A
servicer may be an affiliate of the depositor.
Master Servicer
The entity, if any, named as master servicer in the related prospectus
supplement that will perform certain administration, calculation and reporting
functions with respect to the trust fund and will supervise the servicers. The
master servicer may be an affiliate of the depositor.
Trustee / Indenture Trustee
The entity named as trustee or indenture trustee in the related prospectus
supplement.
RELEVANT DATES
Cut-off Date
The date specified in the related prospectus supplement.
Closing Date
The date when the certificates and/or notes of any series are initially issued
as specified in the related prospectus supplement.
Distribution Date
The monthly, quarterly or other periodic date specified in the related
prospectus supplement on which distributions will be made to holders of the
certificates and/or notes.
Statistical Calculation Date
The calendar day, if applicable, specified in the related prospectus supplement.
DESCRIPTION OF SECURITIES
Each series of certificates will be issued pursuant to a pooling and
servicing agreement and will include one or more classes representing an
ownership interest in a segregated pool of mortgage loans, unsecured home
improvement loans and/or manufactured housing installment sales contracts and
other assets of the trust fund. If a series of securities includes notes, such
notes will represent debt obligations of the related trust fund formed pursuant
to a deposit trust agreement and will be secured by the assets of the trust fund
pursuant to an indenture. A class of securities will be entitled, to the extent
of funds available, to one of the following:
6
o principal and interest distributions;
o principal distributions, with no interest distributions;
o interest distributions, with no principal distributions; or
o such other distributions as are described in the applicable
prospectus supplement.
See "Description of the Securities" in this prospectus.
Interest Distributions
With respect to each series of securities, interest on each class of
securities (other than a class of securities entitled to receive only principal)
will accrue during each period specified in the prospectus supplement and will
be distributed to the holders of the related classes of securities on each
distribution date in accordance with the particular terms of each such class of
securities. The terms of each such class of securities will be described in the
related prospectus supplement.
See "Description of the Securities--Distributions of Interest on the
Securities" in this prospectus.
Principal Distributions
With respect to each series of securities, principal payments
(including prepayments) on the related mortgage loans, unsecured home
improvement loans and/or manufactured housing installment sales contracts will
be distributed to holders of the related securities or otherwise applied as
described in the related prospectus supplement on each distribution date.
Distributions in reduction of principal balance will be allocated among the
classes of securities of a series in the manner specified in the applicable
prospectus supplement.
See "Description of the Securities--Distribution of Principal on the
Securities" in this prospectus.
Denominations
Each class of securities of a series will be issued in the minimum
denominations set forth in the related prospectus supplement.
Registration of the Securities
The securities will be issued either:
o in book-entry form initially held through the Depository Trust
Company in the United States, or Clearstream Banking or the
Euroclear System; or
o in fully registered, certificated form.
See "Description of the Securities--General" and "--Book-Entry
Registration and Definitive Securities" in this prospectus.
ASSETS OF THE TRUST
The trust related to each series will consist primarily of any of the
following assets:
o a segregated pool of single family and/or multifamily mortgage
loans which may include sub-prime mortgage loans;
o home improvement installment sales contracts or installment
loans that are unsecured;
o manufactured housing installment sales contracts and
installment loan agreements; and
7
o certain other property.
You should refer to the applicable prospectus supplement for the
precise characteristics or expected characteristics of the assets and a
description of the other property, if any, included in a particular trust.
See "Description of the Trust Funds" in this prospectus.
OPTIONAL TERMINATION OF THE TRUST
The related prospectus supplement may provide that the party specified
in the related prospectus supplement may
o repurchase all of the assets in the trust fund and thereby
cause early retirement of the securities under the
circumstances and in the manner specified in the related
prospectus supplement and
o repurchase a portion of such assets to retire specified class
or classes of securities under the circumstances and in the
manner specified in the related prospectus supplement.
See "Description of the Securities--Termination" in this prospectus.
The yield on each class of securities of a series will be affected by,
among other things, the rate of payment of principal (including prepayments) on
the assets in the related trust and the timing of receipt of such payments.
See "Yield Considerations" in this prospectus.
PREFUNDING ACCOUNT
The related prospectus supplement may provide that the depositor
deposit a specified amount in a pre-funding account on the date the securities
are issued. In this case, the deposited funds may only be used to acquire the
additional assets for the trust during a set period after the initial issuance
of the securities. Any amounts remaining in the account at the end of the period
will be distributed as a prepayment of principal to the holders of the related
securities.
See "Description of the Trust Funds--Prefunding Account" in this
prospectus.
CREDIT ENHANCEMENT
If so specified in the applicable prospectus supplement, the securities
of any series, or any one or more classes of a series, may be entitled to the
benefits of other types of credit enhancement, including but not limited to:
o letter of credit o financial guaranty insurance policy
o special hazard insurance policy o mortgage pool insurance policy
o reserve fund o spread account
o cash collateral account o overcollateralization
Credit support may also be provided by subordination. Any credit
support will be described in detail in the applicable prospectus supplement.
See "Description of Credit Support" in this prospectus.
8
RATING OF SECURITIES
The securities of any series will not be offered pursuant to this
prospectus and a prospectus supplement unless each offered security is rated in
one of the four highest rating categories by at least one nationally recognized
statistical rating agency.
o A security rating is not a recommendation to buy, sell or hold
the securities on any series and is subject to revision or
withdrawal at any time by the assigning rating agency.
o Ratings do not address credit risk and do not represent any
assessment of the likelihood or rate of principal prepayments.
See "Risk Factors--Risks Associated with the Securities--Ratings
Assigned to the Securities Will Have Limitations" and "Ratings" in this
prospectus.
TAX STATUS OF THE SECURITIES
The securities of each series offered will be either:
o regular interests and residual interests in a trust fund
treated as a REMIC;
o interests in a trust fund treated as a grantor trust;
o interests in a trust fund treated as a partnership;
o debt obligations secured by assets of a trust fund; or
o regular interest or ownership interests in a trust fund
treated as a FASIT.
For additional information see "Federal Income Tax Consequences" in
this prospectus and "Certain Material Federal Income Tax Consequences" in the
prospectus supplement.
ERISA CONSIDERATIONS
If you are a fiduciary of any employee benefit plan or arrangement,
including an individual retirement account, subject to the Employee Retirement
Income Security Act of 1974, as amended, the Internal Revenue Code of 1986, as
amended, or any federal, state or local law which is similar to ERISA or the
Code, you should carefully review with your legal advisors whether the purchase
or holding of securities could give rise to a transaction that is prohibited or
not otherwise permissible under ERISA, the Code or similar law.
For additional information see "ERISA Considerations" in this
prospectus and in the prospectus supplement.
LEGAL INVESTMENT
The applicable prospectus supplement will specify whether the class or
classes of securities offered will constitute "mortgage related securities" for
purposes of the Secondary Mortgage Market Enhancement Act of 1984, as amended.
If your investment authority is subject to legal restrictions you should consult
your own legal advisors to determine whether and to what extent such securities
constitute a legal investment for you.
For additional information see "Legal Investment" in this prospectus
and in the prospectus supplement.
MATERIAL RISKS
You are urged to read "Risk Factors" in this prospectus and in the
prospectus supplement for a discussion of the material risks associated with an
investment in the securities.
9
RISK FACTORS
You should consider, among other things, the following factors in
connection with the purchase of securities.
Risks Associated with the Securities
Securities May Not be Liquid. The liquidity of your securities may be
limited. You should consider that:
o a secondary market for the securities of any series may not
develop, or if it does, it may not provide you with liquidity
of investment, or it may not continue for the life of the
securities of any series;
o issuance of any of the securities of any series in book-entry
form may reduce the liquidity of such securities in the
secondary trading market because investors may not be willing
to purchase securities for which they cannot obtain physical
certificates or notes; and
o unless specified in the applicable prospectus supplement, the
securities will not be listed on any securities exchange.
The Depositor, the Master Servicer, the Servicer, the Trustee and, if
applicable, the Certificate Administrator Will Have Limited Obligations. No
class of securities of any series will be an interest in or obligation of the
depositor, the master servicer, the servicer, the trustee, the certificate
administrator (if applicable) or any of their affiliates. Unless otherwise
provided in the related prospectus supplement, the only obligations with respect
to any of the securities or the related assets will be:
o the servicer's and master servicer's servicing obligations
under the applicable agreement; and
o the obligation of the party making representations and
warranties regarding the assets of a trust, the seller of the
assets of a trust, either directly or indirectly, to the
depositor or other entity specified in the related prospectus
supplement to purchase, or substitute a substantially similar
asset for any asset as to which there is defective
documentation or a breach of certain representations and
warranties made with respect to such asset.
Unless otherwise provided in the prospectus supplement, the securities
and the underlying assets will not be guaranteed or insured by any governmental
agency or instrumentality, or by the depositor, the master servicer, the
servicer, the trustee or any of their affiliates.
Credit Enhancement is Limited in Amount and Coverage. With respect to
each series of securities, credit enhancement may be provided in limited amounts
to cover certain types of losses on the underlying assets. Credit enhancement
will be provided in one or more of the forms referred to in this prospectus,
including, but not limited to: subordination of other classes of securities of
the same series; a letter of credit; a financial guaranty insurance policy; a
mortgage pool insurance policy; a special hazard insurance policy; a reserve
fund; a spread account; a cash collateral account; or other type of credit
enhancement. See "Description of Credit Support" in this prospectus.
Regardless of the form of credit enhancement provided:
o the amount of coverage will be limited in amount and in most
cases will be subject to periodic reduction in accordance with
a schedule or formula;
o may provide only very limited coverage as to certain types of
losses, and may provide no coverage as to certain types of
losses; and
10
o all or a portion of the credit enhancement for any series of
securities may be permitted to be reduced, terminated or
substituted for, if each applicable rating agency indicates
that the then-current ratings will not be adversely affected.
Rate of Prepayment on Assets May Adversely Affect Average Lives and
Yields on the Securities. The yield on the securities of each series will depend
in part on the rate of principal payment on the assets (including prepayments,
liquidations due to defaults and asset repurchases). Such yield may be adversely
affected, depending upon whether a particular security is purchased at a premium
or a discount, by a higher or lower than anticipated rate of prepayments on the
related assets. In particular:
o the yield on principal-only or interest-only securities will
be extremely sensitive to the rate of prepayments on the
related assets; and
o the yield on certain classes of securities may be relatively
more sensitive to the rate of prepayments of specified assets
than other classes of securities.
The rate of prepayments on assets is influenced by a number of factors,
including:
o the prevailing mortgage market interest rates;
o local and national economic conditions;
o homeowner mobility; and
o the ability of the borrower to obtain financing.
In addition, your yield may be adversely affected by interest
shortfalls which may result from the timing of the receipt of prepayments or
liquidations to the extent that such interest shortfalls are not covered by
aggregate servicing fees or other mechanisms specified in the applicable
prospectus supplement. Your yield also will be adversely affected if losses on
the assets in the related trust are allocated to your securities and may be
adversely affected to the extent of unadvanced delinquencies on the assets in
the related trust. Classes of securities identified in the applicable prospectus
supplement as subordinated certificates or notes are more likely to be affected
by delinquencies and losses than other classes of securities.
See "Yield Considerations" in this prospectus.
Ratings Assigned to the Securities Will Have Limitations. The ratings
assigned to your securities will not:
o assess the likelihood that principal prepayments (including
those caused by defaults) on the related assets will be made,
the degree to which the rate of such prepayments might differ
from that originally anticipated or the likelihood of early
optional termination or redemption of the series of
securities; and
o address the possibility that prepayments at higher or lower
rates than anticipated by an investor may cause such investor
to experience a lower than anticipated yield or that an
investor purchasing a security at a significant premium might
fail to recoup its initial investment under certain prepayment
scenarios.
In addition, the ratings of any series of securities by any applicable
rating agency may be lowered following the initial issuance of the securities.
The lowering of a rating on a series or class of securities may adversely affect
the market value of such securities and the liquidity of such securities. The
depositor or any of its affiliates will not have any obligation to maintain any
rating of any series of securities.
11
Book-Entry Securities May Experience Certain Problems. Since
transactions in the classes of securities of a Series issued in book-entry form
can be effected only through the Depository Trust Company, Clearstream Banking,
the Euroclear System, participating organizations, indirect participants and
certain banks:
o you may experience delays in your receipts of payments of
interest and principal; and
o your ability to pledge such securities to persons or entities
that do not participate in the Depository Trust Company,
Clearstream Banking or the Euroclear System may be limited due
to the lack of a physical certificate.
See "Description of the Securities--Book-Entry Registration and
Definitive Securities" in this prospectus.
Risk of Loss May Be Greater on Subordinated Securities. The rights of
holders of subordinated securities will be subordinate:
o to the rights of the servicer and any master servicer (to the
extent of their servicing fees, including any unpaid servicing
fees with respect to one or more prior due periods, and its
reimbursement for certain unreimbursed advances and
unreimbursed liquidation expenses); and
o the holders of senior securities to the extent described in
the related prospectus supplement.
As a result of the foregoing, investors must be prepared to bear the
risk that they may be subject to delays in payment and may not recover their
initial investments in the subordinated securities. See "Description of Credit
Support" in this prospectus.
The yields on the subordinated securities may be extremely sensitive to
the loss experience of the related assets and the timing of any such losses. If
the actual rate and amount of losses experienced by the assets exceed the rate
and amount of such losses assumed by an investor, the yield to maturity on the
subordinated securities may be lower than anticipated.
Risks Associated with the Assets
Sub-Prime Mortgage Loans May Experience Greater Rates of Delinquency
and Foreclosure. All or a portion of the mortgage loans may consist of mortgage
loans underwritten in accordance with the underwriting for sub-prime mortgage
loans. A sub-prime mortgage loan is a mortgage loan that is ineligible for
purchase by Fannie Mae or the Freddie Mac due to borrower credit
characteristics, property characteristics, loan documentation guidelines or
other credit characteristics that do not meet Fannie Mae or Freddie Mac
underwriting guidelines. As a consequence:
o delinquencies and foreclosures may be expected to be more
likely with respect to sub-prime mortgage loans than with
respect to mortgage loans originated in accordance with Fannie
Mae or Freddie Mac underwriting guidelines; and
o changes in the values of the mortgaged properties may have a
greater effect on the loss experience of sub-prime mortgage
loans than on mortgage loans originated in accordance with
Fannie Mae or Freddie Mac underwriting guidelines.
Mortgage Loans Secured by Multifamily Properties May Experience Greater
Rates of Delinquency and Foreclosure. The ability of a borrower to repay a loan
secured by an income-producing property typically is dependent primarily upon
the successful operation of such property rather than upon the existence of
independent income or assets of the borrower; thus, the value of an
income-producing property typically is directly related to the net operating
income derived from such property. If the net operating income of the property
is reduced (for example, if rental or occupancy rates decline or real estate tax
rates or other operating expenses increase), the borrower's ability to repay the
loan may be impaired. In addition, the concentration of default, foreclosure and
loss risk for a pool of mortgage loans secured by multifamily properties may be
greater than for a pool of mortgage loans secured by single family properties of
comparable aggregate unpaid principal balance because the pool of mortgage loans
secured by multifamily properties is likely to consist of a smaller number of
higher balance loans.
12
General Economic Conditions Affect Mortgage Loan Performance. General
economic conditions have an impact on the ability of borrowers to repay mortgage
loans. Loss of earnings, illness and other similar factors may lead to an
increase in delinquencies and bankruptcy filings by borrowers. In the event of
personal bankruptcy of a borrower under a mortgage loan, it is possible that the
holders of the related securities 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, thus delaying the amount received by
the holders of the related securities with respect to such mortgage loan.
Moreover, if a bankruptcy court prevents the transfer of the related mortgaged
property to the related trust, any remaining balance on such mortgage loan may
not be recoverable.
Real Estate Market Conditions Affect Mortgage Loan Performance. An
investment in the securities which are secured by or represent interests in
mortgage loans may be affected by, among other things, a decline in real estate
values. There is no assurance that the values of the mortgaged properties will
remain at the levels existing 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 the mortgage
loans contained in a particular trust and any secondary financing on the
mortgaged properties, become equal to or greater than the value of the mortgaged
properties, delinquencies, foreclosures and losses could be higher than those
now generally experienced in the mortgage lending industry.
Geographic Concentration May Increase Rates of Loss and Delinquency.
Certain geographic regions of the United States from time to time will
experience weaker regional economic conditions and housing markets, and,
consequently, will experience higher rates of loss and delinquency on assets
generally. Any concentration of the assets relating to any series of securities
in such a region may present risk considerations in addition to those generally
present for similar asset-backed securities without such concentration.
See "The Mortgage Pool" in the related prospectus supplement for
further information regarding the geographic concentration of the assets
underlying the securities of any series.
Risk of Loss May Be Greater on Junior Mortgage Loans. Certain of the
mortgage loans underlying the securities of a series may be secured by mortgages
junior or subordinate to one or more other mortgages, and the related more
senior mortgages may not be included in the trust fund. Although little data is
available, the rate of default of second or more junior mortgage loans may be
greater than that of mortgage loans secured by senior liens on comparable
properties. A primary risk to holders of mortgage loans secured by junior
mortgages is the possibility that adequate funds will not be received in
connection with a foreclosure of the related senior mortgage to satisfy fully
both the senior mortgage and the mortgage that is junior or subordinate. In such
case, holders of the securities would bear:
o the risk of delay in distributions while a deficiency
judgement against the borrower is obtained; and
o the risk of loss if the deficiency judgment is not realized
upon.
Moreover, deficiency judgments may not be available in certain
jurisdictions. In addition, a junior mortgagee may not foreclose on the property
securing a junior mortgage unless it forecloses subject to the more senior
mortgage.
In servicing junior mortgages, it is generally the servicer's and
master servicer's practice to advance funds to keep the senior mortgage current
if the mortgagor is in default thereunder. The servicer and master servicer
intend to advance such amounts in accordance with their normal servicing
procedures, but only to the extent that it determines such advances will be
recoverable from future payments and collections on that mortgage loan or
otherwise. Such practice may not be followed in servicing loans more junior than
second mortgages or may be modified at any time. The related trust will have no
source of funds to satisfy any senior mortgage or make payments due to any
senior mortgagee. The junior mortgages securing the mortgage loans are subject
and subordinate to any senior mortgage affecting the related mortgaged property,
including limitations and prohibitions which may be contained in such senior
mortgage upon subordinate financing.
13
Special Risks of Certain Assets. Certain assets that may be included in
the Trust may involve additional uncertainties not present in other types of
assets. Certain of the assets may provide for escalating or variable payments
that may be larger than the initial payment amount; however, the borrowers under
such assets are generally approved on the basis of the initial payment amount
and the borrower's income may not be sufficient to enable them to pay the
increased payment amounts. Therefore, in such cases the likelihood of default
may increase.
Certain of the assets underlying a series of securities may be
delinquent in respect of the payment of principal and interest. In addition,
certain of the mortgagors under the mortgage loans underlying a series of
securities may be subject to personal bankruptcy proceedings. Credit enhancement
provided with respect to a particular series of securities may not cover all
losses related to such mortgage loans. Prospective investors should consider the
risk that the inclusion in a trust of delinquent assets and mortgage loans with
respect to which the mortgagor is the subject of bankruptcy proceedings may
cause the rate of the defaults and prepayments on such assets to increase and,
in turn, may cause losses to exceed the available credit enhancement for such
series and affect the yield on the securities of such series. See "The Mortgage
Pool" in the related prospectus supplement.
Defaulted Mortgage Loans May Experience Delays in Liquidation. Even
assuming the mortgaged properties provide adequate security for the mortgage
loans underlying a series of securities, substantial delays could result in
connection with the liquidation of defaulted mortgage loans. This could result
in corresponding delays in the receipt of the related proceeds by the related
trust. See "Certain Legal Aspects of the Mortgage Loans--Foreclosure," "--Rights
of Redemption" and "--Anti-Deficiency Legislation, the Bankruptcy Code and Other
Limitations on Lenders" in this prospectus.
Liquidation Expenses May be Disproportionate. Liquidation expenses with
respect to defaulted assets do not vary directly with the outstanding principal
balance of the assets at the time of default. Therefore, assuming that the
servicer and master servicer took the same steps in realizing upon a defaulted
asset having a small remaining principal balance as they would in the case of a
defaulted asset having a large remaining principal balance, the amount realized
after expenses of liquidation would be smaller as a percentage of the
outstanding principal balance of the small asset than would be the case with the
defaulted asset having a large remaining principal balance. Because the average
outstanding principal balance of the assets is small relative to the size of the
average outstanding principal balance of the loans in a typical pool consisting
only of conventional purchase-money mortgage loans, net liquidation proceeds on
liquidated assets may also be smaller as a percentage of the principal balance
of the assets than would be the case in a typical pool consisting only of
conventional purchase-money mortgage loans.
Defaults May Be More Likely on Newer Assets. Certain of the assets
underlying a series of securities may be recently originated as of the date of
the inclusion in the related trust fund. Although little data is available,
defaults on assets are generally expected to occur with greater frequency in
their early years.
Balloon Payment Assets May Have a Greater Default Risk at Maturity.
Certain of the underlying a series of securities may provide for a lump-sum
payment of the unamortized principal balance of the mortgage loan at the
maturity of the asset. See "The Mortgage Pool" in the related prospectus
supplement.
Because borrowers under this type of asset are required to make a
relatively large single payment upon maturity, it is possible that the default
risk associated with such assets is greater than that associated with
fully-amortizing mortgage loans. The ability of a mortgagor on this type of
asset to repay the mortgage loan upon maturity frequently depends upon the
mortgagor's ability:
o to refinance the asset, which will be affected by a number of
factors, including, without limitation, the level of mortgage
rates available in the primary mortgage market at the time,
the mortgagor's equity in the related mortgaged property, the
financial condition of the mortgagor, the condition of the
mortgaged property, tax law, general economic conditions and
the general willingness of financial institutions and primary
mortgage bankers to extend credit; or
14
o to sell the related mortgaged property at a price sufficient
to permit the mortgagor to make the lump-sum payment.
Texas Home Equity Loans Have Significant Limitations. Certain of the
mortgage loans may be home equity loans secured by mortgaged properties located
in Texas. The Texas Constitution permits this type of loan, but significant
limitations were imposed on permitted terms, conditions and practices incident
to their creation. For example, these loans must be made without recourse for
personal liability against the homestead owner(s) or their spouse(s) (except in
the case of actual fraud on their part in obtaining the loan) and may be
foreclosed upon only by court order. Further, holders of these types of loans
face unique legal risks and uncertainties that they do not customarily confront
with equity take-out mortgages in other states. For example, if any of the
requirements that are addressed in the amendment to the Texas Constitution (such
as limitations on fees charged to the borrower, disclosures to the borrower or
matters to be provided for in the closing documents) are not met, the lien may
be invalid. There are also similar risks involved in servicing these types of
loans (such as the failure to comply with an obligation to the borrower within a
reasonable time after receiving notification from the borrower) that can result
in the forfeiture of all principal and interest due on the mortgage loan.
Increased Risk of Loss if Assets are Delinquent. A portion of the
assets may be delinquent upon the issuance of the related securities. Credit
enhancement provided with respect to a particular series of securities may not
cover all losses related thereto. You should consider the risk that the
inclusion of such assets in the trust fund for a series may cause the rate of
defaults and prepayments on the assets to increase and, in turn, may cause
losses to exceed the available credit enhancement for such series and affect the
yield on the securities of such series.
Cash Flow Agreements are Subject to Counterparty Risk. The assets of a
trust fund may, if specified in the related prospectus supplement, include
agreements such as interest rate exchange agreements, interest rate cap or floor
agreements, currency exchange agreements or other similar agreements, which will
require the provider of such instrument or counterparty to make payments to the
trust fund under the circumstances described in the prospectus supplement. To
the extent that payments on the securities of the related series depend in part
on payments to be received under this type of agreement, the ability of the
trust fund to make payments on the securities will be subject to the credit risk
of the counterparty. The prospectus supplement for a series of securities will
describe any mechanism, such as the payment of any "breakage fee," which may
exist to facilitate the replacement of this type of agreement upon the default
of credit impairment of the related counterparty. However, there can be no
assurance that any such mechanism will result in the ability of the servicer to
obtain a replacement.
Violations of Federal Laws May Adversely Affect Ability to Collect on Loans
The mortgage loans may also be subject to federal and state laws,
including:
o the Federal Truth in Lending Act and Regulation Z promulgated
under that act, which require certain disclosures to the
borrowers regarding the terms of the residential loans;
o the Equal Credit Opportunity Act and Regulation B promulgated
under that act, 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;
o the Fair Credit Reporting Act, which regulates the use and
reporting of information related to the borrower's credit
experience; and
o for mortgage loans that were originated or closed after
November 7, 1989, the Home Equity Loan Consumer Protection Act
of 1988, which requires additional disclosures, limits changes
that may be made to the loan documents without the borrower's
consent. This act also restricts a lender's ability to declare
a default or to suspend or reduce a borrower's credit limit to
certain enumerated events.
15
Certain mortgage loans are subject to the Riegle Community Development
and Regulatory Improvement Act of 1994 which incorporates the Home Ownership and
Equity Protection Act of 1994. These provisions may:
o impose additional disclosure and other requirements on
creditors with respect to non-purchase money mortgage loans
with high interest rates or high up-front fees and charges;
o apply on a mandatory basis to all mortgage loans originated on
or after October 1, 1995;
o impose specific statutory liabilities on creditors who fail to
comply with their provisions; and
o affect the enforceability of the related loans.
In addition, any assignee of the creditor would generally be subject to
all claims and defenses that the consumer could assert against the creditor,
including, without limitation, the right to rescind the mortgage loan.
The Home Improvement Contracts are also subject to the Preservation of
Consumers' Claims and Defenses regulations of the Federal Trade Commission and
other similar federal and state statutes and regulations. These laws
o protect the homeowner from defective craftsmanship or
incomplete work by a contractor;
o permit the obligated party to withhold payment if the work
does not meet the quality and durability standards agreed to
by the homeowner and the contractor; and
o subject any person to whom the seller assigns its consumer
credit transaction to all claims and defenses which the
obligated party in a credit sale transaction could assert
against the seller of the goods.
Violations of certain provisions of these laws 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 mortgagor to a refund of amounts previously paid
and may subject the depositor, the servicer, the master servicer or the trust to
damages and administrative enforcement. The seller of the assets, either
directly or indirectly, to the depositor will be required to repurchase any
mortgage loans which, at the time of origination, did not comply with such
federal and state laws or regulations, however that remedy may not be adequate
to fully compensate the related trust fund. See "Certain Legal Aspects of the
Mortgage Loans" in this prospectus for other limitations on the enforceability
of mortgage loans.
Market Values of Manufactured Homes May Increase the Risk of Loss
Manufactured homes generally depreciate in value. Thus investors should
expect that, as a general matter, the market value of any manufactured home will
be lower than the outstanding principal balance of the related installment
contract. As a result, investors must be prepared to bear the risk of loss
resulting from any delinquency or liquidation loss on the contracts in a trust
fund. See "Description of Credit Support" in this prospectus.
Risk of Loss May Be Greater on Unsecured Home Improvement Loans
The obligations of the borrower under any unsecured home improvement
loan included in a trust fund will not be secured by an interest in the related
real estate or any other property. In the event of a default, the trust fund
will have recourse only against the borrower's assets generally, along with all
other general unsecured creditors of the borrower. In a bankruptcy or insolvency
proceeding, the obligations of the borrower under an unsecured home improvement
loan may be discharged in their entirety. As a result, the trust fund may suffer
losses. In addition, a borrower on an unsecured home improvement loan may not
demonstrate the same degree of concern over performance of the borrower's
obligations as if such obligations were secured by the real estate or other
assets owned by such borrower.
16
Risks of Loss May Increase Due to Defective Security Interest and Effects of
Certain Other Legal Aspects of the Contracts
The seller of the assets, either directly or indirectly, to the
depositor will represent that a contract is secured by a security interest in a
manufactured home. Perfection of such security interests and the right to
realize upon the value of the manufactured homes as collateral for the contracts
are subject to a number of federal and state laws, including the Uniform
Commercial Code. The steps necessary to perfect the security interest in a
manufactured home will vary from state to state. Because of the expense and
administrative inconvenience involved, the servicer or the master servicer will
not amend any certificates of title to change the lienholder specified therein
from the seller of the assets to the trustee and will not deliver any
certificate of title to the trustee or note thereon the trustee's interest.
Consequently, in some states, in the absence of such an amendment, the
assignment to the trustee of the security interest in the manufactured home may
not be effective or such security interest may not be perfected and, may not be
effective against creditors of the seller of the assets or a trustee in
bankruptcy of such seller.
In addition, numerous federal and state consumer protection laws impose
requirements on lending under installment sales contracts and installment loan
agreements such as the contracts, and the failure by the lender or seller of
goods to comply with such requirements could give rise to liabilities of
assignees for amounts due under such agreements and claims by such assignees may
be subject to set-off as a result of such lender's or seller's noncompliance.
These laws would apply to the trustee as assignee of the contracts. The seller
of the assets of the contracts will warrant that each contract complies with all
requirements of law and will make certain warranties relating to the validity,
subsistence, perfection and priority of the security interest in each
manufactured home securing a contract. A breach of any such warranty that
materially adversely affects any contract would create an obligation of the
seller of the assets to repurchase, or if permitted by the applicable agreement,
substitute for, such contract unless such breach is cured. If the credit support
is exhausted and recovery of amounts due on the contracts is dependent on
repossession and resale of manufactured homes securing contracts that are in
default, certain other factors may limit the ability to realize upon the
manufactured home or may limit the amount realized by securityholders to less
than the amount due. See "Certain Legal Aspects of the Contracts."
DESCRIPTION OF THE TRUST FUNDS
Assets
The primary assets of each Trust Fund (the "Assets") will include (i) a
segregated pool of single family and/or multifamily mortgage loans which may
include sub-prime mortgage loans (the "Mortgage Loans"), including without
limitation, Home Equity Loans, Home Improvement Contracts and Land Sale
Contracts, (ii) home improvement installment sales contracts or installment
loans that are unsecured (the "Unsecured Home Improvement Loans"), (iii)
manufactured housing installment sales contracts and installment loan agreements
(the "Contracts") or (iv) a combination of Mortgage Loans, Unsecured Home
Improvement Loans and/or Contracts. The Mortgage Loans will not be guaranteed or
insured by the Depositor or any of its affiliates. The Mortgage Loans will be
guaranteed or insured by a governmental agency or instrumentality or other
person only if and to the extent expressly provided in the related prospectus
supplement. Each Asset will be selected by the Depositor for inclusion in a
Trust Fund from among those purchased, either directly or indirectly, from a
prior holder thereof (an "Asset Seller"), which may be an affiliate of the
Depositor and which prior holder may or may not be the originator of such
Mortgage Loan, Unsecured Home Improvement Loan or Contract.
The Assets included in the Trust Fund for a Series may be subject to
various types of payment provisions. Such Assets may consist of (1) "Level
Payment Assets," which may provide for the payment of interest and full
repayment of principal in level monthly payments with a fixed rate of interest
computed on their declining principal balances; (2) "Adjustable Rate Assets,"
which may provide for periodic adjustments to their rates of interest to equal
the sum (which may be rounded) of a fixed margin and an index; (3) "Buy Down
Assets," which are Assets for which funds have been provided by someone other
than the related obligors to reduce the obligors' monthly payments during the
early period after origination of such Assets; (4) "Increasing Payment Assets,"
as described below; (5) "Interest Reduction Assets," which provide for the
one-time reduction of the interest rate payable thereon; (6) "GEM Assets," which
provide for (a) monthly payments during the first year after origination that
are at least sufficient to pay interest due thereon, and (b) an increase in such
monthly payments in subsequent years at a predetermined rate resulting in full
repayment over a shorter term than the initial amortization terms of such
Assets; (7) "GPM Assets," which allow for payments during a portion of their
terms which are or may be less than the amount of interest due on the unpaid
principal balances thereof, and which unpaid interest will be added to the
principal balances of such Assets and will be paid, together with interest
thereon, in later years; (8) "Step-up Rate Assets" which provide for interest
rates that increase over time; (9) "Balloon Payment Assets" which are mortgage
loans that are not fully amortizing over their terms and, thus, will require a
lump-sum payment at their stated maturity; (10) "Convertible Assets" which are
Adjustable Rate Assets subject to provisions pursuant to which, subject to
certain limitations, the related obligors may exercise an option to convert the
adjustable interest rate to a fixed interest rate; and (11) "Bi-weekly Assets,"
which provide for obligor payments to be made on a bi-weekly basis.
An Increasing Payment Asset is an Asset that provides for monthly
payments that are fixed for an initial period to be specified in the related
prospectus supplement and which increase thereafter (at a predetermined rate
expressed as a percentage of the monthly payment during the preceding payment
period, subject to any caps on the amount of any single monthly payment
increase) for a period to be specified in the related prospectus supplement from
the date of origination, after which the monthly payment is fixed at a
level-payment amount so as to fully amortize the Asset over its remaining term
to maturity. The scheduled monthly payment with respect to an Increasing Payment
Asset is the total amount required to be paid each month in accordance with its
terms and equals the sum of (1) the obligor's monthly payments referred to in
the preceding sentence and (2) in the case of certain Increasing Payment Assets,
payments made by the respective Servicers pursuant to buy-down or subsidy
agreements. The obligor's initial monthly payments for each Increasing Payment
Asset are set at the level-payment amount that would apply to an otherwise
identical Level Payment Asset having an interest rate a certain number of
percentage points below the Asset Rate of such Increasing Payment Asset. The
obligor's monthly payments on each Increasing Payment Asset, together with any
payments made thereon by the related Servicers pursuant to buy-down or subsidy
agreements, will in all cases be sufficient to allow payment of accrued interest
on such Increasing Payment Asset at the related interest rate, without negative
amortization. An obligor's monthly payments on such an Asset may, however, not
be sufficient to result in any reduction of the principal balance of such Asset
until after the period when such payments may be increased.
17
The Securities will be entitled to payment only from the assets of the
related Trust Fund and will not be entitled to payments in respect of the assets
of any other trust fund established by the Depositor. If specified in the
related prospectus supplement, the assets of a Trust Fund will consist of
certificates representing beneficial ownership interests in, or indebtedness of,
another trust fund that contains the Assets.
Mortgage Loans
General
Each Mortgage Loan will generally be secured by a lien on (i) a one-to
four-family residential property or a security interest in shares issued by a
cooperative housing corporation (a "Single Family Property" and the related
Mortgage Loan a "Single Family Mortgage Loan") or (ii) a primarily residential
property which consists of five or more residential dwelling units, and which
may include limited retail, office or other commercial space (a "Multifamily
Property" and the related Mortgage Loan a "Multifamily Mortgage Loan"). Single
Family Properties and Multifamily Properties are sometimes referred to herein
collectively as "Mortgaged Properties." To the extent specified in the related
prospectus supplement, the Mortgage Loans will be secured by first and/or junior
mortgages or deeds of trust or other similar security instruments creating a
first or junior lien on Mortgaged Property. The Mortgaged Properties may include
apartments owned by cooperative housing corporations ("Cooperatives"). The
Mortgaged Properties may include leasehold interests in properties, the title to
which is held by third party lessors. The term of any such leasehold shall
exceed the term of the related mortgage note by at least five years or such
other time period specified in the related prospectus supplement. The Mortgage
Loans may include (i) closed-end and/or revolving home equity loans or certain
balances thereof ("Home Equity Loans") and/or (ii) secured home improvement
installment sales contracts and secured installment loan agreements ("Home
Improvement Contracts"). In addition, the Mortgage Loans may include certain
Mortgage Loans evidenced by contracts ("Land Sale Contracts") for the sale of
properties pursuant to which the mortgagor promises to pay the amount due
thereon to the holder thereof with fee title to the related property held by
such holder until the mortgagor has made all of the payments required pursuant
to such Land Sale Contract, at which time fee title is conveyed to the
mortgagor. The Originator of each Mortgage Loan will have been a person other
than the Depositor. The related prospectus supplement will indicate if any
person who originated the Mortgage Loans (each an "Originator") is an affiliate
of the Depositor. The Mortgage Loans will be evidenced by promissory notes (the
"Mortgage Notes") secured by mortgages, deeds of trust or other security
instruments (the "Mortgages") creating a lien on the Mortgaged Properties.
18
Loan-to-Value Ratio
The "Loan-to-Value Ratio" of a Mortgage Loan at any given time is the
ratio (expressed as a percentage) of the then outstanding principal balance of
the Mortgage Loan to the Value of the related Mortgaged Property. The "Value" of
a Mortgaged Property, other than with respect to Refinance Loans, is generally
the lesser of (a) the appraised value determined in an appraisal obtained by the
originator at origination of such loan and (b) the sales price for such
property. "Refinance Loans" are loans made to refinance existing loans. Unless
otherwise set forth in the related prospectus supplement, the Value of the
Mortgaged Property securing a Refinance Loan is the appraised value thereof
determined in an appraisal obtained at the time of origination of the Refinance
Loan. The value of a Mortgaged Property as of the date of initial issuance of
the related Series of Securities may be less than the Value at origination and
will fluctuate from time to time based upon changes in economic conditions and
the real estate market.
Mortgage Loan Information in Prospectus Supplements
Each prospectus supplement will contain information, as of the dates
specified in such prospectus supplement and to the extent then applicable and
specifically known to the Depositor, with respect to the Mortgage Loans,
including (i) the aggregate outstanding principal balance and the largest,
smallest and average outstanding principal balance of the Mortgage Loans as of
the applicable cut-off date (the "Cut-off Date") specified in the prospectus
supplement, (ii) the type of property securing the Mortgage Loans, (iii) the
weighted average (by principal balance) of the original and remaining terms to
maturity of the Mortgage Loans, (iv) the earliest and latest origination date
and maturity date of the Mortgage Loans, (v) the range of the Loan-to-Value
Ratios at origination of the Mortgage Loans, (vi) the Mortgage Rates or range of
Mortgage Rates and the weighted average Mortgage Rate borne by the Mortgage
Loans, (vii) the state or states in which most of the Mortgaged Properties are
located, (viii) information with respect to the prepayment provisions, if any,
of the Mortgage Loans, (ix) with respect to Mortgage Loans with adjustable
Mortgage Rates ("ARM Loans"), the index, the frequency of the adjustment dates,
the range of margins added to the index, and the maximum Mortgage Rate or
monthly payment variation at the time of any adjustment thereof and over the
life of the ARM Loan, (x) information regarding the payment characteristics of
the Mortgage Loans, including without limitation balloon payment and other
amortization provisions, (xi) the number of Mortgage Loans that are delinquent
and the number of days or ranges of the number of days such Mortgage Loans are
delinquent and (xii) the material underwriting standards used for the Mortgage
Loans. If specific information respecting the Mortgage Loans is not known to the
Depositor at the time Securities are initially offered, more general information
of the nature described above will be provided in the prospectus supplement, and
specific information will be set forth in a report which will be available to
purchasers of the related Securities at or before the initial issuance thereof
and will be filed as part of a Current Report on Form 8-K with the Securities
and Exchange Commission (the "Commission") after such initial issuance.
Notwithstanding the foregoing, the characteristics of the Mortgage Loans
included in a Trust Fund will not vary by more than five percent (by aggregate
principal balance as of the Cut-off Date) from the characteristics thereof that
are described in the related prospectus supplement.
The related prospectus supplement will specify whether the Mortgage
Loans include (i) Home Equity Loans, which may be secured by Mortgages that are
junior to other liens on the related Mortgaged Property and/or (ii) Home
Improvement Contracts originated by a home improvement contractor and secured by
a Mortgage on the related Mortgaged Property that is junior to other liens on
the Mortgaged Property. The home improvements purchased with the Home
Improvement Contracts typically include replacement windows, house siding,
roofs, swimming pools, satellite dishes, kitchen and bathroom remodeling goods,
solar heating panels, patios, decks, room additions and garages. The related
prospectus supplement will specify whether the Home Improvement Contracts are
partially insured under Title I of the National Housing Act of 1934 (the
"National Housing Act") and, if so, the limitations on such insurance. In
addition, the related prospectus supplement will specify whether the Mortgage
Loans contain certain Mortgage Loans evidenced by Land Sale Contracts.
19
Payment Provisions of the Mortgage Loans
All of the Mortgage Loans will provide for payments of principal,
interest or both, on due dates that occur monthly, quarterly or semi-annually or
at such other interval as is specified in the related prospectus supplement or
for payments in another manner described in the related prospectus supplement.
Each Mortgage Loan may provide for no accrual of interest or for accrual of
interest thereon at an interest rate (a "Mortgage Rate") that is fixed over its
term or that adjusts from time to time, or that may be converted from an
adjustable to a fixed Mortgage Rate or a different adjustable Mortgage Rate, or
from a fixed to an adjustable Mortgage Rate, from time to time pursuant to an
election or as otherwise specified on the related Mortgage Note, in each case as
described in the related prospectus supplement. Each Mortgage Loan may provide
for scheduled payments to maturity or payments that adjust from time to time to
accommodate changes in the Mortgage Rate or to reflect the occurrence of certain
events or that adjust on the basis of other methodologies, and may provide for
negative amortization or accelerated amortization, in each case as described in
the related prospectus supplement. Each Mortgage Loan may be fully amortizing or
require a balloon payment due on its stated maturity date, in each case as
described in the related prospectus supplement. Each Mortgage Loan may contain
prohibitions on prepayment (a "Lock-out Period" and, the date of expiration
thereof, a "Lock-out Date") or require payment of a premium or a yield
maintenance penalty (a "Prepayment Premium") in connection with a prepayment, in
each case as described in the related prospectus supplement. In the event that
holders of any Class or Classes of Offered Securities will be entitled to all or
a portion of any Prepayment Premiums collected in respect of Mortgage Loans, the
related prospectus supplement will specify the method or methods by which any
such amounts will be allocated. See "--Assets" above.
Revolving Credit Line Loans
As more fully described in the related prospectus supplement, the
Mortgage Loans may consist, in whole or in part, of revolving Home Equity Loans
or certain balances thereof ("Revolving Credit Line Loans"). Interest on each
Revolving Credit Line Loan, excluding introductory rates offered from time to
time during promotional periods, may be computed and payable monthly on the
average daily outstanding principal balance of such loan. From time to time
prior to the expiration of the related draw period specified in a Revolving
Credit Line Loan, principal amounts on such Revolving Credit Line Loan may be
drawn down (up to a maximum amount as set forth in the related prospectus
supplement) or repaid. If specified in the related prospectus supplement, new
draws by borrowers under the Revolving Credit Line Loans will automatically
become part of the Trust Fund described in such prospectus supplement. As a
result, the aggregate balance of the Revolving Credit Line Loans will fluctuate
from day to day as new draws by borrowers are added to the Trust Fund and
principal payments are applied to such balances and such amounts will usually
differ each day, as more specifically described in the related prospectus
supplement. Under certain circumstances, under a Revolving Credit Line Loan, a
borrower may, during the related draw period, choose an interest only payment
option, during which the borrower is obligated to pay only the amount of
interest which accrues on the loan during the billing cycle, and may also elect
to pay all or a portion of the principal. An interest only payment option may
terminate at the end of the related draw period, after which the borrower must
begin paying at least a minimum monthly portion of the average outstanding
principal balance of the loan.
Unsecured Home Improvement Loans
The Unsecured Home Improvement Loans may consist of conventional
unsecured home improvement loans and FHA insured unsecured home improvement
loans. Except as otherwise set forth in the related prospectus supplement, the
Unsecured Home Improvement Loans will be fully amortizing and will bear interest
at a fixed or variable annual percentage rate.
20
Unsecured Home Improvement Loan Information in Prospectus Supplements
Each prospectus supplement will contain information, as of the dates
specified in such prospectus supplement and to the extent then applicable and
specifically known to the Depositor, with respect to the Unsecured Home
Improvement Loans, including (i) the aggregate outstanding principal balance and
the largest, smallest and average outstanding principal balance of the Unsecured
Home Improvement Loans as of the applicable Cut-Off Date, (ii) the weighted
average (by principal balance) of the original and remaining terms to maturity
of the Unsecured Home Improvement Loans, (iii) the earliest and latest
origination date and maturity date of the Unsecured Home Improvements Loans,
(iv) the interest rates or range of interest rates and the weighted average
interest rates borne by the Unsecured Home Improvement Loans, (v) the state or
states in which most of the Unsecured Home Improvement Loans were originated,
(vi) information with respect to the prepayment provisions, if any, of the
Unsecured Home Improvement Loans, (vii) with respect to the Unsecured Home
Improvement Loans with adjustable interest rates ("ARM Unsecured Home
Improvement Loans"), the index, the frequency of the adjustment dates, the range
of margins added to the index, and the maximum interest rate or monthly payment
variation at the time of any adjustment thereof and over the life of the ARM
Unsecured Home Improvement Loan, (viii) information regarding the payment
characteristics of the Unsecured Home Improvement Loan, (ix) the number of
Unsecured Home Improvement Loans that are delinquent and the number of days or
ranges of the number of days such Unsecured Home Improvement Loans are
delinquent and (x) the material underwriting standards used for the Unsecured
Home Improvement Loans. If specific information respecting the Unsecured Home
Improvement Loans is not known to the Depositor at the time Securities are
initially offered, more general information of the nature described above will
be provided in the prospectus supplement, and specific information will be set
forth in a report which will be available to purchasers of the related
Securities at or before the initial issuance thereof and will be filed as part
of a Current Report on Form 8-K with the Securities and Exchange Commission
after such initial issuance. Notwithstanding the foregoing, the characteristics
of the Unsecured Home Improvement Loans included in a Trust Fund will not vary
by more than five percent (by aggregate principal balance as of the Cut-off
Date) from the characteristics thereof that are described in the related
prospectus supplement.
Contracts
General
To the extent provided in the related prospectus supplement, each
Contract will be secured by a security interest in a new or used manufactured
home (each, a "Manufactured Home"). Such prospectus supplement will specify the
states or other jurisdictions in which the Manufactured Homes are located as of
the related Cut-off Date. The method of computing the Loan-to-Value Ratio of a
Contract will be described in the related prospectus supplement.
Contract Information in Prospectus Supplements
Each prospectus supplement will contain certain information, as of the
dates specified in such prospectus supplement and to the extent then applicable
and specifically known to the Depositor, with respect to the Contracts,
including (i) the aggregate outstanding principal balance and the largest,
smallest and average outstanding principal balance of the Contracts as of the
applicable Cut-off Date, (ii) whether the Manufactured Homes were new or used as
of the origination of the related Contracts, (iii) the weighted average (by
principal balance) of the original and remaining terms to maturity of the
Contracts, (iv) the earliest and latest origination date and maturity date of
the Contracts, (v) the range of the Loan-to-Value Ratios at origination of the
Contracts, (vi) the Contract Rates or range of Contract Rates and the weighted
average Contract Rate borne by the Contracts, (vii) the state or states in which
most of the Manufactured Homes are located at origination, (viii) information
with respect to the prepayment provisions, if any, of the Contracts, (ix) with
respect to Contracts with adjustable Contract Rates ("ARM Contracts"), the
index, the frequency of the adjustment dates, and the maximum Contract Rate or
monthly payment variation at the time of any adjustment thereof and over the
life of the ARM Contract, (x) the number of Contracts that are delinquent and
the number of days or ranges of the number of days such Contracts are
delinquent, (xi) information regarding the payment characteristics of the
Contracts and (xii) the material underwriting standards used for the Contracts.
If specific information respecting the Contracts is not known to the Depositor
at the time Securities are initially offered, more general information of the
nature described above will be provided in the prospectus supplement, and
specific information will be set forth in a report which will be available to
purchasers of the related Securities at or before the initial issuance thereof
and will be filed as part of a Current Report on Form 8-K with the Securities
and Exchange Commission after such initial issuance. Notwithstanding the
foregoing, the characteristics of the Contracts included in a Trust Fund will
not vary by more than five percent (by aggregate principal balance as of the
Cut-off Date) from the characteristics thereof that are described in the related
prospectus supplement.
21
Payment Provisions of the Contracts
All of the Contracts will provide for payments of principal, interest
or both, on due dates that occur monthly or at such other interval as is
specified in the related prospectus supplement or for payments in another manner
described in the prospectus supplement. Each Contract may provide for no accrual
of interest or for accrual of interest thereon at an annual percentage rate (a
"Contract Rate") that is fixed over its term or that adjusts from time to time,
or as otherwise specified in the related prospectus supplement. Each Contract
may provide for scheduled payments to maturity or payments that adjust from time
to time to accommodate changes in the Contract Rate as otherwise described in
the related prospectus supplement. See "--Assets" above.
Pre-Funding Account
To the extent provided in a prospectus supplement, a portion of the
proceeds of the issuance of Securities may be deposited into an account
maintained with the Trustee (a "Pre-Funding Account"). In such event, the
Depositor will be obligated (subject only to the availability thereof) to sell
at a predetermined price, and the Trust Fund for the related Series of
Securities will be obligated to purchase (subject to the availability thereof),
additional Assets (the "Subsequent Assets") from time to time (as frequently as
daily) within the period (generally not to exceed three months) specified in the
related prospectus supplement (the "Pre-Funding Period") after the issuance of
such Series of Securities having an aggregate principal balance approximately
equal to the amount on deposit in the Pre-Funding Account (the "Pre-Funded
Amount") for such Series on the date of such issuance. The Pre-Funded Amount
with respect to a Series is not expected to exceed 25% of the aggregate initial
Security Balance of the related Securities. Any Subsequent Assets will be
required to satisfy certain eligibility criteria more fully set forth in the
applicable Agreement, which eligibility criteria will be consistent with the
eligibility criteria of the Assets initially included in the Trust Fund, subject
to such exceptions as are expressly stated in the prospectus supplement. For
example, the Subsequent Assets will be subject to the same underwriting
standards, representations and warranties as the Assets initially included in
the Trust Fund. In addition, certain conditions must be satisfied before the
Subsequent Assets are transferred into the Trust Fund such as the delivery to
the Rating Agencies and the Trustee of certain opinions of counsel (including
bankruptcy, corporate and tax opinions).
Any portion of the Pre-Funded Amount remaining in the Pre-Funding
Account at the end of the Pre-Funding Period will be used to prepay one or more
Classes of Securities in the amounts and in the manner specified in the related
prospectus supplement. In addition, if specified in the related prospectus
supplement, the Depositor may be required to deposit cash into an account
maintained by the Trustee (the "Capitalized Interest Account") for the purpose
of assuring the availability of funds to pay interest with respect to the
Securities during the Pre-Funding Period. Any amount remaining in the
Capitalized Interest Account at the end of the Pre-Funding Period will be
remitted as specified in the related prospectus supplement.
Accounts
Each Trust Fund will include one or more accounts, established and
maintained on behalf of the Securityholders into which the person or persons
designated in the related prospectus supplement will, to the extent described
herein and in such prospectus supplement deposit all payments and collections
received or advanced with respect to the Assets and other assets in the Trust
Fund. Such an account may be maintained as an interest bearing or a non-interest
bearing account, and funds held therein may be held as cash or invested in
certain short-term, investment grade obligations, in each case as described in
the related prospectus supplement. See "Description of the Agreements--Material
Terms of the Pooling and Servicing Agreements and Underlying Servicing
Agreements--Collection Account and Related Accounts."
Credit Support
If so provided in the related prospectus supplement, partial or full
protection against certain defaults and losses on the Assets in the related
Trust Fund may be provided to one or more Classes of Securities in the related
Series in the form of subordination of one or more other Classes of Securities
in such Series or by one or more other types of credit support, such as a letter
of credit, insurance policy, guarantee, reserve fund or another type of credit
support, or a combination thereof (any such coverage with respect to the
Securities of any Series, "Credit Support"). The amount and types of coverage,
the identification of the entity providing the coverage (if applicable) and
related information with respect to each type of Credit Support, if any, will be
described in the prospectus supplement for a Series of Securities. See "Risk
Factors--Risks Associated with the Securities--Credit Enhancement is Limited in
Amount and Coverage" and "Description of Credit Support."
22
Cash Flow Agreements
If so provided in the related prospectus supplement, the Trust Fund may
include guaranteed investment contracts pursuant to which moneys held in the
funds and accounts established for the related Series will be invested at a
specified rate. The Trust Fund may also include certain other agreements, such
as interest rate exchange agreements, interest rate cap or floor agreements,
currency exchange agreements or similar agreements provided to reduce the
effects of interest rate or currency exchange rate fluctuations on the Assets or
on one or more Classes of Securities. (Currency exchange agreements might be
included in the Trust Fund if some or all of the Mortgage Loans were denominated
in a non-United States currency.) The principal terms of any such guaranteed
investment contract or other agreement (any such agreement, a "Cash Flow
Agreement"), including, without limitation, provisions relating to the timing,
manner and amount of payments thereunder and provisions relating to the
termination thereof, will be described in the prospectus supplement for the
related Series. In addition, the related prospectus supplement will provide
certain information with respect to the obligor under any such Cash Flow
Agreement.
USE OF PROCEEDS
The net proceeds to be received from the sale of the Securities will be
applied by the Depositor to the purchase of Assets, or the repayment of the
financing incurred in such purchase, and to pay for certain expenses incurred in
connection with such purchase of Assets and sale of Securities. The Depositor
expects to sell the Securities from time to time, but the timing and amount of
offerings of Securities will depend on a number of factors, including the volume
of Assets acquired by the Depositor, prevailing interest rates, availability of
funds and general market conditions.
YIELD CONSIDERATIONS
General
The yield on any Offered Security will depend on the price paid by the
holder of the Security (the "Securityholder"), the Pass-Through Rate of the
Security, the receipt and timing of receipt of distributions on the Security and
the weighted average life of the Assets in the related Trust Fund (which may be
affected by prepayments, defaults, liquidations or repurchases). See "Risk
Factors--Risks Associated with the Securities--Rate of Prepayment on Mortgage
Loans May Adversely Affect Average Lives and Yields on the Securities."
Pass-Through Rate and Interest Rate
Securities of any Class within a Series may have fixed, variable or
adjustable Pass-Through Rates or interest rates, which may or may not be based
upon the interest rates borne by the Assets in the related Trust Fund. The
prospectus supplement with respect to any Series of Securities will specify the
Pass-Through Rate or interest rate for each Class of such Securities or, in the
case of a variable or adjustable Pass-Through Rate or interest rate, the method
of determining the Pass-Through Rate or interest rate; the effect, if any, of
the prepayment of any Asset on the Pass-Through Rate or interest rate of one or
more Classes of Securities; and whether the distributions of interest on the
Securities of any Class will be dependent, in whole or in part, on the
performance of any obligor under a Cash Flow Agreement.
If so specified in the related prospectus supplement, the effective
yield to maturity to each holder of Securities entitled to payments of interest
will be below that otherwise produced by the applicable Pass-Through Rate or
interest rate and purchase price of such Security because, while interest may
accrue on each Asset during a certain period (each, an "Accrual Period"), the
distribution of such interest will be made on a day which may be several days,
weeks or months following the period of accrual.
23
Timing of Payment of Interest
Each payment of interest on the Securities (or addition to the Security
Balance of a Class of Accrual Securities) on the monthly, quarterly or other
periodic date specified in the related prospectus supplement on which
distributions will be made to holders of Securities (a "Distribution Date") will
include interest accrued during the Accrual Period for such Distribution Date.
As indicated above under "--Pass-Through Rate and Interest Rate," if the Accrual
Period ends on a date other than the day before a Distribution Date for the
related Series, the yield realized by the holders of such Securities may be
lower than the yield that would result if the Accrual Period ended on such day
before the Distribution Date.
Payments of Principal; Prepayments
The yield to maturity on the Securities will be affected by the rate of
principal payments on the Assets (including principal prepayments on Mortgage
Loans and Contracts resulting from both voluntary prepayments by the borrowers
and involuntary liquidations). The rate at which principal prepayments occur on
the Mortgage Loans and Contracts will be affected by a variety of factors,
including, without limitation, the terms of the Mortgage Loans and Contracts,
the level of prevailing interest rates, the availability of mortgage credit and
economic, demographic, geographic, tax, legal and other factors. In general,
however, if prevailing interest rates fall significantly below the Mortgage
Rates on the Mortgage Loans comprising or underlying the Assets in a particular
Trust Fund, such Mortgage Loans are likely to be the subject of higher principal
prepayments than if prevailing rates remain at or above the rates borne by such
Mortgage Loans. In this regard, it should be noted that certain Assets may
consist of Mortgage Loans with different Mortgage Rates. The rate of principal
payments on some or all of the Classes of Securities of a Series will correspond
to the rate of principal payments on the Assets in the related Trust Fund and is
likely to be affected by the existence of Lock-out Periods and Prepayment
Premium provisions of the Mortgage Loans underlying or comprising such Assets,
and by the extent to which the servicer of any such Mortgage Loan is able to
enforce such provisions. Mortgage Loans with a Lock-out Period or a Prepayment
Premium provision, to the extent enforceable, generally would be expected to
experience a lower rate of principal prepayments than otherwise identical
Mortgage Loans without such provisions, with shorter Lock-out Periods or with
lower Prepayment Premiums. Because of the depreciating nature of manufactured
housing, which limits the possibilities for refinancing, and because the terms
and principal amounts of manufactured housing contracts are generally shorter
and smaller than the terms and principal amounts of mortgage loans secured by
site-built homes, changes in interest rates have a correspondingly smaller
effect on the amount of the monthly payments on manufactured housing contracts
than on the amount of the monthly payments on mortgage loans secured by
site-built homes. Consequently, changes in interest rates may play a smaller
role in prepayment behavior of manufactured housing contracts than they do in
the prepayment behavior of loans secured by mortgage on site-built homes.
Conversely, local economic conditions and certain of the other factors mentioned
above may play a larger role in the prepayment behavior of manufactured housing
contracts than they do in the prepayment behavior of loans secured by mortgages
on site-built homes.
If the purchaser of a Security offered at a discount calculates its
anticipated yield to maturity based on an assumed rate of distributions of
principal that is faster than that actually experienced on the Assets, the
actual yield to maturity will be lower than that so calculated. Conversely, if
the purchaser of a Security offered at a premium calculates its anticipated
yield to maturity based on an assumed rate of distributions of principal that is
slower than that actually experienced on the Assets, the actual yield to
maturity will be lower than that so calculated. In either case, if so provided
in the prospectus supplement for a Series of Securities, the effect on yield on
one or more Classes of the Securities of such Series of prepayments of the
Assets in the related Trust Fund may be mitigated or exacerbated by any
provisions for sequential or selective distribution of principal to such
Classes.
When a full prepayment is made on a Mortgage Loan or a Contract, the
obligor is charged interest on the principal amount of the Mortgage Loan or
Contract so prepaid for the number of days in the month actually elapsed up to
the date of the prepayment or such other period specified in the related
prospectus supplement. Generally, the effect of prepayments in full will be to
reduce the amount of interest paid in the following month to holders of
Securities entitled to payments of interest because interest on the principal
amount of any Mortgage Loan or Contract 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 or Contract as of the Due Date in the month in which such partial
prepayment is received or such other date as is specified in the related
prospectus supplement.
24
The timing of changes in the rate of principal payments on the Assets
may significantly affect an investor's actual yield to maturity, even if the
average rate of distributions of principal is consistent with an investor's
expectation. In general, the earlier a principal payment is received on the
Mortgage Loans and distributed on a Security, the greater the effect on such
investor's yield to maturity. The effect on an investor's yield of principal
payments occurring at a rate higher (or lower) than the rate anticipated by the
investor during a given period may not be offset by a subsequent like decrease
(or increase) in the rate of principal payments.
The Securityholder will bear the risk of being able to reinvest
principal received in respect of a Security at a yield at least equal to the
yield on such Security.
Prepayments--Maturity and Weighted Average Life
The rates at which principal payments are received on the Assets
included in or comprising a Trust Fund and the rate at which payments are made
from any Credit Support or Cash Flow Agreement for the related Series of
Securities may affect the ultimate maturity and the weighted average life of
each Class of such Series. Prepayments on the Mortgage Loans or Contracts
comprising or underlying the Assets in a particular Trust Fund will generally
accelerate the rate at which principal is paid on some or all of the Classes of
the Securities of the related Series.
If so provided in the prospectus supplement for a Series of Securities,
one or more Classes of Securities may have a final scheduled Distribution Date,
which is the date on or prior to which the stated principal amount (the
"Security Balance") thereof is scheduled to be reduced to zero, calculated on
the basis of the assumptions applicable to such Series set forth therein.
Weighted average life refers to the average amount of time that will elapse from
the date of issue of a security until each dollar of principal of such security
will be repaid to the investor. The weighted average life of a Class of
Securities of a Series will be influenced by the rate at which principal on the
Assets is paid to such Class, which may be in the form of scheduled amortization
or prepayments (for this purpose, the term "prepayment" includes prepayments, in
whole or in part, and liquidations due to default).
In addition, the weighted average life of the Securities may be
affected by the varying maturities of the Assets in a Trust Fund. If any Assets
in a particular Trust Fund have actual terms to maturity less than those assumed
in calculating final scheduled Distribution Dates for the Classes of Securities
of the related Series, one or more Classes of such Securities may be fully paid
prior to their respective final scheduled Distribution Dates, even in the
absence of prepayments. Accordingly, the prepayment experience of the Assets
will, to some extent, be a function of the mix of Mortgage Rates or Contract
Rates and maturities of the Mortgage Loans or Contracts comprising or underlying
such Assets. See "Description of the Trust Funds."
Prepayments on loans are also commonly measured relative to a
prepayment standard or model, such as the Constant Prepayment Rate ("CPR")
prepayment model or the Standard Prepayment Assumption ("SPA") prepayment model,
each as described below. CPR represents a constant assumed rate of prepayment
each month relative to the then outstanding principal balance of a pool of loans
for the life of such loans. SPA represents an assumed rate of prepayment each
month relative to the then outstanding principal balance of a pool of loans. A
prepayment assumption of 100% of SPA assumes prepayment rates of 0.2% per annum
of the then outstanding principal balance of such loans in the first month of
the life of the loans and an additional 0.2% per annum in each month thereafter
until the thirtieth month. Beginning in the thirtieth month and in each month
thereafter during the life of the loans, 100% of SPA assumes a constant
prepayment rate of 6% per annum each month.
Neither CPR nor SPA nor any other prepayment model or assumption
purports to be a historical description of prepayment experience or a prediction
of the anticipated rate of prepayment of any pool of loans, including the
Mortgage Loans or Contracts underlying or comprising the Assets.
25
The prospectus supplement with respect to each Series of Securities may
contain tables, if applicable, setting forth the projected weighted average life
of each Class of Offered Securities of such Series and the percentage of the
initial Security Balance of each such Class that would be outstanding on
specified Distribution Dates based on the assumptions stated in such prospectus
supplement, including assumptions that prepayments on the Mortgage Loans
comprising or underlying the related Assets are made at rates corresponding to
various percentages of CPR, SPA or such other standard specified in such
prospectus supplement. Such tables and assumptions are intended to illustrate
the sensitivity of the weighted average life of the Securities to various
prepayment rates and will not be intended to predict or to provide information
that will enable investors to predict the actual weighted average life of the
Securities. It is unlikely that prepayment of any Mortgage Loans or Contracts
comprising or underlying the Assets for any Series will conform to any
particular level of CPR, SPA or any other rate specified in the related
prospectus supplement.
Other Factors Affecting Weighted Average Life
Type of Asset
If so specified in the related prospectus supplement, a number of
Mortgage Loans may have balloon payments due at maturity (which, based on the
amortization schedule of such Mortgage Loans, may be a substantial amount), and
because the ability of a mortgagor to make a balloon payment typically will
depend upon its ability either to refinance the loan or to sell the related
Mortgaged Property, there is a risk that a number of Balloon Payment Assets may
default at maturity. 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 Depositor, the Servicer, the Master Servicer, nor any of their affiliates
will be obligated to refinance or repurchase any Mortgage Loan or to sell the
Mortgaged Property except to the extent provided in the related prospectus
supplement. In the case of defaults, recovery of proceeds may be delayed by,
among other things, bankruptcy of the mortgagor or adverse conditions in the
market where the property is located. In order to minimize losses on defaulted
Mortgage Loans, the Servicer may, to the extent and under the circumstances set
forth in the related prospectus supplement, be permitted to modify Mortgage
Loans that are in default or as to which a payment default is reasonably
foreseeable. Any defaulted balloon payment or modification that extends the
maturity of a Mortgage Loan will tend to extend the weighted average life of the
Securities and may thereby lengthen the period of time elapsed from the date of
issuance of a Security until it is retired.
With respect to certain Mortgage Loans, including 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. With respect to
certain Contracts, the Contract Rate may be "stepped up" during its term or may
otherwise vary or be adjusted. Under the applicable underwriting standards, the
mortgagor or obligor under each Mortgage Loan or Contract generally will be
qualified on the basis of the Mortgage Rate or Contract Rate in effect at
origination. The repayment of any such Mortgage Loan or Contract may thus be
dependent on the ability of the mortgagor or obligor to make larger level
monthly payments following the adjustment of the Mortgage Rate or Contract Rate.
In addition, 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 will be less than the
scheduled monthly payments thereon (the "Buydown Period"). The periodic increase
in the amount paid by the mortgagor of a Buydown Mortgage Loan during or at the
end of the applicable Buydown Period may create a greater financial burden for
the mortgagor, who might not have otherwise qualified for a mortgage, and may
accordingly increase the risk of default with respect to the related Mortgage
Loan.
The Mortgage Rates on certain ARM Loans subject to negative
amortization generally 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 applicable index at origination and the related margin over such index at
which interest accrues), 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 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 of any related Class or
Classes of Securities will lengthen the weighted average life thereof 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 the principal balance of the related Class or Classes of Securities,
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.
26
As may be described in the related prospectus supplement, the
applicable 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 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 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.
Termination
If so specified in the related prospectus supplement, a Series of
Securities may be subject to optional early termination through the repurchase
of the Assets in the related Trust Fund by the party specified therein, on any
date on which the aggregate principal balance of the Assets or the aggregate
Security Balance of the Securities of such Series declines to a percentage
specified in the related prospectus supplement (not to exceed 10%) of the
aggregate initial principal balance of such Assets or initial Security Balance
of such Securities, as the case may be, under the circumstances and in the
manner set forth therein. In addition, if so provided in the related prospectus
supplement, certain Classes of Securities may be purchased or redeemed in the
manner set forth therein. See "Description of the Securities--Termination."
Defaults
The rate of defaults on the Assets will also affect the rate, timing
and amount of principal payments on the Assets and thus the yield on the
Securities. In general, defaults on mortgage loans or contracts are expected to
occur with greater frequency in their early years. The rate of default on
Mortgage Loans which are refinance or limited documentation mortgage loans, and
on Mortgage Loans with high Loan-to-Value Ratios, may be higher than for other
types of Mortgage Loans. Furthermore, the rate and timing of prepayments,
defaults and liquidations on the Mortgage Loans and Contracts will be affected
by the general economic condition of the region of the country in which the
related Mortgage Properties or Manufactured Homes are located. The risk of
delinquencies and loss is greater and prepayments are less likely in regions
where a weak or deteriorating economy exists, as may be evidenced by, among
other factors, increasing unemployment or falling property values.
Foreclosures
The number of foreclosures or repossessions and the principal amount of
the Mortgage Loans or Contracts comprising or underlying the Assets that are
foreclosed or repossessed in relation to the number and principal amount of
Mortgage Loans or Contracts that are repaid in accordance with their terms will
affect the weighted average life of the Mortgage Loans or Contracts comprising
or underlying the Assets and that of the related Series of Securities.
27
Refinancing
At the request of a mortgagor, the Servicer may allow the refinancing
of a Mortgage Loan or Contract in any Trust Fund by accepting prepayments
thereon and permitting a new loan secured by a mortgage on the same property. In
the event of such a refinancing, the new loan would not be included in the
related Trust Fund and, therefore, such refinancing would have the same effect
as a prepayment in full of the related Mortgage Loan or Contract. A Servicer
may, from time to time, implement programs designed to encourage refinancing.
Such programs may include, without limitation, modifications of existing loans,
general or targeted solicitations, the offering of pre-approved applications,
reduced origination fees or closing costs, or other financial incentives. In
addition, Servicers may encourage the refinancing of Mortgage Loans or
Contracts, including defaulted Mortgage Loans or Contracts, that would permit
creditworthy borrowers to assume the outstanding indebtedness of such Mortgage
Loans or Contracts.
Due-on-Sale Clauses
Acceleration of mortgage payments as a result of certain transfers of
underlying Mortgaged Property is another factor affecting prepayment rates that
may not be reflected in the prepayment standards or models used in the relevant
prospectus supplement. A number of the Mortgage Loans comprising or underlying
the Assets may include "due-on-sale clauses" that allow the holder of the
Mortgage Loans to demand payment in full of the remaining principal balance of
the Mortgage Loans upon sale, transfer or conveyance of the related Mortgaged
Property. With respect to any Mortgage Loans, except as set forth in the related
prospectus supplement, 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. See
"Certain Legal Aspects of Mortgage Loans--Due-on-Sale Clauses" and "Description
of the Agreements--Material Terms of the Pooling and Servicing Agreements and
Underlying Servicing Agreements--Due-on-Sale Provisions." The Contracts, in
general, prohibit the sale or transfer of the related Manufactured Homes without
the consent of the Servicer and permit the acceleration of the maturity of the
Contracts by the Servicer upon any such sale or transfer that is not consented
to. It is expected that the Servicer will permit most transfers of Manufactured
Homes and not accelerate the maturity of the related Contracts. In certain
cases, the transfer may be made by a delinquent obligor in order to avoid a
repossession of the Manufactured Home. In the case of a transfer of a
Manufactured Home after which the Servicer desires to accelerate the maturity of
the related Contract, the Servicer's ability to do so will depend on the
enforceability under state law of the "due-on-sale clause". See "Certain Legal
Aspects of the Contracts--Transfers of Manufactured Homes; Enforceability of
Due-on-Sale Clauses."
THE DEPOSITOR
Asset Backed Funding Corporation (the "Depositor") is a direct
wholly-owned subsidiary of Banc of America Mortgage Capital Corporation and was
incorporated in the State of Delaware on July 23, 1997. The principal executive
offices of the Depositor are located at Bank of America Corporate Center, 100
North Tryon Street, Charlotte, North Carolina 28255. Its telephone number is
(704) 386-2400.
The Depositor formerly was an indirect wholly-owned subsidiary of
NationsBank Corporation. On September 30, 1998, BankAmerica Corporation was
merged with and into NationsBank Corporation with the latter entity surviving.
Upon completion of the merger, NationsBank Corporation changed its name first to
BankAmerica Corporation and then to Bank of America Corporation. As a result,
the Depositor is now an indirect wholly-owned subsidiary of Bank of America
Corporation.
The Depositor does not have, nor is it expected in the future to have,
any significant assets.
28
DESCRIPTION OF THE SECURITIES
General
The asset-backed certificates (the "Certificates") of a series (each, a
"Series") (including any Class of Certificates not offered hereby) will
represent the entire beneficial ownership interest in the trust fund (the
"Trust" or the "Trust Fund") created pursuant to the applicable Agreement. If a
Series of Securities includes asset-backed notes (the "Notes" and, together with
the Certificates, the "Securities"), such Notes will represent indebtedness of
the related Trust Fund and will be issued and secured pursuant to an Indenture.
Each Series of Securities will consist of one or more classes (each, a "Class")
of Securities that may (i) provide for the accrual of interest thereon based on
fixed, variable or adjustable rates; (ii) be senior (the "Senior Certificates"
or the "Senior Notes" and, collectively, "Senior Securities") or subordinate
(the "Subordinate Certificates" or the "Subordinate Notes" and, collectively,
"Subordinate Securities") to one or more other Classes of Securities in respect
of certain distributions on the Securities; (iii) be entitled either to (A)
principal distributions, with disproportionately low, nominal or no interest
distributions or (B) interest distributions, with disproportionately low,
nominal or no principal distributions (collectively, "Strip Securities"); (iv)
provide for distributions of accrued interest thereon commencing only following
the occurrence of certain events, such as the retirement of one or more other
Classes of Securities of such Series (collectively, "Accrual Securities"); (v)
provide for payments of principal as described in the related prospectus
supplement, from all or only a portion of the Assets in such Trust Fund, to the
extent of available funds, in each case as described in the related prospectus
supplement; and/or (vi) provide for distributions based on a combination of two
or more components thereof with one or more of the characteristics described in
this paragraph including a Strip Security component. If so specified in the
related prospectus supplement, distributions on one or more Classes of a Series
of Securities may be limited to collections from a designated portion of the
Assets in the related Trust Fund (each such portion of Assets, an "Asset
Group"). Any such Classes may include Classes of Securities of a Series offered
pursuant to this prospectus and a related prospectus supplement (the "Offered
Securities").
Each Class of Offered Securities of a Series will be issued in minimum
denominations corresponding to the Security Balances or, in the case of certain
Classes of Strip Securities, notional amounts or percentage interests specified
in the related prospectus supplement. The transfer of any Offered Securities may
be registered and such Securities may be exchanged without the payment of any
service charge payable in connection with such registration of transfer or
exchange, but the Depositor or the Trustee or any agent thereof may require
payment of a sum sufficient to cover any tax or other governmental charge. One
or more Classes of Securities of a Series may be issued in fully registered,
certificated form ("Definitive Securities") or in book-entry form ("Book-Entry
Securities"), as provided in the related prospectus supplement. See "Risk
Factors--Risks Associated with the Securities--Book-Entry Securities May
Experience Certain Problems and "Description of the Securities--Book-Entry
Registration and Definitive Securities." Definitive Securities will be
exchangeable for other Securities of the same Class and Series of a like
aggregate Security Balance, notional amount or percentage interest but of
different authorized denominations. See "Risk Factors--Risks Associated with the
Securities--Securities May Not be Liquid."
Distributions
Distributions on the Securities of each Series will be made by or on
behalf of the Trustee on each Distribution Date as specified in the related
prospectus supplement from the Available Distribution Amount for such Series and
such Distribution Date. Distributions (other than the final distribution) will
be made to the persons in whose names the Securities are registered at the close
of business on, unless a different date is specified in the related prospectus
supplement, the last business day of the month preceding the month in which the
Distribution Date occurs (the "Record Date"), and the amount of each
distribution will be determined as of the close of business on the date
specified in the related prospectus supplement (the "Determination Date"). All
distributions with respect to each Class of Securities on each Distribution Date
will be allocated pro rata among the outstanding Securityholders in such Class
or by random selection or as described in the related prospectus supplement.
Payments will be made either by wire transfer in immediately available funds 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 other
person required to make such payments no later than the date specified in the
related prospectus supplement (and, if so provided in the related prospectus
supplement, holds Securities in the requisite amount specified therein), 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 will be made only upon presentation and surrender of the
Securities at the location specified in the notice to Securityholders of such
final distribution.
29
Available Distribution Amount
All distributions on the Securities of each Series on each Distribution
Date will be made from the Available Distribution Amount described below, in
accordance with the terms described in the related prospectus supplement.
Generally, the "Available Distribution Amount" for each Distribution Date equals
the sum of the following amounts:
(i) the total amount of all cash on deposit in the related
Collection Account as of the corresponding Determination Date,
exclusive of:
(a) all scheduled payments of principal and interest
collected but due on a date subsequent to the related Due
Period (unless a different period is specified in the related
prospectus supplement, a "Due Period" with respect to any
Distribution Date will commence on the second day of the month
in which the immediately preceding Distribution Date occurs,
or the day after the Cut-off Date in the case of the first Due
Period, and will end on the first day of the month of the
related Distribution Date),
(b) all prepayments, together with related payments
of the interest thereon and related Prepayment Premiums, all
proceeds of any insurance policies to be maintained in respect
of each Asset (to the extent such proceeds are not applied to
the restoration of the Asset or released in accordance with
the normal servicing procedures of a Servicer, subject to the
terms and conditions applicable to the related Asset)
(collectively, "Insurance Proceeds"), all other amounts
received and retained in connection with the liquidation of
Assets in default in the Trust Fund ("Liquidation Proceeds"),
and other unscheduled recoveries received subsequent to the
related Due Period,
(c) all amounts in the Collection Account that are
due or reimbursable to the Depositor, the Trustee, an Asset
Seller, a Servicer, the Master Servicer or any other entity as
specified in the related prospectus supplement or that are
payable in respect of certain expenses of the related Trust
Fund, and (d) all amounts received for a repurchase of an
Asset from the Trust Fund for defective documentation or a
breach of representation or warranty received subsequent to
the related Due Period;
(ii) if the related prospectus supplement so provides,
interest or investment income on amounts on deposit in the Collection
Account, including any net amounts paid under any Cash Flow Agreements;
(iii) all advances made by a Servicer or the Master Servicer
or any other entity as specified in the related prospectus supplement
with respect to such Distribution Date;
(iv) if and to the extent the related prospectus supplement so
provides, amounts paid by a Servicer or any other entity as specified
in the related prospectus supplement with respect to interest
shortfalls resulting from prepayments during the related Prepayment
Period; and
(v) to the extent not on deposit in the related Collection
Account as of the corresponding Determination Date, any amounts
collected under, from or in respect of any Credit Support with respect
to such Distribution Date.
As described below, the entire Available Distribution Amount will be
distributed among the related Securities (including any Securities not offered
hereby) on each Distribution Date, and accordingly will be released from the
Trust Fund and will not be available for any future distributions.
30
The related prospectus supplement for a Series of Securities will
describe any variation in the calculation of the Available Distribution Amount
for such Series.
Distributions of Interest on the Securities
Each Class of Securities (other than Classes of Strip Securities that
have no Pass-Through Rate or interest rate) may have a different Pass-Through
Rate or interest rate, which will be a fixed, variable or adjustable rate at
which interest will accrue on such Class or a Component thereof (the
"Pass-Through Rate" in the case of Certificates). The related prospectus
supplement will specify the Pass-Through Rate or interest rate for each Class or
component or, in the case of a variable or adjustable Pass-Through Rate or
interest rate, the method for determining the Pass-Through Rate or interest
rate. Interest on the Securities will be calculated on the basis of a 360-day
year consisting of twelve 30-day months unless the related prospectus supplement
specifies a different basis.
Distributions of interest in respect of the Securities of any Class
will be made on each Distribution Date (other than any Class of Accrual
Securities, which will be entitled to distributions of accrued interest
commencing only on the Distribution Date, or under the circumstances, specified
in the related prospectus supplement, and any Class of Strip Securities that are
not entitled to any distributions of interest) based on the Accrued Security
Interest for such Class and such Distribution Date, subject to the sufficiency
of the portion of the Available Distribution Amount allocable to such Class on
such Distribution Date. Prior to the time interest is distributable on any Class
of Accrual Securities, the amount of Accrued Security Interest otherwise
distributable on such Class will be added to the Security Balance thereof on
each Distribution Date. With respect to each Class of Securities and each
Distribution Date (other than certain Classes of Strip Securities), "Accrued
Security Interest" will be equal to interest accrued during the related Accrual
Period on the outstanding Security Balance thereof immediately prior to the
Distribution Date, at the applicable Pass-Through Rate or interest rate, reduced
as described below. Accrued Security Interest on certain Classes of Strip
Securities will be equal to interest accrued during the related Accrual Period
on the outstanding notional amount thereof immediately prior to each
Distribution Date, at the applicable Pass-Through Rate or interest rate, reduced
as described below, or interest accrual in the manner described in the related
prospectus supplement. The method of determining the notional amount for a
certain Class of Strip Securities will be described in the related prospectus
supplement. Reference to notional amount is solely for convenience in certain
calculations and does not represent the right to receive any distributions of
principal. Unless otherwise provided in the related prospectus supplement, the
Accrued Security Interest on a Series of Securities will be reduced in the event
of prepayment interest shortfalls, which are shortfalls in collections of
interest for a full accrual period resulting from prepayments prior to the due
date in such accrual period on the Mortgage Loans or Contracts comprising or
underlying the Assets in the Trust Fund for such Series. The particular manner
in which such shortfalls are to be allocated among some or all of the Classes of
Securities of that Series will be specified in the related prospectus
supplement. The related prospectus supplement will also describe the extent to
which the amount of Accrued Security Interest that is otherwise distributable on
(or, in the case of Accrual Securities, that may otherwise be added to the
Security Balance of) a Class of Offered Securities may be reduced as a result of
any other contingencies, including delinquencies, losses and deferred interest
on or in respect of the Mortgage Loans or Contracts comprising or underlying the
Assets in the related Trust Fund. Unless otherwise provided in the related
prospectus supplement, any reduction in the amount of Accrued Security Interest
otherwise distributable on a Class of Securities by reason of the allocation to
such Class of a portion of any deferred interest on the Mortgage Loans or
Contracts comprising or underlying the Assets in the related Trust Fund will
result in a corresponding increase in the Security Balance of such Class. See
"Risk Factors--Risk Associated with the Securities--Rate of Prepayment on
Mortgage Loans May Adversely Affect Average Lives and Yields on the Securities"
and "Yield Considerations."
Distributions of Principal of the Securities
The Securities of each series, other than certain Classes of Strip
Securities, will have a Security Balance which, at any time, will equal the then
maximum amount that the holder will be entitled to receive in respect of
principal out of the future cash flow on the Assets and other assets included in
the related Trust Fund. The outstanding Security Balance of a Security will be
reduced to the extent of distributions of principal thereon from time to time
and, if and to the extent so provided in the related prospectus supplement, by
the amount of losses incurred in respect of the related Assets, may be increased
in respect of deferred interest on the related Mortgage Loans to the extent
provided in the related prospectus supplement and, in the case of Accrual
Securities prior to the Distribution Date on which distributions of interest are
required to commence, will be increased by any related Accrued Security
Interest. If so specified in the related prospectus supplement, the initial
aggregate Security Balance of all Classes of Securities of a Series will be
greater than the outstanding aggregate principal balance of the related Assets
as of the applicable Cut-off Date. The initial aggregate Security Balance of a
series and each Class thereof will be specified in the related prospectus
supplement. Distributions of principal will be made on each Distribution Date to
the Class or Classes of Securities in the amounts and in accordance with the
priorities specified in the related prospectus supplement. Certain Classes of
Strip Securities with no Security Balance are not entitled to any distributions
of principal.
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Categories of Classes of Securities
The Securities of any Series may be comprised of one or more Classes.
Such Classes, in general, fall into different categories. The following chart
identifies and generally defines certain of the more typical categories. The
prospectus supplement for a Series of Securities may identify the Classes which
comprise such Series by reference to the following categories or another
category specified in the applicable prospectus supplement.
Categories of Classes Definition
- --------------------- ----------
PRINCIPAL TYPES
Accretion Directed Class..................... A Class that receives principal payments from the accreted
interest from specified Accrual Classes. An Accretion Directed
Class also may receive principal payments from principal paid on
the Assets for the related Series.
Component Class.............................. A Class consisting of two or more specified components (each, a
"Component") as described in the applicable prospectus
supplement. The Components of a Class may have different
principal and/or interest payment characteristics but together
constitute a single Class and do not represent severable
interests. Each Component may be identified as falling into one
or more of the categories in this chart.
Lockout Class................................ A senior Class that is designed not to participate in or to
participate to a limited extent in (i.e., to be "locked out"
of), for a specified period, the receipt of (1) principal
prepayments on the Assets that are allocated disproportionately
to the senior Classes of such Series as a group pursuant to a
"shifting interest" structure and/or (2) scheduled principal
payments on the Assets that are allocated to the senior Classes
as a group. A Lockout Class will typically not be entitled to
receive, or will be entitled to receive only a restricted
portion of, distributions or principal prepayments and/or
scheduled principal payments, as applicable, for a period of
several years, during which time all or a portion of such
principal payments that it would otherwise be entitled to
receive in the absence of a "lockout" structure will be
distributed in reduction of the principal balances of other
senior Classes. Lockout Classes are designed to minimize
weighted average life volatility during the lockout period.
Notional Amount Class........................ A Class having no principal balance and bearing interest on the
related notional amount. The notional amount is used for
purposes of the determination of interest distributions.
32
Pass-Through Class........................... A Class of Senior Securities that is entitled to receive all or
a specified percentage of the principal payments that are
distributable to the Senior Certificates or applicable group of
Senior Certificates (other than any Ratio Strip Class) in the
aggregate on a Distribution Date and that is not designated as a
Sequential Pay Class.
Planned Amortization Class A Class that is designed to receive principal payments using a
(also sometimes referred to as a "PAC"). predetermined principal balance schedule derived by assuming two
constant prepayment rates for the underlying Assets.
These two rates are the endpoints for the "structuring range" for the
Planned Amortization Class. The Planned Amortization Classes in any Series of
Securities may be subdivided into different categories
(e.g., Planned Amortization Class I ("PAC I"), Planned
Amortization Class II ("PAC II") and so forth) derived
using different structuring ranges and/or payment priorities. A PAC is
designed to provide protection against volatility of weighted
average life if prepayments occur at a constant rate within the structuring
range.
Ratio Strip Class............................ A Class that is entitled to receive a constant proportion, or
"ratio strip," of the principal payments on the underlying
Assets.
Scheduled Amortization Class................. A Class that is designed to receive principal payments using a
predetermined principal balance schedule but is not designated
as a Planned Amortization Class or Targeted Amortization Class.
The schedule is derived by assuming either two constant
prepayment rates or a single constant prepayment rate for the
underlying Assets. In the former case, the two rates are the
endpoints for the "structuring range" for the Scheduled
Amortization Class and such range generally is narrower than
that for a Planned Amortization Class. Typically, the Support
Class(es) for the applicable Series of Securities generally will
represent a smaller percentage of the Scheduled Amortization
Class than a Support Class generally would represent in relation
to a Planned Amortization Class or a Targeted Amortization
Class. A Scheduled Amortization Class is generally less
sensitive to weighted average life volatility as a result of
prepayments than a Support Class but more sensitive than a
Planned Amortization Class or a Targeted Amortization Class.
Senior Securities............................ Classes that are entitled to receive payments of principal and
interest on each Distribution Date prior to the Classes of
Subordinated Securities.
Sequential Pay Class......................... A Class that is entitled to receive principal payments in a
prescribed sequence, that does not have a predetermined
principal balance schedule and that, in most cases, is entitled
to receive payments of principal continuously from the first
Distribution Date on which it receives principal until it is
retired. A single Class is entitled to receive principal
payments before or after other Classes in the same Series of
Securities may be identified as a Sequential Pay Class.
33
Subordinated Securities...................... Classes that are entitled to receive payments of principal and
interest on each Distribution Date only after the Senior
Securities and certain Classes of Subordinated Securities with
higher priority of distributions have received their full
principal and interest entitlements.
Support Class (also sometimes referred to as A Class that is entitled to receive principal payments on any
a "Companion Class").................... Distribution Date only if scheduled payments have been made on
specified Planned Amortization Classes, Targeted Amortization
Classes and/or Scheduled Amortization Classes.
Targeted Amortization Class A Class that is designed to receive principal payments using a
(also sometimes referred to as a "TAC"). predetermined principal balance schedule derived by assuming a
single constant prepayment rate for the underlying
Assets. A TAC is designed to provide some protection
against shortening of weighted average life if
prepayments occur at a rate exceeding the assumed
constant prepayment rate used to derive the principal
balances schedule of such Class.
INTEREST TYPES
Accrual Class................................ A Class that accretes the amount of accrued interest otherwise
distributable on such Class, which amount will be added as
principal to the principal balance of such Class on each
applicable Distribution Date. Such accretion may continue until
some specified event has occurred or until such Accrual Class is
retired.
Fixed Rate Class............................. A Class with an interest rate that is fixed throughout the life
of the Class.
Floating Rate Class.......................... A Class with an interest rate that resets periodically based
upon a designated index and that varies directly with changes in
such index.
Interest Only Class.......................... A Class that is entitled to receive some or all of the interest
payments made on the Assets and little or no principal.
Interest Only Classes have either no principal balance, a
nominal principal balance or a notional amount. A nominal
principal balance represents actual principal that will be paid
on the Class. It is referred to as nominal since it is
extremely small compared to other Classes. A notional amount is
the amount used as a reference to calculate the amount of
interest due on an Interest Only Class that is not entitled to
any distributions in respect of principal.
Inverse Floating Rate Class.................. A Class with an interest rate that resets periodically based
upon a designated index and that varies inversely with changes
in such index and with changes in the interest rate payable on
the related Floating Rate Class.
Prepayment Premium Class..................... A Class that is only entitled to penalties or premiums, if any,
due in connection with a full or partial prepayment of an Asset.
34
Principal Only Class......................... A Class that does not bear interest and is entitled to receive
only distributions in respect of principal.
Step Coupon Class. .......................... A Class with a fixed interest rate that is reduced to a lower fixed
rate after a specific period of time. The difference
between the initial interest rate and the lower interest
rate will be supported by a reserve fund established on
the Closing Date.
Variable Rate Class........ A Class with an interest rate that resets periodically and is
calculated by reference to the rate or rates of interest
applicable to the Assets.
Components
To the extent specified in the related prospectus supplement,
distribution on a Class of Securities may be based on a combination of two or
more different Components as described under "--General" above. To such extent,
the descriptions set forth under "--Distributions of Interest on the Securities"
and "--Distributions of Principal of the Securities" above also relate to
Components of such a Class of Securities. In such case, reference in such
sections to Security Balance and Pass-Through Rate or interest rate refer to the
principal balance, if any, of any such Component and the Pass-Through Rate or
interest rate, if any, on any such Component, respectively.
Distributions on the Securities of Prepayment Premiums
If so provided in the related prospectus supplement, Prepayment
Premiums that are collected on the Mortgage Loans in the related Trust Fund will
be distributed on each Distribution Date to the Class or Classes of Securities
entitled thereto in accordance with the provisions described in such prospectus
supplement.
Allocation of Losses and Shortfalls
If so provided in the prospectus supplement for a Series of Securities
consisting of one or more Classes of Subordinate Securities, on any Distribution
Date in respect of which losses or shortfalls in collections on the Assets have
been incurred, the amount of such losses or shortfalls will be borne first by a
Class of Subordinate Securities in the priority and manner and subject to the
limitations specified in such prospectus supplement. See "Description of Credit
Support" for a description of the types of protection that may be included in a
Trust Fund against losses and shortfalls on Assets comprising such Trust Fund.
Advances in Respect of Delinquencies
With respect to any Series of Securities evidencing an interest in a
Trust Fund, if so provided in the related prospectus supplement, the Servicer or
another entity described therein will be required as part of its servicing
responsibilities to advance on or before each Distribution Date its own funds or
funds held in the Collection Account that are not included in the Available
Distribution Amount for such Distribution Date, in an amount equal to the
aggregate of payments of principal (other than any balloon payments) and
interest (net of related servicing fees and Retained Interest) that were due on
the Assets in such Trust Fund during the related Due Period and were delinquent
on the related Determination Date, subject to the Servicer's (or another
entity's) good faith determination that such advances will be reimbursable from
Related Proceeds (as defined below). In the case of a Series of Securities that
includes one or more Classes of Subordinate Securities and if so provided in the
related prospectus supplement, the Servicer's (or another entity's) advance
obligation may be limited only to the portion of such delinquencies necessary to
make the required distributions on one or more Classes of Senior Securities
and/or may be subject to the Servicer's (or another entity's) good faith
determination that such advances will be reimbursable not only from Related
Proceeds but also from collections on other Assets otherwise distributable on
one or more Classes of such Subordinate Securities. See "Description of Credit
Support."
35
Advances are intended to maintain a regular flow of scheduled interest
and principal payments to holders of the Class or Classes of Securities entitled
thereto, rather than to guarantee or insure against losses. Advances of the
Servicer's (or another entity's) funds will be reimbursable only out of related
recoveries on the Assets (including amounts received under any form of Credit
Support) respecting which such advances were made (as to any Assets, "Related
Proceeds") and from any other amounts specified in the related prospectus
supplement, including out of any amounts otherwise distributable on one or more
Classes of Subordinate Securities of such Series; provided, however, that any
such advance will be reimbursable from any amounts in the Collection Account
prior to any distributions being made on the Securities to the extent that the
Servicer (or such other entity) shall determine in good faith that such advance
(a "Nonrecoverable Advance") is not ultimately recoverable from Related Proceeds
or, if applicable, from collections on other Assets otherwise distributable on
such Subordinate Securities. If advances have been made by the Servicer from
excess funds in the Collection Account, the Servicer is required to replace such
funds in the Collection Account on any future Distribution Date to the extent
that funds in the Collection Account on such Distribution Date are less than
payments required to be made to Securityholders on such date. If so specified in
the related prospectus supplement, the obligations of the Servicer (or another
entity) to make advances may be secured by a cash advance reserve fund, a surety
bond, a letter of credit or another form of limited guaranty. If applicable,
information regarding the characteristics of, and the identity of any obligor
on, any such surety bond, will be set forth in the related prospectus
supplement.
If and to the extent so provided in the related prospectus supplement,
the Servicer (or another entity) will be entitled to receive interest at the
rate specified therein on its outstanding advances and will be entitled to pay
itself such interest periodically from general collections on the Assets prior
to any payment to Securityholders or as otherwise provided in the applicable
Agreement and described in such prospectus supplement.
If specified in the related prospectus supplement, the Master Servicer
or the Trustee will be required to make advances, subject to certain conditions
described in the prospectus supplement, in the event of a Servicer default.
Reports to Securityholders
With each distribution to holders of any Class of Securities of a
Series, the Servicer, the Master Servicer or the Trustee, as provided in the
related prospectus supplement, will forward or cause to be forwarded to each
such holder, to the Depositor and to such other parties as may be specified in
the applicable Agreement, a statement generally setting forth, in each case to
the extent applicable and available:
(i) the amount of such distribution to holders of Securities
of such Class applied to reduce the Security Balance thereof;
(ii) the amount of such distribution to holders of Securities
of such Class allocable to Accrued Security Interest;
(iii) the amount of such distribution allocable to Prepayment
Premiums;
(iv) the amount of related servicing compensation and such
other customary information as is required to enable Securityholders to
prepare their tax returns;
(v) the aggregate amount of advances included in such
distribution, and the aggregate amount of unreimbursed advances at the
close of business on such Distribution Date;
(vi) the aggregate principal balance of the Assets at the
close of business on such Distribution Date;
(vii) the number and aggregate principal balance of Mortgage
Loans or Contracts in respect of which (a) one scheduled payment is
delinquent, (b) two scheduled payments are delinquent, (c) three or
more scheduled payments are delinquent and (d) foreclosure proceedings
have been commenced;
36
(viii) with respect to any Mortgage Loan or Contract
liquidated during the related Due Period, (a) the portion of such
liquidation proceeds payable or reimbursable to a Servicer (or any
other entity) in respect of such Mortgage Loan and (b) the amount of
any loss to Securityholders;
(ix) with respect to collateral acquired by the Trust Fund
through foreclosure or otherwise (a "REO Property") relating to a
Mortgage Loan or Contract and included in the Trust Fund as of the end
of the related Due Period, the date of acquisition;
(x) with respect to each REO Property relating to a Mortgage
Loan or Contract and included in the Trust Fund as of the end of the
related Due Period, (a) the book value, (b) the principal balance of
the related Mortgage Loan or Contract immediately following such
Distribution Date (calculated as if such Mortgage Loan or Contract were
still outstanding taking into account certain limited modifications to
the terms thereof specified in the applicable Agreement), (c) the
aggregate amount of unreimbursed servicing expenses and unreimbursed
advances in respect thereof and (d) if applicable, the aggregate amount
of interest accrued and payable on related servicing expenses and
related advances;
(xi) with respect to any such REO Property sold during the
related Due Period (a) the aggregate amount of sale proceeds, (b) the
portion of such sales proceeds payable or reimbursable to the Master
Servicer in respect of such REO Property or the related Mortgage Loan
or Contract and (c) the amount of any loss to Securityholders in
respect of the related Mortgage Loan;
(xii) the aggregate Security Balance or notional amount, as
the case may be, of each Class of Securities (including any Class of
Securities not offered hereby) at the close of business on such
Distribution Date, separately identifying any reduction in such
Security Balance due to the allocation of any loss and increase in the
Security Balance of a Class of Accrual Securities in the event that
Accrued Security Interest has been added to such balance;
(xiii) the aggregate amount of principal prepayments made
during the related Due Period;
(xiv) the amount deposited in the reserve fund, if any, on
such Distribution Date;
(xv) the amount remaining in the reserve fund, if any, as of
the close of business on such Distribution Date;
(xvi) the aggregate unpaid Accrued Security Interest, if any,
on each Class of Securities at the close of business on such
Distribution Date;
(xvii) in the case of Securities with a variable Pass-Through
Rate or interest rate, the Pass-Through Rate or interest rate
applicable to such Distribution Date, and, if available, the
immediately succeeding Distribution Date, as calculated in accordance
with the method specified in the related prospectus supplement;
(xviii) in the case of Securities with an adjustable
Pass-Through Rate or interest rate, for statements to be distributed in
any month in which an adjustment date occurs, the adjustable
Pass-Through Rate or interest rate applicable to such Distribution
Date, if available, and the immediately succeeding Distribution Date as
calculated in accordance with the method specified in the related
prospectus supplement;
(xix) as to any Series which includes Credit Support, the
amount of coverage of each instrument of Credit Support included
therein as of the close of business on such Distribution Date;
(xx) during the Pre-Funding Period, the remaining Pre-Funded
Amount and the portion of the Pre-Funding Amount used to acquire
Subsequent Mortgage Loans since the preceding Distribution Date;
37
(xxi) during the Pre-Funding Period, the amount remaining in
the Capitalized Interest Account; and
(xxii) the aggregate amount of payments by the obligors of (a)
default interest, (b) late charges and (c) assumption and modification
fees collected during the related Due Period.
Within a reasonable period of time after the end of each calendar year,
the Servicer, the Master Servicer or the Trustee, as provided in the related
prospectus supplement, shall furnish to each Securityholder of record at any
time during the calendar year such information required by the Code and
applicable regulations thereunder to enable Securityholders to prepare their tax
returns. See "Description of the Securities--Book-Entry Registration and
Definitive Securities."
Termination
The obligations created by the applicable Agreement for each Series of
Securities will terminate upon the payment to Securityholders of that Series of
all amounts held in the Collection Account or by a Servicer, the Master
Servicer, if any, or the Trustee and required to be paid to them pursuant to
such Agreement following the earlier of (i) the final payment or other
liquidation of the last Asset subject thereto or the disposition of all property
acquired upon foreclosure of any Mortgage Loan or Contract subject thereto and
(ii) the purchase of all of the assets of the Trust Fund by the party entitled
to effect such termination, under the circumstances and in the manner set forth
in the related prospectus supplement. In no event, however, will the Trust Fund
continue beyond the date specified in the related prospectus supplement. Written
notice of termination of the applicable Agreement will be given to each
Securityholder, and the final distribution will be made only upon presentation
and surrender of the Securities at the location to be specified in the notice of
termination.
If so specified in the related prospectus supplement, a Series of
Securities may be subject to optional early termination through the repurchase
of the Assets in the related Trust Fund by the party specified therein, under
the circumstances and in the manner set forth therein. If so provided in the
related prospectus supplement, upon the reduction of the Security Balance of a
specified Class or Classes of Securities by a specified percentage, the party
specified therein will solicit bids for the purchase of all assets of the Trust
Fund, or of a sufficient portion of such assets to retire such Class or Classes
or purchase such Class or Classes at a price set forth in the related prospectus
supplement, in each case, under the circumstances and in the manner set forth
therein. Such price will at least equal the outstanding Security Balances and
any accrued and unpaid interest thereon (including any unpaid interest
shortfalls for prior Distribution Dates). Any sale of the Assets of the Trust
Fund will be without recourse to the Trust Fund or the Securityholders. Any such
purchase or solicitation of bids may be made only when the aggregate Security
Balance of such class or classes declines to a percentage of the Initial
Security Balance of such Securities (not to exceed 10%) specified in the related
prospectus supplement. In addition, if so provided in the related prospectus
supplement, certain Classes of Securities may be purchased or redeemed in the
manner set forth therein.
Optional Purchases
Subject to the provisions of the applicable Agreement, the Depositor,
the Servicer or such other party specified in the related prospectus supplement
may, at such party's option, repurchase (i) any Asset which is in default or as
to which default is reasonably foreseeable if, in the Depositor's, the
Servicer's or such other party's judgment, the related default is not likely to
be cured by the borrower or default is not likely to be averted and (ii) any
Asset as to which the origination of such Asset breached a representation or
warranty made with respect of such Mortgage Loan to the Depositor, the Servicer
or such other party at a price equal to the unpaid principal balance thereof
plus accrued interest thereon and under the conditions set forth in the
applicable prospectus supplement.
38
Definitive Form
If so specified in the related prospectus supplement, Securities of a
Series may be issued in fully registered certificated form (such Securities,
"Definitive Securities"). Distributions of principal of, and interest on,
Definitive Securities will be made directly to holders of Definitive Securities
in accordance with the procedures set forth in the Agreement. The Definitive
Securities of a Series offered hereby and by means of the applicable prospectus
supplement will be transferable and exchangeable at the office or agency
maintained by the Trustee or such other entity for such purpose set forth in the
applicable prospectus supplement. No service charge will be made for any
transfer or exchange of Definitive Securities, but the Trustee or such other
entity may require payment of a sum sufficient to cover any tax or other
governmental charge in connection with such transfer or exchange.
In the event that an election is made to treat the Trust Fund (or one
or more pools of segregated assets therein) as a REMIC, the Residual Securities
thereof will be issued as Definitive Securities. No legal or beneficial interest
in all or a portion of any Residual Security may be transferred without the
receipt by the transferor and the Trustee of an affidavit described under
"--Taxation of Owners of Residual Securities--Tax-Related Restrictions on
Transfer of Residual Securities."
Book-Entry Registration and Definitive Securities
If so specified in the related prospectus supplement, one or more
Classes of Securities of a Series will be issued as Securities and will be
transferable and exchangeable at the office of the registrar identified in the
related prospectus supplement. Unless otherwise specified in the related
prospectus supplement, no service charge will be made for any such registration
or transfer of such Securities, but the owner may be required to pay a sum
sufficient to cover any tax or other governmental charge.
If so specified in the related prospectus supplement, Book-Entry
Securities may be initially represented by one or more Securities registered in
the name of DTC and be available only in the form of book-entries. If specified
in the related prospectus supplement, holders of Securities may hold beneficial
interests in Book-Entry Securities through DTC (in the United States) or
Clearstream or Euroclear (in Europe) directly if they are participants of such
systems, or indirectly through organizations which are participants in such
systems.
Clearstream and Euroclear will hold omnibus positions on behalf of
their participants through customers' securities accounts in their respective
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.
Transfers between Participants will occur in accordance with DTC rules.
Transfers between Clearstream Participants and Euroclear Participants will occur
in accordance with their applicable rules and operating procedures.
Cross-market transfers between persons holding directly or indirectly
through DTC, on the one hand, and directly or indirectly through Clearstream or
Euroclear, on the other, will be effected in DTC in accordance with DTC rules on
behalf of the relevant European international clearing system by its Depositary.
However, each such cross-market transaction 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. The relevant European international clearing
system will, if the transaction meets its settlement requirements, deliver
instructions to its Depositary to take action to effect final settlement on its
behalf by delivering or receiving securities through DTC, and making or
receiving payment in accordance with normal procedures for same-day funds
settlement applicable to DTC. Clearstream Participants and Euroclear
Participants may not deliver instructions directly to the Depositaries.
Because of time-zone differences, credits of securities received in
Clearstream 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 Clearstream
Participant or Euroclear Participant on such business day. Cash received in
Clearstream or Euroclear as a result of sales of Securities by or through a
Clearstream Participant or a Euroclear Participant to a Participant will be
received with value on the DTC settlement date but will be available in the
relevant Clearstream or Euroclear cash account only as of the business day
following settlement in DTC.
39
DTC is a limited purpose trust company organized under the laws of the
State of New York, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing corporation"
within the meaning of the New York Uniform Commercial Code ("UCC") and a
"clearing agency" registered pursuant to Section 17A of the Securities Exchange
Act of 1934, as amended ("Exchange Act"). DTC was created to hold securities for
its participating members ("DTC Participants") and to facilitate the clearance
and settlement of securities transactions between Participants through
electronic book-entries, thereby eliminating the need for physical movement of
securities. Participants include securities brokers and dealers, banks, trust
companies and clearing corporations which may include underwriters, agents or
dealers with respect to the Securities of any Class or Series. Indirect access
to the DTC system also is available to others such as banks, brokers, dealers
and trust companies that clear through or maintain a custodial relationship with
a Participant, either directly or indirectly ("Indirect Participants"). The
rules applicable to DTC and Participants are on file with the Commission.
Beneficial owners ("Security Owners") that are not Participants or
Indirect Participants but desire to purchase, sell or otherwise transfer
ownership of, or other interests in, Book-Entry Securities may do so only
through Participants and Indirect Participants. Participants who are Security
Owners of Book-Entry Securities will receive a credit for such Securities on
DTC's records. The ownership interest of such holder will in turn be recorded on
respective records of the Participants and Indirect Participants. Such holders
will not receive written confirmation from DTC of their purchase, but are
expected to receive written confirmations providing details of the transaction,
as well as periodic statements of their holdings, from the Participant or
Indirect Participant through which the Securityholders entered into the
transaction. Unless and until Definitive Securities (as defined below) are
issued, it is anticipated that the only "holder" of Book-Entry Securities of any
Series will be Cede & Co. ("Cede"), as nominee of DTC. Security Owners will only
permitted to exercise the rights of holders indirectly through Participants and
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 Book-Entry Securities
and is required to receive and transmit distributions of principal of and
interest on the Book-Entry Securities. Participants and Indirect Participants
with which Security Owners have accounts with respect to the Book-Entry
Securities similarly are required to make book-entry transfers and receive and
transmit such payments on behalf of their respective Securityholders.
DTC has advised the Servicer and the Depositors that, unless and until
Definitive Securities are issued, DTC will take any action permitted to be taken
by a holder only at the direction of one or more Participants to whose DTC
accounts the Securities are credited. DTC has advised the Servicer and the
Depositors that DTC will take such action with respect to any Percentage
Interests of the Book-Entry Securities of a Series only at the direction of and
on behalf of such Participants with respect to such Percentage Interests of the
Book-Entry Securities. DTC may take actions, at the direction of the related
Participants, with respect to some Book-Entry Securities which conflict with
actions taken with respect to other Book-Entry Securities.
Clearstream, 67 Bd Grande-Duchesse Charlotte, L-1331 Luxembourg
("Clearstream"), was incorporated in 1970 as a limited company under Luxembourg
law. Clearstream is owned by banks, securities dealers and financial
institutions, and currently has about 100 shareholders, including U.S. financial
institutions or their subsidiaries. No single entity may own more than five
percent of Clearstream's stock.
Clearstream is registered as a bank in Luxembourg, and as such is
subject to regulation by the Institute Monetaire Luxembourgeois, the Luxembourg
Monetary Authority, which supervises Luxembourg banks.
Clearstream holds securities for its customers ("Clearstream
Participants") and facilitates the clearance and settlement of securities
transactions by electronic book-entry transfers between their accounts.
Clearstream provides various services, including safekeeping, administration,
clearance and settlement of internationally traded securities and securities
lending and borrowing. Clearstream also deals with domestic securities markets
in several countries through established depository and custodial relationships.
Clearstream has established an electronic bridge with Euroclear Bank S.A./N.V.
as the Euroclear Operator in Brussels to facilitate settlement of trades between
systems. Clearstream currently accepts over 70,000 securities issues on its
books.
40
Clearstream's customers are world-wide financial institutions including
underwriters, securities brokers and dealers, banks, trust companies and
clearing corporations. Clearstream's United States customers are limited to
securities brokers and dealers and banks. Currently, Clearstream has
approximately 3,000 customers located in over 60 countries, including all major
European countries, Canada, and the United States. Indirect access to
Clearstream is available to other institutions which clear through or maintain a
custodial relationship with an account holder of Clearstream.
The Euroclear System ("Euroclear") was created in 1968 to hold
securities for its participants ("Euroclear Participants") and to clear and
settle transactions between Euroclear Participants through simultaneous
electronic book-entry delivery against payment, thereby eliminating the need for
physical movement of certificates and any risk from lack of simultaneous
transfers of securities and cash. Transactions may be settled in a variety of
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
Euroclear Bank S.A./N.V. (the "Euroclear Operator"), under contract with
Euroclear Clearance Systems S.C., a Belgian cooperative corporation (the
"Cooperative"). All operations are conducted by the Euroclear Operator, and all
Euroclear securities clearance accounts and Euroclear cash accounts are accounts
with the Euroclear Operator, not the Cooperative. The Cooperative establishes
policy for Euroclear on behalf of Euroclear Participants. Euroclear Participants
include banks (including central banks), securities brokers and dealers and
other professional financial intermediaries. Indirect access to Euroclear is
also available to other firms that clear through or maintain a custodial
relationship with a Euroclear Participant, either directly or indirectly.
The Euroclear Operator is the Belgian branch of a New York banking
corporation which is a member bank of the Federal Reserve System. As such, it is
regulated and examined by the Board of Governors of the Federal Reserve System
and the New York State Banking Department, as well as the Belgian Banking
Commission.
Securities clearance accounts and cash accounts with the Euroclear
Operator are governed by the Terms and Conditions Governing Use of Euroclear and
the related Operating Procedures of the Euroclear System and applicable Belgian
law (collectively, the "Terms and Conditions"). The Terms and Conditions govern
transfers of securities and cash within the Euroclear System, withdrawals of
securities and cash from the Euroclear System and receipts of payments with
respect to securities in the Euroclear System. All securities in the Euroclear
System are held on a fungible basis without attribution of specific Securities
to specific securities clearance accounts. The Euroclear Operator acts under the
Terms and Conditions only on behalf of Euroclear Participants, and has no record
of or relationship with persons holding through Euroclear Participants.
Payments and distributions with respect to Book-Entry Securities held
through Clearstream or Euroclear will be credited to the cash accounts of
Clearstream Participants or Euroclear Participants in accordance with the
relevant system's rules and procedures, to the extent received by Citibank, N.A.
or JPMorgan Chase Bank, the relevant depositary of Clearstream and Euroclear
(the "Depositaries"), respectively. Such payments and distributions will be
subject to tax withholding in accordance with relevant United States tax laws
and regulations. See "Federal Income Tax Considerations". Clearstream or the
Euroclear Operator, as the case may be, will take any other action permitted to
be taken by a Certificateholder on behalf of a Clearstream Participant or
Euroclear Participant only in accordance with its relevant rules and procedures
and subject to its Depositary's ability to effect such actions on its behalf
through DTC.
Although DTC, Clearstream and Euroclear have agreed to the foregoing
procedures in order to facilitate transfers of Securities among participants of
DTC, Clearstream and Euroclear, they are under no obligation to perform or
continue to perform such procedures and such procedures may be discontinued at
any time.
Book-Entry Securities of a Series will be converted to Definitive
Securities and reissued to beneficial owners or their nominees, rather than to
DTC or its nominee only under the circumstances provided in the related Pooling
and Servicing Agreement, which generally will include, except if otherwise
provided therein, if (i) DTC or the Servicer advises the Trustee in writing that
DTC is no longer willing or able to discharge properly its responsibilities as
nominee and depository with respect to the Book-Entry Securities of such Series
and the Servicer is unable to locate a qualified successor, (ii) the Servicer,
at its sole option, elects to terminate the book-entry system through DTC or
(iii) after the occurrence of a Servicer Termination Event, a majority of the
aggregate Percentage Interest of any Class of Securities of such Series advises
DTC in writing that the continuation of a book-entry system through DTC (or a
successor thereto) to the exclusion of any physical Securities being issued to
Security Owners is no longer in the best interests of Security Owners of such
Class of Securities. Upon issuance of Definitive Securities of a Series to
Security Owners, such Book-Entry Securities will be transferable directly (and
not exclusively on a book-entry basis) and registered holders will deal directly
with the Trustee with respect to transfers, notices and distributions.
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DESCRIPTION OF THE AGREEMENTS
Agreements Applicable to a Series
REMIC Securities, FASIT Securities, Grantor Trust Securities
Securities representing interests in a Trust Fund, or a portion
thereof, that the Trustee will elect to have treated as REMIC Securities, FASIT
Securities or Grantor Trust Securities will be issued, and the related Trust
Fund will be created, pursuant to a pooling and servicing agreement (a "Pooling
and Servicing Agreement") among the Depositor, the Trustee and the sole Servicer
or Master Servicer, as applicable. The Assets of such Trust Fund will be
transferred to the Trust Fund and thereafter serviced in accordance with the
terms of the Pooling and Servicing Agreement. In the event there are multiple
Servicers of the Assets of such Trust Fund, each Servicer will perform its
servicing functions pursuant to a servicing agreement (each, an "Underlying
Servicing Agreement").
Securities That Are Partnership Interests for Tax Purposes and Notes
Partnership Securities that are partnership interests for tax purposes
will be issued, and the related Trust Fund will be created, pursuant to a
Pooling and Servicing Agreement.
A Series of Notes issued by a Trust Fund will be issued pursuant to an
indenture (the "Indenture") between the related Trust Fund and the Indenture
Trustee named in the related prospectus supplement. The Trust Fund will be
established pursuant to a deposit trust agreement (each, a "Deposit Trust
Agreement") between the Depositor and an owner trustee specified in the
prospectus supplement relating to such Series of Notes. The Assets securing
payment on the Notes will be serviced in accordance with a servicing agreement
(each, an "Indenture Servicing Agreement") between the related Trust Fund as
issuer of the Notes, the Servicer and the Indenture Trustee. The Pooling and
Servicing Agreements, the Indenture Servicing Agreements, the Underlying
Servicing Agreements and the Indenture are referred to each as an "Agreement."
Material Terms of the Pooling and Servicing Agreements and Underlying Servicing
Agreements
General
The following summaries describe the material provisions that may
appear in each Pooling and Servicing Agreement and Underlying Servicing
Agreement. The prospectus supplement for a Series of Securities will describe
any provision of the applicable Agreement relating to such Series that
materially differs from the description thereof contained in this prospectus.
The summaries do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all of the provisions of the
applicable Agreement for each Trust Fund and the description of such provisions
in the related prospectus supplement. The provisions of each Agreement will vary
depending upon the nature of the Securities to be issued thereunder and the
nature of the related Trust Fund. As used herein with respect to any Series, the
term "Security" refers to all of the Securities of that Series, whether or not
offered hereby and by the related prospectus supplement, unless the context
otherwise requires. A form of a Pooling and Servicing Agreement has been filed
as an exhibit to the Registration Statement of which this prospectus is a part.
The Depositor will provide a copy of the Pooling and Servicing Agreement
(without exhibits) relating to any Series of Securities without charge upon
written request of a Securityholder of such Series addressed to Asset Backed
Funding Corp., Bank of America Corporate Center, 100 North Tryon Street,
Charlotte, North Carolina 28255, Attention: Vice President.
42
The servicers (the "Servicers"), any master servicer (the "Master
Servicer") and the trustee (the "Trustee") or indenture trustee (the "Indenture
Trustee"), as applicable, with respect to any Series of Securities will be named
in the related prospectus supplement. In the event there are multiple Servicers
for the Assets in a Trust Fund, a Master Servicer will perform certain
administration, calculation and reporting functions with respect to such Trust
Fund and will supervise the related Servicers pursuant to a Pooling and
Servicing Agreement. With respect to Series involving a Master Servicer,
references in this prospectus to the Servicer will apply to the Master Servicer
where non-servicing obligations are described. If so specified in the related
prospectus supplement, a manager or administrator may be appointed pursuant to
the Pooling and Servicing Agreement for any Trust Fund to administer such Trust
Fund or certain administrative functions which would otherwise be performed by
the Servicer or the Master Servicer may be performed by the Trustee.
Assignment of Assets; Repurchases
At the time of issuance of any Series of Securities, the Depositor will
assign (or cause to be assigned) to the designated Trustee the Assets to be
included in the related Trust Fund, together with all principal and interest to
be received on or with respect to such Assets after the Cut-off Date, other than
principal and interest due on or before the Cut-off Date and other than any
Retained Interest. The Trustee will, concurrently with such assignment, deliver
the Securities to the Depositor in exchange for the Assets and the other assets
comprising the Trust Fund for such Series. Each Asset will be identified in a
schedule appearing as an exhibit to the applicable Agreement. Such schedule will
include detailed information to the extent available and relevant (i) in respect
of each Mortgage Loan included in the related Trust Fund, including without
limitation, the city and state of the related Mortgaged Property and type of
such property, the Mortgage Rate and, if applicable, the applicable index,
margin, adjustment date and any rate cap information, the original and remaining
term to maturity, the original and outstanding principal balance and balloon
payment, if any, the Loan-to-Value Ratio as of the date indicated and payment
and prepayment provisions, if applicable; and (ii) in respect of each Contract
included in the related Trust Fund, including without limitation the outstanding
principal amount and the Contract Rate.
With respect to each Mortgage Loan, except as otherwise specified in
the related prospectus supplement, the Depositor will deliver or cause to be
delivered to the Trustee (or to the custodian hereinafter referred to) certain
loan documents, which will generally include the original Mortgage Note
endorsed, without recourse, in blank or to the order of the Trustee, the
original Mortgage (or a certified copy thereof) with evidence of recording
indicated thereon and an assignment of the Mortgage to the Trustee in recordable
form. Notwithstanding the foregoing, a Trust Fund may include Mortgage Loans
where the original Mortgage Note is not delivered to the Trustee if the
Depositor delivers to the Trustee or the custodian a copy or a duplicate
original of the Mortgage Note, together with an affidavit certifying that the
original thereof has been lost or destroyed. With respect to such Mortgage
Loans, the Trustee (or its nominee) may not be able to enforce the Mortgage Note
against the related borrower. The Asset Seller or other entity specified in the
related prospectus supplement will be required to agree to repurchase, or
substitute for, each such Mortgage Loan that is subsequently in default if the
enforcement thereof or of the related Mortgage is materially adversely affected
by the absence of the original Mortgage Note. The applicable Agreement will
generally require the Depositor or another party specified in the related
prospectus supplement to promptly cause each such assignment of Mortgage to be
recorded in the appropriate public office for real property records, unless (i)
with respect to a particular state, the Trustee has received an opinion of
counsel acceptable to it that such recording is not required to make the
assignment effective against the parties to the Mortgage or subsequent
purchasers or encumbrancers of the Mortgaged Property or (ii) recordation in a
state is not required by the Rating Agencies rating the Series in order to
obtain the initial ratings on the Securities described in the related prospectus
supplement.
Notwithstanding the preceding paragraph, with respect to any Mortgage
Loan which has been recorded in the name of Mortgage Electronic Registration
Systems, Inc. ("MERS") or its designee, no mortgage assignment in favor of the
Trustee will be required to be prepared or delivered. Instead, the Master
Servicer and the applicable Servicer will be required to take all actions as are
necessary to cause the applicable Trust Fund to be shown as the owner of the
related Mortgage Loan on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by MERS.
43
The Trustee (or a custodian) will review such Mortgage Loan documents
within a specified period of days after receipt thereof, and the Trustee (or a
custodian) will hold such documents in trust for the benefit of the
Securityholders. If any such document is found to be missing or defective in any
material respect, the Trustee (or such custodian) shall immediately notify the
Servicer and the Depositor, and the Servicer shall immediately notify the
relevant Asset Seller or other entity specified in the related prospectus
supplement. If the Asset Seller cannot cure the omission or defect within a
specified number of days after receipt of such notice, then unless otherwise
specified in the related prospectus supplement, the Asset Seller or other entity
specified in the related prospectus supplement will be obligated, within a
specified number of days of receipt of such notice, to repurchase the related
Mortgage Loan from the Trustee at a price equal to the sum of the unpaid
principal balance thereof, plus unpaid accrued interest at the interest rate for
such Asset from the date as to which interest was last paid to the due date in
the Due Period in which the relevant purchase is to occur, plus certain
servicing expenses that are payable to the Servicer or such other price as
specified in the related prospectus supplement (the "Purchase Price") or
substitute for such Mortgage Loan. There can be no assurance that an Asset
Seller or other named entity will fulfill this repurchase or substitution
obligation, and neither the Servicer nor the Depositor will be obligated to
repurchase or substitute for such Mortgage Loan if the Asset Seller or other
named entity defaults on its obligation. This repurchase or substitution
obligation constitutes the sole remedy available to the Securityholders or the
Trustee for omission of, or a material defect in, a constituent document. To the
extent specified in the related prospectus supplement, in lieu of curing any
omission or defect in the Asset or repurchasing or substituting for such Asset,
the Asset Seller or other named entity may agree to cover any losses suffered by
the Trust Fund as a result of such breach or defect.
Notwithstanding the preceding two paragraphs, the documents with
respect to Home Equity Loans, Home Improvement Contracts and Unsecured Home
Improvement Loans will be delivered to the Trustee (or a custodian) only to the
extent specified in the related prospectus supplement. Generally such documents
will be retained by the Servicer, which may also be the Asset Seller. In
addition, assignments of the related Mortgages to the Trustee will be recorded
only to the extent specified in the related prospectus supplement.
With respect to each Contract, the Servicer (which may also be the
Asset Seller) generally will maintain custody of the original Contract and
copies of documents and instruments related to each Contract and the security
interest in the Manufactured Home securing each Contract. In order to give
notice of the right, title and interest of the Trustee in the Contracts, the
Depositor will cause UCC-1 financing statements to be authorized by the related
Asset Seller identifying the Depositor as secured party and by the Depositor
identifying the Trustee as the secured party and, in each case, identifying all
Contracts as collateral. The Contracts will be stamped or otherwise marked to
reflect their assignment from the Company to the Trust Fund only to the extent
specified in the related prospectus supplement. Therefore, if, through
negligence, fraud or otherwise, a subsequent purchaser were able to take
physical possession of the Contracts without notice of such assignment, the
interest of the Trustee in the Contracts could be defeated. See "Certain Legal
Aspects of the Contracts."
While the Contract documents will not be reviewed by the Trustee or the
Servicer, if the Servicer finds that any such document is missing or defective
in any material respect, the Servicer will be required to immediately notify the
Depositor and the relevant Asset Seller or other entity specified in the related
prospectus supplement. If the Asset Seller or such other entity cannot cure the
omission or defect within a specified number of days after receipt of such
notice, then the Asset Seller or such other entity will be obligated, within a
specified number of days of receipt of such notice, to repurchase the related
Contract from the Trustee at the Purchase Price or substitute for such Contract.
There can be no assurance that an Asset Seller or such other entity will fulfill
this repurchase or substitution obligation, and neither the Servicer nor the
Depositor will be obligated to repurchase or substitute for such Contract if the
Asset Seller or such other entity defaults on its obligation. This repurchase or
substitution obligation constitutes the sole remedy available to the
Securityholders or the Trustee for omission of, or a material defect in, a
constituent document. To the extent specified in the related prospectus
supplement, in lieu of curing any omission or defect in the Asset or
repurchasing or substituting for such Asset, the Asset Seller may agree to cover
any losses suffered by the Trust Fund as a result of such breach or defect.
Representations and Warranties; Repurchases
To the extent provided in the related prospectus supplement the
Depositor will, with respect to each Asset, make or assign certain
representations and warranties, as of a specified date (the person making such
representations and warranties including the Depositor, the "Warranting Party")
covering, by way of example, the following types of matters: (i) the accuracy of
the information set forth for such Asset on the schedule of Assets appearing as
an exhibit to the applicable Agreement; (ii) in the case of a Mortgage Loan, the
existence of title insurance insuring the lien priority of the Mortgage Loan
and, in the case of a Contract, that the Contract creates a valid first security
interest in or lien on the related Manufactured Home; (iii) the authority of the
Warranting Party to sell the Asset; (iv) the payment status of the Asset; (v) in
the case of a Mortgage Loan, the existence of customary provisions in the
related Mortgage Note and Mortgage to permit realization against the Mortgaged
Property of the benefit of the security of the Mortgage; and (vi) the existence
of hazard and extended perils insurance coverage on the Mortgaged Property or
Manufactured Home.
44
Any Warranting Party shall be an Asset Seller or an affiliate thereof
or such other person acceptable to the Depositor and shall be identified in the
related prospectus supplement.
Representations and warranties made in respect of an Asset may have
been made as of a date prior to the applicable Cut-off Date. A substantial
period of time may have elapsed between such date and the date of initial
issuance of the related Series of Securities evidencing an interest in such
Asset. In the event of a breach of any such representation or warranty, the
Warranting Party will be obligated to reimburse the Trust Fund for losses caused
by any such breach or either cure such breach or repurchase or replace the
affected Asset as described below. Since the representations and warranties may
not address events that may occur following the date as of which they were made,
the Warranting Party will have a reimbursement, cure, repurchase or substitution
obligation in connection with a breach of such a representation and warranty
only if the relevant event that causes such breach occurs prior to such date.
Such party would have no such obligations if the relevant event that causes such
breach occurs after such date.
Each Agreement will provide that the Servicer and/or Trustee or such
other entity identified in the related prospectus supplement will be required to
notify promptly the relevant Warranting Party of any breach of any
representation or warranty made by it in respect of an Asset that materially and
adversely affects the value of such Asset or the interests therein of the
Securityholders. If such Warranting Party cannot cure such breach within a
specified period following the date on which such party was notified of such
breach, then such Warranting Party will be obligated to repurchase such Asset
from the Trustee within a specified period from the date on which the Warranting
Party was notified of such breach, at the Purchase Price therefor. If so
provided in the prospectus supplement for a Series, a Warranting Party, rather
than repurchase an Asset as to which a breach has occurred, will have the
option, within a specified period after initial issuance of such Series of
Securities, to cause the removal of such Asset from the Trust Fund and
substitute in its place one or more other Assets, as applicable, in accordance
with the standards described in the related prospectus supplement. If so
provided in the prospectus supplement for a Series, a Warranting Party, rather
than repurchase or substitute an Asset as to which a breach has occurred, will
have the option to reimburse the Trust Fund or the Securityholders for any
losses caused by such breach. This reimbursement, repurchase or substitution
obligation will constitute the sole remedy available to Securityholders or the
Trustee for a breach of representation by a Warranting Party.
Neither the Depositor (except to the extent that it is the Warranting
Party) nor the Servicer will be obligated to purchase or substitute for an Asset
if a Warranting Party defaults on its obligation to do so, and no assurance can
be given that Warranting Parties will carry out such obligations with respect to
the Assets.
A Servicer will make certain representations and warranties regarding
its authority to enter into, and its ability to perform its obligations under,
the applicable Agreement. A breach of any such representation of the Servicer
which materially and adversely affects the interests of the Securityholders and
which continues unremedied for the number of days specified in the applicable
Agreement after the giving of written notice of such breach to the Servicer by
the Trustee or the Depositor, or to the Servicer, the Depositor and the Trustee
by the holders of Securities evidencing not less than 25% of the Voting Rights
or such other percentage specified in the related prospectus supplement, will
constitute an Event of Default under such Agreement. See "--Events of Default
under the Agreements" and "--Rights Upon Event of Default under the Agreements."
Collection Account and Related Accounts
General. The Servicer and/or the Trustee will, as to each Trust Fund,
establish and maintain or cause to be established and maintained one or more
separate accounts for the collection of payments on the related Assets
(collectively, the "Collection Account"), which must be either (i) an account or
accounts the deposits in which are insured by the Bank Insurance Fund or the
Savings Association Insurance Fund of the Federal Deposit Insurance Corporation
("FDIC") (to the limits established by the FDIC) and the uninsured deposits in
which are otherwise secured such that the Securityholders have a claim with
respect to the funds in the Collection Account or a perfected first priority
security interest against any collateral securing such funds that is superior to
the claims of any other depositors or general creditors of the institution with
which the Collection Account is maintained or (ii) otherwise maintained with a
bank or trust company, and in a manner, satisfactory to the Rating Agency or
Agencies rating any Class of Securities of such Series. The collateral eligible
to secure amounts in the Collection Account is limited to United States
government securities and other investment grade obligations specified in the
applicable Agreement ("Permitted Investments"). A Collection Account may be
maintained as an interest bearing or a non-interest bearing account and the
funds held therein may be invested pending each succeeding Distribution Date in
certain short-term Permitted Investments. Unless otherwise specified in the
applicable prospectus supplement, any interest or other income earned on funds
in the Collection Account will be paid to the Servicer or its designee as
additional servicing compensation. The Collection Account may be maintained with
an institution that is an affiliate of the Servicer, if applicable, provided
that such institution meets the standards imposed by the Rating Agency or
Agencies. If permitted by the Rating Agency or Agencies, a Collection Account
may contain funds relating to more than one Series of mortgage pass-through
certificates and may contain other funds respecting payments on mortgage loans
belonging to the Servicer or serviced or master serviced by it on behalf of
others.
45
Deposits. A Servicer or the Trustee will deposit or cause to be
deposited in the Collection Account for one or more Trust Funds on a daily
basis, or such other period provided in the applicable Agreement, the following
payments and collections received, or advances made, by the Servicer or the
Trustee or on its behalf subsequent to the Cut-off Date (other than payments due
on or before the Cut-off Date, and exclusive of any amounts representing a
Retained Interest):
(i) all payments on account of principal, including principal
prepayments, on the Assets;
(ii) all payments on account of interest on the Assets,
including any default interest collected, in each case net of any
portion thereof retained by a Servicer as its servicing compensation
and net of any Retained Interest;
(iii) Liquidation Proceeds and Insurance Proceeds, together
with the net proceeds on a monthly basis with respect to any Assets
acquired for the benefit of Securityholders;
(iv) any amounts paid under any instrument or drawn from any
fund that constitutes Credit Support for the related Series of
Securities as described under "Description of Credit Support";
(v) any advances made as described under "Description of the
Securities--Advances in Respect of Delinquencies";
(vi) any amounts paid under any Cash Flow Agreement, as
described under "Description of the Trust Funds--Cash Flow Agreements";
(vii) all proceeds of any Asset or, with respect to a Mortgage
Loan, property acquired in respect thereof purchased by the Depositor,
any Asset Seller or any other specified person as described under
"--Assignment of Assets; Repurchases" and "--Representations and
Warranties; Repurchases," all proceeds of any defaulted Mortgage Loan
purchased as described under "--Realization Upon Defaulted Assets," and
all proceeds of any Asset purchased as described under "Description of
the Securities--Termination";
(viii) any amounts paid by a Servicer to cover certain
interest shortfalls arising out of the prepayment of Assets in the
Trust Fund as described under "Description of the Agreements--Retained
Interest; Servicing Compensation and Payment of Expenses";
(ix) to the extent that any such item does not constitute
additional servicing compensation to a Servicer, any payments on
account of modification or assumption fees, late payment charges or
Prepayment Premiums on the Assets;
46
(x) all payments required to be deposited in the Collection
Account with respect to any deductible clause in any blanket insurance
policy described under "--Hazard Insurance Policies";
(xi) any amount required to be deposited by a Servicer or the
Trustee in connection with losses realized on investments for the
benefit of the Servicer or the Trustee, as the case may be, of funds
held in the Collection Account; and
(xii) any other amounts required to be deposited in the
Collection Account as provided in the applicable Agreement and
described in the related prospectus supplement.
Withdrawals. A Servicer or the Trustee may, from time to time, make
withdrawals from the Collection Account for each Trust Fund for any of the
following purposes:
(xiii) to make distributions to the Securityholders on each
Distribution Date;
(xiv) to reimburse a Servicer for unreimbursed amounts
advanced as described under "Description of the Securities--Advances in
Respect of Delinquencies," such reimbursement to be made out of amounts
received which were identified and applied by the Servicer as late
collections of interest (net of related servicing fees and Retained
Interest) on and principal of the particular Assets with respect to
which the advances were made or out of amounts drawn under any form of
Credit Support with respect to such Assets;
(xv) to reimburse a Servicer for unpaid servicing fees earned
and certain unreimbursed servicing expenses incurred with respect to
Assets and properties acquired in respect thereof, such reimbursement
to be made out of amounts that represent Liquidation Proceeds and
Insurance Proceeds collected on the particular Assets and properties,
and net income collected on the particular properties, with respect to
which such fees were earned or such expenses were incurred or out of
amounts drawn under any form of Credit Support with respect to such
Assets and properties;
(xvi) to reimburse a Servicer for any advances described in
clause (ii) above and any servicing expenses described in clause (iii)
above which, in the Servicer's good faith judgment, will not be
recoverable from the amounts described in clauses (ii) and (iii),
respectively, such reimbursement to be made from amounts collected on
other Assets or, if and to the extent so provided by the applicable
Agreement and described in the related prospectus supplement, just from
that portion of amounts collected on other Assets that is otherwise
distributable on one or more Classes of Subordinate Securities, if any,
remain outstanding, and otherwise any outstanding Class of Securities,
of the related Series;
(xvii) if and to the extent described in the related
prospectus supplement, to pay a Servicer interest accrued on the
advances described in clause (ii) above and the servicing expenses
described in clause (iii) above while such advances and servicing
expenses remain outstanding and unreimbursed;
(xviii) to reimburse a Servicer, the Depositor, or any of
their respective directors, officers, employees and agents, as the case
may be, for certain expenses, costs and liabilities incurred thereby,
as and to the extent described under "--Certain Matters Regarding
Servicers, the Master Servicer and the Depositor";
(xix) if and to the extent described in the related prospectus
supplement, to pay (or to transfer to a separate account for purposes
of escrowing for the payment of) the Trustee's fees;
(xx) to reimburse the Trustee or any of its directors,
officers, employees and agents, as the case may be, for certain
expenses, costs and liabilities incurred thereby, as and to the extent
described under "--Certain Matters Regarding the Trustee";
(xxi) to pay a Servicer, as additional servicing compensation,
interest and investment income earned in respect of amounts held in the
Collection Account;
47
(xxii) to pay the person entitled thereto any amounts
deposited in the Collection Account that were identified and applied by
the Servicer as recoveries of Retained Interest;
(xxiii) to pay for costs reasonably incurred in connection
with the proper management and maintenance of any Mortgaged Property
acquired for the benefit of Securityholders by foreclosure or by deed
in lieu of foreclosure or otherwise, such payments to be made out of
income received on such property;
(xxiv) if one or more elections have been made to treat the
Trust Fund or designated portions thereof as a REMIC or a FASIT, to pay
any federal, state or local taxes imposed on the Trust Fund or its
assets or transactions, as and to the extent described under "Federal
Income Tax Consequences--REMICs--Taxes That May Be Imposed on the REMIC
Pool" or in the applicable prospectus supplement, respectively;
(xxv) to pay for the cost of an independent appraiser or other
expert in real estate matters retained to determine a fair sale price
for a defaulted Mortgage Loan or a property acquired in respect thereof
in connection with the liquidation of such Mortgage Loan or property;
(xxvi) to pay for the cost of various opinions of counsel
obtained pursuant to the applicable Agreement for the benefit of
Securityholders;
(xxvii) to pay for the costs of recording the applicable
Agreement if such recordation materially and beneficially affects the
interests of Securityholders, provided that such payment shall not
constitute a waiver with respect to the obligation of the Warranting
Party to remedy any breach of representation or warranty under the
applicable Agreement;
(xxviii) to pay the person entitled thereto any amounts
deposited in the Collection Account in error, including amounts
received on any Asset after its removal from the Trust Fund whether by
reason of purchase or substitution as contemplated by "--Assignment of
Assets; Repurchase" and "--Representations and Warranties; Repurchases"
or otherwise;
(xxix) to make any other withdrawals permitted by the
applicable Agreement; and
(xxx) to clear and terminate the Collection Account at the
termination of the Trust Fund.
Other Collection Accounts. Notwithstanding the foregoing, if so
specified in the related prospectus supplement, the applicable Agreement for any
Series of Securities may provide for the establishment and maintenance of a
separate collection account into which the Servicer will deposit on a daily
basis the amounts described under "--Deposits" above for one or more Series of
Securities. Any amounts on deposit in any such collection account will be
withdrawn therefrom and deposited into the appropriate Collection Account by a
time specified in the related prospectus supplement. To the extent specified in
the related prospectus supplement, any amounts which could be withdrawn from the
Collection Account as described under "--Withdrawals" above, may also be
withdrawn from any such collection account. The prospectus supplement will set
forth any restrictions with respect to any such collection account, including
investment restrictions and any restrictions with respect to financial
institutions with which any such collection account may be maintained.
Collection and Other Servicing Procedures. The Servicer is required to
make reasonable efforts to collect all scheduled payments under the Assets and
will follow or cause to be followed such collection procedures as it would
follow with respect to assets that are comparable to the Assets and held for its
own account, provided such procedures are consistent with (i) the terms of the
applicable Agreement and any related hazard insurance policy or instrument of
Credit Support, if any, included in the related Trust Fund described herein or
under "Description of Credit Support," (ii) applicable law and (iii) the general
servicing standard specified in the related prospectus supplement or, if no such
standard is so specified, its normal servicing practices (in either case, the
"Servicing Standard"). In connection therewith, the Servicer will be permitted
in its discretion to waive any late payment charge or penalty interest in
respect of a late payment on an Asset.
48
Each Servicer will also be required to perform other customary
functions of a servicer of comparable assets, including maintaining hazard
insurance policies as described herein and in any related prospectus supplement,
and filing and settling claims thereunder; maintaining, to the extent required
by the applicable Agreement, escrow or impoundment accounts of obligors for
payment of taxes, insurance and other items required to be paid by any obligor
pursuant to the terms of the Assets; processing assumptions or substitutions in
those cases where the Servicer has determined not to enforce any applicable
due-on-sale clause; attempting to cure delinquencies; supervising foreclosures
or repossessions; inspecting and managing Mortgaged Properties or Manufactured
Homes under certain circumstances; and maintaining accounting records relating
to the Assets. The Servicer or such other entity specified in the related
prospectus supplement will be responsible for filing and settling claims in
respect of particular Assets under any applicable instrument of Credit Support.
See "Description of Credit Support."
The Servicer may agree to modify, waive or amend any term of any Asset
in a manner consistent with the Servicing Standard so long as the modification,
waiver or amendment will not (i) affect the amount or timing of any scheduled
payments of principal or interest on the Asset or (ii) in its judgment,
materially impair the security for the Asset or reduce the likelihood of timely
payment of amounts due thereon. The Servicer also may agree to any modification,
waiver or amendment that would so affect or impair the payments on, or the
security for, an Asset if, unless otherwise provided in the related prospectus
supplement, (i) in its judgment, a material default on the Asset has occurred or
a payment default is reasonably foreseeable and (ii) in its judgment, such
modification, waiver or amendment is reasonably likely to produce a greater
recovery with respect to the Asset on a present value basis than would
liquidation. The Servicer is required to notify the Trustee in the event of any
modification, waiver or amendment of any Asset.
In the case of Multifamily Mortgage Loans, a mortgagor's failure to
make required Mortgage Loan payments may mean that operating income is
insufficient to service the Mortgage Loan debt, or may reflect the diversion of
that income from the servicing of the Mortgage Loan debt. In addition, a
mortgagor under a Multifamily Mortgage Loan that is unable to make Mortgage Loan
payments may also be unable to make timely payment of all required taxes and
otherwise to maintain and insure the related Mortgaged Property. In general, the
Servicer will be required to monitor any Multifamily Mortgage Loan that is in
default, evaluate whether the causes of the default can be corrected over a
reasonable period without significant impairment of the value of the related
Mortgaged Property, initiate corrective action in cooperation with the mortgagor
if cure is likely, inspect the related Multifamily Property and take such other
actions as are consistent with the applicable Agreement. A significant period of
time may elapse before the Servicer is able to assess the success of any such
corrective action or the need for additional initiatives. The time within which
the Servicer can make the initial determination of appropriate action, evaluate
the success of corrective action, develop additional initiatives, institute
foreclosure proceedings and actually foreclose may vary considerably depending
on the particular Multifamily Mortgage Loan, the Multifamily Property, the
mortgagor, the presence of an acceptable party to assume the Multifamily
Mortgage Loan and the laws of the jurisdiction in which the Multifamily Property
is located.
Realization Upon Defaulted Assets
Generally, the Servicer is required to monitor any Assets which is in
default, initiate corrective action in cooperation with the mortgagor or obligor
if cure is likely, inspect the Asset and take such other actions as are
consistent with the Servicing Standard. A significant period of time may elapse
before the Servicer is able to assess the success of such corrective action or
the need for additional initiatives.
Any Agreement relating to a Trust Fund that includes Mortgage Loans or
Contracts may grant to the Servicer and/or the holder or holders of certain
Classes of Securities a right of first refusal to purchase from the Trust Fund
at a predetermined purchase price any such Mortgage Loan or Contract as to which
a specified number of scheduled payments thereunder are delinquent. Any such
right granted to the holder of an Offered Security will be described in the
related prospectus supplement. The related prospectus supplement will also
describe any such right granted to any person if the predetermined purchase
price is less than the Purchase Price described under "--Representations and
Warranties; Repurchases."
49
If so specified in the related prospectus supplement, the Servicer may
offer to sell any defaulted Mortgage Loan or Contract described in the preceding
paragraph and not otherwise purchased by any person having a right of first
refusal with respect thereto, if and when the Servicer determines, consistent
with the Servicing Standard, that such a sale would produce a greater recovery
on a present value basis than would liquidation through foreclosure,
repossession or similar proceedings. The applicable Agreement will provide that
any such offering be made in a commercially reasonable manner for a specified
period and that the Servicer accept the highest cash bid received from any
person (including itself, an affiliate of the Servicer or any Securityholder)
that constitutes a fair price for such defaulted Mortgage Loan or Contract. In
the absence of any bid determined in accordance with the applicable Agreement to
be fair, the Servicer shall proceed with respect to such defaulted Mortgage Loan
or Contract as described below. Any bid in an amount at least equal to the
Purchase Price described under "--Representations and Warranties; Repurchases"
will in all cases be deemed fair.
The Servicer, on behalf of the Trustee, may at any time institute
foreclosure proceedings, exercise any power of sale contained in any mortgage,
obtain a deed in lieu of foreclosure, or otherwise acquire title to a Mortgaged
Property securing a Mortgage Loan by operation of law or otherwise and may at
any time repossess and realize upon any Manufactured Home, if such action is
consistent with the Servicing Standard and a default on such Mortgage Loan or
Contract has occurred or, in the Servicer's judgment, is imminent.
If title to any Mortgaged Property is acquired by a Trust Fund as to
which a REMIC election has been made, the Servicer, on behalf of the Trust Fund,
will be required to sell the Mortgaged Property by the close of the third
calendar year after the year of acquisition, unless (i) the Internal Revenue
Service (the "IRS") grants an extension of time to sell such property or (ii)
the Trustee receives an opinion of independent counsel to the effect that the
holding of the property by the Trust Fund subsequent to two years after its
acquisition will not result in the imposition of a tax on the Trust Fund or
cause the Trust Fund to fail to qualify as a REMIC under the Code at any time
that any Securities are outstanding. Subject to the foregoing, the Servicer will
be required to (i) solicit bids for any Mortgaged Property so acquired in such a
manner as will be reasonably likely to realize a fair price for such property
and (ii) accept the first (and, if multiple bids are contemporaneously received,
the highest) cash bid received from any person that constitutes a fair price.
The applicability of these limitations if a FASIT election is made with respect
to all or a part of the Trust Fund will be described in the applicable
prospectus supplement.
The limitations imposed by the applicable Agreement and the REMIC
provisions or the FASIT provisions of the Code (if a REMIC election or a FASIT
election, respectively, has been made with respect to the related Trust Fund) on
the ownership and management of any Mortgaged Property acquired on behalf of the
Trust Fund may result in the recovery of an amount less than the amount that
would otherwise be recovered. See "Certain Legal Aspects of Mortgage
Loans--Foreclosure."
If recovery on a defaulted Asset under any related instrument of Credit
Support is not available, the Servicer nevertheless will be obligated to follow
or cause to be followed such normal practices and procedures as it deems
necessary or advisable to realize upon the defaulted Asset. If the proceeds of
any liquidation of the property securing the defaulted Asset are less than the
outstanding principal balance of the defaulted Asset plus interest accrued
thereon at the applicable interest rate, plus the aggregate amount of expenses
incurred by the Servicer in connection with such proceedings and which are
reimbursable under the applicable Agreement, the Trust Fund will realize a loss
in the amount of such difference. The Servicer will be entitled to withdraw or
cause to be withdrawn from the Collection Account out of the Liquidation
Proceeds recovered on any defaulted Asset, prior to the distribution of such
Liquidation Proceeds to Securityholders, amounts representing its normal
servicing compensation on the Security, unreimbursed servicing expenses incurred
with respect to the Asset and any unreimbursed advances of delinquent payments
made with respect to the Asset.
If any property securing a defaulted Asset is damaged 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
Securityholders on liquidation of the Asset after reimbursement of the Servicer
for its expenses and (ii) that such expenses will be recoverable by it from
related Insurance Proceeds or Liquidation Proceeds.
As servicer of the Assets, a Servicer, on behalf of itself, the Trustee
and the Securityholders, will present claims to the obligor under each
instrument of Credit Support, and will take such reasonable steps as are
necessary to receive payment or to permit recovery thereunder with respect to
defaulted Assets.
50
If a Servicer or its designee recovers payments under any instrument of
Credit Support with respect to any defaulted Assets, the Servicer will be
entitled to withdraw or cause to be withdrawn from the Collection Account out of
such proceeds, prior to distribution thereof to Securityholders, amounts
representing its normal servicing compensation on such Asset, unreimbursed
servicing expenses incurred with respect to the Asset and any unreimbursed
advances of delinquent payments made with respect to the Asset. See "--Hazard
Insurance Policies" and "Description of Credit Support."
Hazard Insurance Policies
Mortgage Loans. Generally, each Agreement for a Trust Fund comprised of
Mortgage Loans will require the Servicer to cause the mortgagor on each Mortgage
Loan to maintain a hazard insurance policy providing for such coverage as is
required under the related Mortgage or, if any Mortgage permits the holder
thereof to dictate to the mortgagor the insurance coverage to be maintained on
the related Mortgaged Property, then such coverage as is consistent with the
Servicing Standard. Such coverage will be in general in an amount equal to the
lesser of the principal balance owing on such Mortgage Loan (but not less than
the amount necessary to avoid the application of any co-insurance clause
contained in the hazard insurance policy) and the amount necessary to fully
compensate for any damage or loss to the improvements on the Mortgaged Property
on a replacement cost basis or such other amount specified in the related
prospectus supplement. The ability of the Servicer to assure that hazard
insurance proceeds are appropriately applied may be dependent upon its being
named as an additional insured under any hazard insurance policy and under any
other insurance policy referred to below, or upon the extent to which
information in this regard is furnished by mortgagors. All amounts collected by
the Servicer under any such policy (except for amounts to be applied to the
restoration or repair of the Mortgaged Property or released to the mortgagor in
accordance with the Servicer's normal servicing procedures, subject to the terms
and conditions of the related Mortgage and Mortgage Note) will be deposited in
the Collection Account. The applicable Agreement may provide that the Servicer
may satisfy its obligation to cause each mortgagor to maintain such a hazard
insurance policy by the Servicer's maintaining a blanket policy insuring against
hazard losses on the Mortgage Loans. If such blanket policy contains a
deductible clause, the Servicer will be required to deposit in the Collection
Account all sums that would have been deposited therein but for such clause.
In general, the standard form of fire and extended coverage policy
covers physical damage to or destruction of the improvements of the property by
fire, lightning, explosion, smoke, windstorm and hail, and riot, strike and
civil commotion, subject to the conditions and exclusions specified in each
policy. Although the policies relating to the Mortgage Loans will be
underwritten by different insurers under different state laws in accordance with
different applicable state forms, and therefore will not contain identical terms
and conditions, the basic terms thereof are dictated by respective state laws,
and most such policies typically do not cover any physical damage resulting from
war, revolution, governmental actions, floods and other water-related causes,
earth movement (including earthquakes, landslides and mudflows), wet or dry rot,
vermin, domestic animals and certain other kinds of uninsured risks.
The hazard insurance policies covering the Mortgaged Properties
securing the Mortgage Loans will typically contain a coinsurance clause that in
effect requires the insured at all times to carry insurance of a specified
percentage (generally 80% to 90%) of the full replacement value of the
improvements on the property in order to recover the full amount of any partial
loss. If the insured's coverage falls below this specified percentage, such
clause generally provides that the insurer's liability in the event of partial
loss does not exceed the lesser of (i) the replacement cost of the improvements
less physical depreciation and (ii) such proportion of the loss as the amount of
insurance carried bears to the specified percentage of the full replacement cost
of such improvements.
Each Agreement for a Trust Fund comprised of Mortgage Loans will
require the Servicer to cause the mortgagor on each Mortgage Loan to maintain
all such other insurance coverage with respect to the related Mortgaged Property
as is consistent with the terms of the related Mortgage and the Servicing
Standard, which insurance may typically include flood insurance (if the related
Mortgaged Property was located at the time of origination in a federally
designated flood area).
Any cost incurred by the Servicer in maintaining any such insurance
policy will be added to the amount owing under the Mortgage Loan where the terms
of the Mortgage Loan so permit; provided, however, that the addition of such
cost will not be taken into account for purposes of calculating the distribution
to be made to Securityholders. Such costs may be recovered by the Servicer from
the Collection Account, with interest thereon, as provided by the applicable
Agreement.
51
Under the terms of the Mortgage Loans, mortgagors will generally be
required to present claims to insurers under hazard insurance policies
maintained on the related Mortgaged Properties. The Servicer, on behalf of the
Trustee and Securityholders, is obligated to present or cause to be presented
claims under any blanket insurance policy insuring against hazard losses on
Mortgaged Properties securing the Mortgage Loans. However, the ability of the
Servicer to present or cause to be presented such claims is dependent upon the
extent to which information in this regard is furnished to the Servicer by
mortgagors.
Contracts
Generally, the terms of the applicable Agreement for a Trust Fund
comprised of Contracts will require the Servicer to cause to be maintained with
respect to each Contract one or more hazard insurance policies which provide, at
a minimum, the same coverage as a standard form fire and extended coverage
insurance policy that is customary for manufactured housing, issued by a company
authorized to issue such policies in the state in which the Manufactured Home is
located, and in an amount which is not less than the maximum insurable value of
such Manufactured Home or the principal balance due from the obligor on the
related Contract, whichever is less; provided, however, that the amount of
coverage provided by each such hazard insurance policy shall be sufficient to
avoid the application of any co-insurance clause contained therein. When a
Manufactured Home's location was, at the time of origination of the related
Contract, within a federally designated special flood hazard area, the Servicer
shall cause such flood insurance to be maintained, which coverage shall be at
least equal to the minimum amount specified in the preceding sentence or such
lesser amount as may be available under the federal flood insurance program.
Each hazard insurance policy caused to be maintained by the Servicer shall
contain a standard loss payee clause in favor of the Servicer and its successors
and assigns. If any obligor is in default in the payment of premiums on its
hazard insurance policy or policies, the Servicer shall pay such premiums out of
its own funds, and may add separately such premium to the obligor's obligation
as provided by the Contract, but may not add such premium to the remaining
principal balance of the Contract.
The Servicer may maintain, in lieu of causing individual hazard
insurance policies to be maintained with respect to each Manufactured Home, and
shall maintain, to the extent that the related Contract does not require the
obligor to maintain a hazard insurance policy with respect to the related
Manufactured Home, one or more blanket insurance policies covering losses on the
obligor's interest in the Contracts resulting from the absence or insufficiency
of individual hazard insurance policies. The Servicer shall pay the premium for
such blanket policy on the basis described therein and shall pay any deductible
amount with respect to claims under such policy relating to the Contracts.
Fidelity Bonds and Errors and Omissions Insurance
Each Agreement will require that the Servicer obtain and maintain in
effect a fidelity bond or similar form of insurance coverage (which may provide
blanket coverage) or any combination thereof insuring against loss occasioned by
fraud, theft or other intentional misconduct of the officers, employees and
agents of the Servicer. The applicable Agreement will allow the Servicer to
self-insure against loss occasioned by the errors and omissions of the officers,
employees and agents of the Servicer so long as certain criteria set forth in
such Agreement are met.
Due-on-Sale Provisions
The Mortgage Loans may contain clauses requiring the consent of the
mortgagee to any sale or other transfer of the related Mortgaged Property, or
due-on-sale clauses entitling the mortgagee to accelerate payment of the
Mortgage Loan upon any sale, transfer or conveyance of the related Mortgaged
Property. 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. Any fee collected by
or on behalf of the Servicer for entering into an assumption agreement will be
retained by or on behalf of the Servicer as additional servicing compensation.
See "Certain Legal Aspects of Mortgage Loans--Due-on-Sale Clauses." The
Contracts may also contain such clauses. The Servicer will generally permit such
transfer so long as the transferee satisfies the Servicer's then applicable
underwriting standards. The purpose of such transfers is often to avoid a
default by the transferring obligor. See "Certain Legal Aspects of the
Contracts--Transfers of Manufactured Homes; Enforceability of "Due-on-Sale"
Clauses."
52
Retained Interest; Servicing Compensation and Payment of Expenses
The prospectus supplement for a Series of Securities will specify
whether there will be any Retained Interest in the Assets, and, if so, the
initial owner thereof. If so, the Retained Interest will be established on a
loan-by-loan basis and will be specified on an exhibit to the applicable
Agreement. A "Retained Interest" in an Asset represents a specified portion of
the interest payable thereon. The Retained Interest will be deducted from
mortgagor payments as received and will not be part of the related Trust Fund.
The Servicer's primary servicing compensation with respect to a Series
of Securities will come from the periodic payment to it of a portion of the
interest payment on each Asset or such other amount specified in the related
prospectus supplement. Since any Retained Interest and a Servicer's primary
compensation are percentages of the principal balance of each Asset, such
amounts will decrease in accordance with the amortization of the Assets. The
prospectus supplement with respect to a Series of Securities evidencing
interests in a Trust Fund that includes Mortgage Loans or Contracts may provide
that, as additional compensation, the Servicer may retain all or a portion of
assumption fees, modification fees, late payment charges or Prepayment Premiums
collected from mortgagors and any interest or other income which may be earned
on funds held in the Collection Account or any account established by a Servicer
pursuant to the applicable Agreement.
The Servicer may, to the extent provided in the related prospectus
supplement, pay from its servicing compensation certain expenses incurred in
connection with its servicing and managing of the Assets, including, without
limitation, payment of the fees and disbursements of the Trustee and independent
accountants, payment of expenses incurred in connection with distributions and
reports to Securityholders, and payment of any other expenses described in the
related prospectus supplement. Certain other expenses, including certain
expenses relating to defaults and liquidations on the Assets and, to the extent
so provided in the related prospectus supplement, interest thereon at the rate
specified therein may be borne by the Trust Fund.
If and to the extent provided in the related prospectus supplement, the
Servicer may be required to apply a portion of the servicing compensation
otherwise payable to it in respect of any Due Period to certain interest
shortfalls resulting from the voluntary prepayment of any Assets in the related
Trust Fund during such period prior to their respective due dates therein.
Evidence as to Compliance
Each Agreement relating to Assets which include Mortgage Loans or
Contracts will provide that on or before a specified date in each year,
beginning with the first such date at least six months after the related Cut-off
Date, a firm of independent public accountants will furnish a statement to the
Trustee to the effect that, on the basis of the examination by such firm
conducted substantially in compliance with either the Uniform Single Attestation
Program for Mortgage Bankers, the Audit Program for Mortgages serviced for
Freddie Mac or such other program used by the Servicer, the servicing by or on
behalf of the Servicer of mortgage loans under agreements substantially similar
to each other (including the applicable Agreement) was conducted in compliance
with the terms of such agreements or such program except for any significant
exceptions or errors in records that, in the opinion of the firm, either the
Audit Program for Mortgages serviced for Freddie Mac, or paragraph 4 of the
Uniform Single Attestation Program for Mortgage Bankers, or such other program,
requires it to report.
Each such Agreement will also provide for delivery to the Trustee, on
or before a specified date in each year, of an annual statement signed by two
officers of the Servicer to the effect that the Servicer has fulfilled its
obligations under the applicable Agreement throughout the preceding calendar
year or other specified twelve-month period.
53
Copies of such annual accountants' statement and such statements of
officers will be obtainable by Securityholders without charge upon written
request to the Servicer or other entity specified in the related prospectus
supplement at the address set forth in the related prospectus supplement.
Certain Matters Regarding Servicers, the Master Servicer and the
Depositor
The Servicers and Master Servicer under each Agreement will be named in
the related prospectus supplement. The entities serving as Servicer or Master
Servicer may be affiliates of the Depositor and may have other normal business
relationships with the Depositor or the Depositor's affiliates. Reference herein
to the Servicer shall be deemed to be to the Master Servicer, if applicable.
The applicable Agreement will provide that the Servicer may resign from
its obligations and duties thereunder only upon a determination that its duties
under such Agreement are no longer permissible under applicable law or are in
material conflict by reason of applicable law with any other activities carried
on by it, the other activities of the Servicer so causing such a conflict being
of a type and nature carried on by the Servicer at the date of such Agreement.
No such resignation will become effective until the Trustee or a successor
servicer has assumed the Servicer's obligations and duties under the applicable
Agreement.
Each Agreement will further provide that neither any Servicer, the
Depositor nor any director, officer, employee, or agent of a Servicer or the
Depositor will be under any liability to the related Trust Fund or
Securityholders for any action taken, or for refraining from the taking of any
action, in good faith pursuant to the applicable Agreement; provided, however,
that neither a Servicer, the Depositor nor any such person will be protected
against any breach of a representation, warranty or covenant made in such
Agreement, or against any liability specifically imposed thereby, or against any
liability which would otherwise be imposed by reason of willful misfeasance, bad
faith or gross negligence in the performance of obligations or duties thereunder
or by reason of reckless disregard of obligations and duties thereunder. Each
Agreement will further provide that any Servicer, the Depositor and any
director, officer, employee or agent of a Servicer or the Depositor will be
entitled to indemnification by the related Trust Fund and will be held harmless
against any loss, liability or expense incurred in connection with any legal
action relating to the applicable Agreement or the Securities; provided,
however, that such indemnification will not extend to any loss, liability or
expense (i) specifically imposed by such Agreement or otherwise incidental to
the performance of obligations and duties thereunder, including, in the case of
a Servicer, the prosecution of an enforcement action in respect of any specific
Mortgage Loan or Mortgage Loans or Contract or Contracts (except as any such
loss, liability or expense shall be otherwise reimbursable pursuant to such
Agreement); (ii) incurred in connection with any breach of a representation,
warranty or covenant made in such Agreement; (iii) incurred by reason of
misfeasance, bad faith or gross negligence in the performance of obligations or
duties thereunder, or by reason of reckless disregard of such obligations or
duties; (iv) incurred in connection with any violation of any state or federal
securities law; or (v) imposed by any taxing authority if such loss, liability
or expense is not specifically reimbursable pursuant to the terms of the
applicable Agreement. In addition, each Agreement will provide that neither any
Servicer nor the Depositor will be under any obligation to appear in, prosecute
or defend any legal action which is not incidental to its respective
responsibilities under the applicable Agreement and which in its opinion may
involve it in any expense or liability. Any such Servicer or the Depositor may,
however, in its discretion undertake any such action which it may deem necessary
or desirable with respect to the applicable Agreement and the rights and duties
of the parties thereto and the interests of the Securityholders thereunder. In
such event, the legal expenses and costs of such action and any liability
resulting therefrom will be expenses, costs and liabilities of the
Securityholders, and the Servicer or the Depositor, as the case may be, will be
entitled to be reimbursed therefor and to charge the Collection Account.
Any person into which the Servicer or the Depositor may be merged or
consolidated, or any person resulting from any merger or consolidation to which
the Servicer or the Depositor is a party, or any person succeeding to the
business of the Servicer or the Depositor, will be the successor of the Servicer
or the Depositor, as the case may be, under the applicable Agreement.
Special Servicers
If and to the extent specified in the related prospectus supplement, a
special servicer (a "Special Servicer") may be a party to the applicable
Agreement or may be appointed by the Servicer or another specified party to
perform certain specified duties in respect of servicing the related Mortgage
Loans that would otherwise be performed by the Servicer (for example, the
workout and/or foreclosure of defaulted Mortgage Loans). The rights and
obligations of any Special Servicer will be specified in the related Agreement.
The Servicer will be liable for the performance of a Special Servicer only if,
and to the extent, set forth in such Agreement.
54
Events of Default under the Agreements
Events of default under the applicable Agreement will generally include
(i) any failure by the Servicer to distribute or cause to be distributed to
Securityholders, or to remit to the Trustee for distribution to Securityholders,
any required payment that continues after a grace period, if any; (ii) any
failure by the Servicer duly to observe or perform in any material respect any
of its other covenants or obligations under the applicable Agreement which
continues unremedied for 30 days after written notice of such failure has been
given to the Servicer by the Trustee or the Depositor, or to the Servicer, the
Depositor and the Trustee by Securityholders evidencing not less than 25% of the
Voting Rights; (iii) any breach of a representation or warranty made by the
Servicer under the applicable Agreement which materially and adversely affects
the interests of Securityholders and which continues unremedied for 30 days
after written notice of such breach has been given to the Servicer by the
Trustee or the Depositor, or to the Servicer, the Depositor and the Trustee by
the holders of Securities evidencing not less than 25% of the Voting Rights; and
(iv) certain events of insolvency, readjustment of debt, marshaling of assets
and liabilities or similar proceedings and certain actions by or on behalf of
the Servicer indicating its insolvency or inability to pay its obligations.
Material variations to the foregoing events of default (other than to shorten
cure periods or eliminate notice requirements) will be specified in the related
prospectus supplement. The Trustee will, not later than the later of 60 days or
such other period specified in the related prospectus supplement after the
occurrence of any event which constitutes or, with notice or lapse of time or
both, would constitute an event of default and five days after certain officers
of the Trustee become aware of the occurrence of such an event, transmit by mail
to the Depositor and all Securityholders of the applicable Series notice of such
occurrence, unless such default shall have been cured or waived.
The manner of determining the "Voting Rights" of a Security or Class or
Classes of Securities will be specified in the related prospectus supplement.
Rights Upon Event of Default under the Agreements
So long as an event of default under an Agreement remains unremedied,
the Depositor or the Trustee may, and at the direction of holders of Securities
evidencing not less than 51% (or such other percentage specified in the related
prospectus supplement) of the Voting Rights, the Trustee shall terminate all of
the rights and obligations of the Servicer under the applicable Agreement and in
and to the Mortgage Loans (other than as a Securityholder or as the owner of any
Retained Interest), whereupon the Trustee will succeed to all of the
responsibilities, duties and liabilities of the Servicer under the applicable
Agreement (except that if the Trustee is prohibited by law from obligating
itself to make advances regarding delinquent Assets, or if the related
prospectus supplement so specifies, then the Trustee will not be obligated to
make such advances) and will be entitled to similar compensation arrangements.
In the event that the Trustee is unwilling or unable so to act, it may or, at
the written request of the holders of Securities entitled to at least 51% (or
such other percentage specified in the related prospectus supplement) of the
Voting Rights, it shall appoint, or petition a court of competent jurisdiction
for the appointment of, a loan servicing institution acceptable to the Rating
Agency with a net worth at the time of such appointment of at least $15,000,000
(or such other amount specified in the related prospectus supplement) to act as
successor to the Servicer under the applicable Agreement. Pending such
appointment, the Trustee is obligated to act in such capacity. The Trustee and
any such successor may agree upon the servicing compensation to be paid, which
in no event may be greater than the compensation payable to the Servicer under
the applicable Agreement.
The holders of Securities representing at least 66 2/3% (or such other
percentage specified in the related prospectus supplement) of the Voting Rights
allocated to the respective Classes of Securities affected by any event of
default will be entitled to waive such event of default; provided, however, that
an Event of Default involving a failure to distribute a required payment to
Securityholders described in clause (i) under "--Events of Default under the
Agreements" may be waived only by all of the Securityholders. Upon any such
waiver of an event of default, such event of default shall cease to exist and
shall be deemed to have been remedied for every purpose under the applicable
Agreement.
55
No Securityholders will have the right under any Agreement to institute
any proceeding with respect thereto unless such holder previously has given to
the Trustee written notice of default and unless the holders of Securities
evidencing not less than 25% (or such other percentage specified in the related
prospectus supplement) of the Voting Rights have made written request upon the
Trustee to institute such proceeding in its own name as Trustee thereunder and
have offered to the Trustee reasonable indemnity, and the Trustee for 60 days
(or such other number of days specified in the related prospectus supplement)
has neglected or refused to institute any such proceeding. The Trustee, however,
is under no obligation to exercise any of the trusts or powers vested in it by
any Agreement or to make any investigation of matters arising thereunder or to
institute, conduct or defend any litigation thereunder or in relation thereto at
the request, order or direction of any of the Securityholders covered by such
Agreement, unless such Securityholders have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may be
incurred therein or thereby.
Amendment
Each Agreement may be amended by the parties thereto, without the
consent of any Securityholders covered by the applicable Agreement, (i) to cure
any ambiguity or mistake, (ii) to correct, modify or supplement any provision
therein which may be inconsistent with any other provision therein or with the
related prospectus supplement, (iii) to make any other provisions with respect
to matters or questions arising under the applicable Agreement which are not
materially inconsistent with the provisions thereof, or (iv) to comply with any
requirements imposed by the Code; provided that, in the case of clause (iii),
such amendment will not adversely affect in any material respect the interests
of any Securityholders covered by the applicable Agreement as evidenced either
by an opinion of counsel to such effect or the delivery to the Trustee of
written notification from each Rating Agency that provides, at the request of
the Depositor, a rating for the Offered Securities of the related Series to the
effect that such amendment or supplement will not cause such Rating Agency to
lower or withdraw the then current rating assigned to such Securities. Each
Agreement may also be amended by the Depositor, the Servicer, if any, and the
Trustee, with the consent of the Securityholders affected thereby evidencing not
less than 51% (or such other percentage specified in the related prospectus
supplement) of the Voting Rights, for any purpose; provided, however, no such
amendment may (i) reduce in any manner the amount of, or delay the timing of,
payments received or advanced on Assets which are required to be distributed on
any Security without the consent of the Securityholder or (ii) reduce the
consent percentages described in this paragraph without the consent of all the
Securityholders covered by such Agreement then outstanding. However, with
respect to any Series of Securities as to which a REMIC election or a FASIT
election is to be made, the Trustee will not consent to any amendment of the
applicable Agreement unless it shall first have received an opinion of counsel
to the effect that such amendment will not result in the imposition of a tax on
the related Trust Fund or cause the related Trust Fund to fail to qualify as a
REMIC or a FASIT, as the case may be, at any time that the related Securities
are outstanding.
The Trustee
The Trustee under each Agreement will be named in the related
prospectus supplement. The commercial bank, national banking association,
banking corporation or trust company serving as Trustee may have a banking
relationship with the Depositor and its affiliates, with any Servicer and its
affiliates and with any Master Servicer and its affiliates. With respect to
certain Series of Securities, a certificate administrator will perform certain
duties and functions normally performed by the Trustee. Any certificate
administrator will be a party to the applicable Agreement and will be named in
the applicable Prospectus Supplement. Any certificate administrator will have
obligations and rights similar to the Trustee as described in this Prospectus.
Duties of the Trustee
The Trustee will make no representations as to the validity or
sufficiency of any Agreement, the Securities or any Asset or related document
and is not accountable for the use or application by or on behalf of any
Servicer of any funds paid to the Master Servicer or its designee in respect of
the Securities or the Assets, or deposited into or withdrawn from the Collection
Account or any other account by or on behalf of the Servicer. If no Event of
Default has occurred and is continuing, the Trustee is required to perform only
those duties specifically required under the applicable Agreement, as
applicable. However, upon receipt of the various certificates, reports or other
instruments required to be furnished to it, the Trustee is required to examine
such documents and to determine whether they conform to the requirements of the
applicable Agreement.
56
Certain Matters Regarding the Trustee
The Trustee and any director, officer, employee or agent of the Trustee
shall be entitled to indemnification out of the Collection Account for any loss,
liability or expense (including costs and expenses of litigation, and of
investigation, counsel fees, damages, judgments and amounts paid in settlement)
incurred in connection with the Trustee's (i) enforcing its rights and remedies
and protecting the interests, of the Securityholders during the continuance of
an Event of Default, (ii) defending or prosecuting any legal action in respect
of the applicable Agreement or Series of Securities (iii) being the mortgagee of
record with respect to the Mortgage Loans in a Trust Fund and the owner of
record with respect to any Mortgaged Property acquired in respect thereof for
the benefit of Securityholders, or (iv) acting or refraining from acting in good
faith at the direction of the holders of the related Series of Securities
entitled to not less than 25% (or such other percentage as is specified in the
applicable Agreement with respect to any particular matter) of the Voting Rights
for such Series; provided, however, that such indemnification will not extend to
any loss, liability or expense that constitutes a specific liability of the
Trustee pursuant to the applicable Agreement, or to any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence on
the part of the Trustee in the performance of its obligations and duties
thereunder, or by reason of its reckless disregard of such obligations or
duties, or as may arise from a breach of any representation, warranty or
covenant of the Trustee made therein.
Resignation and Removal of the Trustee
The Trustee may at any time resign from its obligations and duties
under an Agreement by giving written notice thereof to the Depositor, the
Servicer, if any, and all Securityholders. Upon receiving such notice of
resignation, the Depositor is required promptly to appoint a successor trustee
acceptable to the Servicer, if any. If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible to continue as
such under the applicable Agreement, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, or if a change in
the financial condition of the Trustee has adversely affected or will adversely
affect the rating on any Class of the Securities, then the Depositor may remove
the Trustee and appoint a successor trustee acceptable to the Master Servicer,
if any. Securityholders of any Series entitled to at least 51% (or such other
percentage specified in the related prospectus supplement) of the Voting Rights
for such Series may at any time remove the Trustee without cause and appoint a
successor trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee shall not become effective until acceptance of appointment by
the successor trustee.
Material Terms of the Indenture
General
The following summary describes the material provisions that may appear
in each Indenture. The prospectus supplement for a Series of Notes will describe
any provision of the Indenture relating to such Series that materially differs
from the description thereof contained in this prospectus. The summaries do not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, all of the provisions of the Indenture for a Series of Notes. A
form of an Indenture has been filed as an exhibit to the Registration Statement
of which this prospectus is a part. The Depositor will provide a copy of the
Indenture (without exhibits) relating to any Series of Notes without charge upon
written request of a Securityholder of such Series addressed to Asset Backed
Funding Corp., Bank of America Corporate Center, 100 North Tryon Street,
Charlotte, North Carolina 28255, Attention: Vice President.
57
Events of Default
Events of default under the Indenture for each Series of Notes will
generally include: (i) a default for thirty (30) days (or such other number of
days specified in such prospectus supplement) or more in the payment of any
principal of or interest on any Note of such Series; (ii) failure to perform any
other covenant of the Depositor or the Trust Fund in the Indenture which
continues for a period of sixty (60) days (or such other number of days
specified in such prospectus supplement) after notice thereof is given in
accordance with the procedures described in the related prospectus supplement;
(iii) any representation or warranty made by the Depositor or the Trust Fund in
the Indenture or in any certificate or other writing delivered pursuant thereto
or in connection therewith with respect to or affecting such Series having been
incorrect in a material respect as of the time made, and such breach is not
cured within sixty (60) days (or such other number of days specified in such
prospectus supplement) after notice thereof is given in accordance with the
procedures described in the related prospectus supplement; (iv) certain events
of bankruptcy, insolvency, receivership or liquidation of the Depositor or the
Trust Fund; or (v) any other event of default provided with respect to Notes of
that Series.
If an event of default with respect to the Notes of any Series at the
time outstanding occurs and is continuing, either the Indenture Trustee or the
Securityholders of a majority of the then aggregate outstanding amount of the
Notes of such Series may declare the principal amount (or, if the Notes of that
Series are Accrual Securities, such portion of the principal amount as may be
specified in the terms of that Series, as provided in the related prospectus
supplement) of all the Notes of such Series to be due and payable immediately.
Such declaration may, under certain circumstances, be rescinded and annulled by
the Securityholders of a majority in aggregate outstanding amount of the Notes
of such Series.
If, following an event of default with respect to any Series of Notes,
the Notes of such Series have been declared to be due and payable, the Indenture
Trustee may, in its discretion, notwithstanding such acceleration, elect to
maintain possession of the collateral securing the Notes of such Series and to
continue to apply distributions on such collateral as if there had been no
declaration of acceleration if such collateral continues to provide sufficient
funds for the payment of principal of and interest on the Notes of such Series
as they would have become due if there had not been such a declaration. In
addition, the Indenture Trustee may not sell or otherwise liquidate the
collateral securing the Notes of a Series following an event of default, other
than a default in the payment of any principal or interest on any Note of such
Series for thirty (30) days or more, unless (a) the Securityholders of 100% (or
such other percentage specified in the related prospectus supplement) of the
then aggregate outstanding amount of the Notes of such Series consent to such
sale, (b) the proceeds of such sale or liquidation are sufficient to pay in full
the principal of and accrued interest, due and unpaid, on the outstanding Notes
of such Series at the date of such sale or (c) the Indenture Trustee determines
that such collateral would not be sufficient on an ongoing basis to make all
payments on such Notes as such payments would have become due if such Notes had
not been declared due and payable, and the Indenture Trustee obtains the consent
of the Securityholders of 66 2/3% (or such other percentage specified in the
related prospectus supplement) of the then aggregate outstanding amount of the
Notes of such Series.
In the event that the Indenture Trustee liquidates the collateral in
connection with an event of default involving a default for thirty (30) days (or
such other number of days specified in the related prospectus supplement) or
more in the payment of principal of or interest on the Notes of a Series, the
Indenture provides that the Indenture Trustee will have a prior lien on the
proceeds of any such liquidation for unpaid fees and expenses. As a result, upon
the occurrence of such an event of default, the amount available for
distribution to the Securityholders would be less than would otherwise be the
case. However, the Indenture Trustee may not institute a proceeding for the
enforcement of its lien except in connection with a proceeding for the
enforcement of the lien of the Indenture for the benefit of the Securityholders
after the occurrence of such an event of default.
To the extent provided in the related prospectus supplement, in the
event the principal of the Notes of a Series is declared due and payable, as
described above, the Securityholders of any such Notes issued at a discount from
par may be entitled to receive no more than an amount equal to the unpaid
principal amount thereof less the amount of such discount which is unamortized.
58
Subject to the provisions of the Indenture relating to the duties of
the Indenture Trustee, in case an event of default shall occur and be continuing
with respect to a Series of Notes, the Indenture Trustee shall be under no
obligation to exercise any of the rights or powers under the Indenture at the
request or direction of any of the Securityholders of such Series, unless such
holders offered to the Indenture Trustee security or indemnity satisfactory to
it against the costs, expenses and liabilities which might be incurred by it in
complying with such request or direction. Subject to such provisions for
indemnification and certain limitations contained in the Indenture, the
Securityholders of a majority of the then aggregate outstanding amount of the
Notes of such Series shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Indenture Trustee
or exercising any trust or power conferred on the Indenture Trustee with respect
to the Notes of such Series, and the Securityholders of a majority of the then
aggregate outstanding amount of the Notes of such Series may, in certain cases,
waive any default with respect thereto, except a default in the payment of
principal or interest or a default in respect of a covenant or provision of the
Indenture that cannot be modified without the waiver or consent of all the
Securityholders of the outstanding Notes of such Series affected thereby.
Discharge of Indenture
The Indenture will be discharged with respect to a Series of Notes
(except with respect to certain continuing rights specified in the Indenture)
upon the delivery to the Indenture Trustee for cancellation of all the Notes of
such Series or, with certain limitations, upon deposit with the Indenture
Trustee of funds sufficient for the payment in full of all of the Notes of such
Series.
In addition to such discharge with certain limitations, the Indenture
will provide that, if so specified with respect to the Notes of any Series, the
related Trust Fund will be discharged from any and all obligations in respect of
the Notes of such Series (except for certain obligations relating to temporary
Notes and exchange of Notes, to register the transfer of or exchange Notes of
such Series, to replace stolen, lost or mutilated Notes of such Series, to
maintain paying agencies and to hold monies for payment in trust) upon the
deposit with the Indenture Trustee, in trust, of money and/or direct obligations
of or obligations guaranteed by the United States of America which through the
payment of interest and principal in respect thereof in accordance with their
terms will provide money in an amount sufficient to pay the principal of and
each installment of interest on the Notes of such Series on the maturity date
for such Notes and any installment of interest on such Notes in accordance with
the terms of the Indenture and the Notes of such Series. In the event of any
such defeasance and discharge of Notes of such Series, holders of Notes of such
Series would be able to look only to such money and/or direct obligations for
payment of principal and interest, if any, on their Notes until maturity.
Indenture Trustee's Annual Report
The Indenture Trustee for each Series of Notes will be required to mail
each year to all related Securityholders a brief report relating to its
eligibility and qualification to continue as Indenture Trustee under the related
Indenture, any amounts advanced by it under the Indenture, the amount, interest
rate and maturity date of certain indebtedness owing by such Trust to the
applicable Indenture Trustee in its individual capacity, the property and funds
physically held by such Indenture Trustee as such and any action taken by it
that materially affects such Notes and that has not been previously reported.
The Indenture Trustee
The Indenture Trustee for a Series of Notes will be specified in the
related prospectus supplement. The Indenture Trustee for any Series may resign
at any time, in which event the Depositor will be obligated to appoint a
successor trustee for such Series. The Depositor may also remove any such
Indenture Trustee if such Indenture Trustee ceases to be eligible to continue as
such under the related Indenture or if such Indenture Trustee becomes insolvent.
In such circumstances the Depositor will be obligated to appoint a successor
trustee for the applicable Series of Notes. Any resignation or removal of the
Indenture Trustee and appointment of a successor trustee for any Series of Notes
does not become effective until acceptance of the appointment by the successor
trustee for such Series.
The bank or trust company serving as Indenture Trustee may have a
banking relationship with the Depositor or any of its affiliates, a Servicer or
any of its affiliates or the Master Servicer or any of its affiliates.
59
DESCRIPTION OF CREDIT SUPPORT
General
For any Series of Securities, Credit Support may be provided with
respect to one or more Classes thereof or the related Assets. Credit Support may
be in the form of the subordination of one or more Classes of Securities,
letters of credit, insurance policies, guarantees, the establishment of one or
more reserve funds or another method of Credit Support described in the related
prospectus supplement, or any combination of the foregoing. If so provided in
the related prospectus supplement, any form of Credit Support may be structured
so as to be drawn upon by more than one Series to the extent described therein.
The coverage provided by any Credit Support will be described in the
related prospectus supplement. Generally, such coverage will not provide
protection against all risks of loss and will not guarantee repayment of the
entire Security Balance of the Securities and interest thereon. If losses or
shortfalls occur that exceed the amount covered by Credit Support or that are
not covered by Credit Support, Securityholders will bear their allocable share
of deficiencies. Moreover, if a form of Credit Support covers more than one
Series of Securities (each, a "Covered Trust"), Securityholders evidencing
interests in any of such Covered Trusts will be subject to the risk that such
Credit Support will be exhausted by the claims of other Covered Trusts prior to
such Covered Trust receiving any of its intended share of such coverage.
If Credit Support is provided with respect to one or more Classes of
Securities of a Series, or the related Assets, the related prospectus supplement
will include a description of (a) the nature and amount of coverage under such
Credit Support, (b) any conditions to payment thereunder not otherwise described
herein, (c) the conditions (if any) under which the amount of coverage under
such Credit Support may be reduced and under which such Credit Support may be
terminated or replaced and (d) the material provisions relating to such Credit
Support. Additionally, the related prospectus supplement will set forth certain
information with respect to the obligor under any instrument of Credit Support,
including (i) a brief description of its principal business activities, (ii) its
principal place of business, place of incorporation and the jurisdiction under
which it is chartered or licensed to do business, (iii) if applicable, the
identity of regulatory agencies that exercise primary jurisdiction over the
conduct of its business and (iv) its total assets, and its stockholders' or
policyholders' surplus, if applicable, as of the date specified in the
prospectus supplement. See "Risk Factors--Risks Associated with the
Securities--Credit Enhancement is Limited in Amount and Coverage."
Subordinate Securities
If so specified in the related prospectus supplement, one or more
Classes of Securities of a Series may be Subordinate Securities. To the extent
specified in the related prospectus supplement, the rights of the holders of
Subordinate Securities to receive distributions of principal and interest from
the Collection Account on any Distribution Date will be subordinated to such
rights of the holders of Senior Securities. If so provided in the related
prospectus supplement, the subordination of a Class may apply only in the event
of (or may be limited to) certain types of losses or shortfalls. The related
prospectus supplement will set forth information concerning the amount of
subordination of a Class or Classes of Subordinate Securities in a Series, the
circumstances in which such subordination will be applicable and the manner, if
any, in which the amount of subordination will be effected.
Cross-Support Provisions
If the Assets for a Series are divided into separate groups, each
supporting a separate Class or Classes of Securities of a Series, Credit Support
may be provided by cross-support provisions requiring that distributions be made
on Senior Securities evidencing interests in one group of Mortgage Loans prior
to distributions on Subordinate Securities evidencing interests in a different
group of Mortgage Loans within the Trust Fund. The prospectus supplement for a
Series that includes a cross-support provision will describe the manner and
conditions for applying such provisions.
60
Limited Guarantee
If so specified in the related prospectus supplement with respect to a
Series of Securities, credit enhancement may be provided in the form of a
limited guarantee issued by a guarantor named therein.
Financial Guaranty Insurance Policy or Surety Bond
If so specified in the related prospectus supplement with respect to a
Series of Securities, credit enhancement may be provided in the form of a
financial guaranty insurance policy or a surety bond issued by an insurer named
therein.
Letter of Credit
Alternative credit support with respect to a Series of Securities may
be provided by the issuance of a letter of credit by the bank or financial
institution specified in the related prospectus supplement. The coverage, amount
and frequency of any reduction in coverage provided by a letter of credit issued
with respect to a Series of Securities will be set forth in the prospectus
supplement relating to such Series.
Pool Insurance Policies
If so specified in the related prospectus supplement relating to a
Series of Securities, a pool insurance policy for the Mortgage Loans in the
related Trust Fund will be obtained. The pool insurance policy will cover any
loss (subject to the limitations described in the related prospectus supplement)
by reason of default to the extent a related Mortgage Loan is not covered by any
primary mortgage insurance policy. The amount and principal terms of any such
coverage will be set forth in the prospectus supplement.
Special Hazard Insurance Policies
If so specified in the related prospectus supplement, a special hazard
insurance policy may also be obtained for the related Trust Fund in the amount
set forth in such prospectus supplement. The special hazard insurance policy
will, subject to the limitations described in the related prospectus supplement,
protect against loss by reason of damage to Mortgaged Properties caused by
certain hazards not insured against under the standard form of hazard insurance
policy for the respective states, in which the Mortgaged Properties are located.
The amount and principal terms of any such coverage will be set forth in the
prospectus supplement.
Mortgagor Bankruptcy Bond
If so specified in the related prospectus supplement, losses resulting
from a bankruptcy proceeding relating to a mortgagor affecting the Mortgage
Loans in a Trust Fund with respect to a Series of Securities will be covered
under a mortgagor bankruptcy bond (or any other instrument that will not result
in a downgrading of the rating of the Securities of a Series by the Rating
Agency or Rating Agencies that rate such Series). Any mortgagor bankruptcy bond
or such other instrument will provide for coverage in an amount meeting the
criteria of the Rating Agency or Rating Agencies rating the Securities of the
related Series, which amount will be set forth in the related prospectus
supplement. The amount and principal terms of any such coverage will be set
forth in the prospectus supplement.
Reserve Funds
If so provided in the prospectus supplement for a Series of Securities,
deficiencies in amounts otherwise payable on such Securities or certain Classes
thereof will be covered by one or more reserve funds in which cash, a letter of
credit, Permitted Investments, a demand note or a combination thereof will be
deposited, in the amounts so specified in such prospectus supplement. The
reserve funds for a Series may also be funded over time by depositing therein a
specified amount of the distributions received on the related Assets as
specified in the related prospectus supplement.
61
Amounts on deposit in any reserve fund for a Series, together with the
reinvestment income thereon, if any, will be applied for the purposes, in the
manner, and to the extent specified in the related prospectus supplement. A
reserve fund may be provided to increase the likelihood of timely distributions
of principal of and interest on the Securities. If so specified in the related
prospectus supplement, reserve funds may be established to provide limited
protection against only certain types of losses and shortfalls. Following each
Distribution Date amounts in a reserve fund in excess of any amount required to
be maintained therein may be released from the reserve fund under the conditions
and to the extent specified in the related prospectus supplement and will not be
available for further application to the Securities.
Moneys deposited in any reserve funds will be invested in Permitted
Investments, to the extent specified in the related prospectus supplement. To
the extent specified in the related prospectus supplement, any reinvestment
income or other gain from such investments will be credited to the related
reserve fund for such Series, and any loss resulting from such investments will
be charged to such reserve fund. However, such income may be payable to any
related Servicer or another service provider as additional compensation. To the
extent specified in the related prospectus supplement, the reserve fund, if any,
for a Series will not be a part of the Trust Fund.
Additional information concerning any reserve fund will be set forth in
the related prospectus supplement, including the initial balance of such reserve
fund, the balance required to be maintained in the reserve fund, the manner in
which such required balance will decrease over time, the manner of funding such
reserve fund, the purposes for which funds in the reserve fund may be applied to
make distributions to Securityholders and use of investment earnings from the
reserve fund, if any.
Overcollateralization
If specified in the related prospectus supplement, subordination
provisions of a Trust Fund 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 Assets. 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 Assets or groups thereof, overcollateralization which results from the
excess of the aggregate principal balance of the related Assets, or a group
thereof, over the principal balance of the related Class or Classes 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.
CERTAIN LEGAL ASPECTS OF MORTGAGE LOANS
The following discussion contains summaries, which are general in
nature, of certain legal aspects of loans secured by single-family or
multi-family residential properties. Because such legal aspects are governed
primarily by applicable state law(which laws may differ substantially), the
summaries do not purport to be complete nor to reflect the laws of any
particular state, nor to encompass the laws of all states in which the security
for the Mortgage Loans is situated. The summaries are qualified in their
entirety by reference to the applicable federal and state laws governing the
Mortgage Loans. See "Description of the Trust Funds--Assets."
General
All of the Mortgage Loans are loans evidenced by a note or bond and
secured by instruments granting a security interest in real property which may
be mortgages, deeds of trust, security deeds or deeds to secure debt, depending
upon the prevailing practice and law in the state in which the Mortgaged
Property is located. Mortgages, deeds of trust and deeds to secure debt are
herein collectively referred to as "mortgages." Any of the foregoing types of
mortgages will create a lien upon, or grant a title interest in, the subject
property, the priority of which will depend on the terms of the particular
security instrument, as well as separate, recorded, contractual arrangements
with others holding interests in the mortgaged property, the knowledge of the
parties to such instrument as well as the order of recordation of the instrument
in the appropriate public recording office. However, recording does not
generally establish priority over governmental claims for real estate taxes and
assessments and other charges imposed under governmental police powers.
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Types of Mortgage Instruments
A mortgage either creates a lien against or constitutes a conveyance of
real property between two parties--a mortgagor (the borrower and usually the
owner of the subject property) and a mortgagee (the lender). In contrast, a deed
of trust is a three-party instrument, among a trustor (the equivalent of a
mortgagor), a trustee to whom the mortgaged property is conveyed, and a
beneficiary (the lender) for whose benefit the conveyance is made. As used in
this prospectus, unless the context otherwise requires, "mortgagor" includes the
trustor under a deed of trust and a grantor under a security deed or a deed to
secure debt. Under a deed of trust, the mortgagor grants the property,
irrevocably until the debt is paid, in trust, generally with a power of sale as
security for the indebtedness evidenced by the related note. A deed to secure
debt typically has two parties. By executing a deed to secure debt, the grantor
conveys title to, as opposed to merely creating a lien upon, the subject
property to the grantee until such time as the underlying debt is repaid,
generally with a power of sale as security for the indebtedness evidenced by the
related mortgage note. In case the mortgagor under a mortgage is a land trust,
there would be an additional party because legal title to the property is held
by a land trustee under a land trust agreement for the benefit of the mortgagor.
At origination of a mortgage loan involving a land trust, the mortgagor executes
a separate undertaking to make payments on the mortgage note. The mortgagee's
authority under a mortgage, the trustee's authority under a deed of trust and
the grantee's authority under a deed to secure debt are governed by the express
provisions of the mortgage, the law of the state in which the real property is
located, certain federal laws (including, without limitation, the Soldiers' and
Sailors' Civil Relief Act of 1940) and, in some cases, in deed of trust
transactions, the directions of the beneficiary.
The Mortgages that encumber Multifamily Properties may contain an
assignment of rents and leases, pursuant to which the mortgagor assigns to the
lender the mortgagor's right, title and interest as landlord under each lease
and the income derived therefrom, while retaining a revocable license to collect
the rents for so long as there is no default. If the mortgagor defaults, the
license terminates and the lender is entitled to collect the rents. Local law
may require that the lender take possession of the property and/or obtain a
court-appointed receiver before becoming entitled to collect the rents.
Interest in Real Property
The real property covered by a mortgage, deed of trust, security deed
or deed to secure debt is most often the fee estate in land and improvements.
However, such an instrument may encumber other interests in real property such
as a tenant's interest in a lease of land or improvements, or both, and the
leasehold estate created by such lease. An instrument covering an interest in
real property other than the fee estate requires special provisions in the
instrument creating such interest or in the mortgage, deed of trust, security
deed or deed to secure debt, to protect the mortgagee against termination of
such interest before the mortgage, deed of trust, security deed or deed to
secure debt is paid. The Depositor, the Asset Seller or other entity specified
in the related prospectus supplement will make certain representations and
warranties in the applicable Agreement or certain representations and warranties
will be assigned to the Trustee with respect to any Mortgage Loans that are
secured by an interest in a leasehold estate. Such representation and
warranties, if applicable, will be set forth in the prospectus supplement.
Cooperative Loans
If specified in the prospectus supplement relating to a Series of
Offered Securities, the Mortgage Loans may also consist of cooperative apartment
loans ("Cooperative Loans") secured by security interests in shares issued by a
cooperative housing corporation (a "Cooperative") and in the related proprietary
leases or occupancy agreements granting exclusive rights to occupy specific
dwelling units in the cooperatives' buildings. The security agreement will
create a lien upon, or grant a title interest in, the property which it covers,
the priority of which will depend on the terms of the particular security
agreement as well as the order of recordation of the agreement in the
appropriate recording office. Such a lien or title interest is not prior to the
lien for real estate taxes and assessments and other charges imposed under
governmental police powers.
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Each Cooperative owns in fee or has a leasehold interest in all the
real property and owns in fee or leases the building and all separate dwelling
units therein. The Cooperative is directly responsible for property management
and, in most cases, payment of real estate taxes, other governmental impositions
and hazard and liability insurance. If there is a blanket mortgage or mortgages
on the cooperative apartment building or underlying land, as is generally the
case, or an underlying lease of the land, as is the case in some instances, the
Cooperative, as property mortgagor, or lessee, as the case may be, is also
responsible for meeting these mortgage or rental obligations. A blanket mortgage
is ordinarily incurred by the cooperative in connection with either the
construction or purchase of the Cooperative's apartment building or obtaining of
capital by the Cooperative. The interest of the occupant under proprietary
leases or occupancy agreements as to which that Cooperative is the landlord are
generally subordinate to the interest of the holder of a blanket mortgage and to
the interest of the holder of a land lease. If the Cooperative is unable to meet
the payment obligations (i) arising under a blanket mortgage, the mortgagee
holding a blanket mortgage could foreclose on that mortgage and terminate all
subordinate proprietary leases and occupancy agreements or (ii) arising under
its land lease, the holder of the landlord's interest under the land lease could
terminate it and all subordinate proprietary leases and occupancy agreements.
Also, a blanket mortgage on a cooperative may provide financing in the form of a
mortgage that does not fully amortize, with a significant portion of principal
being due in one final payment at maturity. The inability of the Cooperative to
refinance a mortgage and its consequent inability to make such final payment
could lead to foreclosure by the mortgagee. Similarly, a land lease has an
expiration date and the inability of the Cooperative to extend its term or, in
the alternative, to purchase the land could lead to termination of the
Cooperative's interest in the property and termination of all proprietary leases
and occupancy agreement. In either event, a foreclosure by the holder of a
blanket mortgage or the termination of the underlying lease could eliminate or
significantly diminish the value of any collateral held by the lender that
financed the purchase by an individual tenant stockholder of cooperative shares
or, in the case of the Mortgage Loans, the collateral securing the Cooperative
Loans.
The Cooperative is owned by tenant-stockholders who, through ownership
of stock or shares in the corporation, receive proprietary lease or occupancy
agreements which confer exclusive rights to occupy specific units. Generally, a
tenant-stockholder of a Cooperative must make a monthly payment to the
Cooperative representing such tenant-stockholder's pro rata share of the
Cooperative's payments for its blanket mortgage, real property taxes,
maintenance expenses and other capital or ordinary expenses. An ownership
interest in a Cooperative and accompanying occupancy rights are financed through
a Cooperative Loan evidenced by a promissory note and secured by an assignment
of and a security interest in the occupancy agreement or proprietary lease and a
security interest in the related Cooperative shares. The lender generally takes
possession of the share certificate and a counterpart of the proprietary lease
or occupancy agreement and a financing statement covering the proprietary lease
or occupancy agreement and the cooperative shares is filed in the appropriate
state and local offices to perfect the lender's interest in its collateral.
Subject to the limitations discussed below, upon default of the
tenant-stockholder, the lender may sue for judgment on the promissory note,
dispose of the collateral at a public or private sale or otherwise proceed
against the collateral or tenant-stockholder as an individual as provided in the
security agreement covering the assignment of the proprietary lease or occupancy
agreement and the pledge of Cooperative shares. See "Foreclosure--Cooperative
Loans" below.
Land Sale Contracts
Under Land Sale Contracts the contract seller (hereinafter referred to
as the "Contract Lender") retains legal title to the property and enters into an
agreement with the contract purchaser (hereinafter referred to as the "contract
borrower") for the payment of the purchase price, plus interest, over the term
of the Land Sale Contract. Only after full performance by the borrower of the
contract is the contract lender obligated to convey title to the real estate to
the purchaser. As with mortgage or deed of trust financing, during the effective
period of the Land Sale Contract, the contract borrower is responsible for
maintaining the property in good condition and for paying real estate taxes,
assessments and hazard insurance premiums associated with the property.
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The method of enforcing the rights of the contract lender under an
installment contract varies on a state-by-state basis depending upon the extent
to which state courts are willing, or able pursuant to state statute, to enforce
the contract strictly according to its terms. The terms of Land Sale Contracts
generally provide that upon default by the contract borrower, the borrower loses
his or her right to occupy the property, the entire indebtedness is accelerated,
and the buyer's equitable interest in the property is forfeited. The contract
lender in such a situation does not have to foreclose in order to obtain title
to the property, although in some cases a quiet title action is in order if the
contract borrower has filed the Land Sale Contract in local land records and an
ejectment action may be necessary to recover possession. In a few states,
particularly in cases of contract borrower default during the early years of a
Land Sale Contract, the courts will permit ejectment of the buyer and a
forfeiture of his or her interest in the property. However, most state
legislatures have enacted provisions by analogy to mortgage law protecting
borrowers under Land Sale Contracts from the harsh consequences of forfeiture.
Under such statues, a judicial contract may be reinstated upon full payment of
the default amount and the borrower may have a post-foreclosure statutory
redemption right. In other states, courts in equity may permit a contract
borrower with significant investment in the property under a Land Sale Contract
for the sale of real estate to share the proceeds of sale of the property after
the indebtedness is repaid or may otherwise refuse to enforce the forfeiture
clause. Nevertheless, generally speaking, the contract lender's procedures for
obtaining possession and clear title under a Land Sale Contract for the sale of
real estate in a given state are simpler and less time consuming and costly than
are the procedures for foreclosing and obtaining clear title to a mortgaged
property.
Foreclosure
General
Foreclosure is a legal procedure that allows the mortgagee to recover
its mortgage debt by enforcing its rights and available legal remedies under the
mortgage. If the mortgagor defaults in payment or performance of its obligations
under the note or mortgage, the mortgagee has the right to institute foreclosure
proceedings to sell the mortgaged property at public auction to satisfy the
indebtedness.
Foreclosure procedures with respect to the enforcement of a mortgage
vary from state to state. Two primary methods of foreclosing a mortgage are
judicial foreclosure and non-judicial foreclosure pursuant to a power of sale
granted in the mortgage instrument. There are several other foreclosure
procedures available in some states that are either infrequently used or
available only in certain limited circumstances, such as strict foreclosure.
Judicial Foreclosure
A judicial foreclosure proceeding is conducted in a court having
jurisdiction over the mortgaged property. 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 of the foreclosure may occasionally
result from difficulties in locating defendants. When the lender's right to
foreclose is contested, the legal proceedings can be time-consuming. Upon
successful completion of a judicial foreclosure proceeding, the court generally
issues a judgment of foreclosure and appoints a referee or other officer to
conduct a public sale of the mortgaged property, the proceeds of which are used
to satisfy the judgment. Such sales are made in accordance with procedures that
vary from state to state.
Equitable Limitations on Enforceability of Certain Provisions
United States courts have traditionally imposed general equitable
principles to limit the remedies available to a mortgagee in connection with
foreclosure. These equitable principles are generally designed to relieve the
mortgagor from the legal effect of mortgage defaults, to the extent that such
effect is perceived as harsh or unfair. Relying on such principles, a court may
alter the specific terms of a loan to the extent it considers necessary to
prevent or remedy an injustice, undue oppression or overreaching, or may require
the lender to undertake affirmative and expensive actions to determine the cause
of the mortgagor's default and the likelihood that the mortgagor will be able to
reinstate the loan. In some cases, courts have substituted their judgment for
the lender's and have required that lenders reinstate loans or recast payment
schedules in order to accommodate mortgagors who are suffering from a temporary
financial disability. In other cases, courts have limited the right of the
lender to foreclose if the default under the mortgage is not monetary, e.g., the
mortgagor failed to maintain the mortgaged property adequately or the mortgagor
executed a junior mortgage on the mortgaged property. The exercise by the court
of its equity powers will depend on the individual circumstances of each case
presented to it. Finally, some courts have been faced with the issue of whether
federal or state constitutional provisions reflecting due process concerns for
adequate notice require that a mortgagor receive notice in addition to
statutorily-prescribed minimum notice. For the most part, these cases have
upheld the reasonableness of the notice provisions or have found that a public
sale under a mortgage providing for a power of sale does not involve sufficient
state action to afford constitutional protections to the mortgagor.
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Non-Judicial Foreclosure/Power of Sale
Foreclosure of a deed of trust is generally accomplished by a
non-judicial trustee's sale pursuant to the power of sale granted in the deed of
trust. A power of sale is typically granted in a deed of trust. It may also be
contained in any other type of mortgage instrument. A power of sale allows a
non-judicial public sale to be conducted generally following a request from the
beneficiary/lender to the trustee to sell the property upon any default by the
mortgagor under the terms of the mortgage note or the mortgage instrument and
after notice of sale is given in accordance with the terms of the mortgage
instrument, as well as applicable state law. In some states, prior to such sale,
the trustee under a deed of trust must record a notice of default and notice of
sale and send a copy to the mortgagor and to any other party who has recorded a
request for a copy of a notice of default and notice of sale. In addition, in
some states the trustee must provide notice to any other party having an
interest of record in the real property, including junior lienholders. A notice
of sale must be posted in a public place and, in most states, published for a
specified period of time in one or more newspapers. The mortgagor or junior
lienholder may then have the right, during a reinstatement period required in
some states, to cure the default by paying the entire actual amount in arrears
(without acceleration) plus the expenses incurred in enforcing the obligation.
In other states, the mortgagor or the junior lienholder is not provided a period
to reinstate the loan, but has only the right to pay off the entire debt to
prevent the foreclosure sale. Generally, the procedure for public sale, the
parties entitled to notice, the method of giving notice and the applicable time
periods are governed by state law and vary among the states. Foreclosure of a
deed to secure debt is also generally accomplished by a non-judicial sale
similar to that required by a deed of trust, except that the lender or its
agent, rather than a trustee, is typically empowered to perform the sale in
accordance with the terms of the deed to secure debt and applicable law.
Public Sale
A third party may be unwilling to purchase a mortgaged property at a
public sale because of the difficulty in determining the value of such property
at the time of sale, due to, among other things, redemption rights which may
exist and the possibility of physical deterioration of the property during the
foreclosure proceedings. For these reasons, it is common for the lender to
purchase the mortgaged property for an amount equal to or less than the
underlying debt and accrued and unpaid interest plus the expenses of
foreclosure. Generally, state law controls the amount of foreclosure costs and
expenses which may be recovered by a lender. Thereafter, subject to the
mortgagor's right in some states to remain in possession during a redemption
period, if applicable, the lender will become the owner of the property and have
both the benefits and burdens of ownership of the mortgaged property. For
example, the lender will become obligated to pay taxes, obtain casualty
insurance and to make 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.
Moreover, a lender commonly incurs substantial legal fees and court costs in
acquiring a mortgaged property through contested foreclosure and/or bankruptcy
proceedings. Generally, state law controls the amount of foreclosure expenses
and costs, including attorneys' fees, that may be recovered by a lender.
A junior mortgagee may not foreclose on the property securing the
junior mortgage unless it forecloses subject to senior mortgages and any other
prior liens, in which case it may be obliged to make payments on the senior
mortgages to avoid their foreclosure. In addition, in the event that the
foreclosure of a junior mortgage triggers the enforcement of a "due-on-sale"
clause contained in a senior mortgage, the junior mortgagee may be required to
pay the full amount of the senior mortgage to avoid its foreclosure.
Accordingly, with respect to those Mortgage Loans, if any, that are junior
mortgage loans, if the lender purchases the property the lender's title will be
subject to all senior mortgages, prior liens and certain governmental liens.
The proceeds received by the referee or trustee from the sale are
applied first to the costs, fees and expenses of sale and then in satisfaction
of the indebtedness secured by the mortgage under which the sale was conducted.
Any proceeds remaining after satisfaction of senior mortgage debt are generally
payable to the holders of junior mortgages and other liens and claims in order
of their priority, whether or not the mortgagor is in default. Any additional
proceeds are generally payable to the mortgagor. The payment of the proceeds to
the holders of junior mortgages may occur in the foreclosure action of the
senior mortgage or a subsequent ancillary proceeding or may require the
institution of separate legal proceedings by such holders.
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Rights of Redemption
The purposes of a foreclosure action are to enable the mortgagee to
realize upon its security and to bar the mortgagor, and all persons who have an
interest in the property which is subordinate to the mortgage being foreclosed,
from exercise of their "equity of redemption." The doctrine of equity of
redemption provides that, until the property covered by a mortgage has been sold
in accordance with a properly conducted foreclosure and foreclosure sale, those
having an interest which is subordinate to that of the foreclosing mortgagee
have an equity of redemption and may redeem the property by paying the entire
debt with interest. In addition, in some states, when a foreclosure action has
been commenced, the redeeming party must pay certain costs of such action. Those
having an equity of redemption must generally be made parties and joined in the
foreclosure proceeding in order for their equity of redemption to be cut off and
terminated.
The equity of redemption is a common-law (non-statutory) right which
exists prior to completion of the foreclosure, is not waivable by the mortgagor,
must be exercised prior to foreclosure sale and should be distinguished from the
post-sale statutory rights of redemption. In some states, after sale pursuant to
a deed of trust or foreclosure of a mortgage, the mortgagor and foreclosed
junior lienors are given a statutory period in which to redeem the property from
the foreclosure sale. In some states, statutory redemption may occur only upon
payment of the foreclosure sale price. In other states, redemption may be
authorized if the former mortgagor 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 exercise of a right of redemption
would defeat the title of any purchaser from a foreclosure sale 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, a post-sale statutory
right of redemption may exist following a judicial foreclosure, but not
following a trustee's sale under a deed of trust.
Under the REMIC Provisions currently in effect, property acquired by
foreclosure generally must not be held for more than three calendar years
following the year the Trust Fund acquired the property. With respect to a
Series of Securities for which an election is made to qualify the Trust Fund or
a part thereof as a REMIC, the applicable Agreement will permit foreclosed
property to be held for more than such period of time if the IRS grants an
extension of time within which to sell such property or independent counsel
renders an opinion to the effect that holding such property for such additional
period is permissible under the REMIC Provisions. The applicability of these
limitations if a FASIT election is made with respect to all or a part of the
Trust Fund will be described in the applicable prospectus supplement.
Cooperative Loans
The Cooperative shares owned by the tenant-stockholder and pledged to
the lender are, in almost all cases, subject to restrictions on transfer as set
forth in the Cooperative's certificate of incorporation and by-laws, as well as
the proprietary lease or occupancy agreement, and may be canceled by the
Cooperative for failure by the tenant-stockholder to pay rent or other
obligations or charges owed by such tenant-stockholder, including mechanics'
liens against the cooperative apartment building incurred by such
tenant-stockholder. The proprietary lease or occupancy agreement generally
permit the Cooperative to terminate such lease or agreement in the event an
obligor fails to make payments or defaults in the performance of covenants
required thereunder. Typically, the lender and the Cooperative enter into a
recognition agreement which establishes the rights and obligations of both
parties in the event of a default by the tenant-stockholder under the
proprietary lease or occupancy agreement will usually constitute a default under
the security agreement between the lender and the tenant-stockholder.
The recognition agreement generally provides that, in the event that
the tenant-stockholder has defaulted under the proprietary lease or occupancy
agreement, the Cooperative will take no action to terminate such lease or
agreement until the lender has been provided with an opportunity to cure the
default. The recognition agreement typically provides that if the proprietary
lease or occupancy agreement is terminated, the Cooperative will recognize the
lender's lien against proceeds from the sale of the Cooperative apartment,
subject, however, to the Cooperative's right to sums due under such proprietary
lease or occupancy agreement. The total amount owed to the Cooperative by the
tenant-stockholder, which the lender generally cannot restrict and does not
monitor, could reduce the value of the collateral below the outstanding
principal balance of the Cooperative Loan and accrued and unpaid interest
thereon.
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Recognition agreements also provide that in the event of a foreclosure
on a Cooperative Loan, the lender must obtain the approval or consent of the
Cooperative as required by the proprietary lease before transferring the
Cooperative shares or assigning the proprietary lease. Generally, the lender is
not limited in any rights it may have to dispossess the tenant-stockholders.
In some states, foreclosure on the Cooperative shares is accomplished
by a sale in accordance with the provisions of Article 9 of the UCC and the
security agreement relating to those shares. Article 9 of the UCC requires that
a sale be conducted in a "commercially reasonable" manner. Whether a foreclosure
sale has been conducted in a "commercially reasonable" manner will depend on the
facts in each case. In determining commercial reasonableness, a court will look
to the notice given the debtor and the method, manner, time, place and terms of
the foreclosure. Generally, a sale conducted according to the usual practice of
banks selling similar collateral will be considered reasonably conducted.
Article 9 of the UCC provides that the proceeds of the sale will be
applied first to pay the costs and expenses of the sale and then to satisfy the
indebtedness secured by the lender's security interest. The recognition
agreement, however, generally provides that the lender's right to reimbursement
is subject to the right of the Cooperatives to receive sums due under the
proprietary lease or occupancy agreement. If there are proceeds remaining, the
lender must account to the tenant-stockholder for the surplus. Conversely, if a
portion of the indebtedness remains unpaid, the tenant-stockholder is generally
responsible for the deficiency.
In the case of foreclosure on a building which was converted from a
rental building to a building owned by a Cooperative under a non-eviction plan,
some states require that a purchaser at a foreclosure sale take the property
subject to rent control and rent stabilization laws which apply to certain
tenants who elected to remain in a building so converted.
Junior Mortgages
Some of the Mortgage Loans may be secured by junior mortgages or deeds
of trust, which are subordinate to first or other senior mortgages or deeds of
trust held by other lenders. The rights of the Trust Fund as the holder of a
junior deed of trust or a junior mortgage are subordinate in lien and in payment
to those of the holder of the senior mortgage or deed of trust, including the
prior rights of the senior mortgagee or beneficiary to receive and apply hazard
insurance and condemnation proceeds and, upon default of the mortgagor, to cause
a foreclosure on the property. Upon completion of the foreclosure proceedings by
the holder of the senior mortgage or the sale pursuant to the deed of trust, the
junior mortgagee's or junior beneficiary's lien will be extinguished unless the
junior lienholder satisfies the defaulted senior loan or asserts its subordinate
interest in a property in foreclosure proceedings. See "--Foreclosure" herein.
Furthermore, because the terms of the junior mortgage or deed of trust
are subordinate to the terms of the first mortgage or deed of trust, in the
event of a conflict between the terms of the first mortgage or deed of trust and
the junior mortgage or deed of trust, the terms of the first mortgage or deed of
trust will generally govern. Upon a failure of the mortgagor or trustor to
perform any of its obligations, the senior mortgagee or beneficiary, subject to
the terms of the senior mortgage or deed of trust, may have the right to perform
the obligation itself. Generally, all sums so expended by the mortgagee or
beneficiary become part of the indebtedness secured by the mortgage or deed of
trust. To the extent a first mortgagee expends such sums, such sums will
generally have priority over all sums due under the junior mortgage.
Rights of Redemption
The purposes of a foreclosure action are to enable the mortgagee to
realize upon its security and to bar the mortgagor, and all persons who have an
interest in the property which is subordinate to the mortgage being foreclosed,
from exercise of their "equity of redemption." The doctrine of equity of
redemption provides that, until the property covered by a mortgage has been sold
in accordance with a properly conducted foreclosure and foreclosure sale, those
having an interest which is subordinate to that of the foreclosing mortgagee
have an equity of redemption and may redeem the property by paying the entire
debt with interest. In addition, in some states, when a foreclosure action has
been commenced, the redeeming party must pay certain costs of such action. Those
having an equity of redemption must generally be made parties and joined in the
foreclosure proceeding in order for their equity of redemption to be cut off and
terminated.
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The equity of redemption is a common-law (non-statutory) right which
exists prior to completion of the foreclosure, is not waivable by the mortgagor,
must be exercised prior to foreclosure sale and should be distinguished from the
post-sale statutory rights of redemption. In some states, after sale pursuant to
a deed of trust or foreclosure of a mortgage, the mortgagor and foreclosed
junior lienors are given a statutory period in which to redeem the property from
the foreclosure sale. In some states, statutory redemption may occur only upon
payment of the foreclosure sale price. In other states, redemption may be
authorized if the former mortgagor 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 exercise of a right of redemption
would defeat the title of any purchaser from a foreclosure sale 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, a post-sale statutory
right of redemption may exist following a judicial foreclosure, but not
following a trustee's sale under a deed of trust.
Anti-Deficiency Legislation, the Bankruptcy Code and Other Limitations on
Lenders
Certain states have imposed statutory prohibitions which limit the
remedies of a beneficiary under a deed of trust or a mortgagee under a mortgage.
In some states, statutes limit the right of the beneficiary or mortgagee to
obtain a deficiency judgment against the borrower following foreclosure or sale
under a deed of trust. A deficiency judgment would be a personal judgment
against the former borrower equal in most cases to the difference between the
net amount realized upon the public sale of the real property and the amount due
to the lender. Other statutes require the beneficiary or mortgagee to exhaust
the security afforded under a deed of trust or mortgage by foreclosure in an
attempt to satisfy the full debt before bringing a personal action against the
borrower. Finally, other statutory provisions limit any deficiency judgment
against the former borrower following a judicial sale to the excess of the
outstanding debt over the fair market value of the property at the time of the
public sale. The purpose of these statutes is generally to prevent a beneficiary
or a mortgagee from obtaining a large deficiency judgment against the former
borrower as a result of low or no bids at the judicial sale.
In addition to anti-deficiency and related legislation, numerous other
federal and state statutory provisions, including the United States Bankruptcy
Code, 11 U.S.C. Sections 101 et seq. (the "Bankruptcy Code"), and state laws
affording relief to debtors may interfere with or affect the ability of a
secured mortgage lender to obtain payment of a mortgage loan, to realize upon
collateral and/or enforce a deficiency judgment. For example, under the
Bankruptcy Code, virtually all actions (including foreclosure actions and
deficiency judgment proceedings) are automatically stayed upon the filing of a
bankruptcy petition, and, usually, no interest or principal payments are made
during the course of the bankruptcy case. Foreclosure of an interest in real
property of a debtor in a case under the Bankruptcy Code can typically occur
only if the bankruptcy court vacates the stay; an action the court may be
reluctant to take, particularly if the debtor has the prospect of restructuring
his or her debts and the mortgage collateral is not deteriorating in value. The
delay and the consequences thereof caused by such automatic stay can be
significant. Also, under the Bankruptcy Code, the filing of a petition in
bankruptcy by or on behalf of a junior lienor (a subordinate lender secured by a
mortgage on the property) may stay a senior lender from taking action to
foreclose.
A homeowner may file for relief under the Bankruptcy Code under any of
three different chapters of the Bankruptcy Code. Under Chapter 7, the assets of
the debtor are liquidated and a lender secured by a lien may "bid in" (i.e., bid
up to the amount of the debt) at the sale of the asset. See "--Foreclosure." A
homeowner may also file for relief under Chapter 11 of the bankruptcy code and
reorganize his or her debts through his or her reorganization plan.
Alternatively, a homeowner may file for relief under Chapter 13 of the
Bankruptcy Code and address his or her debts in a rehabilitation plan. (Chapter
13 is often referred to as the "wage earner chapter" or "consumer chapter"
because most individuals seeking to restructure their debts file for relief
under Chapter 13 rather than under Chapter 11.)
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The Bankruptcy Code permits a mortgage loan that is secured by property
that does not consist solely of the debtor's principal residence to be modified
without the consent of the lender provided certain substantive and procedural
safeguards are met. Under the Bankruptcy Code, the lender's security interest
may be reduced to the then-current value of the property as determined by the
court if the value is less than the amount due on the loan, thereby leaving the
lender as a general unsecured creditor for the difference between the value of
the collateral and the outstanding balance of the mortgage loan. A borrower's
unsecured indebtedness will typically be discharged in full upon payment of a
substantially reduced amount. Other modifications to a mortgage loan may include
a reduction in the amount of each scheduled payment, which reduction may result
from a reduction in the rate of interest, an alteration of the repayment
schedule, an extension of the final maturity date, and/or a reduction in the
outstanding balance of the secured portion of the loan. In certain
circumstances, subject to the court's approval, a debtor in a case under Chapter
11 of the Bankruptcy Code may have the power to grant liens senior to the lien
of a mortgage.
A reorganization plan under Chapter 11 and a rehabilitation plan under
Chapter 13 of the Bankruptcy Code may each allow a debtor to cure a default with
respect to a mortgage loan on such debtor's residence by paying arrearages over
a period of time and to deaccelerate and reinstate the original mortgage loan
payment schedule, even though the lender accelerated the loan and a final
judgment of foreclosure had been entered in state court (provided no sale of the
property had yet occurred) prior to the filing of the debtor's petition under
the Bankruptcy Code. Under a Chapter 13 plan, curing of defaults must be
accomplished within the five year maximum term permitted for repayment plans,
such term commencing when the repayment plan becomes effective, while defaults
may be cured over a longer period of time under a Chapter 11 plan of
reorganization.
Generally, a repayment plan in a case under Chapter 13 may not modify
the claim of a mortgage lender if the borrower elects to retain the property,
the property is the borrower's principal residence and the property is the
lender's only collateral. Certain courts have allowed modifications when the
mortgage loan is secured both by the debtor's principal residence and by
collateral that is not "inextricably bound" to the real property, such as
appliances, machinery, or furniture. Certain courts have also allowed
modifications when the Mortgage Loan is fully unsecured at the time of
bankruptcy.
The general protection for mortgages secured only by the debtor's
principal residence is not applicable in a case under Chapter 13 if the last
payment on the original payment schedule is due before the final date for
payment under the debtor's Chapter 13 plan (which date could be up to five years
after the debtor emerges from bankruptcy). Under several recently decided cases,
the terms of such a loan can be modified in the manner described above. While
these decisions are contrary to the holding in a prior case by a senior
appellate court, it is possible that the later decisions will become the
accepted interpretation in view of the language of the applicable statutory
provision. If this interpretation is adopted by a court considering the
treatment in a Chapter 13 repayment plan of a Mortgage Loan, it is possible that
the Mortgage Loan could be modified.
State statutes and general principles of equity may also provide a
mortgagor with means to halt a foreclosure proceeding or sale and to force a
restructuring of a mortgage loan on terms a lender would not otherwise accept.
In a bankruptcy or similar proceeding of a mortgagor, action may be
taken seeking the recovery, as a preferential transfer or on other grounds, of
any payments made by the mortgagor under the related mortgage loan prior to the
bankruptcy or similar proceeding. Payments on long-term debt may be protected
from recovery as preferences if they are payments in the ordinary course of
business made on debts incurred in the ordinary course of business or if the
value of the collateral exceeds the debt at the time of payment. Whether any
particular payment would be protected depends upon the facts specific to a
particular transaction.
A trustee in bankruptcy, in some cases, may be entitled to collect its
costs and expenses in preserving or selling the mortgaged property ahead of
payment to the lender. Moreover, the laws of certain states also give priority
to certain tax and mechanics liens over the lien of a mortgage. Under the
Bankruptcy Code, if the court finds that actions of the mortgagee have been
unreasonable and inequitable, the lien of the related mortgage may be
subordinated to the claims of unsecured creditors.
Bankruptcy reform legislation being considered by the Senate would
amend the Bankruptcy Code (such amendment, the "TILA Amendment") to authorize
bankruptcy court judges to disallow claims based on secured debt if the creditor
failed to comply with certain provisions of the federal Truth in Lending Act. As
most recently proposed, such provision would apply retroactively to secured debt
incurred by a debtor prior to the date of effectiveness of such legislation,
including the Mortgage Loans. The House bill does not include a comparable
provision as of the date hereof. If the TILA Amendment were to become law, a
violation of the Truth in Lending act with respect to a Mortgage Loan could
result in a total loss with respect to such loan in a bankruptcy proceeding. Any
such violation would be a breach of representation and warranty of the
Depositor, and the Depositor would be obligated to repurchase such Mortgage Loan
as described herein.
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Various proposals to amend the Bankruptcy Code in ways that could
adversely affect the value of the Mortgage Loans in a trust have been considered
by Congress, and more such proposed legislation may be considered in the future.
No assurance can be given that any particular proposal will or will not be
enacted into law, or that any provision so enacted will not differ materially
from the proposals described above.
The Bankruptcy Code provides priority to certain tax liens over the
lien of the mortgage. In addition, substantive requirements are imposed upon
mortgage lenders in connection with the origination and the servicing of
mortgage loans by numerous federal and some state consumer protection laws.
These laws include the federal Truth-in-Lending Act, Real Estate Settlement
Procedures Act, Equal Credit Opportunity Act, Fair Credit Billing Act, Fair
Credit Reporting Act, and related statutes. These federal laws impose specific
statutory liabilities upon lenders who originate mortgage loans and who fail to
comply with the provisions of the applicable laws. In some cases, this liability
may affect assignees of the Mortgage Loans.
Enforceability of Certain Provisions
Standard forms of note, mortgage and deed of trust generally contain
provisions obligating the borrower to pay a late charge if payments are not
timely made and in some circumstances may provide for prepayment fees or
penalties if the obligation is paid prior to maturity. In certain states, there
are or may be specific limitations upon late charges which a lender may collect
from a borrower for delinquent payments. Certain states also limit the amounts
that a lender may collect from a borrower as an additional charge if the loan is
prepaid.
Courts have imposed general equitable principles upon foreclosure.
These equitable principles are generally designed to relieve the borrower from
the legal effect of defaults under the loan documents. Examples of judicial
remedies that may be 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 lenders to reinstate loans or recast
payment schedules to accommodate borrowers who are suffering from temporary
financial disability. In some cases, courts have limited the right of lenders 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. In other
cases, some courts have been faced with the issue of whether federal or state
constitutional provisions reflecting due process concerns for adequate notice
require that borrowers under the deeds of trust receive notices in addition to
the statutorily-prescribed minimum requirements. 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.
Environmental Considerations
A lender may be subject to unforeseen environmental risks when taking a
security interest in real or personal property. Property subject to such a
security interest may be subject to federal, state, and local laws and
regulations relating to environmental protection. Such laws may regulate, among
other things: emissions of air pollutants; discharges of wastewater or storm
water; generation, transport, storage or disposal of hazardous waste or
hazardous substances; operation, closure and removal of underground storage
tanks; removal and disposal of asbestos-containing materials; management of
electrical or other equipment containing polychlorinated biphenyls ("PCBs").
Failure to comply with such laws and regulations may result in significant
penalties, including civil and criminal fines. Under the laws of certain states,
environmental contamination on a property may give rise to a lien on the
property to ensure the availability and/or reimbursement of cleanup costs.
Generally all subsequent liens on such property are subordinated to such a lien
and, in some states, even prior recorded liens are subordinated to such liens
("Superliens"). In the latter states, the security interest of the Trustee in a
property that is subject to such Superlien could be adversely affected.
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Under the federal Comprehensive Environmental Response, Compensation
and Liability Act, as amended ("CERCLA"), and under state law in certain states,
a secured party which takes a deed in lieu of foreclosure, purchases a mortgaged
property at a foreclosure sale, operates a mortgaged property or undertakes
certain types of activities that may constitute management of the mortgaged
property may become liable in certain circumstances for the costs of remedial
action ("Cleanup Costs") if hazardous wastes or hazardous substances have been
released or disposed of on the property. Such Cleanup Costs may be substantial.
CERCLA imposes strict, as well as joint and several liability for environmental
remediation and/or damage costs on several classes of "potentially responsible
parties," including current "owners and/or operators" of property, irrespective
of whether those owners or operators caused or contributed to the contamination
on the property. In addition, owners and operators of properties that generate
hazardous substances that are disposed of at other "off-site" locations may be
held strictly, jointly and severally liable for environmental remediation and/or
damages at those off-site locations. Many states also have laws that are similar
to CERCLA. Liability under CERCLA or under similar state law could exceed the
value of the property itself as well as the aggregate assets of the property
owner.
The law is unclear as to whether and under what precise circumstances
cleanup costs, or the obligation to take remedial actions, could be imposed on a
secured lender such as the Trust Fund. Under the laws of some states and under
CERCLA, a lender may be liable as an "owner or operator" for costs of addressing
releases or threatened releases of hazardous substances on a mortgaged property
if such lender or its agents or employees have "participated in the management"
of the operations of the borrower, even though the environmental damage or
threat was caused by a prior owner or current owner or operator or other third
party. Excluded from CERCLA's definition of "owner or operator" is a person "who
without participating in the management of . . . [the] facility, holds indicia
of ownership primarily to protect his security interest" (the "secured-creditor
exemption"). This exemption for holders of a security interest such as a secured
lender applies only to the extent that a lender seeks to protect its security
interest in the contaminated facility or property. Thus, if a lender's
activities begin to encroach on the actual management of such facility or
property, the lender faces potential liability as an "owner or operator" under
CERCLA. Similarly, when a lender forecloses and takes title to a contaminated
facility or property, the lender may incur potential CERCLA liability in various
circumstances, including among others, when it holds the facility or property as
an investment (including leasing the facility or property to a third party),
fails to market the property in a timely fashion or fails to properly address
environmental conditions at the property or facility.
The Resource Conservation and Recovery Act, as amended ("RCRA"),
contains a similar secured-creditor exemption for those lenders who hold a
security interest in a petroleum underground storage tank ("UST") or in real
estate containing a UST, or that acquire title to a petroleum UST or facility or
property on which such a UST is located. As under CERCLA, a lender may lose its
secured-creditor exemption and be held liable under RCRA as a UST owner or
operator if such lender or its employees or agents participate in the management
of the UST. In addition, if the lender takes title to or possession of the UST
or the real estate containing the UST, under certain circumstances the
secured-creditor exemption may be deemed to be unavailable.
A decision in May 1990 of the United States Court of Appeals for the
Eleventh Circuit in United States v. Fleet Factors Corp. very narrowly construed
CERCLA's secured-creditor exemption. The court's opinion suggested that a lender
need not have involved itself in the day-to-day operations of the facility or
participated in decisions relating to hazardous waste to be liable under CERCLA;
rather, liability could attach to a lender if its involvement with the
management of the facility were broad enough to support the inference that the
lender had the capacity to influence the borrower's treatment of hazardous
waste. The court added that a lender's capacity to influence such decisions
could be inferred from the extent of its involvement in the facility's financial
management. A subsequent decision by the United States Court of Appeals for the
Ninth Circuit in In re Bergsoe Metal Corp., apparently disagreeing with, but not
expressly contradicting, the Fleet Factors court, held that a secured lender had
no liability absent "some actual management of the facility" on the part of the
lender.
Court decisions have taken varying views of the scope of the
secured-creditor exemption, leading to administrative and legislative efforts to
provide guidance to lenders on the scope of activities that would trigger CERCLA
and/or RCRA liability. Until recently, these efforts have failed to provide
substantial guidance.
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On September 28, 1996, Congress enacted, and on September 30, 1996 the
President signed into law the Asset Conservation Lender Liability and Deposit
Insurance Protection Act of 1996 (the "Asset Conservation Act"). The Asset
Conservation Act was intended to clarify the scope of the secured creditor
exemption. This legislation more clearly defines the kinds of activities that
would constitute "participation in management" and that therefore would trigger
liability for secured parties under CERCLA. It also identified certain
activities that ordinarily would not trigger liability, provided, however, that
such activities did not otherwise rise to the level of "participation in
management." The Asset Conservation Act specifically reverses the Fleet Factors
"capacity to influence" standard. The Asset Conservation Act also provides
additional protection against liability in the event of foreclosure. However,
since the courts have not yet had the opportunity to interpret the new statutory
provisions, the scope of the additional protections offered by the Asset
Conservation Act is not fully defined. It also is important to note that the
Asset Conservation Act does not offer complete protection to lenders and that
the risk of liability remains.
If a secured lender does become liable, it may be entitled to bring an
action for contribution against the owner or operator who created the
environmental contamination or against some other liable party, but that person
or entity may be bankrupt or otherwise judgment-proof. It is therefore possible
that cleanup or other environmental liability costs could become a liability of
the Trust Fund and occasion a loss to the Trust Fund and to Securityholders in
certain circumstances. The new secured creditor amendments to CERCLA, also,
would not necessarily affect the potential for liability in actions by either a
state or a private party under other federal or state laws which may impose
liability on "owners or operators" but do not incorporate the secured-creditor
exemption.
Traditionally, residential mortgage lenders have not taken steps to
evaluate whether hazardous wastes or hazardous substances are present with
respect to any mortgaged property prior to the origination of the mortgage loan
or prior to foreclosure or accepting a deed-in-lieu of foreclosure. Neither the
Depositor nor any Servicer makes any representations or warranties or assumes
any liability with respect to: environmental conditions of such Mortgaged
Property; the absence, presence or effect of hazardous wastes or hazardous
substances on, near or emanating from such Mortgaged Property; the impact on
Securityholders of any environmental condition or presence of any substance on
or near such Mortgaged Property; or the compliance of any Mortgaged Property
with any environmental laws. In addition, no agent, person or entity otherwise
affiliated with the Depositor is authorized or able to make any such
representation, warranty or assumption of liability relative to any such
Mortgaged Property.
Due-on-Sale Clauses
Unless the related prospectus supplement indicates otherwise, the
Mortgage Loans will contain due-on-sale clauses. These clauses generally provide
that the lender may accelerate the maturity of the loan if the mortgagor sells,
transfers or conveys the related Mortgaged Property. The enforceability of
due-on-sale clauses has been the subject of legislation or litigation in many
states and, in some cases, the enforceability of these clauses was limited or
denied. However, with respect to certain loans the Garn-St. Germain Depository
Institutions Act of 1982 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. Due-on-sale clauses contained in mortgage loans originated by
federal savings and loan associations of federal savings banks are fully
enforceable pursuant to regulations of the United States Federal Home Loan Bank
Board, as succeeded by the Office of Thrift Supervision, which preempt state law
restrictions on the enforcement of such clauses. Similarly, "due-on-sale"
clauses in mortgage loans made by national banks and federal credit unions are
now fully enforceable pursuant to preemptive regulations of the Comptroller of
the Currency and the National Credit Union Administration, respectively.
The Garn-St. Germain Act also sets forth nine specific instances in
which a mortgage lender covered by the act (including federal savings and loan
associations and federal savings banks) may not exercise a "due-on-sale" clause,
notwithstanding the fact that a transfer of the property may have occurred.
These include intra-family transfers, certain transfers by operation of law,
leases of fewer than three years and the creation of a junior encumbrance.
Regulations promulgated under the Garn-St. Germain Act 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 that bears an interest rate below the current market rate being
assumed by a new home buyer rather than being paid off, which may affect the
average life of the Mortgage Loans and the number of Mortgage Loans which may
extend to maturity.
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Prepayment Charges
Under certain state laws, prepayment charges may not be imposed after a
certain period of time following the origination of mortgage loans secured by
liens encumbering owner-occupied residential properties, if such loans are paid
prior to maturity. With respect to Mortgaged Properties that are owner-occupied,
it is anticipated that prepayment charges may not be imposed with respect to
many of the Mortgage Loans. The absence of such a restraint on prepayment,
particularly with respect to fixed rate Mortgage Loans having higher Mortgage
Rates, may increase the likelihood of refinancing or other early retirement of
such loans.
Subordinate Financing
Where a mortgagor encumbers mortgaged property with one or more junior
liens, the senior lender is subjected to additional risk. First, the mortgagor
may have difficulty servicing and repaying multiple loans. In addition, if the
junior loan permits recourse to the mortgagor (as junior loans often do) and the
senior loan does not, a mortgagor may be more likely to repay sums due on the
junior loan than those on the senior loan. Second, acts of the senior lender
that prejudice the junior lender or impair the junior lender's security may
create a superior equity in favor of the junior lender. For example, if the
mortgagor and the senior lender agree to an increase in the principal amount of
or the interest rate payable on the senior loan, the senior lender may lose its
priority to the extent any existing junior lender is harmed or the mortgagor is
additionally burdened. Third, if the mortgagor defaults on the senior loan
and/or any junior loan or loans, the existence of junior loans and actions taken
by junior lenders can impair the security available to the senior lender and can
interfere with or delay the taking of action by the senior lender. Moreover, the
bankruptcy of a junior lender may operate to stay foreclosure or similar
proceedings by the senior lender.
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 that 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 and/or to limit
discount points or other charges.
The Depositor believes that a court interpreting Title V would hold
that residential first mortgage loans that are originated on or after January 1,
1980 are subject to federal preemption. Therefore, in a state that has not taken
the requisite action to reject application of Title V or to adopt a provision
limiting discount points or other charges prior to origination of such mortgage
loans, any such limitation under such state's usury law would not apply to such
mortgage loans.
In any state in which application of Title V has been expressly
rejected or a provision limiting discount points or other charges is adopted, no
mortgage loan originated after the date of such state action will be eligible
for inclusion in a Trust Fund unless (i) such mortgage loan provides for such
interest rate, discount points and charges as are permitted in such state or
(ii) such mortgage loan provides that the terms thereof shall be construed in
accordance with the laws of another state under which such interest rate,
discount points and charges would not be usurious and the mortgagor's counsel
has rendered an opinion that such choice of law provision would be given effect.
Statutes differ in their provisions as to the consequences of a
usurious loan. One group of statutes requires the lender to forfeit the interest
due above the applicable limit or impose a specified penalty. Under this
statutory scheme, the mortgagor may cancel the recorded mortgage or deed of
trust upon paying its debt with lawful interest, and the lender may foreclose,
but only for the debt plus lawful interest. A second group of statutes is more
severe. A violation of this type of usury law results in the invalidation of the
transaction, thereby permitting the mortgagor to cancel the recorded mortgage or
deed of trust without any payment or prohibiting the lender from foreclosing.
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Alternative Mortgage Instruments
Alternative mortgage instruments, including adjustable rate mortgage
loans and early ownership mortgage loans, originated by non-federally chartered
lenders have historically been subject 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 alternative 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.
Homeowners Protection Act of 1998
The Homeowners Protection Act of 1998 ("HOPA") provides for certain
disclosure and termination requirements for primary mortgage insurance ("PMI").
The termination provisions of HOPA apply only to mortgage loans relating to
single-family primary residences originated on or after July 29, 1999. Such
termination provisions govern when a mortgagor may cancel the requirement to
maintain PMI and when the requirement to maintain PMI is automatically
terminated. In general, voluntary termination is permitted and automatic
termination occurs when the principal balance of the mortgage loan is reduced to
80% or 78%, respectively, of the original property value. The disclosure
requirements of HOPA vary depending on whether the mortgage loan was originated
before or after July 29, 1999. Such disclosure requirements include notification
of the circumstances whereby a mortgagor may cancel PMI, the date when PMI
automatically terminates and servicer contact information. In addition, HOPA
provides that no later than 30 days after cancellation or termination of PMI,
the servicer shall provide written notification that such PMI is terminated and
no further payments are due or payable. Any servicer, mortgagee or mortgage
insurer that violates provisions of HOPA is subject to possible liability which
includes, but is not limited to, actual damages, statutory damages and
reasonable attorney's fees.
Texas Home Equity Loans
Generally, any "cash-out" refinance or other non-purchase money
transaction (except for rate/term refinance loans and certain other narrow
exceptions) secured by a Texas resident's principal residence is subject to the
provisions set forth in Section 50(a)(6) of Article XVI of the Constitution of
Texas (the "Texas Home Equity Laws"). The Texas Home Equity Laws provide for
certain disclosure requirements, caps on allowable fees, required loan closing
procedures and other restrictions. Failure, inadvertent or otherwise, to comply
with any requirement may render the Mortgage Loan unenforceable and/or the lien
on the Mortgaged Property invalid. Because mortgage loans which are subject to
the Texas Home Equity Laws can be foreclosed only pursuant to court order,
rather than non-judicial foreclosure as is available for other types of mortgage
loans in Texas, delays and increased losses may result in connection with
foreclosures of such loans. If a court were to find that any requirement of the
Texas Home Equity Laws was not complied with, the court could refuse to allow
foreclosure to proceed, declare the lien on the Mortgaged Property to be
invalid, and/or require the originating lender or the holder of the note to
forfeit some or all principal and interest of the related Mortgage Loan. Title
insurance generally available on such Mortgage Loans may exclude coverage for
some of the risks described in this paragraph.
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Soldiers' and Sailors' Civil Relief Act of 1940
Generally, 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 is a member of the National Guard or is in reserve status at the
time of the origination of the Mortgage Loan and is later called to active duty)
may not be charged interest above an annual rate of 6% during the period of such
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 a Trust Fund. Any
shortfall in interest collections resulting from the application of the Relief
Act could result in losses to the holders of the Certificates of the related
Series. Further, the Relief Act imposes limitations which 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.
Certain states have enacted comparable legislation which may interfere with or
affect the ability of the Servicer to timely collect payments of principal and
interest on, or to foreclose on, Mortgage Loans of mortgagors in such states who
are active or reserve members of the armed services.
Forfeiture for Drug, RICO and Money Laundering Violations
Federal law provides that property purchased or improved with assets
derived from criminal activity or otherwise tainted, or used in the commission
of certain offenses, can be seized and ordered forfeited to the United States of
America. The offenses which can trigger such a seizure and forfeiture include,
among others, violations of the Racketeer Influenced and Corrupt Organizations
Act, the Bank Secrecy Act, the anti-money laundering laws and regulations,
including the USA Patriot Act of 2001 and the regulations issued thereunder, as
well as the narcotic drug laws. In many instances, the United States may seize
the property even before a conviction occurs.
In the event of a forfeiture proceeding, a lender may be able to
establish its interest in the property by proving that (i) its mortgage was
executed and recorded before the commission of the illegal conduct from which
the assets used to purchase or improve the property were derived or before any
other crime upon which the forfeiture is based, or (ii) the lender, at the time
of the execution of the mortgage, "did not know or was reasonably without cause
to believe that the property was subject to forfeiture." However, there can be
no assurance that such a defense will be successful.
CERTAIN LEGAL ASPECTS OF THE CONTRACTS
The following discussion contains summaries, which are general in
nature, of certain legal matters relating to the Contracts. Because such legal
aspects are governed primarily by applicable state law (which laws may differ
substantially), the summaries do not purport to be complete nor to reflect the
laws of any particular state, nor to encompass the laws of all states in which
the security for the Contracts is situated. The summaries are qualified in their
entirety by reference to the appropriate laws of the states in which Contracts
may be originated.
General
As a result of the assignment of the Contracts to the Trustee, the
Trustee will succeed collectively to all of the rights (including the right to
receive payment on the Contracts) of the obligee under the Contracts. Each
Contract evidences both (a) the obligation of the obligor to repay the loan
evidenced thereby, and (b) the grant of a security interest in the Manufactured
Home to secure repayment of such loan. Certain aspects of both features of the
Contracts are described more fully below.
The Contracts generally are "chattel paper" as defined in the UCC in
effect in the states in which the Manufactured Homes initially were registered.
Pursuant to the UCC, the sale of chattel paper is treated in a manner similar to
perfection of a security interest in chattel paper. Under the applicable
Agreement, the Servicer will transfer physical possession of the Contracts to
the Trustee or its custodian or may retain possession of the Contracts as
custodian for the Trustee. In addition, the Servicer will make an appropriate
filing of a UCC-1 financing statement in the appropriate states to give notice
of the Trustee's ownership of the Contracts. The Contracts will be stamped or
marked otherwise to reflect their assignment from the Company to the Trustee
only if provided in the related prospectus supplement. Therefore, if, through
negligence, fraud or otherwise, a subsequent purchaser were able to take
physical possession of the Contracts without notice of such assignment, the
Trustee's interest in Contracts could be defeated.
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Security Interests in the Manufactured Homes
The Manufactured Homes securing the Contracts may be located in all 50
states. Security interests in manufactured homes may be perfected either by
notation of the secured party's lien on the certificate of title or by delivery
of the required documents and payment of a fee to the state motor vehicle
authority, depending on state law. In some nontitle states, perfection pursuant
to the provisions of the UCC is required. The Asset Seller may effect such
notation or delivery of the required documents and fees, and obtain possession
of the certificate of title, as appropriate under the laws of the state in which
any manufactured home securing a manufactured housing conditional sales contract
is registered. In the event the Asset Seller fails, due to clerical error, to
effect such notation or delivery, or files the security interest under the wrong
law (for example, under a motor vehicle title statute rather than under the UCC,
in a few states), the Asset Seller may not have a first priority security
interest in the Manufactured Home securing a Contract. As manufactured homes
have become larger and often have been attached to their sites without any
apparent intention to move them, courts in many states have held that
manufactured homes, under certain circumstances, may become subject to real
estate title and recording laws. As a result, a security interest in a
manufactured home could be rendered subordinate to the interests of other
parties claiming an interest in the home under applicable state real estate law.
In order to perfect a security interest in a manufactured home under real estate
laws, the holder of the security interest must file either a "fixture filing"
under the provisions of the UCC or a real estate mortgage under the real estate
laws of the state where the home is located. These filings must be made in the
real estate records office of the county where the home is located.
Substantially all of the Contracts contain provisions prohibiting the borrower
from permanently attaching the Manufactured Home to its site. So long as the
borrower does not violate this agreement, a security interest in the
Manufactured Home will be governed by the certificate of title laws or the UCC,
and the notation of the security interest on the certificate of title or the
filing of a UCC financing statement will be effective to maintain the priority
of the security interest in the Manufactured Home. If, however, a Manufactured
Home is permanently attached to its site, other parties could obtain an interest
in the Manufactured Home which is prior to the security interest originally
retained by the Asset Seller and transferred to the Depositor. With respect to a
Series of Securities and if so described in the related prospectus supplement,
the Servicer may be required to perfect a security interest in the Manufactured
Home under applicable real estate laws. The Warranting Party will represent that
as of the date of the sale to the Depositor it has obtained a perfected first
priority security interest by proper notation or delivery of the required
documents and fees with respect to substantially all of the Manufactured Homes
securing the Contracts.
The Depositor will cause the security interests in the Manufactured
Homes to be assigned to the Trustee on behalf of the Securityholders. The
Depositor or the Trustee will amend the certificates of title (or file UCC-3
statements) to identify the Trustee as the new secured party, and will deliver
the certificates of title to the Trustee or note thereon the interest of the
Trustee only if specified in the related prospectus supplement. Accordingly, the
Asset Seller (or other originator of the Contracts) will continue to be named as
the secured party on the certificates of title relating to the Manufactured
Homes. In some states, such assignment is an effective conveyance of such
security interest without amendment of any lien noted on the related certificate
of title and the new secured party succeeds to Servicer's rights as the secured
party. However, in some states, in the absence of an amendment to the
certificate of title (or the filing of a UCC-3 statement), such assignment of
the security interest in the Manufactured Home may not be held effective or such
security interests may not be perfected and in the absence of such notation or
delivery to the Trustee, the assignment of the security interest in the
Manufactured Home may not be effective against creditors of the Asset Seller (or
such other originator of the Contracts) or a trustee in bankruptcy of the Asset
Seller (or such other originator).
In the absence of fraud, forgery or permanent affixation of the
Manufactured Home to its site by the Manufactured Home owner, or administrative
error by state recording officials, the notation of the lien of the Asset Seller
(or other originator of the Contracts) on the certificate of title or delivery
of the required documents and fees will be sufficient to protect the
Securityholders against the rights of subsequent purchasers of a Manufactured
Home or subsequent lenders who take a security interest in the Manufactured
Home. If there are any Manufactured Homes as to which the security interest
assigned to the Trustee is not perfected, such security interest would be
subordinate to, among others, subsequent purchasers for value of Manufactured
Homes and holders of perfected security interests. There also exists a risk in
not identifying the Trustee as the new secured party on the certificate of title
that, through fraud or negligence, the security interest of the Trustee could be
released.
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In the event that the owner of a Manufactured Home moves it to a state
other than the state in which such Manufactured Home initially is registered,
under the laws of most states the perfected security interest in the
Manufactured Home would continue for four months after such relocation and
thereafter only if and after the owner re-registers the Manufactured Home in
such state. If the owner were to relocate a Manufactured Home to another state
and not re-register the Manufactured Home in such state, and if steps are not
taken to re-perfect the Trustee's security interest in such state, the security
interest in the Manufactured Home would cease to be perfected. A majority of
states generally require surrender of a certificate of title to re-register a
Manufactured Home; accordingly, the Servicer must surrender possession if it
holds the certificate of title to such Manufactured Home or, in the case of
Manufactured Homes registered in states which provide for notation of lien, the
Asset Seller (or other originator) would receive notice of surrender if the
security interest in the Manufactured Home is noted on the certificate of title.
Accordingly, the Trustee would have the opportunity to re-perfect its security
interest in the Manufactured Home in the state of relocation. In states which do
not require a certificate of title for registration of a manufactured home,
re-registration could defeat perfection. In the ordinary course of servicing the
manufactured housing contracts, the Servicer takes steps to effect such
re-perfection upon receipt of notice of re-registration or information from the
obligor as to relocation. Similarly, when an obligor under a manufactured
housing contract sells a manufactured home, the Servicer must surrender
possession of the certificate of title or, if it is noted as lienholder on the
certificate of title, will receive notice as a result of its lien noted thereon
and accordingly will have an opportunity to require satisfaction of the related
manufactured housing conditional sales contract before release of the lien.
Under the applicable Agreement, the Servicer is obligated to take such steps, at
the Servicer's expense, as are necessary to maintain perfection of security
interests in the Manufactured Homes.
Under the laws of most states, liens for repairs performed on a
Manufactured Home and liens for personal property taxes take priority even over
a perfected security interest. The Warranting Party will represent in the
applicable Agreement that it has no knowledge of any such liens with respect to
any Manufactured Home securing payment on any Contract. However, such liens
could arise at any time during the term of a Contract. No notice will be given
to the Trustee or Securityholders in the event such a lien arises.
Enforcement of Security Interests in Manufactured Homes
The Servicer on behalf of the Trustee, to the extent required by the
applicable Agreement, may take action to enforce the Trustee's security interest
with respect to Contracts in default by repossession and resale of the
Manufactured Homes securing such defaulted Contracts. So long as the
Manufactured Home has not become subject to the real estate law, a creditor can
repossess a Manufactured Home securing a Contract by voluntary surrender, by
"self-help" repossession that is "peaceful" (i.e., without breach of the peace)
or, in the absence of voluntary surrender and the ability to repossess without
breach of the peace, by judicial process. The holder of a Contract must give the
debtor a number of days' notice, which varies from 10 to 30 days depending on
the state, prior to commencement of any repossession. The UCC and consumer
protection laws in most states place restrictions on repossession sales,
including requiring prior notice to the debtor and commercial reasonableness in
effecting such a sale. The law in most states also requires that the debtor be
given notice of any sale prior to resale of the unit so that the debtor may
redeem at or before such resale. In the event of such repossession and resale of
a Manufactured Home, the Trustee would be entitled to be paid out of the sale
proceeds before such proceeds could be applied to the payment of the claims of
unsecured creditors or the holders of subsequently perfected security interests
or, thereafter, to the debtor.
Under the laws applicable in most states, a creditor is entitled to
obtain a deficiency judgment from a debtor for any deficiency on repossession
and resale of the manufactured home securing such debtor's loan. However, some
states impose prohibitions or limitations on deficiency judgments, and in many
cases the defaulting borrower would have no assets with which to pay a judgment.
Certain other statutory provisions, including federal and state
bankruptcy and insolvency laws and general equitable principles, may limit or
delay the ability of a lender to repossess and resell collateral or enforce a
deficiency judgment.
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Soldiers' and Sailors' Civil Relief Act of 1940
The terms of the Relief Act apply to an obligor on a Contract as
described for a mortgagor on a Mortgage Loan under "Certain Legal Aspects of
Mortgage Loans--Soldiers' and Sailors' Civil Relief Act of 1940."
Consumer Protection Laws
The so-called "Holder-in-Due-Course" rule of the Federal Trade
Commission is intended to defeat the ability of the transferor of a consumer
credit contract which is the seller of goods which gave rise to the transaction
(and certain related lenders and assignees) to transfer such contract free of
notice of claims by the debtor thereunder. The effect of this rule is to subject
the assignee of such a contract to all claims and defenses which the debtor
could assert against the seller of goods. Liability under this rule is limited
to amounts paid under a Contract; however, the obligor also may be able to
assert the rule to set off remaining amounts due as a defense against a claim
brought by the Trustee against such obligor. Numerous other federal and state
consumer protection laws impose requirements applicable to the origination and
lending pursuant to the Contracts, including the Truth in Lending Act, the
Federal Trade Commission Act, the Fair Credit Billing Act, the Fair Credit
Reporting Act, the Equal Credit Opportunity Act, the Fair Debt Collection
Practices Act and the Uniform Consumer Credit Code. In the case of some of these
laws, the failure to comply with their provisions may affect the enforceability
of the related Contract.
Transfers of Manufactured Homes; Enforceability of Due-on-Sale Clauses
The Contracts, in general, prohibit the sale or transfer of the related
Manufactured Homes without the consent of the Servicer and permit the
acceleration of the maturity of the Contracts by the Servicer upon any such sale
or transfer that is not consented to. Generally, it is expected that the
Servicer will permit most transfers of Manufactured Homes and not accelerate the
maturity of the related Contracts. In certain cases, the transfer may be made by
a delinquent obligor in order to avoid a repossession proceeding with respect to
a Manufactured Home.
In the case of a transfer of a Manufactured Home after which the
Servicer desires to accelerate the maturity of the related Contract, the
Servicer's ability to do so will depend on the enforceability under state law of
the "due-on-sale" clause. The Garn-St. Germain Depositary Institutions Act of
1982 preempts, subject to certain exceptions and conditions, state laws
prohibiting enforcement of "due-on-sale" clauses applicable to the Manufactured
Homes. Consequently, in some states the Servicer may be prohibited from
enforcing a "due-on-sale" clause in respect of certain Manufactured Homes.
Applicability of Usury Laws
Title V provides that, subject to the following conditions, state usury
limitations shall not apply to any loan which is secured by a first lien on
certain kinds of manufactured housing. The Contracts would be covered if they
satisfy certain conditions, among other things, governing the terms of any
prepayments, late charges and deferral fees and requiring a 30-day notice period
prior to instituting any action leading to repossession of or foreclosure with
respect to the related unit.
Title V authorized any state to reimpose limitations on interest rates
and finance charges by adopting before April 1, 1983 a law or constitutional
provision which expressly rejects application of the federal law. Fifteen states
adopted such a law prior to the April 1, 1983 deadline. In addition, even where
Title V was not so rejected, any state is authorized by the law to adopt a
provision limiting discount points or other charges on loans covered by Title V.
The related Asset Seller will represent that all of the Contracts comply with
applicable usury law.
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FEDERAL INCOME TAX CONSEQUENCES
General
The following discussion represents the opinion of Cadwalader,
Wickersham & Taft or Hunton & Williams, as to the anticipated material federal
income tax consequences of the purchase, ownership and disposition of the
Securities offered hereunder. This discussion is directed solely to
Securityholders that hold the Securities as capital assets within the meaning of
Section 1221 of the Internal Revenue Code of 1986, as amended (the "Code") and
does not purport to discuss all federal income tax consequences that may be
applicable to particular categories of investors, some of which (such as banks,
insurance companies and foreign investors) may be subject to special rules.
Further, the authorities on which this discussion, and the opinion referred to
below, are based are subject to change or differing interpretations, which could
apply retroactively. In addition to the federal income tax consequences
described herein, potential investors should consider the state and local tax
consequences, if any, of the purchase, ownership and disposition of the
Securities. See "State and Other Tax Consequences." Securityholders are advised
to consult their own tax advisors concerning the federal, state, local or other
tax consequences to them of the purchase, ownership and disposition of the
Securities offered hereunder.
The following discussion addresses securities of four general types:
(i) securities ("REMIC Securities") representing interests in a Trust Fund, or a
portion thereof, that the Trustee will elect to have treated as a real estate
mortgage investment conduit ("REMIC") under Sections 860A through 860G (the
"REMIC Provisions") of the Code, (ii) securities ("Grantor Trust Securities")
representing interests in a Trust Fund ("Grantor Trust Fund") as to which no
such election will be made, (iii) securities ("Partnership Securities")
representing interests in a Trust Fund ("Partnership Trust Fund") which is
treated as a partnership for federal income tax purposes, and (iv) securities
("Debt Securities") representing indebtedness of a Partnership Trust Fund for
federal income tax purposes. The prospectus supplement for each Series of
Securities will indicate which of the foregoing treatments will apply to such
Series and, if a REMIC election (or elections) will be made for the related
Trust Fund, will identify all "regular interests" and "residual interests" in
the REMIC. For purposes of this tax discussion, (i) references to a
"Securityholder" or a "holder" are to the beneficial owner of a Security, (ii)
references to "REMIC Pool" are to an entity or portion thereof as to which a
REMIC election will be made and (iii) unless indicated otherwise in the
applicable prospectus supplement, references to "Mortgage Loans" include
Contracts. Except as set forth in the applicable prospectus supplement, no REMIC
election will be made with respect to Unsecured Home Improvement Loans. The
discussion below assumes that no election will be made to treat the Trust Fund,
or any portion thereof, as a financial asset securitization investment trust (a
"FASIT") under Sections 860H through 860L of the Code. If a FASIT election is
made for a particular Series, the prospectus supplement for that Series will
address the material federal income tax consequences of such election.
Securities issued with respect to a Series for which a FASIT election has been
made are referred to herein as "FASIT Securities."
The following discussion is based in part upon the rules governing
original issue discount that are set forth in Sections 1271-1273 and 1275 of the
Code and in the Treasury regulations issued thereunder (the "OID Regulations"),
and in part upon the REMIC Provisions and the Treasury regulations issued
thereunder (the "REMIC Regulations"). The OID Regulations do not adequately
address certain issues relevant to, and in some instances provide that they are
not applicable to, securities such as the Securities.
Taxable Mortgage Pools
Corporate income tax can be imposed on the net income of certain
entities issuing non-REMIC debt obligations secured by real estate mortgages
("Taxable Mortgage Pools"). Any entity other than a REMIC or a FASIT will be
considered a Taxable Mortgage Pool if (i) substantially all of the assets of the
entity consist of debt obligations and more than 50% of such obligations consist
of "real estate mortgages," (ii) such entity is the obligor under debt
obligations with two or more maturities, and (iii) under the terms of the debt
obligations on which the entity is the obligor, payments on such obligations
bear a relationship to payments on the obligations held by the entity.
Furthermore, a group of assets held by an entity can be treated as a separate
Taxable Mortgage Pool if the assets are expected to produce significant cash
flow that will support one or more of the entity's issues of debt obligations.
The Depositor generally will structure offerings of non-REMIC Securities to
avoid the application of the Taxable Mortgage Pool rules.
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REMICS
Classification of REMICs
With respect to each Series of REMIC Securities, assuming compliance
with all provisions of the related Pooling and Servicing Agreement, the related
Trust Fund (or each applicable portion thereof) will qualify as a REMIC and the
REMIC Securities offered with respect thereto will be considered to evidence
ownership of "regular interests" ("Regular Securities") or "residual interests"
("Residual Securities") in that REMIC within the meaning of the REMIC
Provisions.
In order for the REMIC Pool to qualify as a REMIC, there must be
ongoing compliance on the part of the REMIC Pool with the requirements set forth
in the Code. The REMIC Pool must fulfill an asset test, which requires that no
more than a de minimis portion of the assets of the REMIC Pool, as of the close
of the third calendar month beginning after the "Startup Day" (which for
purposes of this discussion is the date of issuance of the REMIC Securities) and
at all times thereafter, may consist of assets other than "qualified mortgages"
and "permitted investments." The REMIC Regulations provide a safe harbor
pursuant to which the de minimis requirement will be met if at all times the
aggregate adjusted basis of the nonqualified assets is less than 1% of the
aggregate adjusted basis of all the REMIC Pool's assets. An entity that fails to
meet the safe harbor may nevertheless demonstrate that it holds no more than a
de minimis amount of nonqualified assets. A REMIC Pool also must provide
"reasonable arrangements" to prevent its residual interests from being held by
"disqualified organizations" or agents thereof and must furnish applicable tax
information to transferors or agents that violate this requirement. The Pooling
and Servicing Agreement with respect to each Series of REMIC Securities will
contain provisions meeting these requirements. See "--Taxation of Owners of
Residual Securities--Tax-Related Restrictions on Transfer of Residual
Securities--Disqualified Organizations."
A qualified mortgage is any obligation that is principally secured by
an interest in real property and that is either transferred to the REMIC Pool on
the Startup Day or is purchased by the REMIC Pool within a three-month period
thereafter pursuant to a fixed price contract in effect on the Startup Day.
Qualified mortgages include whole mortgage loans, such as the Mortgage Loans,
and, generally, certificates of beneficial interest in a grantor trust that
holds mortgage loans and regular interests in another REMIC, such as lower-tier
regular interests in Tiered REMICs. The REMIC Regulations specify that loans
secured by timeshare interests, shares held by a tenant stockholder in a
cooperative housing corporation, and manufactured housing that qualifies as a
"single family residence" under Code section 25(e)(10) can be qualified
mortgages. A qualified mortgage includes a qualified replacement mortgage, which
is any property that would have been treated as a qualified mortgage if it were
transferred to the REMIC Pool on the Startup Day and that is received either (i)
in exchange for any qualified mortgage within a three-month period thereafter or
(ii) in exchange for a "defective obligation" within a two-year period
thereafter. A "defective obligation" includes (i) a mortgage in default or as to
which default is reasonably foreseeable, (ii) a mortgage as to which a customary
representation or warranty made at the time of transfer to the REMIC Pool has
been breached, (iii) a mortgage that was fraudulently procured by the mortgagor,
and (iv) a mortgage that was not in fact principally secured by real property
(but only if such mortgage is disposed of within 90 days of discovery). A
Mortgage Loan that is "defective" as described in clause (iv) that is not sold
or, if within two years of the Startup Day, exchanged, within 90 days of
discovery, ceases to be a qualified mortgage after such 90-day period.
Permitted investments include cash flow investments, qualified reserve
assets, and foreclosure property. A cash flow investment is an investment,
earning a return in the nature of interest, of amounts received on or with
respect to qualified mortgages for a temporary period, not exceeding 13 months,
until the next scheduled distribution to holders of interests in the REMIC Pool.
A qualified reserve asset is any intangible property held for investment that is
part of any reasonably required reserve maintained by the REMIC Pool to provide
for payments of expenses of the REMIC Pool or amounts due on the regular or
residual interests in the event of defaults (including delinquencies) on the
qualified mortgages, lower than expected reinvestment returns, prepayment
interest shortfalls and certain other contingencies. The reserve fund will be
disqualified if more than 30% of the gross income from the assets in such fund
for the year is derived from the sale or other disposition of property held for
less than three months, unless required to prevent a default on the regular
interests caused by a default on one or more qualified mortgages. A reserve fund
must be reduced "promptly and appropriately" as payments on the Mortgage Loans
are received. Foreclosure property is real property acquired by the REMIC Pool
in connection with the default or imminent default of a qualified mortgage and
generally may not be held beyond the close of the third calendar year beginning
after the taxable year of acquisition unless an extension is granted by the IRS.
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In addition to the foregoing requirements, the various interests in a
REMIC Pool also must meet certain requirements. All of the interests in a REMIC
Pool must be either of the following: (i) one or more Classes of regular
interests or (ii) a single class of residual interests on which distributions,
if any, are made pro rata. A regular interest is an interest in a REMIC Pool
that is issued on the Startup Day with fixed terms, is designated as a regular
interest, and unconditionally entitles the holder to receive a specified
principal amount (or other similar amount), and provides that interest payments
(or other similar amounts), if any, at or before maturity either are payable
based on a fixed rate or a qualified variable rate, or consist of a specified,
nonvarying portion of the interest payments on qualified mortgages. Such a
specified portion may consist of a fixed number of basis points, a fixed
percentage of the total interest, or a qualified variable rate, inverse variable
rate or difference between two fixed or qualified variable rates on some or all
of the qualified mortgages. The specified principal amount of a regular interest
that provides for interest payments consisting of a specified, nonvarying
portion of interest payments on qualified mortgages may be zero. A residual
interest is an interest in a REMIC Pool other than a regular interest that is
issued on the Startup Day and that is designated as a residual interest. An
interest in a REMIC Pool may be treated as a regular interest even if payments
of principal with respect to such interest are subordinated to payments on other
regular interests or the residual interest in the REMIC Pool, and are dependent
on the absence of defaults or delinquencies on qualified mortgages or permitted
investments, lower than reasonably expected returns on permitted investments,
unanticipated expenses incurred by the REMIC Pool or prepayment interest
shortfalls. Accordingly, the Regular Securities of a Series will constitute one
or more Classes of regular interests, and the Residual Securities with respect
to that Series will constitute a single Class of residual interests with respect
to each REMIC Pool.
If an entity electing to be treated as a REMIC fails to comply with one
or more of the ongoing requirements of the Code for such status during any
taxable year, the Code provides that the entity will not be treated as a REMIC
for such year and thereafter. In that event, such entity may be taxable as a
corporation under Treasury regulations, and the related REMIC Securities may not
be accorded the status or given the tax treatment described below. Although the
Code authorizes the Treasury Department to issue regulations providing relief in
the event of an inadvertent termination of REMIC status, no such regulations
have been issued. Any such relief, moreover, may be accompanied by sanctions,
such as the imposition of a corporate tax on all or a portion of the Trust
Fund's income for the period in which the requirements for such status are not
satisfied. The Pooling and Servicing Agreement with respect to each REMIC Pool
will include provisions designed to maintain the Trust Fund's status as a REMIC
under the REMIC Provisions. It is not anticipated that the status of any Trust
Fund as a REMIC will be terminated.
Characterization of Investments in REMIC Securities
In general, the REMIC Securities will be treated as "real estate
assets" within the meaning of Section 856(c)(4)(A) of the Code and assets
described in Section 7701(a)(19)(C) of the Code in the same proportion that the
assets of the REMIC Pool underlying such Securities would be so treated.
Moreover, if 95% or more of the assets of the REMIC Pool qualify for either of
the foregoing treatments at all times during a calendar year, the REMIC
Securities will qualify for the corresponding status in their entirety for that
calendar year. If the assets of the REMIC Pool include Buydown Mortgage Loans,
it is possible that the percentage of such assets constituting "loans . . .
secured by an interest in real property which is . . . residential real
property" for purposes of Code Section 7701(a)(19)(C)(v) may be required to be
reduced by the amount of the related funds paid thereon (the "Buydown Funds").
Interest (including original issue discount) on the Regular Securities and
income allocated to the Class of Residual Securities will be interest described
in Section 856(c)(3)(B) of the Code to the extent that such Securities are
treated as "real estate assets" within the meaning of Section 856(c)(4)(A) of
the Code. In addition, the Regular Securities generally will be "qualified
mortgages" within the meaning of Section 860G(a)(3) of the Code if transferred
to another REMIC on its Startup Day in exchange for regular or residual
interests therein. Regular Securities held by a FASIT will qualify for treatment
as "permitted assets" within the meaning of Section 860L(c)(1)(G) of the Code.
The determination as to the percentage of the REMIC Pool's assets that
constitute assets described in the foregoing sections of the Code will be made
with respect to each calendar quarter based on the average adjusted basis of
each category of the assets held by the REMIC Pool during such calendar quarter.
The REMIC will report those determinations to Securityholders in the manner and
at the times required by applicable Treasury regulations. The Small Business Job
Protection Act of 1996 (the "SBJPA of 1996") repealed the reserve method of bad
debts of domestic building and loan associations and mutual savings banks, and
thus has eliminated the asset category of "qualifying real property loans" in
former Code Section 593(d) for taxable years beginning after December 31, 1995.
The requirements in the SBJPA of 1996 that such institutions must "recapture" a
portion of their existing bad debt reserves is suspended if a certain portion of
their assets is maintained in "residential loans" under Code Section
7701(a)(19)(C)(v), but only if such loans were made to acquire, construct or
improve the related real property and not for the purpose of refinancing.
However, no effort will be made to identify the portion of the Mortgage Loans of
any Series meeting this requirement, and no representation is made in this
regard.
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The assets of the REMIC Pool will include, in addition to Mortgage
Loans, payments on Mortgage Loans held pending distribution on the REMIC
Securities and property acquired by foreclosure held pending sale, and may
include amounts in reserve accounts. It is unclear whether property acquired by
foreclosure held pending sale and amounts in reserve accounts would be
considered to be part of the Mortgage Loans, or whether such assets (to the
extent not invested in assets described in the foregoing sections) otherwise
would receive the same treatment as the Mortgage Loans for purposes of all of
the foregoing sections. The REMIC Regulations do provide, however, that payments
on Mortgage Loans held pending distribution are considered part of the Mortgage
Loans for purposes of Section 856(c)(4)(A) of the Code. Furthermore, foreclosure
property generally will qualify as "real estate assets" under Section
856(c)(4)(A) of the Code.
Tiered REMIC Structures
For certain Series of REMIC Securities, two or more separate elections
may be made to treat designated portions of the related Trust Fund as REMICs
("Tiered REMICs") for federal income tax purposes. Upon the issuance of any such
Series of REMIC Securities, Cadwalader, Wickersham & Taft or Hunton & Williams
will deliver its opinion generally to the effect that, assuming compliance with
all provisions of the related Pooling and Servicing Agreement, the Tiered REMICs
will each qualify as a REMIC and the REMIC Securities issued by the Tiered
REMICs will be considered to evidence ownership of Regular Securities or
Residual Securities in the related REMIC within the meaning of the REMIC
Provisions.
Solely for purposes of determining whether the REMIC Securities will be
"real estate assets" within the meaning of Section 856(c)(4)(A) of the Code and
"loans secured by an interest in real property" under Section 7701(a)(19)(C) of
the Code, and whether the income on such Securities is interest described in
Section 856(c)(3)(B) of the Code, the Tiered REMICs will be treated as one
REMIC.
Taxation of Owners of Regular Securities
General
In general, interest, original issue discount, and market discount on a
Regular Security will be treated as ordinary income to a holder of the Regular
Security (the "Regular Securityholder"), and principal payments on a Regular
Security will be treated as a return of capital to the extent of the Regular
Securityholder's basis in the Regular Security allocable thereto. Regular
Securityholders must use the accrual method of accounting with regard to Regular
Securities, regardless of the method of accounting otherwise used by such
Regular Securityholder.
Original Issue Discount
Accrual Securities will be, and other Classes of Regular Securities may
be, issued with "original issue discount" within the meaning of Code Section
1273(a). Holders of any Class or subclass of Regular Securities having original
issue discount generally must include original issue discount in ordinary income
for federal income tax purposes as it accrues, in accordance with a constant
yield method that takes into account the compounding of interest, in advance of
the receipt of the cash attributable to such income. The following discussion is
based in part on OID Regulations issued on February 2, 1994, as amended on June
14, 1996, under Code Section 1271 through 1273 and 1275 and in part on the
provisions of the 1986 Act. Regular Securityholders should be aware, however,
that the OID Regulations do not adequately address certain issues relevant to
prepayable securities, such as the Regular Securities. To the extent such issues
are not addressed in such regulations, the Depositor intends to apply the
methodology described in the Conference Committee Report to the 1986 Act. No
assurance can be provided that the IRS will not take a different position as to
those matters not currently addressed by the OID Regulations. Moreover, the OID
Regulations include an anti-abuse rule allowing the IRS to apply or depart from
the OID Regulations where necessary or appropriate to ensure a reasonable tax
result in light of the applicable statutory provisions. A tax result will not be
considered unreasonable under the anti-abuse rule in the absence of a
substantial effect on the present value of a taxpayer's tax liability. Investors
are advised to consult their own tax advisors as to the discussion therein and
the appropriate method for reporting interest and original issue discount with
respect to the Regular Securities.
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Each Regular Security (except to the extent described below with
respect to a Regular Security on which principal is distributed in a single
installment or by lots of specified principal amounts upon the request of a
Securityholder or by random lot (a "Non-Pro Rata Security")) will be treated as
a single installment obligation for purposes of determining the original issue
discount includable in a Regular Securityholder's income. The total amount of
original issue discount on a Regular Security is the excess of the "stated
redemption price at maturity" of the Regular Security over its "issue price."
The issue price of a Class of Regular Securities offered pursuant to this
prospectus generally is the first price at which a substantial amount of such
Class is sold to the public (excluding bond houses, brokers and underwriters).
Although unclear under the OID Regulations, it is anticipated that the Trustee
will treat the issue price of a Class as to which there is no substantial sale
as of the issue date or that is retained by the Depositor as the fair market
value of the Class as of the issue date. The issue price of a Regular Security
also includes any amount paid by an initial Regular Securityholder for accrued
interest that relates to a period prior to the issue date of the Regular
Security, unless the Regular Securityholder elects on its federal income tax
return to exclude such amount from the issue price and to recover it on the
first Distribution Date. The stated redemption price at maturity of a Regular
Security always includes the original principal amount of the Regular Security,
but generally will not include distributions of interest if such distributions
constitute "qualified stated interest." Under the OID Regulations, qualified
stated interest generally means interest payable at a single fixed rate or a
qualified variable rate (as described below), provided that such interest
payments are unconditionally payable at intervals of one year or less during the
entire term of the Regular Security. Because there is no penalty or default
remedy in the case of nonpayment of interest with respect to a Regular Security,
it is possible that no interest on any Class of Regular Securities will be
treated as qualified stated interest. However, except as provided in the
following three sentences or in the applicable prospectus supplement, because
the underlying Mortgage Loans provide for remedies in the event of default, it
is anticipated that the Trustee will treat interest with respect to the Regular
Securities as qualified stated interest. Distributions of interest on an Accrual
Security, or on other Regular Securities with respect to which deferred interest
will accrue, will not constitute qualified stated interest, in which case the
stated redemption price at maturity of such Regular Securities includes all
distributions of interest as well as principal thereon. Likewise, it is
anticipated that the Trustee will treat an interest-only Class or a Class on
which interest is substantially disproportionate to its principal amount (a
so-called "super-premium" Class) as having no qualified stated interest. Where
the interval between the issue date and the first Distribution Date on a Regular
Security is shorter than the interval between subsequent Distribution Dates, the
interest attributable to the additional days will be included in the stated
redemption price at maturity.
Under a de minimis rule, original issue discount on a Regular Security
will be considered to be zero if such original issue discount is less than 0.25%
of the stated redemption price at maturity of the Regular Security multiplied by
the weighted average maturity of the Regular Security. For this purpose, the
weighted average maturity of the Regular Security is computed as the sum of the
amounts determined by multiplying the number of full years (i.e., rounding down
partial years) from the issue date until each distribution in reduction of
stated redemption price at maturity is scheduled to be made by a fraction, the
numerator of which is the amount of each distribution included in the stated
redemption price at maturity of the Regular Security and the denominator of
which is the stated redemption price at maturity of the Regular Security. The
Conference Committee Report to the 1986 Act provides that the schedule of such
distributions should be determined in accordance with the assumed rate of
prepayment of the Mortgage Loans (the "Prepayment Assumption") and the
anticipated reinvestment rate, if any, relating to the Regular Securities. The
Prepayment Assumption with respect to a Series of Regular Securities will be set
forth in the applicable prospectus supplement. Holders generally must report de
minimis original issue discount pro rata as principal payments are received, and
such income will be capital gain if the Regular Security is held as a capital
asset. Under the OID Regulations, however, Regular Securityholders may elect to
accrue all de minimis original issue discount as well as market discount and
market premium, under the constant yield method. See "--Election to Treat All
Interest Under the Constant Yield Method."
84
A Regular Securityholder generally must include in gross income for any
taxable year the sum of the "daily portions," as defined below, of the original
issue discount on the Regular Security accrued during an accrual period for each
day on which it holds the Regular Security, including the date of purchase but
excluding the date of disposition. The Trustee will treat the monthly period
ending on the day before each Distribution Date as the accrual period. With
respect to each Regular Security, a calculation will be made of the original
issue discount that accrues during each successive full accrual period (or
shorter period from the date of original issue) that ends on the day before the
related Distribution Date on the Regular Security. The Conference Committee
Report to the 1986 Act states that the rate of accrual of original issue
discount is intended to be based on the Prepayment Assumption. The original
issue discount accruing in a full accrual period would be the excess, if any, of
(i) the sum of (a) the present value of all of the remaining distributions to be
made on the Regular Security as of the end of that accrual period, and (b) the
distributions made on the Regular Security during the accrual period that are
included in the Regular Security's stated redemption price at maturity, over
(ii) the adjusted issue price of the Regular Security at the beginning of the
accrual period. The present value of the remaining distributions referred to in
the preceding sentence is calculated based on (i) the yield to maturity of the
Regular Security at the issue date, (ii) events (including actual prepayments)
that have occurred prior to the end of the accrual period, and (iii) the
Prepayment Assumption. For these purposes, the adjusted issue price of a Regular
Security at the beginning of any accrual period equals the issue price of the
Regular Security, increased by the aggregate amount of original issue discount
with respect to the Regular Security that accrued in all prior accrual periods
and reduced by the amount of distributions included in the Regular Security's
stated redemption price at maturity that were made on the Regular Security in
such prior periods. The original issue discount accruing during any accrual
period (as determined in this paragraph) will then be divided by the number of
days in the period to determine the daily portion of original issue discount for
each day in the period. With respect to an initial accrual period shorter than a
full accrual period, the daily portions of original issue discount must be
determined according to an appropriate allocation under any reasonable method.
Under the method described above, the daily portions of original issue
discount required to be included in income by a Regular Securityholder generally
will increase to take into account prepayments on the Regular Securities as a
result of prepayments on the Mortgage Loans that exceed the Prepayment
Assumption, and generally will decrease (but not below zero for any period) if
the prepayments are slower than the Prepayment Assumption. An increase in
prepayments on the Mortgage Loans with respect to a Series of Regular Securities
can result in both a change in the priority of principal payments with respect
to certain Classes of Regular Securities and either an increase or decrease in
the daily portions of original issue discount with respect to such Regular
Securities.
In the case of a Non-Pro Rata Security, it is anticipated that the
Trustee will determine the yield to maturity of such Security based upon the
anticipated payment characteristics of the Class as a whole under the Prepayment
Assumption. In general, the original issue discount accruing on each Non-Pro
Rata Security in a full accrual period would be its allocable share of the
original issue discount with respect to the entire Class, as determined in
accordance with the preceding paragraph. However, in the case of a distribution
in retirement of the entire unpaid principal balance of any Non-Pro Rata
Security (or portion of such unpaid principal balance), (a) the remaining
unaccrued original issue discount allocable to such Security (or to such
portion) will accrue at the time of such distribution, and (b) the accrual of
original issue discount allocable to each remaining Security of such Class will
be adjusted by reducing the present value of the remaining payments on such
Class and the adjusted issue price of such Class to the extent attributable to
the portion of the unpaid principal balance thereof that was distributed. The
Depositor believes that the foregoing treatment is consistent with the "pro rata
prepayment" rules of the OID Regulations, but with the rate of accrual of
original issue discount determined based on the Prepayment Assumption for the
Class as a whole. Investors are advised to consult their tax advisors as to this
treatment.
Acquisition Premium
A purchaser of a Regular Security having original issue discount at a
price greater than its adjusted issue price but less than its stated redemption
price at maturity will be required to include in gross income the daily portions
of the original issue discount on the Regular Security reduced pro rata by a
fraction, the numerator of which is the excess of its purchase price over such
adjusted issue price and the denominator of which is the excess of the remaining
stated redemption price at maturity over the adjusted issue price.
Alternatively, such a subsequent purchaser may elect to treat all such
acquisition premium under the constant yield method, as described below under
the heading "--Election to Treat All Interest Under the Constant Yield Method."
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Variable Rate Regular Securities
Regular Securities may provide for interest based on a variable rate.
Under the OID Regulations, interest is treated as payable at a variable rate if,
generally, (i) the issue price does not exceed the original principal balance by
more than a specified amount and (ii) the interest compounds or is payable at
least annually at current values of (a) one or more "qualified floating rates,"
(b) a single fixed rate and one or more qualified floating rates, (c) a single
"objective rate," or (d) a single fixed rate and a single objective rate that is
a "qualified inverse floating rate." A floating rate is a qualified floating
rate if variations can reasonably be expected to measure contemporaneous
variations in the cost of newly borrowed funds. A multiple of a qualified
floating rate is considered a qualified floating rate only if the rate is equal
to either (a) the product of a qualified floating rate and a fixed multiple that
is greater than 0.65 but not more than 1.35 or (b) the product of a qualified
floating rate and a fixed multiple that is greater that 0.65 but not more than
1.35, increased or decreased by a fixed rate. Such rate may also be subject to a
fixed cap or floor, or a cap or floor that is not reasonably expected as of the
issue date to affect the yield of the instrument significantly. An objective
rate is any rate (other than a qualified floating rate) that is determined using
a single fixed formula and that is based on objective financial or economic
information, provided that such information is not (i) within the control of the
issuer or a related party or (ii) unique to the circumstances of the issuer or a
related party. A qualified inverse floating rate is a rate equal to a fixed rate
minus a qualified floating rate that inversely reflects contemporaneous
variations in the cost of newly borrowed funds; an inverse floating rate that is
not a qualified inverse floating rate may nevertheless be an objective rate. A
Class of Regular Securities may be issued under this prospectus that does not
have a variable rate under the foregoing rules, for example, a Class that bears
different rates at different times during the period it is outstanding such that
it is considered significantly "front-loaded" or "back-loaded" within the
meaning of the OID Regulations. It is possible that such a Class may be
considered to bear "contingent interest" within the meaning of the OID
Regulations. The OID Regulations, as they relate to the treatment of contingent
interest, are by their terms not applicable to Regular Securities. However, if
final regulations dealing with contingent interest with respect to Regular
Securities apply the same principles as the OID Regulations, such regulations
may lead to different timing of income inclusion that would be the case under
the OID Regulations. Furthermore, application of such principles could lead to
the characterization of gain on the sale of contingent interest Regular
Securities as ordinary income. Investors should consult their tax advisors
regarding the appropriate treatment of any Regular Security that does not pay
interest at a fixed rate or variable rate as described in this paragraph.
Under the REMIC Regulations, a Regular Security (i) bearing interest at
a rate that qualifies as a variable rate under the OID Regulations that is tied
to current values of a variable rate (or the highest, lowest or average of two
or more variable rates, including a rate based on the average cost of funds of
one or more financial institutions), or a positive or negative multiple of such
a rate (plus or minus a specified number of basis points), or that represents a
weighted average of rates on some or all of the Mortgage Loans, including such a
rate that is subject to one or more caps or floors, or (ii) bearing one or more
such variable rates for one or more periods, or one or more fixed rates for one
or more periods, and a different variable rate or fixed rate for other periods,
qualifies as a regular interest in a REMIC. Accordingly, unless otherwise
indicated in the applicable prospectus supplement, it is anticipated that the
Trustee will treat Regular Securities that qualify as regular interests under
this rule in the same manner as obligations bearing a variable rate for original
issue discount reporting purposes.
The amount of original issue discount with respect to a Regular
Security bearing a variable rate of interest will accrue in the manner described
above under "Original Issue Discount," with the yield to maturity and future
payments on such Regular Security generally to be determined by assuming that
interest will be payable for the life of the Regular Security based on the
initial rate (or, if different, the value of the applicable variable rate as of
the pricing date) for the relevant Class. Unless required otherwise by
applicable final regulations, it is anticipated that the Trustee will treat such
variable interest as qualified stated interest, other than variable interest on
an interest-only or super-premium Class, which will be treated as non-qualified
stated interest includable in the stated redemption price at maturity. Ordinary
income reportable for any period will be adjusted based on subsequent changes in
the applicable interest rate index.
Although unclear under the OID Regulations, unless required otherwise
by applicable final regulations, the Seller intends to treat Regular Securities
bearing an interest rate that is a weighted average of the net interest rates on
Mortgage Loans as having qualified stated interest, except to the extent that
initial "teaser" rates cause sufficiently "back-loaded" interest to create more
than de minimis original issue discount. The yield on such Regular Securities
for purposes of accruing original issue discount will be a hypothetical fixed
rate based on the fixed rates, in the case of fixed-rate Mortgage Loans, and
initial "teaser rates" followed by fully indexed rates, in the case of
adjustable-rate Mortgage Loans. In the case of adjustable-rate Mortgage Loans,
the applicable index used to compute interest on the Mortgage Loans in effect on
the pricing date (or possibly the issue date) will be deemed to be in effect
beginning with the period in which the first weighted average adjustment date
occurring after the issue date occurs. Adjustments will be made in each accrual
period either increasing or decreasing the amount of ordinary income reportable
to reflect the actual Pass-Through Rate on the Regular Securities.
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Market Discount
A subsequent purchaser of a Regular Security also may be subject to the
market discount rules of Code Sections 1276 through 1278. Under these sections
and the principles applied by the OID Regulations in the context of original
issue discount, "market discount" is the amount by which the purchaser's
original basis in the Regular Security (i) is exceeded by the remaining
outstanding principal payments and interest payments other than qualified stated
interest payments due on a Regular Security, or (ii) in the case of a Regular
Security having original issue discount, is exceeded by the adjusted issue price
of such Regular Security at the time of purchase. Such purchaser generally will
be required to recognize ordinary income to the extent of accrued market
discount on such Regular Security as distributions includable in the stated
redemption price at maturity thereof are received, in an amount not exceeding
any such distribution. Such market discount would accrue in a manner to be
provided in Treasury regulations and should take into account the Prepayment
Assumption. The Conference Committee Report to the 1986 Act provides that until
such regulations are issued, such market discount would accrue either (i) on the
basis of a constant interest rate, or (ii) in the ratio of stated interest
allocable to the relevant period to the sum of the interest for such period plus
the remaining interest as of the end of such period, or in the case of a Regular
Security issued with original issue discount, in the ratio of original issue
discount accrued for the relevant period to the sum of the original issue
discount accrued for such period plus the remaining original issue discount as
of the end of such period. Such purchaser also generally will be required to
treat a portion of any gain on a sale or exchange of the Regular Security as
ordinary income to the extent of the market discount accrued to the date of
disposition under one of the foregoing methods, less any accrued market discount
previously reported as ordinary income as partial distributions in reduction of
the stated redemption price at maturity were received. Such purchaser will be
required to defer deduction of a portion of the excess of the interest paid or
accrued on indebtedness incurred to purchase or carry a Regular Security over
the interest distributable thereon. The deferred portion of such interest
expense in any taxable year generally will not exceed the accrued market
discount on the Regular Security for such year. Any such deferred interest
expense is, in general, allowed as a deduction not later than the year in which
the related market discount income is recognized or the Regular Security is
disposed of. As an alternative to the inclusion of market discount in income on
the foregoing basis, the Regular Securityholder may elect to include market
discount in income currently as it accrues on all market discount instruments
acquired by such Regular Securityholder in that taxable year or thereafter, in
which case the interest deferral rule will not apply. See "--Election to Treat
All Interest Under the Constant Yield Method" below regarding an alternative
manner in which such election may be deemed to be made. A person who purchases a
Regular Security at a price lower than the remaining amounts includable in the
stated redemption price at maturity of the security, but higher than its
adjusted issue price, does not acquire the Regular Security with market
discount, but will be required to report original issue discount, appropriately
adjusted to reflect the excess of the price paid over the adjusted issue price.
Market discount with respect to a Regular Security will be considered
to be zero if such market discount is less than 0.25% of the remaining stated
redemption price at maturity of such Regular Security (or, in the case of a
Regular Security having original issue discount, the adjusted issue price of
such Regular Security) multiplied by the weighted average maturity of the
Regular Security (determined as described above in the third paragraph under
"--Original Issue Discount") remaining after the date of purchase. It appears
that de minimis market discount would be reported in a manner similar to de
minimis original issue discount. See "--Original Issue Discount" above.
Under provisions of the OID Regulations relating to contingent payment
obligations, a secondary purchaser of a Regular Security that has "contingent
interest" at a discount generally would continue to accrue interest and
determine adjustments on the Regular Security based on the original projected
payment schedule devised by the issuer of the Security. The holder of such a
Regular Security would be required, however, to allocate the difference between
the adjusted issue price of the Regular Security and its basis in the Regular
Security as positive adjustments to the accruals or projected payments on the
Regular Security over the remaining term of the Regular Security in a manner
that is reasonable (e.g., based on a constant yield to maturity).
87
Treasury regulations implementing the market discount rules have not
yet been issued, and uncertainty exists with respect to many aspects of those
rules. Due to the substantial lack of regulatory guidance with respect to the
market discount rules, it is unclear how those rules will affect any secondary
market that develops for a given Class of Regular Securities. Prospective
investors in Regular Securities should consult their own tax advisors regarding
the application of the market discount rules to the Regular Securities.
Investors should also consult Revenue Procedure 92-67 concerning the elections
to include market discount in income currently and to accrue market discount on
the basis of the constant yield method.
Amortizable Premium
A Regular Security purchased at a cost greater than its remaining
stated redemption price at maturity generally is considered to be purchased at a
premium. If the Regular Securityholder holds such Regular Security as a "capital
asset" within the meaning of Code Section 1221, the Regular Securityholder may
elect under Code Section 171 to amortize such premium under a constant yield
method that reflects compounding based on the interval between payments on the
Regular Security. Such election will apply to all taxable debt obligations
(including REMIC regular interests) acquired by the Regular Securityholder at a
premium held in that taxable year or thereafter, unless revoked with the
permission of the IRS. Final Treasury regulations have been issued with respect
to amortizable bond premiums which do not by their terms apply to prepayable
debt instruments such as the Regular Securities. However, the Conference
Committee Report to the 1986 Act indicates a Congressional intent that the same
rules that apply to the accrual of market discount on installment obligations
will also apply to amortizing bond premium under Code Section 171 on installment
obligations such as the Regular Securities, although it is unclear whether the
alternatives to the constant interest method described above under "--Market
Discount" are available. Amortizable bond premium generally will be treated as
an offset to interest income on a Regular Security, rather than as a separate
deduction. See "--Election to Treat All Interest Under the Constant Yield
Method" below regarding an alternative manner in which the Code Section 171
election may be deemed to be made.
Amortizable premium on a Regular Security that is subject to redemption
at the option of the issuer generally must be amortized as if the optional
redemption price and date were the Security's principal amount and maturity date
if doing so would result in a smaller amount of premium amortization during the
period ending with the optional redemption date. Thus, a holder of a Regular
Security would not be able to amortize any premium on a Regular Security that is
subject to optional redemption at a price equal to or greater than the
Securityholder's acquisition price unless and until the redemption option
expires. A Regular Security subject to redemption at the option of the issuer
described in the preceding sentence will be treated as having matured on the
redemption date for the redemption price and then as having been reissued on
that date for that price. Any premium remaining on the Regular Security at the
time of the deemed reissuance will be amortized on the basis of (i) the original
principal amount and maturity date or (ii) the price and date of any succeeding
optional redemption, under the principles described above.
Election to Treat All Interest Under the Constant Yield Method
A holder of a debt instrument such as a Regular Security may elect to
treat all interest that accrues on the instrument using the constant yield
method, with none of the interest being treated as qualified stated interest.
For purposes of applying the constant yield method to a debt instrument subject
to such an election, (i) "interest" includes stated interest, original issue
discount, de minimis original issue discount, market discount and de minimis
market discount, as adjusted by any amortizable bond premium or acquisition
premium and (ii) the debt instrument is treated as if the instrument were issued
on the holder's acquisition date in the amount of the holder's adjusted basis
immediately after acquisition. It is unclear whether, for this purpose, the
initial Prepayment Assumption would continue to apply or if a new prepayment
assumption as of the date of the holder's acquisition would apply. A holder
generally may make such an election on an instrument by instrument basis or for
a Class or group of debt instruments. However, if the holder makes such an
election with respect to a debt instrument with amortizable bond premium or with
market discount, the holder is deemed to have made elections to amortize bond
premium or to report market discount income currently as it accrues under the
constant yield method, respectively, for all premium bonds held or market
discount bonds acquired by the holder in the same taxable year or thereafter.
The election is made on the holder's federal income tax return for the year in
which the debt instrument is acquired and is irrevocable except with the
approval of the IRS. Investors should consult their own tax advisors regarding
the advisability of making such an election.
88
Treatment of Losses
Regular Securityholders will be required to report income with respect
to Regular Securities on the accrual method of accounting, without giving effect
to delays or reductions in distributions attributable to defaults or
delinquencies on the Mortgage Loans, except to the extent it can be established
that such losses are uncollectable. Accordingly, the holder of a Regular
Security, particularly a Subordinate Security, may have income, or may incur a
diminution in cash flow as a result of a default or delinquency, but may not be
able to take a deduction (subject to the discussion below) for the corresponding
loss until a subsequent taxable year. In this regard, investors are cautioned
that while they may generally cease to accrue interest income if it reasonably
appears that the interest will be uncollectable, the IRS may take the position
that original issue discount must continue to be accrued in spite of its
uncollectibility until the debt instrument is disposed of in a taxable
transaction or becomes worthless in accordance with the rules of Code Section
166. Under Code Section 166, it appears that Regular Securityholders that are
corporations or that otherwise hold the Regular Securities in connection with a
trade or business should in general be allowed to deduct as an ordinary loss
such loss with respect to principal sustained during the taxable year on account
of any such Regular Securities becoming wholly or partially worthless, and that,
in general, Regular Securityholders that are not corporations and do not hold
the Regular Securities in connection with a trade or business should be allowed
to deduct as a short-term capital loss any loss sustained during the taxable
year on account of a portion of any such Regular Securities becoming wholly
worthless. Although the matter is not free from doubt, such non-corporate
Regular Securityholders should be allowed a bad debt deduction at such time as
the principal balance of such Regular Securities is reduced to reflect losses
resulting from any liquidated Mortgage Loans. The IRS, however, could take the
position that non-corporate holders will be allowed a bad debt deduction to
reflect such losses only after all the Mortgage Loans remaining in the Trust
Fund have been liquidated or the applicable Class of Regular Securities has been
otherwise retired. The IRS could also assert that losses on the Regular
Securities are deductible based on some other method that may defer such
deductions for all holders, such as reducing future cashflow for purposes of
computing original issue discount. This may have the effect of creating
"negative" original issue discount which would be deductible only against future
positive original issue discount or otherwise upon termination of the Class.
Regular Securityholders are urged to consult their own tax advisors regarding
the appropriate timing, amount and character of any loss sustained with respect
to such Regular Securities. While losses attributable to interest previously
reported as income should be deductible as ordinary losses by both corporate and
non-corporate holders, the IRS may take the position that losses attributable to
accrued original issue discount may only be deducted as capital losses in the
case of non-corporate holders who do not hold the Regular Securities in
connection with a trade or business. Special loss rules are applicable to banks
and thrift institutions, including rules regarding reserves for bad debts. Such
taxpayers are advised to consult their tax advisors regarding the treatment of
losses on Regular Securities.
Sale or Exchange of Regular Securities
If a Regular Securityholder sells or exchanges a Regular Security, the
Regular Securityholder will recognize gain or loss equal to the difference, if
any, between the amount received and its adjusted basis in the Regular Security.
The adjusted basis of a Regular Security generally will equal the original cost
of the Regular Security to the seller, increased by any original issue discount
or market discount previously included in the seller's gross income with respect
to the Regular Security and reduced by amounts included in the stated redemption
price at maturity of the Regular Security that were previously received by the
seller, by any amortized premium, and by any recognized losses.
Except as described above with respect to market discount, and except
as provided in this paragraph, any gain or loss on the sale or exchange of a
Regular Security realized by an investor who holds the Regular Security as a
capital asset will be capital gain or loss and will be long-term or short-term
depending on whether the Regular Security has been held for the long-term
capital gain holding period (currently, more than one year). Such gain will be
treated as ordinary income (i) if a Regular Security is held as part of a
"conversion transaction" as defined in Code Section 1258(c), up to the amount of
interest that would have accrued on the Regular Securityholder's net investment
in the conversion transaction at 120% of the appropriate applicable Federal rate
in effect at the time the taxpayer entered into the transaction minus any amount
previously treated as ordinary income with respect to any prior disposition of
property that was held as part of such transaction, (ii) in the case of a
non-corporate taxpayer, to the extent such taxpayer has made an election under
Code Section 163(d)(4) to have net capital gains taxed as investment income at
ordinary income rates, or (iii) to the extent that such gain does not exceed the
excess, if any, of (a) the amount that would have been includable in the gross
income of the holder if its yield on such Regular Security were 110% of the
applicable Federal rate as of the date of purchase, over (b) the amount of
income actually includable in the gross income of such holder with respect to
such Regular Security. In addition, gain or loss recognized from the sale of a
Regular Security by certain banks or thrift institutions will be treated as
ordinary income or loss pursuant to Code Section 582(c). Long-term capital gains
of certain noncorporate taxpayers generally are subject to a lower maximum tax
rate than ordinary income or short-term capital gains of such taxpayers for
property held for more than one year. Currently, the maximum tax rate for
corporations is the same with respect to both ordinary income and capital gains.
89
Taxation of Owners of Residual Securities
Taxation of REMIC Income
Generally, the "daily portions" of REMIC taxable income or net loss
will be includable as ordinary income or loss in determining the federal taxable
income of holders of Residual Securities ("Residual Holders"), and will not be
taxed separately to the REMIC Pool. The daily portions of REMIC taxable income
or net loss of a Residual Holder are determined by allocating the REMIC Pool's
taxable income or net loss for each calendar quarter ratably to each day in such
quarter and by allocating such daily portion among the Residual Holders in
proportion to their respective holdings of Residual Securities in the REMIC Pool
on such day. REMIC taxable income is generally determined in the same manner as
the taxable income of an individual using the accrual method of accounting,
except that (i) the limitations on deductibility of investment interest expense
and expenses for the production of income do not apply, (ii) all bad loans will
be deductible as business bad debts, and (iii) the limitation on the
deductibility of interest and expenses related to tax-exempt income will apply.
The REMIC Pool's gross income includes interest, original issue discount income
and market discount income, if any, on the Mortgage Loans, reduced by
amortization of any premium on the Mortgage Loans, plus income from amortization
of issue premium, if any, on the Regular Securities, plus income on reinvestment
of cash flows and reserve assets, plus any cancellation of indebtedness income
upon allocation of realized losses to the Regular Securities. The REMIC Pool's
deductions include interest and original issue discount expense on the Regular
Securities, servicing fees on the Mortgage Loans, other administrative expenses
of the REMIC Pool and realized losses on the Mortgage Loans. The requirement
that Residual Holders report their pro rata share of taxable income or net loss
of the REMIC Pool will continue until there are no Securities of any Class of
the related Series outstanding.
The taxable income recognized by a Residual Holder in any taxable year
will be affected by, among other factors, the relationship between the timing of
recognition of interest, original issue discount or market discount income or
amortization of premium with respect to the Mortgage Loans, on the one hand, and
the timing of deductions for interest (including original issue discount) or
income from amortization of issue premium on the Regular Securities, on the
other hand. In the event that an interest in the Mortgage Loans is acquired by
the REMIC Pool at a discount, and one or more of such Mortgage Loans is prepaid,
the prepayment may be used in whole or in part to make distributions in
reduction of principal on the Regular Securities, and (ii) the discount on the
Mortgage Loans which is includable in income may exceed the deduction allowed
upon such distributions on those Regular Securities on account of any unaccrued
original issue discount relating to those Regular Securities. When there is more
than one Class of Regular Securities that distribute principal sequentially,
this mismatching of income and deductions is particularly likely to occur in the
early years following issuance of the Regular Securities when distributions in
reduction of principal are being made in respect of earlier Classes of Regular
Securities to the extent that such Classes are not issued with substantial
discount or are issued at a premium. If taxable income attributable to such a
mismatching is realized, in general, losses would be allowed in later years as
distributions on the later maturing Classes of Regular Securities are made.
Taxable income may also be greater in earlier years than in later years as a
result of the fact that interest expense deductions, expressed as a percentage
of the outstanding principal amount of such a Series of Regular Securities, may
increase over time as distributions in reduction of principal are made on the
lower yielding Classes of Regular Securities, whereas, to the extent the REMIC
Pool consists of fixed rate Mortgage Loans, interest income with respect to any
given Mortgage Loan will remain constant over time as a percentage of the
outstanding principal amount of that loan. Consequently, Residual Holders must
have sufficient other sources of cash to pay any federal, state, or local income
taxes due as a result of such mismatching or unrelated deductions against which
to offset such income, subject to the discussion of "excess inclusions" below
under "--Limitations on Offset or Exemption of REMIC Income." The timing of such
mismatching of income and deductions described in this paragraph, if present
with respect to a Series of Securities, may have a significant adverse effect
upon a Residual Holder's after-tax rate of return.
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A portion of the income of a Residual Securityholder may be treated
unfavorably in three contexts: (i) it may not be offset by current or net
operating loss deductions; (ii) it will be considered unrelated business taxable
income to tax-exempt entities; and (iii) it is ineligible for any statutory or
treaty reduction in the 30% withholding tax otherwise available to a foreign
Residual Securityholder. See "--Limitations on Offset or Exemption of REMIC
Income" below. In addition, a Residual Holder's taxable income during certain
periods may exceed the income reflected by such Residual Holders for such
periods in accordance with generally accepted accounting principles. Investors
should consult their own accountants concerning the accounting treatment of
their investment in Residual Securities.
Basis and Losses
The amount of any net loss of the REMIC Pool that may be taken into
account by the Residual Holder is limited to the adjusted basis of the Residual
Security as of the close of the quarter (or time of disposition of the Residual
Security if earlier), determined without taking into account the net loss for
the quarter. The initial adjusted basis of a purchaser of a Residual Security is
the amount paid for such Residual Security. Such adjusted basis will be
increased by the amount of taxable income of the REMIC Pool reportable by the
Residual Holder and will be decreased (but not below zero), first, by a cash
distribution from the REMIC Pool and, second, by the amount of loss of the REMIC
Pool reportable by the Residual Holder. Any loss that is disallowed on account
of this limitation may be carried over indefinitely with respect to the Residual
Holder as to whom such loss was disallowed and may be used by such Residual
Holder only to offset any income generated by the same REMIC Pool.
A Residual Holder will not be permitted to amortize directly the cost
of its Residual Security as an offset to its share of the taxable income of the
related REMIC Pool. However, the taxable income will not include cash received
by the REMIC Pool that represents a recovery of the REMIC Pool's basis in its
assets. Although the law is unclear in certain respects, such recovery of basis
by the REMIC Pool will have the effect of amortization of the issue price of the
Residual Securities over their life. However, in view of the possible
acceleration of the income of Residual Holders described above under "--Taxation
of REMIC Income," the period of time over which such issue price is effectively
amortized may be longer than the economic life of the Residual Securities.
A Residual Security may have a negative value if the net present value
of anticipated tax liabilities exceeds the present value of anticipated cash
flows. The REMIC Regulations appear to treat the issue price of such a residual
interest as zero rather than such negative amount for purposes of determining
the REMIC Pool's basis in its assets. The preamble to the REMIC Regulations
states that the IRS may provide future guidance on the proper tax treatment of
payments made by a transferor of such a residual interest to induce the
transferee to acquire the interest, and Residual Holders should consult their
own tax advisors in this regard.
Further, to the extent that the initial adjusted basis of a Residual
Holder (other than an original holder) in the Residual Security is greater than
the corresponding portion of the REMIC Pool's basis in the Mortgage Loans, the
Residual Holder will not recover a portion of such basis until termination of
the REMIC Pool unless future Treasury regulations provide for periodic
adjustments to the REMIC income otherwise reportable by such holder. The REMIC
Regulations currently in effect do not so provide. See "--Treatment of Certain
Items of REMIC Income and Expense--Market Discount" below regarding the basis of
Mortgage Loans to the REMIC Pool and "--Sale or Exchange of a Residual Security"
below regarding possible treatment of a loss upon termination of the REMIC Pool
as a capital loss.
Treatment of Certain Items of REMIC Income and Expense
Although it is anticipated that the Trustee will compute REMIC income
and expense in accordance with the Code and applicable regulations, the
authorities regarding the determination of specific items of income and expense
are subject to differing interpretations. The Depositor makes no representation
as to the specific method that will be used for reporting income with respect to
the Mortgage Loans and expenses with respect to the Regular Securities, and
different methods could result in different timing or reporting of taxable
income or net loss to Residual Holders or differences in capital gain versus
ordinary income.
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Original Issue Discount and Premium. Generally, the REMIC Pool's
deductions for original issue discount and income from amortization of premium
will be determined in the same manner as original issue discount income on
Regular Securities as described above under "--Taxation of Owners of Regular
Securities--Original Issue Discount" and "--Variable Rate Regular Securities,"
without regard to the de minimis rule described therein, and "--Taxation of
Owners of Regular Securities--Amortizable Premium."
Market Discount. The REMIC Pool will have market discount income in
respect of Mortgage Loans if, in general, the basis of the REMIC Pool in such
Mortgage Loans is exceeded by their unpaid principal balances. The REMIC Pool's
basis in such Mortgage Loans is generally the fair market value of the Mortgage
Loans immediately after the transfer thereof to the REMIC Pool. The REMIC
Regulations provide that such basis is equal in the aggregate to the issue
prices of all regular and residual interests in the REMIC Pool. The accrued
portion of such market discount would be recognized currently as an item of
ordinary income in a manner similar to original issue discount. Market discount
income generally should accrue in the manner described above under "--Taxation
of Owners of Regular Securities--Market Discount."
Premium. Generally, if the basis of the REMIC Pool in the Mortgage
Loans exceeds the unpaid principal balances thereof, the REMIC Pool will be
considered to have acquired such Mortgage Loans at a premium equal to the amount
of such excess. As stated above, the REMIC Pool's basis in Mortgage Loans is the
fair market value of the Mortgage Loans, based on the aggregate of the issue
prices of the regular and residual interests in the REMIC Pool immediately after
the transfer thereof to the REMIC Pool. In a manner analogous to the discussion
above under "--Taxation of Owners of Regular Securities--Amortizable Premium," a
person that holds a Mortgage Loan as a capital asset under Code Section 1221 may
elect under Code Section 171 to amortize premium on Mortgage Loans originated
after September 27, 1985 under the constant yield method. Amortizable bond
premium will be treated as an offset to interest income on the Mortgage Loans,
rather than as a separate deduction item. Because substantially all of the
mortgagors on the Mortgage Loans are expected to be individuals, Code Section
171 will not be available for premium on Mortgage Loans originated on or prior
to September 27, 1985. Premium with respect to such Mortgage Loans may be
deductible in accordance with a reasonable method regularly employed by the
holder thereof. The allocation of such premium pro rata among principal payments
should be considered a reasonable method; however, the IRS may argue that such
premium should be allocated in a different manner, such as allocating such
premium entirely to the final payment of principal.
Limitations on Offset or Exemption of REMIC Income
A portion (or all) of the REMIC taxable income includable in
determining the federal income tax liability of a Residual Holder will be
subject to special treatment. That portion, referred to as the "excess
inclusion," is equal to the excess of REMIC taxable income for the calendar
quarter allocable to a Residual Security over the daily accruals for such
quarterly period of (i) 120% of the long-term applicable Federal rate that would
have applied to the Residual Security (if it were a debt instrument) on the
Startup Day under Code Section 1274(d), multiplied by (ii) the adjusted issue
price of such Residual Security at the beginning of such quarterly period. For
this purpose, the adjusted issue price of a Residual Security at the beginning
of a quarter is the issue price of the Residual Security, plus the amount of
such daily accruals of REMIC income described in this paragraph for all prior
quarters, decreased by any distributions made with respect to such Residual
Security prior to the beginning of such quarterly period. Accordingly, the
portion of the REMIC Pool's taxable income that will be treated as excess
inclusions will be a larger portion of such income as the adjusted issue price
of the Residual Securities diminishes.
The portion of a Residual Holder's REMIC taxable income consisting of
the excess inclusions generally may not be offset by other deductions, including
net operating loss carryforwards, on such Residual Holder's return. However, net
operating loss carryovers are determined without regard to excess inclusion
income. Further, if the Residual Holder is an organization subject to the tax on
unrelated business income imposed by Code Section 511, the Residual Holder's
excess inclusions will be treated as unrelated business taxable income of such
Residual Holder for purposes of Code Section 511. In addition, REMIC taxable
income is subject to 30% withholding tax with respect to certain persons who are
not U.S. Persons (as defined below under "--Tax-Related Restrictions on Transfer
of Residual Securities--Foreign Investors"), and the portion thereof
attributable to excess inclusions is not eligible for any reduction in the rate
of withholding tax (by treaty or otherwise). See "--Taxation of Certain Foreign
Investors--Residual Securities" below. Finally, if a real estate investment
trust or a regulated investment company owns a Residual Security, a portion
(allocated under Treasury regulations yet to be issued) of dividends paid by the
real estate investment trust or regulated investment company could not be offset
by net operating losses of its shareholders, would constitute unrelated business
taxable income for tax-exempt shareholders, and would be ineligible for
reduction of withholding to certain persons who are not U.S. Persons. The SBJPA
of 1996 has eliminated the special rule permitting Section 593 institutions
("thrift institutions") to use net operating losses and other allowable
deductions to offset their excess inclusion income from Residual Securities that
have "significant value" within the meaning of the REMIC Regulations, effective
for taxable years beginning after December 31, 1995, except with respect to
Residual Securities continuously held by a thrift institution since November 1,
1995.
92
In addition, the SBJPA of 1996 provides three rules for determining the
effect of excess inclusions on the alternative minimum taxable income of a
Residual Holder. First, alternative minimum taxable income for a Residual Holder
is determined without regard to the special rule, discussed above, that taxable
income cannot be less than excess inclusions. Second, a Residual Holder's
alternative minimum taxable income for a taxable year cannot be less than the
excess inclusions for the year. Third, the amount of any alternative minimum tax
net operating loss deduction must be computed without regard to any excess
inclusions. These rules are effective for taxable years beginning after December
31, 1986, unless a Residual Holder elects to have such rules apply only to
taxable years beginning after August 20, 1996.
Tax-Related Restrictions on Transfer of Residual Securities
Disqualified Organizations. If any legal or beneficial interest in a
Residual Security is transferred to a Disqualified Organization (as defined
below), a tax would be imposed in an amount equal to the product of (i) the
present value of the total anticipated excess inclusions with respect to such
Residual Security for periods after the transfer and (ii) the highest marginal
federal income tax rate applicable to corporations. The REMIC Regulations
provide that the anticipated excess inclusions are based on actual prepayment
experience to the date of the transfer and projected payments based on the
Prepayment Assumption. The present value rate equals the applicable Federal rate
under Code Section 1274(d) as of the date of the transfer for a term ending with
the last calendar quarter in which excess inclusions are expected to accrue.
Such rate is applied to the anticipated excess inclusions from the end of the
remaining calendar quarters in which they arise to the date of the transfer.
Such a tax generally would be imposed on the transferor of the Residual
Security, except that where such transfer is through an agent (including a
broker, nominee, or other middleman) for a Disqualified Organization, the tax
would instead be imposed on such agent. However, a transferor of a Residual
Security would in no event be liable for such tax with respect to a transfer if
the transferee furnished to the transferor an affidavit stating that the
transferee is not a Disqualified Organization and, as of the time of the
transfer, the transferor does not have actual knowledge that such affidavit is
false. The tax also may be waived by the IRS if the Disqualified Organization
promptly disposes of the Residual Security and the transferor pays income tax at
the highest corporate rate on the excess inclusion for the period the Residual
Security is actually held by the Disqualified Organization.
In addition, if a "Pass-Through Entity" (as defined below) has excess
inclusion income with respect to a Residual Security during a taxable year and a
Disqualified Organization is the record holder of an equity interest in such
entity, then a tax is imposed on such entity equal to the product of (i) the
amount of excess inclusions that are allocable to the interest in the
Pass-Through Entity during the period such interest is held by such Disqualified
Organization, and (ii) the highest marginal federal corporate income tax rate.
Such tax would be deductible from the ordinary gross income of the Pass-Through
Entity for the taxable year. The Pass-Through Entity would not be liable for
such tax if it has received an affidavit from such record holder that it is not
a Disqualified Organization or stating such holder's taxpayer identification
number and, during the period such person is the record holder of the Residual
Security, the Pass-Through Entity does not have actual knowledge that such
affidavit is false.
For taxable years beginning on or after January 1, 1998, if an
"electing large partnership" holds a Residual Security, all interests in the
electing large partnership are treated as held by Disqualified Organizations for
purposes of the tax imposed upon a Pass-Through Entity by section 860E(c) of the
Code. An exception to this tax, otherwise available to a Pass-Through Entity
that is furnished certain affidavits by record holders of interests in the
entity and that does not know such affidavits are false, is not available to an
electing large partnership.
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For these purposes, (i) "Disqualified Organization" means the United
States, any state or political subdivision thereof, any foreign government, any
international organization, any agency or instrumentality of any of the
foregoing (provided, that such term does not include an instrumentality if all
of its activities are subject to tax and a majority of its board of directors in
not selected by any such governmental entity), any cooperative organization
furnishing electric energy or providing telephone service or persons in rural
areas as described in Code Section 1381(a)(2)(C), and any organization (other
than a farmers' cooperative described in Code Section 531) that is exempt from
taxation under the Code unless such organization is subject to the tax on
unrelated business income imposed by Code Section 511, (ii) "Pass-Through
Entity" means any regulated investment company, real estate investment trust,
common trust fund, partnership, trust or estate and certain corporations
operating on a cooperative basis. Except as may be provided in Treasury
regulations, any person holding an interest in a Pass-Through Entity as a
nominee for another will, with respect to such interest, be treated as a
Pass-Through Entity, and (iii) an "electing large partnership" means any
partnership having more than 100 members during the preceding tax year (other
than certain service partnerships and commodity pools), which elect to apply
simplified reporting provisions under the Code.
The Pooling and Servicing Agreement with respect to a Series will
provide that no legal or beneficial interest in a Residual Security may be
transferred or registered unless (i) the proposed transferee furnished to the
transferor and the Trustee an affidavit providing its taxpayer identification
number and stating that such transferee is the beneficial owner of the Residual
Security and is not a Disqualified Organization and is not purchasing such
Residual Security on behalf of a Disqualified Organization (i.e., as a broker,
nominee or middleman thereof) and (ii) the transferor provides a statement in
writing to the Trustee that it has no actual knowledge that such affidavit is
false. Moreover, the Pooling and Servicing Agreement will provide that any
attempted or purported transfer in violation of these transfer restrictions will
be null and void and will vest no rights in any purported transferee. Each
Residual Security with respect to a Series will bear a legend referring to such
restrictions on transfer, and each Residual Holder will be deemed to have
agreed, as a condition of ownership thereof, to any amendments to the related
Pooling and Servicing Agreement required under the Code or applicable Treasury
regulations to effectuate the foregoing restrictions. Information necessary to
compute an applicable excise tax must be furnished to the IRS and to the
requesting party within 60 days of the request, and the Depositor or the Trustee
may charge a fee for computing and providing such information.
Noneconomic Residual Interests. The REMIC Regulations would disregard
certain transfers of Residual Securities, in which case the transferor would
continue to be treated as the owner of the Residual Securities and thus would
continue to be subject to tax on its allocable portion of the net income of the
REMIC Pool. Under the REMIC Regulations, a transfer of a "noneconomic residual
interest" (as defined below) to a Residual Holder (other than a Residual Holder
who is not a U.S. Person as defined below under "--Foreign Investors") is
disregarded for all federal income tax purposes if a significant purpose of the
transfer is to impede the assessment or collection of tax. A residual interest
in a REMIC (including a residual interest with a positive value at issuance) is
a "noneconomic residual interest" unless, at the time of the transfer, (i) the
present value of the expected future distributions on the residual interest at
least equals the product of the present value of the anticipated excess
inclusions and the highest corporate income tax rate in effect for the year in
which the transfer occurs, and (ii) the transferor reasonably expects that the
transferee will receive distributions from the REMIC at or after the time at
which taxes accrue on the anticipated excess inclusions in an amount sufficient
to satisfy the accrued taxes on each excess inclusion. The anticipated excess
inclusions and the present value rate are determined in the same manner as set
forth above under "--Disqualified Organizations." The REMIC Regulations explain
that a significant purpose to impede the assessment or collection of tax exists
if the transferor, at the time of the transfer, either knew or should have known
that the transferee would be unwilling or unable to pay taxes due on its share
of the taxable income of the REMIC. Under the REMIC Regulations, as amended on
July 19, 2002, a safe harbor is provided if (i) the transferor conducted, at the
time of the transfer, a reasonable investigation of the financial condition of
the transferee and found that the transferee historically had paid its debts as
they came due and found no significant evidence to indicate that the transferee
would not continue to pay its debts as they came due in the future, (ii) the
transferee represents to the transferor that it understands that, as the holder
of the non-economic residual interest, the transferee may incur liabilities in
excess of any cash flows generated by the interest and that the transferee
intends to pay taxes associated with holding the residual interest as they
become due and (iii) the transferee represents to the transferor that it will
not cause income from the Residual Security to be attributable to a foreign
permanent establishment or fixed base, within the meaning of an applicable
income tax treaty, and the Residual Security is, in fact, not transferred to
such a permanent establishment or fixed base of the transferee or any other
person. The Pooling and Servicing Agreement with respect to each Series of
Certificates will require the transferee of a Residual Security to certify to
the matters in the preceding sentence as part of the affidavit described above
under the heading "Disqualified Organizations."
94
In addition to the three conditions set forth above for the transferor
of a noneconomic residual interest to be presumed not to have knowledge that the
transferee would be unwilling or unable to pay taxes due on its share of the
taxable income of the REMIC, the REMIC Regulations contain a fourth condition
for the transferor to be presumed to lack such knowledge. This fourth condition
requires that one of the two following tests be satisfied: Either
(a) the present value of the anticipated tax liabilities
associated with holding the noneconomic residual interest not exceed
the sum of:
(i) the present value of any consideration given to
the transferee to acquire the interest;
(ii) the present value of the expected future
distributions on the interest; and
(iii) the present value of the anticipated tax
savings associated with holding the interest as the REMIC
generates losses.
For purposes of these computations, the transferee is assumed to pay
tax at the highest corporate rate of tax specified in the Code or, in
certain circumstances, the alternative minimum tax rate. Further,
present values generally are computed using a discount rate equal to
the short-term Federal rate set forth in Section 1274(d) of the Code
for the month of the transfer and the compounding period used by the
transferee; or
(b) (i) the transferee must be a domestic "C" corporation
(other than a corporation exempt from taxation or a regulated
investment company or real estate investment trust) that meets certain
asset tests; (ii) the transferee must agree in writing that any
subsequent transfer of the residual interest would be to an eligible
"C" corporation and would meet the requirements for a safe harbor
transfer; and (iii) the facts and circumstances known to the transferor
on or before the date of the transfer must not reasonably indicate that
the taxes associated with ownership of the residual interest will not
be paid by the transferee.
Unless otherwise indicated in the applicable Prospectus Supplement, the
Pooling and Servicing Agreement will not require that transfers of the Residual
Securities meet the fourth requirement above, and thus meet the safe harbor.
Persons considering the purchase of the Residual Securities should consult their
advisors regarding the advisability of meeting the safe harbor in any transfer
of the Residual Securities.
Foreign Investors. The REMIC Regulations provide that the transfer of a
Residual Security that has "tax avoidance potential" to a "foreign person" will
be disregarded for all federal tax purposes. This rule appears intended to apply
to a transferee who is not a "U.S. Person" (as defined below), unless such
transferee's income is effectively connected with the conduct of a trade or
business within the United States. A Residual Security is deemed to have tax
avoidance potential unless, at the time of the transfer, (i) the future value of
expected distributions equals at least 30% of the anticipated excess inclusions
after the transfer, and (ii) the transferor reasonably expects that the
transferee will receive sufficient distributions from the REMIC Pool at or after
the time at which the excess inclusions accrue and prior to the end of the next
succeeding taxable year for the accumulated withholding tax liability to be
paid. If the non-U.S. Person transfers the Residual Security back to a U.S.
Person, the transfer will be disregarded and the foreign transferor will
continue to be treated as the owner unless arrangements are made so that the
transfer does not have the effect of allowing the transferor to avoid tax on
accrued excess inclusions.
95
The prospectus supplement relating to the Certificates of a Series may
provide that a Residual Security may not be purchased by or transferred to any
person that is not a U.S. Person or may describe the circumstances and
restrictions pursuant to which such a transfer may be made. The term "U.S.
Person" means a citizens or resident of the United States, a corporation or
partnership (unless, in the case of a partnership, Treasury regulations are
adopted that provide otherwise) created or organized in or under the laws of the
United States, any state thereof or the District of Columbia, including an
entity treated as a corporation or partnership for federal income tax purposes,
an estate that is subject to U.S. federal income tax regardless of the source of
its income, or a trust if a court within the United States is able to exercise
primary supervision over the administration of such trust and one or more such
U.S. Persons have the authority to control all substantial decisions of such
trust (or, to the extent provided in applicable Treasury regulations, certain
trusts in existence on August 20, 1996 which are eligible to elect to be treated
as U.S. Persons).
Sale or Exchange of a Residual Security
Upon the sale or exchange of a Residual Security, the Residual Holder
will recognize gain or loss equal to the excess, if any, of the amount realized
over the adjusted basis (as described above under "--Taxation of Owners of
Residual Securities--Basis and Losses") of such Residual Holder in such Residual
Security at the time of the sale or exchange. In addition to reporting the
taxable income of the REMIC Pool, a Residual Holder will have taxable income to
the extent that any cash distribution to it from the REMIC Pool exceeds such
adjusted basis on that Distribution Date. Such income will be treated as gain
from the sale or exchange of the Residual Holder's Residual Security, in which
case, if the Residual Holder has an adjusted basis in its Residual Security
remaining when its interest in the REMIC Pool terminates, and if it holds such
Residual Security as a capital asset under Code Section 1221, then it will
recognize a capital loss at that time in the amount of such remaining adjusted
basis.
Any gain on the sale of a Residual Security will be treated as ordinary
income (i) if a Residual Security is held as part of a "conversion transaction"
as defined in Code Section 1258(c), up to the amount of interest that would have
accrued on the Residual Holder's net investment in the conversion transaction at
120% of the appropriate applicable Federal rate in effect at the time the
taxpayer entered into the transaction minus any amount previously treated as
ordinary income with respect to any prior disposition of property that was held
as a part of such transaction or (ii) in the case of a non-corporate taxpayer,
to the extent such taxpayer has made an election under Code Section 163(d)(4) to
have net capital gains taxed as investment income at ordinary income rates. In
addition, gain or loss recognized from the sale of a Residual Security by
certain banks or thrift institutions will be treated as ordinary income or loss
pursuant to Code Section 582(c).
The Conference Committee Report to the 1986 Act provides that, except
as provided in Treasury regulations yet to be issued, the wash sale rules of
Code Section 1091 will apply to dispositions of Residual Securities where the
seller of the Residual Security, during the period beginning six months before
the sale or disposition of the Residual Security and ending six months after
such sale or disposition, acquires (or enters into any other transaction that
results in the application of Code Section 1091) any residual interest in any
REMIC or any interest in a "taxable mortgage pool" (such as a non-REMIC owner
trust) that is economically comparable to a Residual Security.
Mark to Market Regulations
On December 24, 1996, the IRS issued final regulations (the "Mark to
Market Regulations") under Code Section 475 relating to the requirement that a
securities dealer mark to market securities held for sale to customers. This
mark-to-market requirement applies to all securities of a dealer, except to the
extent that the dealer has specifically identified a security as held for
investment. The Mark to Market Regulations provide that, for purposes of this
mark to market requirement, a Residual Security is not treated as a security and
thus may not be marked to market. The Mark to Market Regulations apply to all
Residual Securities acquired on or after January 4, 1995.
96
Taxes That May Be Imposed on the REMIC Pool
Prohibited Transactions
Income from certain transaction by the REMIC Pool, called prohibited
transactions, will not be part of the calculation of income or loss includable
in the federal income tax returns of Residual Holders, but rather will be taxed
directly to the REMIC Pool at a 100% rate. Prohibited transactions generally
include (i) the disposition of a qualified mortgages other than for (a)
substitution within two years of the Startup Day for a defective (including a
defaulted) obligation (or repurchase in lieu of substitution of a defective
(including a defaulted) obligation at any time) or for any qualified mortgage
within three months of the Startup Day, (b) foreclosure, default, or imminent
default of a qualified mortgage, (c) bankruptcy or insolvency of the REMIC Pool,
or (d) a qualified (complete) liquidation, (ii) the receipt of income from
assets that are not the type of mortgages or investments that the REMIC Pool is
permitted to hold, (iii) the receipt of compensation for services, or (iv) the
receipt of gain from disposition of cash flow investments other than pursuant to
a qualified liquidation. Notwithstanding (i) and (iv), it is not a prohibited
transaction to sell a qualified mortgage or cash flow investment held by a REMIC
Pool to prevent a default on Regular Securities as a result of a default on
qualified mortgages or to facilitate a clean-up call (generally, an optional
termination to save administrative costs when no more than a small percentage of
the Securities is outstanding). The REMIC Regulations indicate that the
modification of a Mortgage Loan generally will not be treated as a disposition
if it is occasioned by a default or reasonably foreseeable default, an
assumption of the Mortgage Loan, the waiver of a due-on-sale or
due-on-encumbrance clause, or the conversion of an interest rate by a mortgagor
pursuant to the terms of a convertible adjustable rate Mortgage Loan.
Contributions to the REMIC Pool After the Startup Day
In general, the REMIC Pool will be subject to a tax at a 100% rate on
the value of any property contributed to the REMIC Pool after the Startup Day.
Exceptions are provided for cash contributions to the REMIC Pool (i) during the
three months following the Startup Day, (ii) made to a qualified reserve fund by
a Residual Holder, (iii) in the nature of a guarantee, (iv) made to facilitate a
qualified liquidation or clean-up call, and (v) as otherwise permitted in
Treasury regulations yet to be issued. It is not anticipated that there will be
any contributions to the REMIC Pool after the Startup Day.
Net Income from Foreclosure Property
The REMIC Pool will be subject of federal income tax at the highest
corporate rate on "net income from foreclosure property," determined by
reference to the rules applicable to real estate investment trusts. Generally,
property acquired by deed in lieu of foreclosure would be treated as
"foreclosure property" for a period ending with the close of the third calendar
year beginning after the year in which the REMIC Pool acquires such property,
with a possible extension. Net income from foreclosure property generally means
gain from the sale of a 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. It is not anticipated that
the REMIC Pool will have any taxable net income from foreclosure property.
Liquidation of the REMIC Pool
If a REMIC Pool adopts a plan of complete liquidation, within the
meaning of Code Section 860F(a)(4)(A)(i), which may be accomplished by
designating in the REMIC Pool's final tax return a date on which such adoption
is deemed to occur, and sells all of its assets (other than cash) within a
90-day period beginning on such date, the REMIC Pool will not be subject to the
prohibited transaction rules on the sale of its assets, provided that the REMIC
Pool credits or distributes in liquidation all of the sale proceeds plus its
cash (other than amounts retained to meet claims) to holders of Regular
Securities and Residual Holders within the 90-day period.
97
Administrative Matters
The REMIC Pool will be required to maintain its books on a calendar
year basis and to file federal income tax returns for federal income tax
purposes in a manner similar to a partnership. The form for such income tax
return is Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return. The Trustee will be required to sign the REMIC Pool's returns. Treasury
regulations provide that, except where there is a single Residual Holder for an
entire taxable year, the REMIC Pool will be subject to the procedural and
administrative rules of the Code applicable to partnerships, including the
determination by the IRS of any adjustments to, among other things, items of
REMIC income, gain, loss, deduction, or credit in a unified administrative
proceeding. The Master Servicer will be obligated to act as "tax matters
person," as defined in applicable Treasury regulations, with respect to the
REMIC Pool as agent of the Residual Holders holding the largest percentage
interest in the Residual Securities. If the Code or applicable Treasury
regulations do not permit the Master Servicer to act as tax matters person in
its capacity as agent of such Residual Holder, such Residual Holder or such
other person specified pursuant to Treasury regulations will be required to act
as tax matters person. The tax matters person generally has responsibility for
overseeing and providing notice to the other Residual Holders of certain
administrative and judicial proceedings regarding the REMIC Pool's tax affairs,
although other holders of the Residual Securities of the same Series would be
able to participate in such proceedings in appropriate circumstances.
Limitations on Deduction of Certain Expenses
An investor who is an individual, estate, or trust will be subject to
limitation with respect to certain itemized deductions described in Code Section
67, to the extent that such itemized deductions, in the aggregate, do not exceed
2% of the investor's adjusted gross income. In addition, Code Section 68
provides that itemized deductions otherwise allowable for a taxable year of an
individual taxpayer will be reduced by the lesser or (i) 3% of the excess, if
any, of adjusted gross income over $137,300 for 2002 ($68,650 in the case of a
married individual filing a separate return) (subject to annual adjustments each
year thereafter), or (ii) 80% of the amount of itemized deductions otherwise
allowable for such year. In the case of a REMIC Pool, such deductions may
include deductions under Code Section 212 for the Servicing Fee and all
administrative and other expenses relating to the REMIC Pool, or any similar
expenses allocated to the REMIC Pool with respect to a regular interest it holds
in another REMIC. Such investors who hold REMIC Securities either directly or
indirectly through certain pass-through entities may have their pro rata share
of such expenses allocated to them as additional gross income, but may be
subject to such limitation on deductions. In addition, such expenses are not
deductible at all for purposes of computing the alternative minimum tax, and may
cause such investors to be subject to significant additional tax liability.
Temporary Treasury regulations provide that the additional gross income and
corresponding amount of expenses generally are to be allocated entirely to the
holders of Residual Securities in the case of a REMIC Pool that would not
qualify as a fixed investment trust in the absence of a REMIC election. With
respect to a REMIC Pool that would be classified as an investment trust in the
absence of a REMIC election or that is substantially similar to an investment
trust, any holder of a Regular Security that is an individual, trust, estate, or
pass-through entity also will be allocated its pro rata share of such expenses
and a corresponding amount of income and will be subject to the limitations or
deductions imposed by Code Sections 67 and 68, as described above. Unless
indicated otherwise in the applicable prospectus supplement, all such expenses
will be allocable to the Residual Securities. In general, such allocable portion
will be determined based on the ratio that a REMIC Securityholder's income,
determined on a daily basis, bears to the income of all holders of Regular
Securities and Residual Securities with respect to a REMIC Pool. As a result,
individuals, estates or trusts holding REMIC Securities (either directly or
indirectly through a grantor trust, partnership, S corporation, REMIC, or
certain other pass-through entities described in the foregoing temporary
Treasury regulations) may have taxable income in excess of the interest income
at the pass-through rate on Regular Securities that are issued in a single Class
or otherwise consistently with fixed investment trust status or in excess of
cash distributions for the related period on Residual Securities.
Taxation of Certain Foreign Investors
Regular Securities
Interest, including original issue discount, distributable to Regular
Securityholders who are non-resident aliens, foreign corporations, or other
Non-U.S. Persons (as defined below), generally will be considered "portfolio
interest" and, therefore, generally will not be subject to 30% United States
withholding tax, provided that (i) such interest is not effectively connected
with the conduct of a trade or business in the United States of the
Securityholder, (ii) such Non-U.S. Person is not a "10-percent shareholder"
within the meaning of Code Section 871(h)(3)(B) or a controlled foreign
corporation described in Code Section 881(c)(3)(C) and (iii) such Non-U.S.
Person provides the Trustee, or the person who would otherwise be required to
withhold tax from such distributions under Code Section 1441 or 1442, with an
appropriate statement, signed under penalties of perjury, identifying the
beneficial owner and stating, among other things, that the beneficial owner of
the Regular Security is a Non-U.S. Person. If such statement, or any other
required statement, is not provided, 30% withholding will apply unless reduced
or eliminated pursuant to an applicable tax treaty or unless the interest on the
Regular Security is effectively connected with the conduct of a trade or
business within the United States by such Non-U.S. Person. In the latter case,
such Non-U.S. Person will be subject to United States federal income tax at
regular rates. Investors who are Non-U.S. Persons should consult their own tax
advisors regarding the specific tax consequences to them of owning a Regular
Security. The term "Non-U.S. Person" means any person who is not a U.S. Person.
98
The IRS has recently issued final regulations (the "New Regulations")
which would provide alternative methods of satisfying the beneficial ownership
certification requirement described above effective January 1, 2001. The New
Regulations provide for a new series of withholding certificates that must be
used for all payments after December 31, 2000. The New Regulations require, in
the case of Regular Securities held by a foreign partnership, that (x) the
certification described above be provided by the partners rather than by the
foreign partnership and (y) the partnership provide certain information,
including a United States taxpayer identification number in certain
circumstances. A look-through rule applies in the case of tiered partnerships.
Non-U.S. Persons should consult their own tax advisors concerning the
application of the certification requirements in the New Regulations.
Residual Securities
The Conference Committee Report to the 1986 Act indicates that amounts
paid to Residual Holders who are Non-U.S. Persons generally should be treated as
interest for purposes of the 30% (or lower treaty rate) United States
withholding tax. Treasury regulations provide that amount distributed to
Residual Holders may qualify as "portfolio interest," subject to the conditions
described in "--Regular Securities" above, but only to the extent that (i) the
Mortgage Loans were issued after July 18, 1984 and (ii) the Trust Fund or
segregated pool of assets therein (as to which a separate REMIC election will be
made), to which the Residual Security relates, consists of obligations issued in
"registered form" within the meaning of Code Section 163(f)(1). Generally,
Mortgage Loans will not be, but regular interests in another REMIC Pool will be,
considered obligations issued in registered form. Furthermore, Residual Holders
will not be entitled to any exemption from the 30% withholding tax (or lower
treaty rate) to the extent of that portion of REMIC taxable income that
constitutes an "excess inclusion." See "--Taxation of Owners of Residual
Securities--Limitations on Offset or Exemption of REMIC Income." If the amounts
paid to Residual Holders who are Non-U.S. Persons are effectively connected with
the conduct of a trade or business within the United States by such Non-U.S.
Persons, 30% (or lower treaty rate) withholding will not apply. Instead, the
amounts paid to such Non-U.S. Persons will be subject to United States federal
income tax at regular rates. If 30% (or lower treaty rate) withholding is
applicable, such amounts generally will be taken into account for purposes of
withholding only when paid or otherwise distributed (or when the Residual
Security is disposed of) under rules similar to withholding upon disposition of
debt instruments that have original issue discount. See "--Taxation of Owners of
Residual Securities--Tax-Related Restrictions on Transfer of Residual
Securities--Foreign Investors" above concerning the disregard of certain
transfers having "tax avoidance potential." Investors who are Non-U.S. Persons
should consult their own tax advisors regarding the specific tax consequences to
them of owning Residual Securities.
Backup Withholding
Distributions made on the Regular Securities, and proceeds from the
sale of the Regular Securities to or through certain brokers, may be subject to
a "backup" withholding tax under Code Section 3406 of 30% (29% in 2004 and 2005
and 28% beginning in 2006) on "reportable payments" (including interest
distributions, original issue discount, and, under certain circumstances,
principal distributions) unless the Regular Holder complies with certain
reporting and/or certification procedures, including the provision of its
taxpayer identification number to the Trustee, its agent or the broker who
effected the sale of the Regular Security, or such Holder is otherwise an exempt
recipient under applicable provisions of the Code. Any amounts to be withheld
from distribution on the Regular Securities would be refunded by the IRS or
allowed as a credit against the Regular Holder's federal income tax liability.
The New Regulations change certain of the rules relating to certain presumptions
relating to information reporting and backup withholding. Non-U.S. Persons are
urged to contact their own tax advisors regarding the application to them of
backup withholding and information reporting.
Reporting Requirements
Reports of accrued interest, original issue discount and information
necessary to compute the accrual of market discount will be made annually to the
IRS and to individuals, estates, non-exempt and non-charitable trusts, and
partnerships who are either holders of record of Regular Securities or
beneficial owners who own Regular Securities through a broker or middleman as
nominee. All brokers, nominees and all other non-exempt holders of record of
Regular Securities (including corporations, non-calendar year taxpayers,
securities or commodities dealers, real estate investment trusts, investment
companies, common trust funds, thrift institutions and charitable trusts) may
request such information for any calendar quarter by telephone or in writing by
contacting the person designated in Internal Revenue Service Publication 938
with respect to a particular Series of Regular Securities. Holders through
nominees must request such information from the nominee.
99
The IRS's Form 1066 has an accompanying Schedule Q, Quarterly Notice to
Residual Interest Holders of REMIC Taxable Income or Net Loss Allocation.
Treasury regulations require that Schedule Q be furnished by the REMIC Pool to
each Residual Holder by the end of the month following the close of each
calendar quarter (41 days after the end of a quarter under proposed Treasury
regulations) in which the REMIC Pool is in existence). Treasury regulations
require that, in addition to the foregoing requirements, information must be
furnished quarterly to Residual Holders, furnished annually, if applicable, to
holders of Regular Securities, and filed annually with the IRS concerning Code
Section 67 expenses (see "--Taxes That May Be Imposed on the REMIC
Pool--Limitations on Deduction of Certain Expenses" above) allocable to such
holders. Furthermore, under such regulations, information must be furnished
quarterly to Residual Holders, furnished annually to holders of Regular
Securities, and filed annually with the IRS concerning the percentage of the
REMIC Pool's assets meeting the qualified asset tests described above under
"Characterization of Investments in REMIC Securities."
Residual Holders should be aware that their responsibilities as holders
of the residual interest in a REMIC Pool, including the duty to account for
their shares of the REMIC Pool's income or loss on their returns, continue for
the life of the REMIC Pool, even after the principal and interest on their
Residual Securities have been paid in full.
Treasury regulations provide that a Residual Holder is not required to
treat items on its return consistently with their treatment on the REMIC Pool's
return if the Holder owns 100% of the Residual Securities for the entire
calendar year. Otherwise, each Residual Holder is required to treat items on its
returns consistently with their treatment on the REMIC Pool's return, unless the
Holder either files a statement identifying the inconsistency or establishes
that the inconsistency resulted from incorrect information received from the
REMIC Pool. The IRS may assess a deficiency resulting from a failure to comply
with the consistency requirement without instituting an administrative
proceeding at the REMIC Pool level. A REMIC Pool typically will not register as
a tax shelter pursuant to Code Section 6111 because it generally will not have a
net loss for any of the first five taxable years of its existence. Any person
that holds a Residual Security as a nominee for another person may be required
to furnish the related REMIC Pool, in a manner to be provided in Treasury
regulations, with the name and address of such person and other specified
information.
Grantor Trust Funds
Classification of Grantor Trust Funds
With respect to each Series of Grantor Trust Securities, assuming
compliance with all provisions of the applicable Agreement, the related Grantor
Trust Fund will be classified as a grantor trust under subpart E, part I of
subchapter J of the Code and not as a partnership, an association taxable as a
corporation, or a "taxable mortgage pool" within the meaning of Code Section
7701(i). Accordingly, each holder of a Grantor Trust Security generally will be
treated as the beneficial owner of an undivided interest in the Mortgage Loans
included in the Grantor Trust Fund.
100
Standard Securities
General
Where there is no Retained Interest or "excess" servicing with respect
to the Mortgage Loans underlying the Securities of a Series, and where such
Securities are not designated as "Stripped Securities," the holder of each such
Security in such Series (referred to herein as "Standard Securities") will be
treated as the owner of a pro rata undivided interest in the ordinary income and
corpus portions of the Grantor Trust Fund represented by its Standard Security
and will be considered the beneficial owner of a pro rata undivided interest in
each of the Mortgage Loans, subject to the discussion below under
"--Recharacterization of Servicing Fees." Accordingly, the holder of a Standard
Security of a particular Series will be required to report on its federal income
tax return its pro rata share of the entire income from the Mortgage Loans
represented by its Standard Security, including interest at the coupon rate on
such Mortgage Loans, original issue discount (if any), prepayment fees,
assumption fees, and late payment charges received by the Servicer, in
accordance with such Securityholder's method of accounting. A Securityholder
generally will be able to deduct its share of the Servicing Fee and all
administrative and other expenses of the Trust Fund in accordance with its
method of accounting, provided that such amounts are reasonable compensation for
services rendered to that Grantor Trust Fund. However, investors who are
individuals, estates or trusts who own Securities, either directly or indirectly
through certain pass-through entities, will be subject to limitations with
respect to certain itemized deductions described in Code Section 67, including
deductions under Code Section 212 for the Servicing Fee and all such
administrative and other expenses of the Grantor Trust Fund, to the extent that
such deductions, in the aggregate, do not exceed two percent of an investor's
adjusted gross income. In addition, Code Section 68 provides that itemized
deductions otherwise allowable for a taxable year of an individual taxpayer will
be reduced by the lesser of (i) 3% of the excess, if any, of adjusted gross
income over $137,300 in 2002 ($68,650 in the case of a married individual filing
a separate return) (in each case, as adjusted annually for each year thereafter)
(in each case, as adjusted annually for post-1991 inflation), or (ii) 80% of the
amount of itemized deductions otherwise allowable for such year. As a result,
such investors holding Standard Securities, directly or indirectly through a
pass-through entity, may have aggregate taxable income in excess of the
aggregate amount of cash received on such Standard Securities with respect to
interest at the pass-through rate or as discount income on such Standard
Securities. In addition, such expenses are not deductible at all for purposes of
computing the alternative minimum tax, and may cause such investors to be
subject to significant additional tax liability. Moreover, where there is
Retained Interest with respect to the Mortgage Loans underlying a Series of
Securities or where the servicing fees are in excess of reasonable servicing
compensation, the transaction will be subject to the application of the
"stripped bond" and "stripped coupon" rules of the Code, as described below
under "--Stripped Securities" and "--Recharacterization of Servicing Fees,"
respectively.
Holders of Standard Securities, particularly any Class of a Series
which is a Subordinate Security, may incur losses of interest or principal with
respect to the Mortgage Loans. Such losses would be deductible generally only as
described above under "--REMICs--Taxation of Owners of Regular
Securities--Treatment of Losses," except that Securityholders on the cash method
of accounting would not be required to report qualified stated interest as
income until actual receipt.
Tax Status
With respect to a Series, Cadwalader, Wickersham & Taft or Hunton &
Williams has advised the Depositor that, except with respect to a Trust Fund
consisting of Unsecured Home Improvement Loans:
o A Standard Security owned by a "domestic building and loan
association" within the meaning of Code Section 7701(a)(19)
will be considered to represent "loans . . . secured by an
interest in real property which is . . . residential real
property" within the meaning of Code Section
7701(a)(19)(C)(v), provided that the real property securing
the Mortgage Loans represented by that Standard Security is of
the type described in such section of the Code.
o A Standard Security owned by a real estate investment trust
will be considered to represent "real estate assets" within
the meaning of Code Section 856(c)(4)(A) to the extent that
the assets of the related Grantor Trust Fund consist of
qualified assets, and interest income on such assets will be
considered "interest on obligations secured by mortgages on
real property" to such extent within the meaning of Code
Section 856(c)(3)(B).
o A Standard Security owned by a REMIC will be considered to
represent an "obligation (including any participation or
certificate of beneficial ownership therein) which is
principally secured by an interest in real property" within
the meaning of Code Section 860G(a)(3)(A) to the extent that
the assets of the related Grantor Trust Fund consist of
"qualified mortgages" within the meaning of Code Section
860G(a)(3).
101
An issue arises as to whether Buydown Mortgage Loans may be
characterized in their entirety under the Code provisions cited in the first two
bullet pointed paragraphs above or whether the amount qualifying for such
treatment must be reduced by the amount of the Buydown Funds. There is indirect
authority supporting treatment of an investment in a Buydown Mortgage Loan as
entirely secured by real property if the fair market value of the real property
securing the loan exceeds the principal amount of the loan at the time of
issuance or acquisition, as the case may be. There is no assurance that the
treatment described above is proper. Accordingly, Securityholders are urged to
consult their own tax advisors concerning the effects of such arrangements on
the characterization of such Securityholder's investment for federal income tax
purposes.
Premium and Discount
Securityholders are advised to consult with their tax advisors as to
the federal income tax treatment of premium and discount arising either upon
initial acquisition of Standard Securities or thereafter.
Premium. The treatment of premium incurred upon the purchase of a
Standard Security will be determined generally as described above under
"--REMICs--Taxation of Owners of Residual Securities--Premium." The rules
allowing for the amortization of premium are available with respect to Mortgage
Loans originated after September 27, 1985.
Original Issue Discount. The original issue discount rules of Code
Section 1271 through 1275 will be applicable to a Securityholder's interest in
those Mortgage Loans as to which the conditions for the application of those
sections are met. Rules regarding periodic inclusion of original issue discount
income generally are applicable to mortgages originated after March 2, 1984.
Under the OID Regulations, original issue discount could arise by the charging
of points by the originator of the mortgages in an amount greater than the
statutory de minimis exception, including a payment of points that is currently
deductible by the borrower under applicable Code provisions or, under certain
circumstances, by the presence of "teaser" rates on the Mortgage Loans. See
"--Stripped Securities" below regarding original issue discount on Stripped
Securities.
Original issue discount generally must be reported as ordinary gross
income as it accrues under a constant interest method that takes into account
the compounding of interest, in advance of the cash attributable to such income.
Unless indicated otherwise in the applicable prospectus supplement, no
prepayment assumption will be assumed for purposes of such accrual. However,
Code Section 1272 provides for a reduction in the amount of original issue
discount includable in the income of a holder of an obligation that acquires the
obligation after its initial issuance at a price greater than the sum of the
original issue price and the previously accrued original issue discount, less
prior payments of principal. Accordingly, if such Mortgage Loans acquired by a
Securityholder are purchased at a price equal to the then unpaid principal
amount of such Mortgage Loans, no original issue discount attributable to the
difference between the issue price and the original principal amount of such
Mortgage Loans (i.e., points) will be includable by such holder.
Market Discount. Securityholders also will be subject to the market
discount rules to the extent that the conditions for application of those
sections are met. Market discount on the Mortgage Loans will be determined and
will be reported as ordinary income generally in the manner described above
under "--REMICs--Taxation of Owners of Regular Securities--Market Discount,"
except that the ratable accrual methods described therein will not apply.
Rather, the holder will accrue market discount pro rata over the life of the
Mortgage Loans, unless the constant yield method is elected. Unless indicated
otherwise in the applicable prospectus supplement, no prepayment assumption will
be assumed for purposes of such accrual.
Recharacterization of Servicing Fees
If the servicing fees paid to a Servicer were deemed to exceed
reasonable servicing compensation, the amount of such excess would represent
neither income nor a deduction to Securityholders. In this regard, there are no
authoritative guidelines for federal income tax purposes as to either the
maximum amount of servicing compensation that may be considered reasonable in
the context of this or similar transactions or whether, in the case of Standard
Securities, the reasonableness of servicing compensation should be determined on
a weighted average or loan-by-loan basis. If a loan-by-loan basis is
appropriate, the likelihood that such amount would exceed reasonable servicing
compensation as to some of the Mortgage Loans would be increased. IRS guidance
indicates that a servicing fee in excess of reasonable compensation ("excess
servicing") will cause the Mortgage Loans to be treated under the "stripped
bond" rules. Such guidance provides safe harbors for servicing deemed to be
reasonable and requires taxpayers to demonstrate that the value of servicing
fees in excess of such amounts is not greater than the value of the services
provided.
102
Accordingly, if the IRS's approach is upheld, a Servicer who receives a
servicing fee in excess of such amounts would be viewed as retaining an
ownership interest in a portion of the interest payments on the Mortgage Loans.
Under the rules of Code Section 1286, the separation of ownership of the right
to receive some or all of the interest payments on an obligation from the right
to receive some or all of the principal payments on the obligation would result
in treatment of such Mortgage Loans as "stripped coupons" and "stripped bonds."
Subject to the de minimis rule discussed below under "Stripped Securities," each
stripped bond or stripped coupon could be considered for this purpose as a
non-interest bearing obligation issued on the date of issue of the Standard
Securities, and the original issue discount rules of the Code would apply to the
holder thereof. While Securityholders would still be treated as owners of
beneficial interests in a grantor trust for federal income tax purposes, the
corpus of such trust could be viewed as excluding the portion of the Mortgage
Loans the ownership of which is attributed to the Servicer, or as including such
portion as a second Class of equitable interest. Applicable Treasury regulations
treat such an arrangement as a fixed investment trust, since the multiple
Classes of trust interests should be treated as merely facilitating direct
investments in the trust assets and the existence of multiple Classes of
ownership interests is incidental to that purpose. In general, such a
recharacterization should not have any significant effect upon the timing or
amount of income reported by a Securityholder, except that the income reported
by a cash method holder may be slightly accelerated. See "--Stripped Securities"
below for a further description of the federal income tax treatment of stripped
bonds and stripped coupons.
Sale or Exchange of Standard Securities
Upon sale or exchange of a Standard Securities, a Securityholder will
recognize gain or loss equal to the difference between the amount realized on
the sale and its aggregate adjusted basis in the Mortgage Loans and other assets
represented by the Security. In general, the aggregate adjusted basis will equal
the Securityholder's cost for the Standard Security, exclusive of accrued
interest, increased by the amount of any income previously reported with respect
to the Standard Security and decreased by the amount of any losses previously
reported with respect to the Standard Security and the amount of any
distributions (other than accrued interest) received thereon. Except as provided
above with respect to market discount on any Mortgage Loans, and except for
certain financial institutions subject to the provisions of Code Section 582(c),
any such gain or loss generally would be capital gain or loss if the Standard
Security was held as a capital asset. However, gain on the sale of a Standard
Security will be treated as ordinary income (i) if a Standard Security is held
as part of a "conversion transaction" as defined in Code Section 1258(c), up to
the amount of interest that would have accrued on the Securityholder's net
investment in the conversion transaction at 120% of the appropriate applicable
Federal rate in effect at the time the taxpayer entered into the transaction
minus any amount previously treated as ordinary income with respect to any prior
disposition of property that was held as part of such transaction or (ii) in the
case of a non-corporate taxpayer, to the extent such taxpayer has made an
election under Code Section 163(d)(4) to have net capital gains taxed as
investment income at ordinary income rates. Long-term capital gains of certain
noncorporate taxpayers generally are subject to a lower maximum tax rate than
ordinary income or short-term capital gains of such taxpayers for property held
for more than one year. The maximum tax rate for corporations currently is the
same with respect to both ordinary income and capital gains.
Stripped Securities
General
Pursuant to Code Section 1286, the separation of ownership of the right
to receive some or all of the principal payments on an obligation from ownership
of the right to receive some or all of the interest payments results in the
creation of "stripped bonds" with respect to principal payments and "stripped
coupons" with respect to interest payments. For purposes of this discussion,
Securities that are subject to those rules will be referred to as "Stripped
Securities." The Securities will be subject to those rules if (i) the Depositor
or any of its affiliates retains (for its own account or for purposes of
resale), in the form of Retained Interest or otherwise, an ownership interest in
a portion of the payments on the Mortgage Loans, (ii) the Depositor or any of
its affiliates is treated as having an ownership interest in the Mortgage Loans
to the extent it is paid (or retains) servicing compensation in an amount
greater than reasonable consideration for servicing the Mortgage Loans (see
"--Standard Securities--Recharacterization of Servicing Fees" above), and (iii)
a Class of Securities are issued in two or more Classes or subclasses
representing the right to non-pro-rata percentages of the interest and principal
payments on the Mortgage Loans.
103
In general, a holder of a Stripped Security will be considered to own
"stripped bonds" with respect to its pro rata share of all or a portion of the
principal payments on each Mortgage Loan and/or "stripped coupons" with respect
to its pro rata share of all or a portion of the interest payments on each
Mortgage Loan, including the Stripped Security's allocable share of the
servicing fees paid to a Servicer, to the extent that such fees represent
reasonable compensation for services rendered. See the discussion above under
"--Standard Securities--Recharacterization of Servicing Fees." Although not free
from doubt, for purposes of reporting to Stripped Securityholders, the servicing
fees will be allocated to the Classes of Stripped Securities in proportion to
the distributions to such Classes for the related period or periods. The holder
of a Stripped Security generally will be entitled to a deduction each year in
respect of the servicing fees, as described above under "--Standard
Securities--General," subject to the limitation described therein.
Code Section 1286 treats a stripped bond or a stripped coupon generally
as an obligation issued at an original issue discount on the date that such
stripped interest is purchased. Although the treatment of Stripped Securities
for federal income tax purposes is not clear in certain respects, particularly
where such Stripped Securities are issued with respect to a Mortgage Pool
containing variable-rate Mortgage Loans, the Depositor has been advised by
counsel that (i) the Grantor Trust Fund will be treated as a grantor trust under
subpart E, part I of subchapter J of the Code and not as an association taxable
as a corporation or a "taxable mortgage pool" within the meaning of Code Section
7701(i), and (ii) each Stripped Security should be treated as a single
installment obligation for purposes of calculating original issue discount and
gain or loss on disposition. This treatment is based on the interrelationship of
Code Section 1286, Code Sections 1272 through 1275, and the OID Regulations.
Although it is possible that computations with respect to Stripped Securities
could be made in one of the ways described below under "--Possible Alternative
Characterizations," the OID Regulations state, in general, that two or more debt
instruments issued by a single issuer to a single investor in a single
transaction should be treated as a single debt instrument. Accordingly, for
original issue discount purposes, all payments on any Stripped Securities should
be aggregated and treated as though they were made on a single debt instrument.
The Pooling and Servicing Agreement will require that the Trustee make and
report all computations described below using this aggregate approach, unless
substantial legal authority requires otherwise.
Furthermore, Treasury regulations provide for treatment of a Stripped
Security as a single debt instrument issued on the date it is purchased for
purposes of calculating any original issue discount. In addition, under such
regulations, a Stripped Security that represents a right to payments of both
interest and principal may be viewed either as issued with original issue
discount or market discount (as described below), at a de minimis original issue
discount, or, presumably, at a premium. This treatment indicates that the
interest component of such a Stripped Security would be treated as qualified
stated interest under the OID Regulations, assuming it is not an interest-only
or super-premium Stripped Security. Further, these regulations provide that the
purchaser of such a Stripped Security will be required to account for any
discount as market discount rather than original issue discount if either (i)
the initial discount with respect to the Stripped Security was treated as zero
under the de minimis rule, or (ii) no more than 100 basis points in excess of
reasonable servicing is stripped off the related Mortgage Loans. Any such market
discount would be reportable as described above under "--REMICs--Taxation of
Owners of Regular Securities--Market Discount," without regard to the de minimis
rule therein, assuming that a prepayment assumption is employed in such
computation.
The holder of a Stripped Security will be treated as owning an interest
in each of the Mortgage Loans held by the Grantor Trust Fund and will recognize
an appropriate share of the income and expenses associated with the Mortgage
Loans. Accordingly, an individual, trust or estate that holds a Stripped
Security directly or through a pass-through entity will be subject to the
limitations on deductions imposed by Code Sections 67 and 68.
104
A holder of a Stripped Security, particularly any Class of a Series
which is a Subordinate Security, may deduct losses incurred with respect to the
Stripped Security as described above under "--Standard Securities--General."
Status of Stripped Securities
No specific legal authority exists as to whether the character of the
Stripped Securities, for federal income tax purposes, will be the same as that
of the Mortgage Loans. Although the issue is not free from doubt, counsel has
advised the Depositor that, except with respect to a Trust Fund consisting of
Unsecured Home Improvement Loans, Stripped Securities owned by applicable
holders should be considered to represent "real estate assets" within the
meaning of Code Section 856(c)(4)(A), "obligation[s] . . . principally secured
by an interest in real property which is . . . residential real estate" within
the meaning of Code Section 860G(a)(3)(A), and "loans . . . secured by an
interest in real property" within the meaning of Code Section 7701(a)(19)(C)(v),
and interest (including original issue discount) income attributable to Stripped
Securities should be considered to represent "interest on obligations secured by
mortgages on real property" within the meaning of Code Section 856(c)(3)(B),
provided that in each case the Mortgage Loans and interest on such Mortgage
Loans qualify for such treatment. The application of such Code provisions to
Buydown Mortgage Loans is uncertain. See "--Standard Securities--Tax Status"
above.
Taxation of Stripped Securities
Original Issue Discount. Except as described above under "--General,"
each Stripped Security will be considered to have been issued at an original
issue discount for federal income tax purposes. Original issue discount with
respect to a Stripped Security must be included in ordinary income as it
accrues, in accordance with a constant yield method that takes into account the
compounding of interest, which may be prior to the receipt of the cash
attributable to such income. Based in part on the issue discount required to be
included in the income of a holder of a Stripped Security (referred to in this
discussion as a "Stripped Securityholder") in any taxable year likely will be
computed generally as described above under "--REMICs--Taxation of Owner of
Regular Securities--Original Issue Discount" and "--Variable Rate Regular
Securities." However, with the apparent exception of a Stripped Security
qualifying as a market discount obligation as described above under "--General,"
the issue price of a Stripped Security will be the purchase price paid by each
holder thereof, and the stated redemption price at maturity will include the
aggregate amount of the payments, other than qualified stated interest, to be
made on the Stripped Security to such Securityholder, presumably under the
Prepayment Assumption.
If the Mortgage Loans prepay at a rate either faster or slower than
that under the Prepayment Assumption, a Securityholder's recognition of original
issue discount will be either accelerated or decelerated and the amount of such
original issue discount will be either increased or decreased depending on the
relative interests in principal and interest on each Mortgage Loan represented
by such Securityholder's Stripped Security. While the matter is not free from
doubt, the holder of a Stripped Security should be entitled in the year that it
becomes certain (assuming no further prepayments) that the holder will not
recover a portion of its adjusted basis in such Stripped Security to recognize a
loss (which may be a capital loss) equal to such portion of unrecoverable basis.
As an alternative to the method described above, the fact that some or
all of the interest payments with respect to the Stripped Securities will not be
made if the Mortgage Loans are prepaid could lead to the interpretation that
such interest payments are "contingent" within the meaning of the OID
Regulations. The OID Regulations, as they relate to the treatment of contingent
interest, are by their terms not applicable to prepayable securities such as the
Stripped Securities. However, if final regulations dealing with contingent
interest with respect to the Stripped Securities apply the same principles as
the OID Regulations, such regulations may lead to different timing of income
inclusion that would be the case under the OID Regulations. Furthermore,
application of such principles could lead to the characterization of gain on the
sale of contingent interest Stripped Securities as ordinary income. Investors
should consult their tax advisors regarding the appropriate tax treatment of
Stripped Securities.
Sale or Exchange of Stripped Securities. Sale or exchange of a Stripped
Security prior to its maturity will result in gain or loss equal to the
difference, if any, between the amount received and the Securityholder's
adjusted basis in such Stripped Security, as described above under
"--REMICs--Taxation of Owners of Regular Securities--Sale or Exchange of Regular
Securities." Gain or loss from the sale or exchange of a Stripped Security
generally will be capital gain or loss to the Securityholder if the Stripped
Security is held as a "capital asset" within the meaning of Code section 1221,
and will be long-term or short-term depending on whether the Stripped Security
has been held for the long-term capital gain holding period (currently, more
than one year). To the extent that a subsequent purchaser's purchase price is
exceeded by the remaining payments on the Stripped Securities, such subsequent
purchaser will be required for federal income tax purposes to accrue and report
such excess as if it were original issue discount in the manner described above.
It is not clear for this purpose whether the assumed prepayment rate that is to
be used in the case of a Securityholder other than an original Securityholder
should be the Prepayment Assumption or a new rate based on the circumstances at
the date of subsequent purchase.
105
Purchase of More Than One Class of Stripped Securities. When an
investor purchases more than one Class of Stripped Securities, it is currently
unclear whether for federal income tax purposes such Classes of Stripped
Securities should be treated separately or aggregated for purposes of the rules
described above.
Possible Alternative Characterization. The characterizations of the
Stripped Securities discussed above are not the only possible interpretations of
the applicable Code provisions. For example, the Securityholder may be treated
as the owner of (i) one installment obligation consisting of such Stripped
Security's pro rata share of the payments attributable to principal on each
Mortgage Loan and a second installment obligation consisting of such Stripped
Security's pro rata share of the payments attributable to interest on each
Mortgage Loan, (ii) as many stripped bonds or stripped coupons as there are
scheduled payments of principal and/or interest on each Mortgage Loan, or (iii)
a separate installment obligation for each Mortgage Loan, representing the
Stripped Security's pro rata share of payments of principal and/or interest to
be made with respect thereto. Alternatively, the holder of one or more Classes
of Stripped Securities may be treated as the owner of a pro rata fractional
undivided interest in each Mortgage Loan to the extent that such Stripped
Security, or Classes of Stripped Securities in the aggregate, represent the same
pro rata portion of principal and interest on each such Mortgage Loan, and a
stripped bond or stripped coupon (as the case may be), treated as an installment
obligation or contingent payment obligation, as to the remainder. Treasury
regulations regarding original issue discount on stripped obligations make the
foregoing interpretations less likely to be applicable. The preamble to such
regulations states that they are premised on the assumption that an aggregation
approach is appropriate for determining whether original issue discount on a
stripped bond or stripped coupon is de minimis, and solicits comments on
appropriate rules for aggregating stripped bonds and stripped coupons under Code
Section 1286.
Because of these possible varying characterizations of Stripped
Securities and the resultant differing treatment of income recognition,
Securityholders are urged to consult their own tax advisors regarding the proper
treatment of Stripped Securities for federal income tax purposes.
Reporting Requirements and Backup Withholding
The Trustee will furnish, within a reasonable time after the end of
each calendar year, to each Securityholder at any time during such year, such
information (prepared on the basis described above) as is necessary to enable
such Securityholder to prepare its federal income tax returns. Such information
will include the amount of original issue discount accrued on Securities held by
persons other than Securityholders exempted from the reporting requirements.
However, the amount required to be reported by the Trustee may not be equal to
the proper amount of original issue discount required to be reported as taxable
income by a Securityholder, other than an original Securityholder that purchased
at the issue price. In particular, in the case of Stripped Securities, unless
provided otherwise in the applicable prospectus supplement, such reporting will
be based upon a representative initial offering price of each Class of Stripped
Securities. The Trustee will also file such original issue discount information
with the IRS. If a Securityholder fails to supply an accurate taxpayer
identification number or if the Secretary of the Treasury determines that a
Securityholder has not reported all interest and dividend income required to be
shown on his federal income tax return, backup withholding may be required in
respect of any reportable payments, as described above under "--REMICs--Taxation
of Certain Foreign Investors--Backup Withholding."
Taxation of Certain Foreign Investors
To the extent that a Security evidences ownership in Mortgage Loans
that are issued on or before July 18, 1984, interest or original issue discount
paid by the person required to withhold tax under Code Section 1441 or 1442 to
nonresident aliens, foreign corporations, or other Non-U.S. Persons generally
will be subject to 30% United States withholding tax, or such lower rate as may
be provided for interest by an applicable tax treaty. Accrued original issue
discount recognized by the Securityholder on the sale or exchange of such a
Security also will be subject to federal income tax at the same rate.
106
Treasury regulations provide that interest or original issue discount
paid by the Trustee or other withholding agent to a Non-U.S. Person evidencing
ownership interest in Mortgage Loans issued after July 18, 1984 will be
"portfolio interest" and will be treated in the manner, and such persons will be
subject to the same certification requirements, described above under
"--REMICs--Taxation of Certain Foreign Investors--Regular Securities."
Partnership Trust Funds
Classification of Partnership Trust Funds
With respect to each Series of Partnership Securities or Debt
Securities, Cadwalader, Wickersham & Taft or Hunton & Williams will deliver its
opinion that the Trust Fund will not be a taxable mortgage pool or an
association (or publicly traded partnership) taxable as a corporation for
federal income tax purposes. This opinion will be based on the assumption that
the terms of the applicable Agreement and related documents will be complied
with, and on counsel's conclusion that the nature of the income of the Trust
Fund will exempt it from the rule that certain publicly traded partnerships are
taxable as corporations.
Characterization of Investments in Partnership Securities and Debt
Securities
For federal income tax purposes, (i) Partnership Securities and Debt
Securities held by a thrift institution taxed as a domestic building and loan
association will not constitute "loans . . . secured by an interest in real
property which is . . . residential real property" within the meaning of Code
Section 7701(a)(19)(C)(v) and (ii) interest on Debt Securities held by a real
estate investment trust will not be treated as "interest on obligations secured
by mortgages on real property or on interests in real property" within the
meaning of Code Section 856(c)(3)(B), and Debt Securities held by a real estate
investment trust will not constitute "real estate assets" within the meaning of
Code Section 856(c)(4)(A), but Partnership Securities held by a real estate
investment trust will qualify under those sections based on the real estate
investments trust's proportionate interest in the assets of the Partnership
Trust Fund qualifying for such treatments based on capital accounts.
Taxation of Debt Securityholders
Treatment of the Debt Securities as Indebtedness
The Depositor will agree, and the Securityholders will agree by their
purchase of Debt Securities, to treat the Debt Securities as debt for federal
income tax purposes. No regulations, published rulings, or judicial decisions
exist that discuss the characterization for federal income tax purposes of
securities with terms substantially the same as the Debt Securities. However,
with respect to each Series of Debt Securities, Cadwalader, Wickersham & Taft or
Hunton & Williams will deliver its opinion that the Debt Securities will be
classified as indebtedness for federal income tax purposes. The discussion below
assumes this characterization of the Debt Securities is correct.
If, contrary to the opinion of counsel, the IRS successfully asserted
that the Debt Securities were not debt for federal income tax purposes, the Debt
Securities might be treated as equity interests in the Partnership Trust, and
the timing and amount of income allocable to holders of such Debt Securities may
be different than as described in the following paragraph.
Debt Securities generally will be subject to the same rules of taxation
as Regular Securities issued by a REMIC, as described above, except that (i)
income reportable on Debt Securities is not required to be reported under the
accrual method unless the holder otherwise uses the accrual method and (ii) the
special rule treating a portion of the gain on sale or exchange of a Regular
Security as ordinary income is inapplicable to Debt Securities. See
"--REMICs--Taxation of Owners of Regular Securities" and "--Sale or Exchange of
Regular Securities."
107
Taxation of Owners of Partnership Securities
Treatment of the Partnership Trust Fund as a Partnership
If so specified in the applicable prospectus supplement, the Depositor
will agree, and the Securityholders will agree by their purchase of Securities,
to treat the Partnership Trust Fund as a partnership for purposes of federal and
state income tax, franchise tax and any other tax measured in whole or in part
by income, with the assets of the partnership being the assets held by the
Partnership Trust Fund, the partners of the partnership being the
Securityholders (including the Depositor), and the Debt Securities (if any)
being debt of the partnership. However, the proper characterization of the
arrangement involving the Partnership Trust Fund, the Partnership Securities,
the Debt Securities, and the Depositor is not clear, because there is no
authority on transactions closely comparable to that contemplated herein.
A variety of alternative characterizations are possible. For example,
because one or more of the Classes of Partnership Securities have certain
features characteristic of debt, the Partnership Securities might be considered
debt of the Depositor or the Partnership Trust Fund. Any such characterization
would not result in materially adverse tax consequences to Securityholders as
compared to the consequences from treatment of the Partnership Securities as
equity in a partnership, described below. The following discussion assumes that
the Partnership Securities represent equity interests in a partnership.
Partnership Taxation
As a partnership, the Partnership Trust Fund will not be subject to
federal income tax. Rather, each Securityholder will be required to separately
take into account such holder's allocated share of income, gains, losses,
deductions and credits of the Partnership Trust Fund. It is anticipated that the
Partnership Trust Fund's income will consist primarily of interest earned on the
Mortgage Loans (including appropriate adjustments for market discount, original
issue discount and bond premium) as described above under "--Grantor Trust
Funds-- Standard Securities--General" and "--Premium and Discount") and any gain
upon collection or disposition of Mortgage Loans. The Partnership Trust Fund's
deductions will consist primarily of interest accruing with respect to the Debt
Securities, servicing and other fees, and losses or deductions upon collection
or disposition of Debt Securities.
The tax items of a partnership are allocable to the partners in
accordance with the Code, Treasury regulations and the partnership agreement
(here, the Agreements and related documents). The applicable Agreement will
provide, in general, that the Securityholders will be allocated taxable income
of the Partnership Trust Fund for each Due Period equal to the sum of (i) the
interest that accrues on the Partnership Securities in accordance with their
terms for such Due Period, including interest accruing at the applicable
pass-through rate for such Due Period and interest on amounts previously due on
the Partnership Securities but not yet distributed; (ii) any Partnership Trust
Fund income attributable to discount on the Mortgage Loans that corresponds to
any excess of the principal amount of the Partnership Securities over their
initial issue price; and (iii) any other amounts of income payable to the
Securityholders for such Due Period. Such allocation will be reduced by any
amortization by the Partnership Trust Fund of premium on Mortgage Loans that
corresponds to any excess of the issue price of Partnership Securities over
their principal amount. All remaining taxable income of the Partnership Trust
Fund will be allocated to the Depositor. Based on the economic arrangement of
the parties, this approach for allocating Partnership Trust Fund income should
be permissible under applicable Treasury regulations, although no assurance can
be given that the IRS would not require a greater amount of income to be
allocated to Securityholders. Moreover, even under the foregoing method of
allocation, Securityholders may be allocated income equal to the entire
pass-through rate plus the other items described above even though the Trust
Fund might not have sufficient cash to make current cash distributions of such
amount. Thus, cash basis holders will in effect be required to report income
from the Partnership Securities on the accrual basis and Securityholders may
become liable for taxes on Partnership Trust Fund income even if they have not
received cash from the Partnership Trust Fund to pay such taxes.
Part or all of the taxable income allocated to a Securityholder that is
a pension, profit sharing or employee benefit plan or other tax-exempt entity
(including an individual retirement account) may constitute "unrelated business
taxable income" generally taxable to such a holder under the Code.
108
A share of expenses of the Partnership Trust Fund (including fees of
the Master Servicer but not interest expense) allocable to an individual, estate
or trust Securityholder would be miscellaneous itemized deductions subject to
the limitations described above under "--Grantor Trust Funds--Standard
Securities--General". Accordingly, such deductions might be disallowed to the
individual in whole or in part and might result in such holder being taxed on an
amount of income that exceeds the amount of cash actually distributed to such
holder over the life of the Partnership Trust Fund.
Discount income or premium amortization with respect to each Mortgage
Loan would be calculated in a manner similar to the description above under
"--Grantor Trust Funds--Standard Securities--General" and "--Premium and
Discount." Notwithstanding such description, it is intended that the Partnership
Trust Fund will make all tax calculations relating to income and allocations to
Securityholders on an aggregate basis with respect to all Mortgage Loans held by
the Partnership Trust Fund rather than on a Mortgage Loan-by-Mortgage Loan
basis. If the IRS were to require that such calculations be made separately for
each Mortgage Loan, the Partnership Trust Fund might be required to incur
additional expense, but it is believed that there would not be a material
adverse effect on Securityholders.
Discount and Premium
Unless indicated otherwise in the applicable prospectus supplement, it
is not anticipated that the Mortgage Loans will have been issued with original
issue discount and, therefore, the Partnership Trust Fund should not have
original issue discount income. However, the purchase price paid by the
Partnership Trust Fund for the Mortgage Loans may be greater or less than the
remaining principal balance of the Mortgage Loans at the time of purchase. If
so, the Mortgage Loans will have been acquired at a premium or discount, as the
case may be. See "--Grantor Trust Funds--Standard Securities--Premium and
Discount." (As indicated above, the Partnership Trust Fund will make this
calculation on an aggregate basis, but might be required to recompute it on a
Mortgage Loan-by-Mortgage Loan basis).
If the Partnership Trust Fund acquires the Mortgage Loans at a market
discount or premium, the Partnership Trust Fund will elect to include any such
discount in income currently as it accrues over the life of the Mortgage Loans
or to offset any such premium against interest income on the Mortgage Loans. As
indicated above, a portion of such market discount income or premium deduction
may be allocated to Securityholders.
Section 708 Termination
Under Section 708 of the Code, the Partnership Trust Fund will be
deemed to terminate for federal income tax purposes if 50% or more of the
capital and profits interests in the Partnership Trust Fund are sold or
exchanged within a 12-month period. If such a termination occurs, it would cause
a deemed contribution of the assets of a Partnership Trust Fund (the "old
partnership") to a new Partnership Trust Fund (the "new partnership") in
exchange for interests in the new partnership. Such interests would be deemed
distributed to the partners of the old partnership in liquidation thereof, which
would not constitute a sale or exchange. The Partnership Trust Fund will not
comply with certain technical requirements that might apply when such a
constructive termination occurs. As a result, the Partnership Trust Fund may be
subject to certain tax penalties and may incur additional expenses if it is
required to comply with those requirements. Furthermore, the Partnership Trust
Fund might not be able to comply due to lack of data.
Disposition of Securities
Generally, capital gain or loss will be recognized on a sale of
Partnership Securities in an amount equal to the difference between the amount
realized and the seller's tax basis in the Partnership Securities sold. A
Securityholder's tax basis in an Partnership Security will generally equal the
holder's cost increased by the holder's share of Partnership Trust Fund income
(includable in income) and decreased by any distributions received with respect
to such Partnership Security. In addition, both the tax basis in the Partnership
Securities and the amount realized on a sale of an Partnership Security would
include the holder's share of the Debt Securities and other liabilities of the
Partnership Trust Fund. A holder acquiring Partnership Securities at different
prices may be required to maintain a single aggregate adjusted tax basis in such
Partnership Securities, and, upon sale or other disposition of some of the
Partnership Securities, allocate a portion of such aggregate tax basis to the
Partnership Securities sold (rather than maintaining a separate tax basis in
each Partnership Security for purposes of computing gain or loss on a sale of
that Partnership Security).
109
Any gain on the sale of a Partnership Security attributable to the
holder's share of unrecognized accrued market discount on the Mortgage Loans
would generally be treated as ordinary income to the holder and would give rise
to special tax reporting requirements. The Partnership Trust Fund does not
expect to have any other assets that would give rise to such special reporting
considerations. Thus, to avoid those special reporting requirements, the
Partnership Trust Fund will elect to include market discount in income as it
accrues.
If a Securityholder is required to recognize an aggregate amount of
income (not including income attributable to disallowed itemized deductions
described above) over the life of the Partnership Securities that exceeds the
aggregate cash distributions with respect thereto, such excess will generally
give rise to a capital loss upon the retirement of the Partnership Securities.
Allocations Between Transferors and Transferees
In general, the Partnership Trust Fund's taxable income and losses will
be determined each Due Period and the tax items for a particular Due Period will
be apportioned among the Securityholders in proportion to the principal amount
of Partnership Securities owned by them as of the close of the last day of such
Due Period. As a result, a holder purchasing Partnership Securities may be
allocated tax items (which will affect its tax liability and tax basis)
attributable to periods before the actual transaction.
The use of such a Due Period convention may not be permitted by
existing regulations. If a Due Period convention is not allowed (or only applies
to transfers of less than all of the partner's interest), taxable income or
losses of the Partnership Trust Fund might be reallocated among the
Securityholders. The Depositor will be authorized to revise the Partnership
Trust Fund's method of allocation between transferors and transferees to conform
to a method permitted by future regulations.
Section 731 Distributions
In the case of any distribution to a Securityholder, no gain will be
recognized to that Securityholder as long as the amount of any money distributed
with respect to such Security does not exceed the adjusted basis of such
Securityholder's interest in the Security. To the extent that the amount of
money distributed exceeds such Securityholder's adjusted basis, gain will be
currently recognized. In the case of any distribution to a Securityholder, no
loss will be recognized except upon a distribution in liquidation of a
Securityholder's interest. Any gain or loss recognized by a Securityholder will
be capital gain or loss.
Section 754 Election
In the event that a Securityholder sells its Partnership Securities at
a profit (loss), the purchasing Securityholder will have a higher (lower) basis
in the Partnership Securities than the selling Securityholder had. The tax basis
of the Partnership Trust Fund's assets would not be adjusted to reflect that
higher (or lower) basis unless the Partnership Trust Fund were to file an
election under Section 754 of the Code. In order to avoid the administrative
complexities that would be involved in keeping accurate accounting records, as
well as potentially onerous information reporting requirements, the Partnership
Trust Fund will not make such an election. As a result, a Securityholder might
be allocated a greater or lesser amount of Partnership Trust Fund income than
would be appropriate based on its own purchase price for Partnership Securities.
Administrative Matters
The Trustee is required to keep or have kept complete and accurate
books of the Partnership Trust Fund. Such books will be maintained for financial
reporting and tax purposes on an accrual basis and the fiscal year of the
Partnership Trust Fund will be the calendar year. The Trustee will file a
partnership information return (IRS Form 1065) with the IRS for each taxable
year of the Partnership Trust Fund and will report each Securityholder's
allocable share of items of Partnership Trust Fund income and expense to holders
and the IRS on Schedule K-1. The Trustee will provide the Schedule K-1
information to nominees that fail to provide the Partnership Trust Fund with the
information statement described below and such nominees will be required to
forward such information to the beneficial owners of the Partnership Securities.
Generally, holders must file tax returns that are consistent with the
information return filed by the Partnership Trust Fund or be subject to
penalties unless the holder notifies the IRS of all such inconsistencies.
110
Under Section 6031 of the Code, any person that holds Partnership
Securities as a nominee at any time during a calendar year is required to
furnish the Partnership Trust Fund with a statement containing certain
information on the nominee, the beneficial owners and the Partnership Securities
so held. Such information includes (i) the name, address and taxpayer
identification number of the nominee and (ii) as to each beneficial owner (x)
the name, address and identification number of such person, (y) whether such
person is a United States person, a tax-exempt entity or a foreign government,
an international organization, or any wholly-owned agency or instrumentality of
either of the foregoing, and (z) certain information on Partnership Securities
that were held, bought or sold on behalf of such person throughout the year. In
addition, brokers and financial institutions that hold Partnership Securities
through a nominee are required to furnish directly to the Trustee information as
to themselves and their ownership of Partnership Securities. A clearing agency
registered under Section 17A of the Exchange Act is not required to furnish any
such information statement to the Partnership Trust Fund. The information
referred to above for any calendar year must be furnished to the Partnership
Trust Fund on or before the following January 31. Nominees, brokers and
financial institutions that fail to provide the Partnership Trust Fund with the
information described above may be subject to penalties.
The Depositor will be designated as the tax matters partner in the
Pooling and Servicing Agreement and, as such, will be responsible for
representing the Securityholders in any dispute with the IRS. The Code provides
for administrative examination of a partnership as if the partnership were a
separate and distinct taxpayer. Generally, the statute of limitations for
partnership items does not expire until three years after the date on which the
partnership information return is filed. Any adverse determination following an
audit of the return of the Partnership Trust Fund by the appropriate taxing
authorities could result in an adjustment of the returns of the Securityholders,
and, under certain circumstances, a Securityholder may be precluded from
separately litigating a proposed adjustment to the items of the Partnership
Trust Fund. An adjustment could also result in an audit of a Securityholder's
returns and adjustments of items not related to the income and losses of the
Partnership Trust Fund.
Tax Consequences to Foreign Securityholders
It is not clear whether the Partnership Trust Fund would be considered
to be engaged in a trade or business in the United States for purposes of
federal withholding taxes with respect to Non-U.S. Persons, because there is no
clear authority dealing with that issue under facts substantially similar to
those described herein. Although it is not expected that the Partnership Trust
Fund would be engaged in a trade or business in the United States for such
purposes, if so specified in the applicable prospectus supplement, the
Partnership Trust Fund may withhold as if it were so engaged in order to protect
the Partnership Trust Fund from possible adverse consequences of a failure to
withhold. The Partnership Trust Fund may withhold on the portion of its taxable
income that is allocable to Securityholders who are Non-U.S. Persons pursuant to
Section 1446 of the Code, as if such income were effectively connected to a U.S.
trade or business, at the maximum tax rate for corporations or individuals, as
applicable. Amounts withheld will be deemed distributed to the Non-U.S. Person
Securityholders. Subsequent adoption of Treasury regulations or the issuance of
other administrative pronouncements may require the Partnership Trust Fund to
change its withholding procedures. In determining a holder's withholding status,
the Partnership Trust Fund may rely on IRS Form W-8BEN, IRS Form W-9 or the
holder's certification of nonforeign status signed under penalties of perjury.
To the extent specified in the applicable prospectus supplement, (i)
each Non-U.S. Person holder might be required to file a U.S. individual or
corporate income tax return (including, in the case of a corporation, the branch
profits tax) on its share of the Partnership Trust Fund's income; (ii) each
Non-U.S. Person holder must obtain a taxpayer identification number from the IRS
and submit that number to the Partnership Trust Fund on Form W-8BEN in order to
assure appropriate crediting of the taxes withheld; and (iii) a Non-U.S. Person
holder generally would be entitled to file with the IRS a claim for refund with
respect to taxes withheld by the Partnership Trust Fund, taking the position
that no taxes were due because the Partnership Trust Fund was not engaged in a
U.S. trade or business. Notwithstanding the foregoing, interest payments made
(or accrued) to a Securityholder who is a Non-U.S. Person may be considered
guaranteed payments to the extent such payments are determined without regard to
the income of the Partnership Trust Fund. If these interest payments are
properly characterized as guaranteed payments, then the interest may not be
considered "portfolio interest." As a result, Securityholders who are Non-U.S.
Persons may be subject to United States federal income tax and withholding tax
at a rate of 30 percent, unless reduced or eliminated pursuant to an applicable
treaty. In such case, a Non-U.S. Person holder would only be entitled to claim a
refund for that portion of the taxes in excess of the taxes that should be
withheld with respect to the guaranteed payments.
111
Backup Withholding
Distributions made on the Partnership Securities and proceeds from the
sale of the Partnership Securities will be subject to a "backup" withholding tax
of 30% (decreasing to 28% by 2006) if, in general, the Securityholder fails to
comply with certain identification procedures, unless the holder is an exempt
recipient under applicable provisions of the Code.
THE FEDERAL TAX DISCUSSIONS SET FORTH ABOVE ARE INCLUDED FOR GENERAL
INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON A SECURITYHOLDER'S
PARTICULAR TAX SITUATION. PROSPECTIVE PURCHASERS SHOULD CONSULT THEIR TAX
ADVISORS WITH RESPECT TO THE TAX CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP
AND DISPOSITION OF REMIC SECURITIES, GRANTOR TRUST SECURITIES, PARTNERSHIP
SECURITIES AND DEBT SECURITIES, INCLUDING THE TAX CONSEQUENCES UNDER STATE,
LOCAL, FOREIGN AND OTHER TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN FEDERAL
OR OTHER TAX LAWS.
Recent Tax Law Changes
Under the Economic Growth and Tax Relief Reconciliation Act of 2001,
among other changes:
o the maximum tax rate on ordinary income and short-term capital
gains will be reduced to 35% over the period 2001 to 2006,
o the limitation on itemized deductions of individuals imposed
by Code Section 68 will be phased out starting in 2006 and
will be eliminated after 2009, and
o the rate of backup withholding tax under Code Section 3406
will be reduced from 30.5% to 28% over the period 2001 to
2006.
STATE AND OTHER TAX CONSEQUENCES
In addition to the federal income tax consequences described in
"Federal Income Tax Consequences," potential investors should consider the state
and local tax consequences of the acquisition, ownership, and disposition of the
Securities offered hereunder. State tax law may differ substantially from the
corresponding federal tax law, and the discussion above does not purport to
describe any aspect of the tax laws of any state or other jurisdiction.
Therefore, prospective investors should consult their own tax advisors with
respect to the various tax consequences of investments in the Securities offered
hereunder.
112
ERISA CONSIDERATIONS
The Employee Retirement Income Security Act of 1974, as amended
("ERISA") and the Code impose certain requirements on employee benefit plans and
on certain other retirement plans and arrangements, including individual
retirement accounts, individual retirement annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, that are subject to Title I of ERISA and Section 4975
of the Code ("Plans") and on persons who are fiduciaries with respect to such
Plans in connection with the investment of Plan assets. Certain employee benefit
plans, such as governmental plans (as defined in ERISA Section 3(32)), and, if
no election has been made under Section 410(d) of the Code, church plans (as
defined in Section 3(33) of ERISA) are not subject to ERISA requirements.
However, such plans may be subject to the provisions of other applicable
federal, state and local law materially similar to the foregoing provisions of
ERISA and the Code. Any such plan which is qualified 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.
ERISA generally imposes on Plan fiduciaries certain general fiduciary
requirements, including those of investment prudence and diversification and the
requirement that a Plan's investments be made in accordance with the documents
governing the Plan. In addition, ERISA and the Code prohibit a broad range of
transactions involving assets of a Plan and persons ("Parties in Interest") who
have certain specified relationships to the Plan unless a statutory or
administrative exemption is available. Certain Parties in Interest that
participate in a prohibited transaction may be subject to an excise tax imposed
pursuant to Section 4975 of the Code, unless a statutory or administrative
exemption is available. These prohibited transactions generally are set forth in
Sections 406 and 407 of ERISA and Section 4975 of the Code.
A Plan's investment in Securities may cause the Mortgage Loans,
Contracts, Unsecured Home Improvement Loans and other assets included in a
related Trust Fund to be deemed Plan assets. Section 2510.3-101 of the
regulations of the United States Department of Labor ("DOL") provides that when
a Plan acquires an equity interest in an entity, the Plan's assets include both
such equity interest and an undivided interest in each of the underlying assets
of the entity, unless certain exceptions not applicable here apply, or unless
the equity participation in the entity by "benefit plan investors" (i.e., Plans
and certain employee benefit plans not subject to ERISA) is not "significant",
both as defined therein. For this purpose, in general, equity participation by
benefit plan investors will be "significant" on any date if 25% or more of the
value of any Class of equity interests in the entity is held by benefit plan
investors. To the extent the Securities are treated as equity interests for
purposes of DOL regulations section 2510.3-101, equity participation in a Trust
Fund will be significant on any date if immediately after the most recent
acquisition of any Security, 25% or more of any Class of Securities is held by
benefit plan investors.
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, is a fiduciary of the investing
Plan. If the Mortgage Loans, Contracts, Unsecured Home Improvement Loans and
other assets included in a Trust Fund constitute Plan assets, then any party
exercising management or discretionary control regarding those assets, such as
the Servicer or Master Servicer, may be deemed to be a Plan "fiduciary" and thus
subject to the fiduciary responsibility provisions and prohibited transaction
provisions of ERISA and the Code with respect to the investing Plan. In
addition, if the Mortgage Loans, Contracts, Unsecured Home Improvement Loans and
other assets included in a Trust Fund constitute Plan assets, the purchase of
Securities by a Plan, as well as the operation of the Trust Fund, may constitute
or involve a prohibited transaction under ERISA and the Code.
On May 14, 1993, the DOL granted to NationsBank Corporation, the
predecessor to Bank of America Corporation, the corporate parent of Banc of
America Securities LLC, an individual administrative exemption, Prohibited
Transaction Exemption ("PTE") 93-31, as amended by PTE 97-34, PTE 2000-58 and
PTE 2002-41 (the "Exemption"), which generally exempts from the application of
the prohibited transaction provisions of Sections 406(a) and 407 of ERISA, and
the excise taxes imposed on such prohibited transactions pursuant to Section
4975(a) and (b) of the Code, certain transactions, among others, relating to the
servicing and operation of mortgage pools and the purchase, sale and holding of
Securities underwritten by an Underwriter (as hereinafter defined), that (a)
represent a beneficial ownership interest in the assets of a Trust Fund and
entitle the holder the pass-through payments of principal, interest and/or other
payments made with respect to the assets of the Trust Fund or (b) are
denominated as a debt instrument and represent an interest in a REMIC or certain
other specified entities, provided that certain conditions set forth in the
Exemption are satisfied. For purposes of this Section "ERISA Considerations,"
the term "Underwriter" shall include (a) Bank of America Corporation, (b) any
person directly or indirectly, through one or more intermediaries, controlling,
controlled by or under common control with Bank of America Corporation,
including Banc of America Securities LLC, and (c) any member of the underwriting
syndicate or selling group of which a person described in (a) or (b) is a
manager or co-manager with respect to a Class of Securities.
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The Exemption sets forth five general conditions which must be
satisfied for a transaction involving the purchase, sale and holding of
Securities to be eligible for exemptive relief thereunder. First, the
acquisition of Securities by a Plan must be on terms that are at least as
favorable to the Plan as they would be in an arm's-length transaction with an
unrelated party. Second, the Securities at the time of acquisition by the Plan
must be rated in one of the four highest generic rating categories by Standard &
Poor's, a division of The McGraw-Hill Companies, Inc. ("S&P"), Moody's Investors
Service, Inc. ("Moody's") or Fitch Ratings ("Fitch"). Third, the Trustee cannot
be an affiliate of any member of the "Restricted Group" (other than the
Underwriter), which consists of the Underwriter, the Depositor, the Trustee, the
Master Servicer, any Servicer, any insurer and any obligor with respect to
Assets constituting more than 5% of the aggregate unamortized principal balance
of the Assets in the related Trust Fund as of the date of initial issuance of
the Securities. Fourth, the sum of all payments made to and retained by the
Underwriter(s) must represent not more than reasonable compensation for
underwriting the Securities; the sum of all payments made to and retained by the
Depositor pursuant to the assignment of the Assets to the related Trust Fund
must represent not more than the fair market value of such obligations; and the
sum of all payments made to and retained by the Servicer must represent not more
than reasonable compensation for such person's services under the applicable
Agreement and reimbursement of such person's reasonable expenses in connection
therewith. Fifth, the investing Plan must be an accredited investor as defined
in Rule 501(a)(1) of Regulation D of the Securities and Exchange Commission
under the Securities Act of 1933, as amended. In addition, the Trust Fund must
meet the following requirements: (i) the assets of the Trust Fund must consist
solely of assets of the type that have been included in other investment pools;
(ii) securities evidencing interests in such other investment pools must have
been rated in one of the four highest generic rating categories by S&P, Moody's
or Fitch for at least one year prior to the Plan's acquisition of the
securities; and (iii) securities evidencing interests in such other investment
pools must have been purchased by investors other than Plans for at least one
year prior to any Plan's acquisition of the Securities.
A fiduciary of a Plan contemplating purchasing a Security must make its
own determination that the general conditions set forth above will be satisfied
with respect to such Security. In addition, any Securities representing a
beneficial ownership interest in Unsecured Home Improvement Loans or Revolving
Credit Line Loans will not satisfy the general conditions of the Exemption.
If the general conditions of the Exemption are satisfied, the Exemption
may provide an exemption from the restrictions imposed by Sections 406(a) and
407 of ERISA (as well as the excise taxes imposed by Sections 4975(a) and (b) of
the Code by reason of Sections 4975(c)(1)(A) through (D) of the Code) in
connection with the direct or indirect sale, exchange, transfer, holding or the
direct or indirect acquisition or disposition in the secondary market of
Securities by Plans. However, no exemption is provided from the restrictions of
Sections 406(a)(1)(E), 406(a)(2) and 407 of ERISA for the acquisition or holding
of a Security on behalf of an "Excluded Plan" by any person who has
discretionary authority or renders investment advice with respect to the assets
of such Excluded Plan. For purposes of the Securities, an Excluded Plan is a
Plan sponsored by any member of the Restricted Group.
If certain specific conditions of the Exemption are also satisfied, the
Exemption may provide an exemption from the restrictions imposed by Sections
406(b)(1) and (b)(2) of ERISA and the taxes imposed by Sections 4975(a) and (b)
of the Code by reason of Section 4975(c)(1)(E) of the Code in connection with
(1) the direct or indirect sale, exchange or transfer of Securities in the
initial issuance of Securities between the Depositor or an Underwriter and a
Plan when the person who has discretionary authority or renders investment
advice with respect to the investment of Plan assets in the Securities is (a) an
obligor with respect to 5% or less of the fair market value of the Assets or (b)
an affiliate of such a person, (2) the direct or indirect acquisition or
disposition in the secondary market of Securities by a Plan and (3) the holding
of Securities by a Plan.
Further, if certain specific conditions of the Exemption are satisfied,
the Exemption may provide an exemption from the restrictions imposed by Sections
406(a), 406(b) and 407 of ERISA, and the taxes imposed by Sections 4975(a) and
(b) of the Code by reason of Section 4975(c) of the Code for transactions in
connection with the servicing, management and operation of the Trust Fund. The
Depositor expects that the specific conditions of the Exemption required for
this purpose will be satisfied with respect to the Securities so that the
Exemption would provide an exemption from the restrictions imposed by Sections
406(a) and (b) of ERISA (as well as the excise taxes imposed by Sections 4975(a)
and (b) of the Code by reason of Section 4975(c) of the Code) for transactions
in connection with the servicing, management and operation of the Mortgage
Pools, provided that the general conditions of the Exemption are satisfied.
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The Exemption also may provide an exemption from the restrictions
imposed by Sections 406(a) and 407(a) of ERISA, and the taxes imposed by Section
4975(a) and (b) of the Code by reason of Sections 4975(c)(1)(A) through (D) of
the Code if such restrictions are deemed to otherwise apply merely because a
person is deemed to be a "party in interest" (within the meaning of Section
3(14) of ERISA) or a "disqualified person" (within the meaning of Section
4975(e)(2) of the Code) with respect to an investing Plan by virtue of providing
services to the Plan (or by virtue of having certain specified relationships to
such a person) solely as a result of the Plan's ownership of Securities.
The Exemption was amended by PTE 97-34, 62 Fed. Reg. 39021 (July 21,
1997), which, among other changes, permits the inclusion of a pre-funding
account in a trust fund, provided that the following conditions are met: (a) the
pre-funding account may not exceed 25% of the total amount of certificates being
offered; (b) additional obligations purchased generally must meet the same terms
and conditions as those of the original obligations used to create the trust
fund; (c) the transfer of additional obligations to the trust during the
pre-funding period must not result in the certificates receiving a lower rating
at the termination of the pre-funding period than the rating that was obtained
at the time of the initial issuance of the certificates; (d) the weighted
average interest rate for all of the obligations in the trust at the end of the
pre-funding period must not be more than 100 basis points less than the weighted
average interest rate for the obligations which were transferred to the trust on
the closing date; (e) the characteristics of the additional obligations must be
monitored to confirm that they are substantially similar to those which were
acquired as of the closing date either by a credit support provider or insurance
provider independent of the sponsor or by an independent accountant retained by
the sponsor that confirms such conformance in writing; (f) the pre-funding
period must be described in the prospectus or private placement memorandum
provided to investing plans; and (g) the trustee of the trust must be a
substantial financial institution or trust company experienced in trust
activities and familiar with its duties, responsibilities and liabilities as a
fiduciary under ERISA.
Further, the pre-funding period must be a period beginning on the
closing date and ending no later than the earliest to occur of (x) the date the
amount on deposit in the pre-funding account is less than the minimum dollar
amount specified in the pooling and servicing agreement; (y) the date on which
an event of default occurs under the pooling and servicing agreement; or (z) the
date which is the later of three months or 90 days after the closing date. It is
expected that the Pre-Funding Account will meet all of these requirements.
To the extent the Securities are not treated as equity interests for
purposes of DOL regulations section 2510.3-101, a Plan's investment in such
Securities ("Non-Equity Securities") would not cause the assets included in a
related Trust Fund to be deemed Plan assets. However, the Depositor, the
Servicer, the Trustee, or Underwriter may be the sponsor of or investment
advisor with respect to one or more Plans. Because such parties may receive
certain benefits in connection with the sale of Non-Equity Securities, the
purchase of Non-Equity Securities using Plan assets over which any such parties
has investment authority might be deemed to be a violation of the prohibited
transaction rules of ERISA and the Code for which no exemption may be available.
Accordingly, Non-Equity Securities may not be purchased using the assets of any
Plan if any of the Depositor, the Servicer, the Trustee or Underwriter has
investment authority with respect to such assets.
In addition, certain affiliates of the Depositor might be considered or
might become Parties in Interest with respect to a Plan. Also, any holder of
Securities, because of its activities or the activities of its respective
affiliates, may be deemed to be a Party in Interest with respect to certain
Plans, including but not limited to Plans sponsored by such holder. In either
case, the acquisition or holding of Non-Equity Securities by or on behalf of
such a Plan could be considered to give rise to an indirect prohibited
transaction within the meaning of ERISA and the Code, unless it is subject to
one or more statutory or administrative exemptions such as Prohibited
Transaction Class Exemption ("PTCE") 84-14, which exempts certain transactions
effected on behalf of a Plan by a "qualified professional asset manager", PTCE
90-1, which exempts certain transactions involving insurance company pooled
separate accounts, PTCE 91-38, which exempts certain transactions involving bank
collective investment funds, PTCE 95-60, which exempts certain transactions
involving insurance company general accounts, or PTCE 96-23, which exempts
certain transactions effected on behalf of a Plan by certain "in-house" asset
managers. It should be noted, however, that even if the conditions specified in
one or more of these exemptions are met, the scope of relief provided by these
exemptions may not necessarily cover all acts that might be construed as
prohibited transactions.
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Any Plan fiduciary which proposes to cause a Plan to purchase
Securities should consult with its counsel with respect to the potential
applicability of ERISA and the Code to such investment, the availability of the
exemptive relief provided in the Exemption and the potential applicability of
any other prohibited transaction exemption in connection therewith. In
particular, a Plan fiduciary which proposes to cause a Plan to purchase
Securities representing a beneficial ownership interest in a pool of
single-family residential first mortgage loans, a Plan fiduciary should consider
the applicability of PTCE 83-1, which provides exemptive relief for certain
transactions involving mortgage pool investment trusts. The prospectus
supplement with respect to a Series of Securities may contain additional
information regarding the application of the Exemption, PTCE 83-1 or any other
exemption, with respect to the Securities offered thereby. In addition, any Plan
fiduciary that proposes to cause a Plan to purchase Strip Securities should
consider the federal income tax consequences of such investment. Fiduciaries of
plans not subject to ERISA or the Code, such as governmental plans, should
consider the application of any applicable federal, state or local law
materially similar to the provisions of ERISA or the Code, as well as the need
for and the availability of exemptive relief under such applicable law.
Any Plan fiduciary considering whether to purchase a Security on behalf
of a Plan should consult with its counsel regarding the applicability of the
fiduciary responsibility and prohibited transaction provisions of ERISA and the
Code to such investment.
The sale of Securities to a Plan is in no respect a representation by
the Depositor or the Underwriter that this investment meets all relevant legal
requirements with respect to investments by Plans generally or any particular
Plan, or that this investment is appropriate for Plans generally or any
particular Plan.
LEGAL INVESTMENT
As will be specified in the applicable prospectus supplement, certain
Classes of the Securities may constitute "mortgage related securities" for
purposes of the Secondary Mortgage Market Enhancement Act of 1984, as amended
("SMMEA"), so long as (i) they are rated in one of the two highest rating
categories by at least one Rating Agency and (ii) are part of a Series
representing interests in a Trust Fund consisting of Mortgage Loans originated
by certain types of originators specified in SMMEA and secured by first liens on
real estate. As "mortgage related securities," such Classes will constitute
legal investments for persons, trusts, corporations, partnerships, associations,
business trusts and business entities (including but not limited to depository
institutions, insurance companies and pension funds) created pursuant to or
existing under the laws of the United States or of any state (including the
District of Columbia and Puerto Rico) whose authorized investments are subject
to state regulation, to the same extent that, under applicable law, obligations
issued by or guaranteed as to principal and interest by the United States or any
agency or instrumentality thereof constitute legal investments for such
entities. Pursuant to SMMEA, a number of states enacted legislation, on or
before the October 3, 1991 cut-off for such enactments, limiting to varying
extents the ability of certain entities (in particular, insurance companies) to
invest in "mortgage related securities," in most cases by requiring the affected
investors to rely solely upon existing state law, and not SMMEA. Accordingly,
the investors affected by such legislation will be authorized to invest in the
Offered Securities only to the extent provided in 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 in
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 mortgage related securities for their own
account without regard to the limitations generally applicable to investment
securities set forth in 12 U. S. C. ss.24 (Seventh), subject in each case to
such regulations as the applicable federal regulatory authority may prescribe.
In this connection, the Office of the Comptroller of the Currency (the "OCC")
has amended 12 C. F. R. Part 1 to authorize national banks to purchase and sell
for their own account, without limitation as to a percentage of the bank's
capital and surplus (but subject to compliance with certain general standards in
12 C. F. R. ss.1.5 concerning "safety and soundness" and retention of credit
information), certain "Type IV securities," defined in 12 C. F. R. ss.1.2(m) to
include certain "residential mortgage-related securities." As so defined,
"residential mortgage-related security" means, in relevant part, "mortgage
related security" within the meaning of SMMEA. The National Credit Union
Administration ("NCUA") has adopted rules, codified at 12 C.F.R. Part 703, which
permit federal credit unions to invest in "mortgage related securities" under
certain limited circumstances, other than stripped mortgage related securities,
residual interests in mortgage related securities and commercial mortgage
related securities, unless the credit union has obtained written approval from
the NCUA to participate in the "investment pilot program" described in 12 C.F.R.
ss.703.140. The OTS has issued Thrift Bulletin 13a (December 1, 1998),
"Management of Interest Rate Risk, Investment Securities, and Derivative
Activities," which thrift institutions subject to the jurisdiction of the OTS
should consider before investing in any of the Offered Securities.
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All depository institutions considering an investment in the Offered
Securities should review the "Supervisory Policy Statement on Investment
Securities and End-User Derivatives Activities "(the "1998 Policy Statement") of
the Federal Financial Institutions Examination Council ("FFIEC"), which has been
adopted by the Board of Governors of the Federal Reserve System, the Federal
Deposit Insurance Corporation, the OCC and the OTS, effective May 26, 1998, and
by the NCUA, effective October 1, 1998. The 1998 Policy Statement sets forth
general guidelines which depository institutions must follow in managing risks
(including market, credit, liquidity, operational (transaction), and legal
risks) applicable to all securities (including mortgage pass-through securities
and mortgage-derivative products) used for investment purposes.
Institutions whose investment activities are subject to regulation by
federal or state authorities should review rules, policies, and guidelines
adopted from time to time by those authorities before purchasing any Class of
the Offered Securities, as certain Classes may be deemed unsuitable investments,
or may otherwise be restricted, under those rules, policies, or guidelines (in
certain instances irrespective of SMMEA).
The foregoing does not take into consideration the applicability of
statutes, rules, regulations, orders, guidelines, or agreements generally
governing investments made by a particular investor, including, but not limited
to, "prudent investor" provisions, percentage-of-assets limits, provisions which
may restrict or prohibit investment in securities which are not
"interest-bearing" or "income-paying," and, with regard to any Class of Offered
Securities issued in book-entry form, provisions which may restrict or prohibit
investments in securities which are issued in book-entry form.
Except as to the status of certain Classes of Offered Securities as
"mortgage related securities," no representations are made as to the proper
characterization of the Offered Securities for legal investment purposes,
financial institution regulatory purposes, or other purposes, or as to the
ability of particular investors to purchase any Offered Securities under
applicable legal investment restrictions. The uncertainties described above (and
any unfavorable future determinations concerning legal investment or financial
institution regulatory characteristics of the Offered Securities) may adversely
affect the liquidity of the Offered 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 legal advisors in
determining whether and to what extent the Offered Securities of any Class
constitute legal investments or are subject to investment, capital or other
restrictions and, if applicable, whether SMMEA has been overridden in any
jurisdiction relevant to such investor.
METHODS OF DISTRIBUTION
The Securities offered hereby and by the Supplements to this prospectus
will be offered in Series. The distribution of the Securities may be effected
from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices to be
determined at the time of sale or at the time of commitment therefor. If so
specified in the related prospectus supplement, the Securities will be
distributed in a firm commitment underwriting, subject to the terms and
conditions of the underwriting agreement, by Banc of America Securities LLC
("Banc of America Securities") acting as underwriter with other underwriters, if
any, named therein. In such event, the prospectus supplement may also specify
that the underwriters will not be obligated to pay for any Securities agreed to
be purchased by purchasers pursuant to purchase agreements acceptable to the
Depositor. In connection with the sale of the Securities, underwriters may
receive compensation from the Depositor or from purchasers of the Securities in
the form of discounts, concessions or commissions. The prospectus supplement
will describe any such compensation paid by the Depositor.
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Alternatively, the prospectus supplement may specify that the
Securities will be distributed by Banc of America Securities acting as agent or
in some cases as principal with respect to Securities which it has previously
purchased or agreed to purchase. If Banc of America Securities acts as agent in
the sale of Securities, Banc of America Securities will receive a selling
commission with respect to each Series of Securities, depending on market
conditions, expressed as a percentage of the aggregate principal balance of the
related Mortgage Loans as of the Cut-off Date. The exact percentage for each
Series of Securities will be disclosed in the related prospectus supplement. To
the extent that Banc of America Securities elects to purchase Securities as
principal, Banc of America Securities may realize losses or profits based upon
the difference between its purchase price and the sales price. The prospectus
supplement with respect to any Series offered other than through underwriters
will contain information regarding the nature of such offering and any
agreements to be entered into between the Depositor and purchasers of Securities
of such Series.
Banc of America Securities is an affiliate of the Depositor. This
prospectus may be used by Banc of America Securities, to the extent required, in
connection with market making transactions in the Securities. Banc of America
Securities may act as principal or agent in such transactions.
The Depositor will indemnify Banc of America Securities and any
underwriters against certain civil liabilities, including liabilities under the
Securities Act of 1933, or will contribute to payments Banc of America
Securities and any underwriters may be required to make in respect thereof.
In the ordinary course of business, Banc of America Securities and the
Depositor may engage in various securities and financing transactions, including
repurchase agreements to provide interim financing of the Depositor's mortgage
loans pending the sale of such mortgage loans or interests therein, including
the Securities.
The Depositor anticipates that the Securities will be sold primarily to
institutional investors. 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 in connection
with reoffers and sales by them of Securities. Securityholders should consult
with their legal advisors in this regard prior to any such reoffer or sale.
As to each Series of Securities, only those Classes rated in one of the
four highest rating categories by any Rating Agency will be offered hereby. Any
unrated Class may be initially retained by the Depositor, and may be sold by the
Depositor at any time to one or more institutional investors.
LEGAL MATTERS
Certain legal matters, including the federal income tax consequences to
Securityholders of an investment in the Securities of a Series, will be passed
upon for the Depositor by Cadwalader, Wickersham & Taft, New York, New York or
Hunton & Williams, Charlotte, North Carolina.
FINANCIAL INFORMATION
A new Trust Fund will be formed with respect to each Series of
Securities and no Trust Fund will engage in any business activities or have any
assets or obligations prior to the issuance of the related Series of Securities.
Accordingly, no financial statements with respect to any Trust Fund will be
included in this prospectus or in the related prospectus supplement.
RATING
It is a condition to the issuance of any Class of Offered Securities
that they shall have been rated not lower than investment grade, that is, in one
of the four highest rating categories, by at least one nationally recognized
statistical rating organization ("Rating Agency").
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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 assets and the
credit quality of the guarantor, if any. Ratings on mortgage pass-through
certificates and other asset backed securities do not represent any assessment
of the likelihood of principal prepayments by borrowers or of the 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 interest certificates in extreme cases might fail
to recoup their initial 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.
WHERE YOU CAN FIND MORE INFORMATION
The Depositor filed a registration statement (the "Registration
Statement") relating to the Securities with the Commission or the "SEC". This
prospectus is part of the Registration Statement, but the Registration Statement
includes additional information.
Copies of the Registration Statement may be obtained from the Public
Reference Section of the Commission, Washington, D.C. 20549 upon payment of the
prescribed charges, or may be examined free of charge at the Commission's
offices, 450 Fifth Street N.W., Washington, D.C. 20549 or at the regional
offices of the Commission located at 233 Broadway, New York, New York 10279 and
Suite 1400, Citicorp Center, 500 West Madison Street, Chicago, Illinois
60661-2511. The Commission also maintains a site on the World Wide Web at
"http://www.sec.gov" at which you can view and download copies of reports, proxy
and information statements and other information filed electronically through
the Electronic Data Gathering, Analysis and Retrieval ("EDGAR") system. The
Depositor has filed the Registration Statement, including all exhibits, through
the EDGAR system and therefore such materials should be available by logging
onto the Commission's Web site. The Commission maintains computer terminals
providing access to the EDGAR system at each of the offices referred to above.
Copies of any documents incorporated to this prospectus by reference will be
provided to each person to whom a prospectus is delivered upon written or oral
request directed to Asset Backed Funding Corporation, Bank of America Corporate
Center, 100 North Tryon Street, Charlotte, North Carolina 28255, telephone
number (704) 386-2400.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows the Depositor to "incorporate by reference" information
it files with the SEC, which means that the Depositor can disclose important
information to you by referring you to those documents. The information
incorporated by reference is considered to be part of this prospectus.
Information that the Depositor files later with the SEC will automatically
update the information in this prospectus. In all cases, you should rely on the
later information rather than on any different information included in this
prospectus or the accompanying prospectus supplement. The Depositor incorporates
by reference any future annual, monthly and special SEC reports filed by or on
behalf of the Trust until the termination of the offering of the related Series
of Securities (including market making transactions by Banc of America
Securities, to the extent required, with respect to such Series of Securities,
unless such transactions are exempt from the registration provisions of the
Securities Act of 1933).
As a recipient of this prospectus, you may request a copy of any
document the Depositor incorporates by reference, except exhibits to the
documents (unless the exhibits are specifically incorporated by reference) at no
cost, by writing or calling the Treasurer at Asset Backed Funding Corporation,
Bank of America Corporate Center, 100 North Tryon Street, Charlotte, North
Carolina 28255, telephone number (704) 386-2400.
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INDEX OF SIGNIFICANT DEFINITIONS
Terms Page
- ----- ----
1998 Policy Statement.............................117
Accrual Period.....................................23
Accrual Securities.................................29
Accrued Security Interest..........................31
Adjustable Rate Assets.............................17
Agreement..........................................42
ARM Contracts......................................21
ARM Loans..........................................19
ARM Unsecured Home Improvement Loans...............21
Asset Conservation Act.............................72
Asset Group........................................29
Asset Seller.......................................17
Assets.............................................17
Available Distribution Amount......................30
Balloon Payment Assets.............................18
Banc of America Securities........................117
Bankruptcy Code....................................69
Bi-weekly Assets...................................18
Book-Entry Securities..............................29
Buy Down Assets....................................17
Buydown Funds......................................82
Buydown Mortgage Loans.............................26
Buydown Period.....................................26
Capitalized Interest Account.......................22
Cash Flow Agreement................................23
Cede...............................................40
CERCLA.............................................72
Certificates.......................................29
Class..............................................29
Cleanup Costs......................................72
Clearstream........................................40
Clearstream Participants...........................40
Closing Date........................................6
Code...............................................80
Collection Account.................................45
Commission.........................................19
Companion Class....................................34
Component..........................................32
contract borrower..................................64
Contract Lender....................................64
Contract Rate......................................22
Contracts..........................................17
Convertible Assets.................................18
Cooperative....................................41, 63
Cooperative Loans..................................63
Cooperatives.......................................18
Covered Trust......................................60
CPR................................................25
Credit Support.....................................22
Cut-off Date....................................6, 19
Debt Securities....................................80
Definitive Securities..............................29
Deposit Trust Agreement............................42
Depositaries.......................................41
Depositor.......................................6, 28
Determination Date.................................29
Disqualified Organization..........................94
Distribution Date...............................6, 24
DOL...............................................113
DTC Participants...................................40
Due Period.........................................30
EDGAR.............................................119
electing large partnership.........................93
ERISA.............................................113
Euroclear..........................................41
Euroclear Operator.................................41
Euroclear Participants.............................41
excess servicing..................................103
Exchange Act.......................................40
Excluded Plan.....................................114
Exemption.........................................113
FASIT..............................................80
FASIT Securities...................................80
FDIC...............................................45
FFIEC.............................................117
Fitch.............................................114
GEM Assets.........................................18
GPM Assets.........................................18
Grantor Trust Fund.................................80
Grantor Trust Securities...........................80
Home Equity Loans..................................18
Home Improvement Contracts.........................18
HOPA...............................................75
Increasing Payment Assets..........................17
Indenture..........................................42
Indenture Servicing Agreement......................42
Indenture Trustee..................................42
Indirect Participants..............................40
Insurance Proceeds.................................30
Interest Reduction Assets..........................17
IRS................................................50
Issuer..............................................6
Land Sale Contracts................................18
Legal Investment....................................9
Level Payment Assets...............................17
Liquidation Proceeds...............................30
Loan-to-Value Ratio................................19
Lock-out Date......................................20
Lock-out Period....................................20
Manufactured Home..................................21
Mark to Market Regulations.........................96
Master Servicer.................................6, 42
MERS...............................................43
Moody's...........................................114
Mortgage Loans.....................................17
Mortgage Notes.....................................19
Mortgage Rate......................................20
Mortgaged Properties...............................18
120
Mortgages..........................................19
Multifamily Mortgage Loan..........................18
Multifamily Property...............................18
National Housing Act...............................19
NCUA..............................................117
new partnership...................................109
New Regulations....................................99
Non-Equity Securities.............................115
Non-Pro Rata Security..............................84
Nonrecoverable Advance.............................36
Non-U.S. Person....................................99
Notes..............................................29
OCC...............................................116
Offered Securities.................................29
OID Regulations....................................80
old partnership...................................109
Originator.........................................19
PAC................................................33
PAC I..............................................33
PAC II.............................................33
Parties in Interest...............................113
Partnership Securities.............................80
Partnership Trust Fund.............................80
Pass-Through Entity............................93, 94
Pass-Through Rate..................................31
PCBs...............................................71
Permitted Investments..............................46
Plans.............................................113
PMI................................................75
Pooling and Servicing Agreement....................42
Pre-Funded Amount..................................22
Pre-Funding Account................................22
Pre-Funding Period.................................22
Prepayment Assumption..............................84
Prepayment Premium.................................20
PTCE..............................................115
PTE...............................................113
Purchase Price.....................................44
Rating Agency.....................................118
RCRA...............................................72
Record Date........................................29
Refinance Loans....................................19
Registration Statement............................119
Regular Securities.................................81
Regular Securityholder.............................83
Related Proceeds...................................36
Relief Act.........................................76
REMIC..............................................80
REMIC Pool.........................................80
REMIC Provisions...................................80
REMIC Regulations..................................80
REMIC Securities...................................80
REO Property.......................................37
Residual Holders...................................90
Residual Securities................................81
Restricted Group..................................114
Retained Interest..................................53
Revolving Credit Line Loans........................20
S&P...............................................114
SBJPA of 1996......................................82
SEC...............................................119
secured-creditor exemption.........................72
Securities.........................................29
Security...........................................42
Security Balance...................................25
Security Owners....................................40
Securityholder.....................................23
Senior Certificates................................29
Senior Notes.......................................29
Senior Securities..................................29
Series.............................................29
Servicer............................................6
Servicers..........................................42
Servicing Standard.................................48
Single Family Mortgage Loan........................18
Single Family Property.............................18
SMMEA.............................................116
SPA................................................25
Special Servicer...................................54
Standard Securities...............................100
Startup Day........................................81
Statistical Calculation Date........................6
Step-up Rate Assets................................18
Strip Securities...................................29
Stripped Securities...............................100
Stripped Securityholder...........................105
Subordinate Certificates...........................29
Subordinate Notes..................................29
Subordinate Securities.............................29
Subsequent Assets..................................22
Superliens.........................................71
TAC................................................34
Taxable Mortgage Pools.............................80
Terms and Conditions...............................41
Texas Home Equity Laws.............................75
thrift institutions................................93
Tiered REMICs......................................83
TILA Amendment.....................................70
Title V............................................74
Title VIII.........................................75
Trust..............................................29
Trust Fund.........................................29
Trustee............................................42
U.S. Person........................................95
UCC................................................40
Underlying Servicing Agreement.....................42
Underwriter.......................................114
Unsecured Home Improvement Loans...................17
UST................................................72
Value..............................................19
Voting Rights......................................55
Warranting Party...................................44
121
$258,860,000
(Approximate)
ASSET BACKED FUNDING CORPORATION
Depositor
WELLS FARGO HOME MORTGAGE, INC.
Servicer
ABFC Mortgage Loan Asset-Backed Certificates, Series 2002-WF2
--------------------
PROSPECTUS SUPPLEMENT
--------------------
Banc of America Securities LLC
Countrywide Securities Corporation
Greenwich Capital Markets, Inc.
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 ABFC Mortgage Loan Asset-Backed Certificates,
Series 2002-WF2 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 ABFC Mortgage Loan Asset-Backed Certificates, Series
2002- WF2 and with respect to their unsold allotments or subscriptions. In
addition, all dealers selling ABFC Mortgage Loan Asset-Backed Certificates,
Series 2002- WF2 will be required to deliver a prospectus supplement and
prospectus for ninety days following the date of this prospectus supplement.
September 23, 2002