PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED OCTOBER 12, 2004)
$1,380,139,000(APPROXIMATE)
FIRST FRANKLIN MORTGAGE LOAN TRUST 2004-FF10
ASSET-BACKED CERTIFICATES, SERIES 2004-FF10
ASSET BACKED FUNDING CORPORATION
Depositor
BANK OF AMERICA, NATIONAL ASSOCIATION
Seller
COUNTRYWIDE HOME LOANS SERVICING LP
Servicer
- --------------------------------------------------------------------------------
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
accompanied by the prospectus.
- --------------------------------------------------------------------------------
THE OFFERED CERTIFICATES
o Represent ownership interests in a trust consisting primarily of a pool of
first lien residential mortgage loans. The mortgage loans will consist of
conventional fixed-rate and adjustable-rate mortgage loans.
o The Class A-1, Class A-2 and Class A-3 Certificates are senior
certificates.
o The Class M-1, Class M-2, Class M-3, Class M-4, Class M-5 and Class M-7F
Certificates (and the Class M-6 and Class M-7A Certificates, which are not
offered hereby) are subordinate 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 lower numerical class designations.
o The classes of offered certificates are listed in the table on page S-5.
CREDIT ENHANCEMENT
o Excess Interest - Certain excess interest received from the mortgage loans
will be used to cover losses.
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. Certain excess interest received from the
mortgage loans will also be applied as payments of principal on the
certificates to maintain a required level of overcollateralization.
o Subordination - The subordinated certificates are subordinate in right of
certain payments to the senior certificates and to those classes of
subordinated certificates higher in order of payment priority.
o PMI Insurance - Additional credit enhancement for the certificates will be
provided by a primary mortgage insurance policy on certain mortgage loans.
This policy will provide limited protection against certain losses on such
mortgage loans.
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 the offered certificates from the depositor and
will offer the offered certificates from time to time to investors in negotiated
transactions or otherwise 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 or about October 21, 2004. Total
proceeds to the depositor for the offered certificates will be approximately
99.69% of the initial principal balance of the offered certificates, before
deducting expenses estimated at $600,000 payable by the depositor.
BANC OF AMERICA SECURITIES LLC
COUNTRYWIDE SECURITIES CORPORATION
BLAYLOCK & PARTNERS, L.P.
The date of this Prospectus Supplement is October 18, 2004
TABLE OF CONTENTS
SUMMARY OF PROSPECTUS
SUPPLEMENT ...................................................... S-6
RISK FACTORS ....................................................... S-12
The nature of sub-prime mortgage loans
may increase risk of loss ...................................... S-12
There are risks involving unpredictability of
prepayments and the effect of
prepayments on yields .......................................... S-12
The yield to maturity on the Class M Certificates
will be particularly sensitive to the rate of
prepayments on the mortgage
loans ......................................................... S-13
Newly originated mortgage loans may be
more likely to default, which may cause
losses on the offered certificates ............................ S-13
Interest only mortgage loans ..................................... S-13
There are risks relating to alternatives to
foreclosure ................................................... S-14
There is a risk that interest payments on the
mortgage loans may be insufficient to
maintain or restore overcollateralization ..................... S-14
Effects of mortgage interest rates and other
factors on the certificate interest rates of
the offered certificates ...................................... S-15
There are risks in holding subordinated
certificates .................................................. S-16
Sequential right to receive principal payments
may increase risk of loss to Class A-2 and
Class A-3 Certificates ........................................ S-16
There is a risk that interest payments on the
mortgage loans may be insufficient to
pay interest on your certificates ............................. S-16
High loan-to-value ratios increase risk of
loss .......................................................... S-17
There is a risk relating to the potential
inadequacy of credit enhancement for
the offered certificates ...................................... S-17
An increase in delinquencies may occur
due to pending servicing transfer ............................. S-17
The yield maintenance agreements are subject
to counterparty risk .......................................... S-18
Effect of creditworthiness of the PMI Insurer
on ratings of the offered certificates ........................ S-18
There is a risk because the certificates are
not obligations of any entity ................................ S-18
The rights of the NIMS Insurer could
adversely affect the offered
certificates ................................................. S-18
There is a risk that there may be a delay in
receipt of liquidation proceeds, and that
liquidation proceeds may be less than the
outstanding balance of the mortgage loan ..................... S-19
There are risks relating to geographic
concentration of the mortgage loans .......................... S-20
The lack of a secondary market may limit
your ability to sell your certificates ...................... S-20
Violations of consumer protection laws
and predatory lending laws may cause losses
on your certificates ........................................ S-20
In the event the originator or the seller is
not able to repurchase or replace defective
mortgage loans you may suffer losses on
your certificates ........................................... S-21
United States military operations may
increase risk of shortfalls in interest ..................... S-22
Ratings on the offered certificates do not
address all of the factors you should
consider when purchasing such
certificates ................................................ S-22
Suitability of the offered certificates as
investments ................................................. S-22
THE MORTGAGE POOL .................................................. S-22
General .......................................................... S-23
Mortgage Pool Statistics ......................................... S-24
Mortgage Loan Statistical Tables ................................. S-26
The Index ........................................................ S-43
Terms of the Mortgage Loans ...................................... S-43
THE SELLER ......................................................... S-43
THE ORIGINATOR ..................................................... S-43
UNDERWRITING STANDARDS ............................................. S-44
The SERVICER ....................................................... S-47
Countrywide Home Loans ........................................... S-47
Loan Servicing ................................................... S-48
Collection Procedures ............................................ S-48
Foreclosure and Delinquency Experience ........................... S-49
THE POOLING AND SERVICING AGREEMENT ................................ S-50
General .......................................................... S-50
Assignment of the Mortgage Loans ................................. S-50
Payments on Mortgage Loans; Deposits to
Collection Account and Distribution
Account ........................................................ S-52
Advances ......................................................... S-53
The Trustee ...................................................... S-54
The Credit Risk Manager .......................................... S-54
Servicing and Other Compensation and
Payment of Expenses ............................................ S-54
Optional Termination ............................................. S-55
Optional Purchase of Defaulted Loans ............................. S-55
Events of Servicing Termination .................................. S-55
Rights upon Event of Servicing Termination ....................... S-55
Voting Rights .................................................... S-56
Amendment ........................................................ S-56
S-2
Rights of the NIMS Insurer under the
Pooling and Servicing Agreement ................................ S-56
DESCRIPTION OF THE CERTIFICATES .................................... S-57
General .......................................................... S-57
Book-Entry Certificates .......................................... S-58
Allocation of Available Funds .................................... S-61
Interest Distributions ........................................... S-61
Principal Distributions .......................................... S-63
Allocation of Losses ............................................. S-68
Application of Monthly Excess Cashflow
Amounts ........................................................ S-69
Certificate Interest Rates ....................................... S-73
Calculation of One-Month LIBOR ................................... S-74
The Yield Maintenance Agreements ................................. S-74
Reserve Accounts ................................................. S-75
The PMI Policy ................................................... S-77
The PMI Insurer .................................................. S-78
YIELD, PREPAYMENT AND MATURITY CONSIDERATIONS ...................... S-78
Additional Information ........................................... S-80
Weighted Average Lives ........................................... S-80
Final Scheduled Distribution Dates ............................... S-94
USE OF PROCEEDS .................................................... S-94
CERTAIN MATERIAL FEDERAL
INCOME TAX CONSEQUENCES ............................................ S-94
General .......................................................... S-94
Taxation of Regular Interests .................................... S-94
Taxation of the Basis Risk Arrangements .......................... S-95
REMIC Taxes and Reporting ........................................ S-96
STATE TAXES ........................................................ S-96
ERISA CONSIDERATIONS ............................................... S-97
LEGAL INVESTMENT ................................................... S-98
METHOD OF DISTRIBUTION ............................................. S-98
LEGAL MATTERS ...................................................... S-99
RATINGS ............................................................ S-99
INDEX OF DEFINED TERMS ............................................. S-101
ANNEX I GLOBAL CLEARANCE, SETTLEMENT AND TAX
DOCUMENTATION PROCEDURES ........................................... I-1
ANNEX II YIELD MAINTENANCE
SCHEDULES ....................................................... II-1
S-3
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 foregoing 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 Defined Terms" beginning on page S-101 in this document and
under the caption "Index of Significant Definitions" beginning on page 123 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-4
THE FIRST FRANKLIN MORTGAGE LOAN TRUST ASSET-BACKED CERTIFICATES,
SERIES 2004-FF10
INITIAL
CERTIFICATE CERTIFICATE INTEREST
CLASS BALANCE(1) RATE PRINCIPAL TYPES INTEREST TYPES
----- ---------- ---- --------------- --------------
OFFERED
CERTIFICATES
A-1............. $378,010,000 (2) Senior, Sequential Floating Rate
A-2............. $714,399,000 (2) Senior, Sequential Floating Rate
A-3............. $149,033,000 (2) Senior, Sequential Floating Rate
M-1............. $77,415,000 (2) Subordinated Floating Rate
M-2............. $32,083,000 (2) Subordinated Floating Rate
M-3............. $13,251,000 (2) Subordinated Floating Rate
M-4............. $ 6,974,000 (2) Subordinated Floating Rate
M-5............. $ 6,974,000 (2) Subordinated Floating Rate
M-7F............ $ 2,000,000 5.50% per annum (3) Subordinated Fixed-Rate
NON-OFFERED
CERTIFICATES
M-6............. $ 6,974,000 (2) Subordinated Floating Rate
M-7A............ $ 2,883,000 (2) Subordinated Floating Rate
CE.............. N/A N/A N/A N/A
P............... N/A N/A Prepayment Charge N/A
R............... N/A N/A N/A N/A
- ----------------------------
(1) Plus or minus 5%.
(2) These certificates will accrue interest at a floating rate, in each case
subject to an interest rate cap, as described in this Prospectus
Supplement. The margin rate for these certificates will increase following
the optional termination date as described under "Description of the
Certificates--Certificate Interest Rates" in this Prospectus Supplement.
(3) These certificates will accrue interest at the indicated fixed rate,
subject to an interest rate cap, as described in this Prospectus
Supplement. The certificate interest rate for these certificates will
increase to 6.00% per annum following the optional termination date as
described under "Description of the Certificates--Certificate Interest
Rates" in this Prospectus Supplement.
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 (the
"PROSPECTUS") and this prospectus supplement (the "PROSPECTUS SUPPLEMENT")
carefully before you decide to purchase a certificate. If capitalized terms are
not defined in this Prospectus Supplement, they are defined in the Prospectus.
ISSUER
First Franklin Mortgage Loan Trust 2004-FF10 (the "TRUST").
TITLE OF SERIES
First Franklin Mortgage Loan Trust 2004-FF10, Asset-Backed Certificates, Series
2004-FF10.
THE CERTIFICATES
The Class A-1, Class A-2, Class A-3, Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5, Class M-6, Class M-7A, Class M-7F, Class CE, Class P and Class R
Certificates are the entire ownership interest in a trust fund which is composed
of first lien mortgage loans. The trust will issue the certificates pursuant to
a pooling and servicing agreement among Asset Backed Funding Corporation, as
depositor, Countrywide Home Loans Servicing LP, as servicer, and JPMorgan Chase
Bank, as trustee. The trust is offering the Class A-1, Class A-2, Class A-3,
Class M-1, Class M-2, Class M-3, Class M-4, Class M-5 and Class M-7F
Certificates as book-entry securities clearing through The Depository Trust
Company ("DTC") (in the United States) or Clearstream Banking ("CLEARSTREAM") or
the Euroclear System ("EUROCLEAR") (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 A-3, Class
M-1, Class M-2, Class M-3, Class M-4, Class M-5 and Class M-7F Certificates. The
Class M-6, Class M-7A, Class CE, Class P and Class R Certificates are not being
offered pursuant to this prospectus supplement. We have included information
herein with respect to these non-offered classes solely to provide you a better
understanding of the offered certificates.
DESIGNATIONS
o Class A Certificates - Class A-1, Class A-2 and Class A-3
Certificates.
o Class M Certificates - Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5, Class M-6, Class M-7A and Class M-7F Certificates.
DEPOSITOR OF MORTGAGE LOANS
Asset Backed Funding Corporation will deposit the mortgage loans in the trust.
The depositor is a Delaware corporation and a wholly-owned, indirect subsidiary
of Bank of America Corporation. The depositor is an affiliate of Bank of
America, National Association, the seller, and Banc of America Securities LLC,
one of the underwriters.
MORTGAGE LOAN ORIGINATOR
First Franklin Financial Corporation (the "ORIGINATOR"), a Delaware corporation,
originated or acquired all of the mortgage loans in the trust. All of the
mortgage loans were originated or acquired 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 Bank of
America, National Association, an affiliate of the depositor and one of the
underwriters, which acquired the mortgage loans from the originator.
SERVICER
Countrywide Home Loans Servicing LP, an affiliate of one of the underwriters,
will service the mortgage loans commencing on the servicing transfer date,
expected to occur on or about November 1, 2004. Subject to certain limitations,
the servicer must advance delinquent payments of principal and interest on the
mortgage loans. See "The Servicer" and "The Pooling and Servicing
Agreement--Advances" in this Prospectus Supplement and
S-6
"Description of the Securities--Advances in Respect of Delinquencies" in the
Prospectus.
TRUSTEE
JPMorgan Chase Bank, a New York banking corporation.
CREDIT RISK MANAGER
The Murrayhill Company, a Colorado corporation.
NIMS INSURER
After the closing date, a separate entity may be established to issue net
interest margin securities secured by all or a portion of the Class CE and Class
P Certificates. Those net interest margin securities may or may not have the
benefit of a financial guaranty insurance policy that guarantees payments on
those securities. The insurer that would issue any financial guaranty insurance
policy, if any, is referred to in this prospectus supplement as the "NIMS
Insurer." The references to the NIMS Insurer in this prospectus supplement are
applicable only if there is a NIMS Insurer. If the net interest margin
securities are so insured, the NIMS Insurer will have a number of rights under
the pooling and servicing agreement that could adversely affect
certificateholders. Any insurance policy issued by the NIMS Insurer will not
cover, and will not benefit in any manner whatsoever, the offered certificates.
See "Risk Factors--The rights of the NIMS Insurer could adversely affect the
offered certificates" in this Prospectus Supplement for additional information.
PMI INSURER
Radian Guaranty Inc., a Pennsylvania corporation. Some of the Mortgage Loans
will be covered by primary mortgage insurance provided by the PMI Insurer, which
may provide limited protection to the trust in the event such mortgage loans
default. See "Description of the Certificates--The PMI Policy" in this
Prospectus Supplement for additional information.
CUT-OFF DATE
October 1, 2004.
CLOSING DATE
On or about October 21, 2004.
FIRST DISTRIBUTION DATE
November 26, 2004.
FINAL SCHEDULED DISTRIBUTION DATES
The final scheduled distribution date for each class of offered certificates is
set forth below:
FINAL SCHEDULED
CLASS DISTRIBUTION DATE
----- -----------------
Class A-1 October 25, 2013
Class A-2 December 25, 2032
Class A-3 September 25, 2034
Class M-1 July 25, 2034
Class M-2 May 25, 2034
Class M-3 January 25, 2034
Class M-4 September 25, 2033
Class M-5 June 25, 2033
Class M-7F May 25, 2031
Each such final scheduled distribution date has been calculated as described
under "Yield, Prepayment and Maturity Considerations--Final Scheduled
Distribution Dates" in this Prospectus Supplement.
THE MORTGAGE POOL
On the closing date, the trust will acquire approximately 6,911 one- to
four-family, fixed and adjustable-rate mortgage loans secured by first liens on
residential properties.
TOTAL MORTGAGE POOL STATISTICS.
The total mortgage pool had the following aggregate characteristics as of the
cut-off date (percentages are based on the aggregate principal balance of the
mortgage loans):
Aggregate Outstanding Principal
Balance $1,394,878,770.49
Average Outstanding Principal
Balance $201,834.58
Range of Outstanding Principal $282.10 to
Balances $1,000,000.00
Average Original Principal $201,941.83
Balance
Range of Original Principal $20,000.00 to
Balances $1,000,000.00
Loans with Prepayment Charges 82.77%
Adjustable-Rate Mortgage Loans 90.59%
S-7
Fixed-Rate Mortgage Loans 9.41%
Weighted Average Mortgage
Interest Rate 6.822%
Range of Mortgage Interest
Rates 4.125% to 10.375%
Mortgage Loans with Interest
Only Period 58.68%
Balloon Mortgage Loans 0.02%
Weighted Average Credit Score* 649
Range of Credit Scores* 540 to 813
Weighted Average Loan-to-Value
Ratio 83.22%
Weighted Average Original Term
to Maturity 359 months
Weighted Average Remaining Term
to Maturity 357 months
Max ZIP Code Concentration (%) 0.48%
Max ZIP Code Concentration (ZIP) 91913
Top 5 Geographic Concentrations:
California 39.92%
Florida 5.98%
Illinois 4.60%
Texas 4.56%
New York 4.21%
For Adjustable-Rate Mortgage
Loans Only:
Weighted Average Gross Margin 4.801%
Range of Gross Margins 0.375% to 8.000%
Weighted Average Maximum
Mortgage Interest Rate 12.756%
Range of Maximum Mortgage
Interest Rates 10.125% to 16.375%
Weighted Average Minimum
Mortgage Interest Rate 6.756%
Range of Minimum Mortgage
Interest Rates 4.125% to 10.375%
Weighted Average Initial Rate
Adjustment Cap 2.965%
Range of Initial Rate
Adjustment Caps 1.000% to 3.000%
Periodic Rate Adjustment Cap 1.000%
Weighted Average Months to Next
Adjustment Date 29 months
Range of Months to Next
Adjustment Date 3 to 60 months
- -------------------------
* Where Credit Scores were available.
See "The Mortgage Pool" in this Prospectus Supplement for more information about
the mortgage loans.
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 November 26, 2004.
Distributions will generally include payments made on the mortgage loans during
the related collection period, any advances by the servicer and, under certain
circumstances applicable to the Class A, Class M-1, Class M-2, Class M-3, Class
M-4, Class M-5, Class M-6 and Class M-7A Certificates, payments received under
the respective yield maintenance agreements. The collection 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 will be as follows: for the offered
certificates other than the Class M-7F Certificates, the business day before
such distribution date (unless definitive certificates are issued), and for the
Class M-7F Certificates (and any other classes for which definitive certificates
are issued), 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 M-7F Certificates, is
the period from the distribution date in the prior month (or the closing date,
in the case of the first distribution date) through the day prior to the current
distribution date. The interest accrual period for any distribution date for the
Class M-7F certificates is the month immediately preceding the month in which
such distribution date occurs. Interest will be calculated for all offered
certificates, other than the Class M-7F Certificates, on the basis of the actual
number of days in the interest accrual period, based on a 360-day year. Interest
will be calculated for the Class M-7F Certificates on the basis of a 360-day
year consisting of twelve 30-day months.
There are certain circumstances which could reduce the amount of interest paid
to you. See "Description
S-8
of the Certificates--Interest Distributions" in this Prospectus Supplement.
CERTIFICATE INTEREST RATES
Interest will accrue on the offered certificates, other than the Class M-7F
Certificates, during each interest accrual period at a per annum rate equal to
the least of (i) the sum of one-month LIBOR plus the margin set forth in the
table below, (ii) the maximum rate cap and (iii) the pool cap as described under
"Description of the Certificates--Certificate Interest Rates" in this Prospectus
Supplement. During each interest accrual period relating to the distribution
dates after the optional termination date, the margins will increase to the
"stepped-up" margins set forth in the table below if the optional termination
right is not exercised.
STEPPED-UP
CLASS MARGIN MARGIN
----- ------ ----------
Class A-1 0.170% 0.340%
Class A-2 0.400% 0.800%
Class A-3 0.540% 1.080%
Class M-1 0.850% 1.275%
Class M-2 1.550% 2.325%
Class M-3 1.700% 2.550%
Class M-4 2.350% 3.525%
Class M-5 3.500% 5.250%
Class M-6* 3.500% 5.250%
Class M-7A* 3.500% 5.250%
- -----------------
* Non-offered certificates
Interest will accrue on the Class M-7F Certificates during each interest accrual
period at a per annum rate equal to the lesser of (i) 5.500% per annum (or
6.000%, for interest accrual periods relating to distribution dates after the
optional termination date) and (ii) the pool cap as described under "Description
of the Certificates--Certificate Interest Rates" in this Prospectus Supplement.
PRINCIPAL DISTRIBUTIONS
On each distribution date 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.
CREDIT ENHANCEMENT
Credit enhancement reduces the risk of harm caused to holders of certificates by
shortfalls in payments received on the mortgage loans. Credit enhancement can
reduce the effect of shortfalls on all classes, or it can allocate shortfalls so
they affect some classes before others. This transaction employs the following
five forms of credit enhancement. See "Description of the Certificates" in this
Prospectus Supplement.
MONTHLY EXCESS INTEREST. Because more interest is expected to be paid by the
mortgagors than is necessary to pay the interest earned on the certificates, it
is expected there will be excess interest each month. The excess interest will
be used to maintain overcollateralization, to pay interest that was previously
earned but not paid to the certificates and to reimburse the certificates for
losses and certain shortfalls that they experienced previously.
OVERCOLLATERALIZATION. If the total assets in the trust exceed the total
principal balance of the certificates, there is overcollateralization available
to absorb losses on the mortgage loans before such losses affect the
certificates. On the closing date, the total initial principal balance of the
mortgage loans will exceed the total initial principal balance of the
certificates by approximately $4,882,770.49. This results in
overcollateralization equal to approximately 0.35% of the aggregate principal
balance of the mortgage loans as of the cut-off date. If the level of
overcollateralization falls below the targeted overcollateralization amount for
a distribution date, the excess interest described in the previous section 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. If there are insufficient funds on a
distribution date to pay all classes, the subordinate classes are the first to
forego payment.
APPLICATION OF REALIZED LOSSES. If, on any distribution date after the balances
of the certificates have been reduced by the amount of cash paid on that
S-9
date, the total principal balance of the certificates is greater than the total
principal balance of the mortgage loans, the principal balance of the
subordinated certificates that are lowest in order of payment priority will be
reduced by the amount of such excess. Once the principal balance of a class is
reduced by realized losses allocated to it, such balance will not be reinstated
(except in the case of subsequent recoveries). The principal balances of the
Class A-1, Class A-2 and Class A-3 Certificates will not be reduced by these
realized losses, although these certificates may experience losses if the credit
enhancements described herein are exhausted.
PRIMARY MORTGAGE INSURANCE. Approximately 21.06% of the mortgage loans (by
aggregate principal balance as of the cut-off date) will be insured by an
insurance policy issued by the PMI Insurer. However, such policy will provide
only limited protection against losses on defaulted mortgage loans, and such
policy will provide such limited protection only with respect to those mortgage
loans which are covered by such a policy.
YIELD MAINTENANCE AGREEMENTS
In order to mitigate the effect of the pool cap on the yield of certain classes
of the certificates, the trustee on behalf of the trust fund will enter into
three separate yield maintenance agreements with Bank of America, National
Association, as counterparty, which will be for the benefit of the (i) Class A
Certificates, (ii) Class M-1, Class M-2 and Class M-3 Certificates and (iii) the
Class M-4, Class M-5, Class M-6 and Class M-7A Certificates, respectively.
In connection with each yield maintenance agreement and any of the first 41
distribution dates, if one-month LIBOR as of two London business days prior to
the first day of the interest accrual period for the related certificates
relating to such distribution date exceeds a specified rate for such
distribution date, the counterparty will be obligated to pay to the trustee two
London business days prior to the end of the related interest accrual period,
for deposit into the applicable reserve account, an amount equal to the product
of (a) the excess of the lesser of (i) one-month LIBOR and (ii) the applicable
ceiling rate for such distribution date, over the applicable strike rate for
such distribution date, in each case as set forth in the applicable table in
Annex II to this prospectus supplement, (b) the product of the related cap
notional amount and the scale factor, in each case as set forth for such
distribution date in the applicable table in Annex II to this prospectus
supplement and (c) a fraction, the numerator of which is the actual number of
days elapsed since the previous distribution date (or the closing date, in the
case of the first distribution date) to but excluding the current distribution
date and the denominator of which is 360.
Amounts, if any, payable under each of the yield maintenance agreements on any
distribution date will be used to cover shortfalls in payments of interest on
the related classes of certificates if the certificate interest rate on such
certificates is limited for any of the first 41 distribution dates due to the
pool cap. Any remaining amounts from the yield maintenance agreements will be
distributed to the Class CE Certificates as described under "Description of the
Certificates--The Yield Maintenance Agreements" in this Prospectus Supplement.
Bank of America, National Association's obligations as counterparty under the
yield maintenance agreements will terminate following the distribution date in
March 2008.
OPTIONAL TERMINATION
The NIMS Insurer, if there is a NIMS Insurer, or if there is no NIMS Insurer,
the majority holder of the Class CE Certificates or, if such holder is the
mortgage loan seller or is affiliated with the mortgage loan seller or if there
is no majority holder of the Class CE Certificates, the servicer, will have the
option to purchase all the mortgage loans and any properties that the trust
acquired in satisfaction of any of the mortgage loans, subject to certain
conditions described herein under "The Pooling and Servicing Agreement--Optional
Termination." This option can be exercised when the total principal balance of
the mortgage loans, including the mortgage loans related to REO properties, is
10% or less of the total principal balance of the mortgage loans on the cut-off
date. If the option is exercised, your certificate will be retired earlier than
it would be otherwise and you will be entitled to the following amounts to the
extent available therefor:
o the outstanding principal balance of your certificate;
o one month's interest on such balance at the related certificate interest
rate;
o any interest previously earned but not paid; and
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any "cap carryover amount," as described in this Prospectus Supplement, from all
previous distribution dates.
You will receive the last two items 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.
CERTAIN MATERIAL FEDERAL INCOME TAX CONSEQUENCES
The trustee will elect to treat certain assets of the trust, exclusive of the
yield maintenance agreements, the reserve accounts, the arrangements intended to
protect against basis risk for the Class A and Class M Certificates and certain
other assets specified in the pooling and servicing agreement, as comprised of
multiple real estate mortgage investment conduits (each, a "REMIC") in a tiered
structure for federal income tax purposes.
For further information regarding the federal income tax consequences of
investing in the offered certificates, see "Certain 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 Standard & Poor's, a division of The McGraw-Hill
Companies, Inc. ("S&P"), Fitch Ratings ("FITCH") and Dominion Bond Rating
Service, Inc. ("DBRS"):
CLASS FITCH S&P DBRS
----- ----- --- ----
A-1 AAA AAA AAA
A-2 AAA AAA AAA
A-3 AAA AAA AAA
M-1 AA AA AA
M-2 A A A
M-3 A- A- A(low)
M-4 BBB+ BBB+ BBB(high)
M-5 BBB BBB BBB
M-7F None BBB- None
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 payment of any cap carryover amounts, the
frequency of prepayments on the mortgage loans or the effect of such prepayments
on your yield. 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 A-3
and Class M-1 Certificates will constitute "mortgage related securities" for
purposes of the Secondary Mortgage Market Enhancement Act of 1984, as amended
("SMMEA"). The Class M-2, Class M-3, Class M-4, Class M-5 and Class M-7F
Certificates will not constitute "mortgage related securities" for purposes of
SMMEA. 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 provisions 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
CERTAIN SIGNIFICANT SOURCES OF RISK ASSOCIATED WITH AN INVESTMENT IN THE
CERTIFICATES. YOU SHOULD ALSO CAREFULLY CONSIDER THE INFORMATION SET FORTH UNDER
"RISK FACTORS" IN THE PROSPECTUS.
THE NATURE OF SUB-PRIME MORTGAGE LOANS MAY INCREASE RISK OF LOSS
All of the mortgage loans are of sub-prime credit quality; i.e., they do
not meet the customary credit standards of Fannie Mae and Freddie Mac. The
originator makes mortgage loans to borrowers that typically have limited access
to traditional mortgage financing for a variety of reasons, including impaired
or limited past credit history, lower credit scores, absence of income
documentation, high loan-to-value ratios or high debt-to-income ratios. As a
result of these factors, delinquencies and liquidation proceedings are more
likely with these mortgage loans than with mortgage loans that satisfy customary
credit standards. In the event these mortgage loans do become delinquent or
subject to liquidation, you may face delays in receiving payment and losses if
the credit enhancements are insufficient to cover the delays and losses.
Furthermore, changes in values of mortgaged properties may 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 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 of the
certificates.
o If you purchase your certificates 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 and principal is repaid
faster than you anticipate, then your yield may be lower than you
anticipate.
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 fixed-rate
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 fixed-rate 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.
o Approximately 82.77% of the mortgage loans (by aggregate principal
balance as of the cut-off date), require the mortgagor to pay a charge
if the mortgagor prepays the mortgage loan during periods ranging, in
substantially all cases, from one year to four years after the
mortgage loan was originated. A prepayment charge may discourage a
mortgagor from prepaying the mortgage loan during the applicable
period. Such prepayment charges will be distributed to holders of the
Class P Certificates and not to holders of the offered certificates.
The servicer is entitled to waive prepayment charges, subject to
certain conditions specified in the pooling and servicing agreement.
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o The originator and the seller may be required to purchase mortgage
loans from the trust in the event certain breaches of representations
and warranties occur and are not cured. In addition, the servicer at
its option or pursuant to directions from the NIMS Insurer has the
option to purchase mortgage loans from the trust that are at least 90
days delinquent under the circumstances described in the pooling and
servicing agreement. 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 of default and the amount of losses on the mortgage loans
are higher than you expect, then your yield may be lower than you
expect.
o If the level of overcollateralization falls below the targeted
overcollateralization amount for a distribution date, excess interest
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.
See "Yield, Prepayment and Maturity Considerations" for a description of
factors that may influence the rate and timing of prepayments on the mortgage
loans.
THE YIELD TO MATURITY ON THE CLASS M CERTIFICATES WILL BE PARTICULARLY SENSITIVE
TO THE RATE OF PREPAYMENTS ON THE MORTGAGE LOANS
The multiple class structure and structural subordination of the Class M
Certificates causes the yield of these classes to be particularly sensitive to
changes in the rates of prepayment of the mortgage loans. Because distributions
of principal will be made to the holders of such certificates according to the
priorities described in this Prospectus Supplement, the yield to maturity on
such classes of certificates will be sensitive to the rates of prepayment on the
mortgage loans experienced both before and after the commencement of principal
distributions on such classes. The yield to maturity on such classes of
certificates will also be extremely sensitive to losses due to defaults on the
mortgage loans (and timing thereof), to the extent these losses are not covered
by credit enhancement, including excess cashflow otherwise payable to the Class
CE Certificates or to a class of Class M Certificates with a lower payment
priority. Furthermore, as described in this Prospectus Supplement, the timing of
receipt of principal and interest by the Class M Certificates may be adversely
affected by losses even if these classes of certificates do not ultimately bear
such loss.
NEWLY ORIGINATED MORTGAGE LOANS MAY BE MORE LIKELY TO DEFAULT, WHICH MAY CAUSE
LOSSES ON THE OFFERED CERTIFICATES
None of the mortgage loans are 30 or more days contractually delinquent as
of the cut-off date (i.e., mortgagors had made their August 1, 2004 monthly
payments). However, approximately 98.18% of the mortgage loans (by aggregate
principal balance as of the cut-off date) have first due dates on or after
September 1, 2004 and therefore could not have been 30 or more days
contractually delinquent as of the cut-off date. Delinquency information
presented in this prospectus supplement as of the cut-off date is determined and
prepared as of the close of business on the last business day immediately prior
to the cut-off date.
Defaults on mortgage loans tend to occur at higher rates during the early
years of the mortgage loans. Substantially all of the mortgage loans have been
originated within the four months prior to their sale to the trust. As a result,
the trust may experience higher rates of default than if the mortgage loans had
been outstanding for a longer period of time.
INTEREST ONLY MORTGAGE LOANS
Approximately 58.68% of the mortgage loans (by aggregate principal balance
as of the cut-off date) require the mortgagors to make monthly payments of
accrued interest only for the first 60 months following origination. During this
period, the payment made by the related mortgagor will be less than it would be
if the principal of the mortgage loan was required to amortize. In addition, the
mortgage loan principal balance will not be reduced because there will be no
scheduled monthly payments of principal during this period. As a result, no
principal
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payments will be made on the offered certificates with respect to these mortgage
loans during their interest-only period unless there is a principal prepayment.
Because no principal payments may be made on such mortgage loans for 60 months
following origination, the certificateholders will receive smaller principal
distributions during such period than they would have received if the related
borrowers were required to make monthly payments of interest and principal for
the entire lives of such mortgage loans. This slower rate of principal
distributions may reduce the return on an investment in the offered certificates
that are purchased at a discount.
After the initial interest-only period, the scheduled monthly payment on
these mortgage loans will increase in most cases, which may result in increased
delinquencies by the related mortgagors, particularly if interest rates have
increased and the mortgagor is unable to refinance. In addition, losses may be
greater on these mortgage loans as a result of there being no principal
amortization during the early years of these mortgage loans. Although the amount
of principal included in each scheduled monthly payment for a traditional
mortgage loan is relatively small during the first few years after the
origination of a mortgage loan, in the aggregate, the amount can be significant.
Any resulting delinquencies and losses, to the extent not covered by credit
enhancement, will be allocated to the offered certificates.
Mortgage loans with an initial interest-only period are relatively new in
the mortgage marketplace. The performance of these mortgage loans may be
significantly different from mortgage loans that amortize from origination. In
particular, there may be a high expectation by these mortgagors of refinancing
their mortgage loans with a new mortgage loan, in particular, one with an
initial interest-only period, which may result in higher or lower prepayment
speeds than would otherwise be the case. In addition, the failure by the related
mortgagor to build equity in the property may affect the delinquency, loss and
prepayment experience with respect to these mortgage loans.
THERE ARE RISKS RELATING TO ALTERNATIVES TO FORECLOSURE
Certain 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 if the delinquency is not cured, 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.
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 is
expected to be higher than the weighted average of the certificate interest
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 interest will be used to maintain or
restore overcollateralization. Any remaining excess interest will then be used
to compensate for losses that occur on the mortgage loans. We cannot assure you,
however, that enough excess interest will be generated to maintain the
overcollateralization level required by the pooling and servicing agreement. The
factors described below, as well as the factors described in the next Risk
Factor, will affect the amount of excess interest that the mortgage loans will
generate:
o When a mortgage loan is prepaid in full or repurchased, excess
interest will generally be reduced because the mortgage loan will no
longer be outstanding and generating interest or, in the case of a
partial prepayment, will be generating less interest.
o Every time a mortgage loan is liquidated or written off, excess
interest will be reduced because such mortgage loan 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 interest will be reduced by the
amount necessary to compensate for any shortfalls in cash available on
such date to pay certificateholders.
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o The certificate interest rates of the Class A and Class M Certificates
(other than the Class M-7F Certificates) are based on one-month LIBOR
while the adjustable-rate mortgage loans have rates that are
adjustable based on six-month LIBOR and the fixed-rate mortgage loans
have rates that do not adjust. As a result, the certificate interest
rates on such certificates may increase relative to interest rates on
the mortgage loans, thus requiring that more of the interest generated
by the mortgage loans be applied to cover interest on such
certificates.
EFFECTS OF MORTGAGE INTEREST RATES AND OTHER FACTORS ON THE CERTIFICATE INTEREST
RATES OF THE OFFERED CERTIFICATES
The pool cap, which is applicable to the Class A and Class M Certificates,
is equal to the weighted average of the mortgage interest rates on the mortgage
loans, net of the servicing fee rate, the credit risk manager fee rate and the
PMI Insurer fee rate, if applicable. If, for any distribution date, the pool cap
is less than the applicable pass-through rate for any class of the Class A or
Class M Certificates (or the fixed coupon rate for the Class M-7F Certificates),
then the certificate interest rate on that class will equal the pool cap, rather
than the related pass-through rate (or the fixed coupon rate for the Class M-7F
Certificates). In this event, that class of Class A or Class M Certificates will
suffer a basis risk shortfall in the amount of the difference between interest
that would have accrued on that class at its pass-through rate (or the fixed
coupon rate for the Class M-7F Certificates) and interest that accrued on that
class at the pool cap.
The yields to maturity on the offered certificates may be affected by the
inclusion of fixed-rate mortgage loans and the resetting of the mortgage
interest rates on the adjustable-rate mortgage loans on their related adjustment
dates. The mortgage interest rates on the fixed-rate mortgage loans will not
vary with any index and the mortgage interest rates on the adjustable-rate
mortgage loans are generally based on the six-month LIBOR index (and will not
have their mortgage interest rates adjusted for periods ranging from six months
to five years after the dates of their origination), while the certificate
interest rates on the Class A and Class M Certificates (other than the Class
M-7F Certificates) are based on the one-month LIBOR index, are subject to the
maximum rate cap and to the pool cap, and are adjusted monthly. This mismatch of
indices and adjustment frequency may cause the one-month LIBOR-based certificate
interest rates on the Class A and Class M Certificates 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 certificates, and could result in the limitation of
the certificate interest rate on some or all of those certificates by the pool
cap, and could therefore adversely affect the yield to maturity on such
certificates.
In addition, investors should note that the pool cap 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 pool cap will apply to limit the certificate
interest rate on one or more classes of the offered certificates.
If the certificate interest rate on any class of the Class A or Class M
Certificates is limited by the pool cap for any distribution date, the resulting
cap carryover amounts 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 Class A
and Class M Certificates and the payment of certain fees and expenses of the
trust. These cap carryover amounts for the Class A Certificates and the Class M
Certificates (other than the Class M-7F Certificates) may also be covered by
amounts payable under the respective yield maintenance agreements. See
"Description of the Certificates--Application of Monthly Excess Cashflow
Amounts" and "--The Yield Maintenance Agreements" in this Prospectus Supplement.
You should note, however, that if the pass-through rate on any class of Class A
or Class M Certificates (other than the Class M-7F Certificates) is based on the
maximum rate cap, any cap carryover amount will be less during such period on
those certificates than if the pass-through rate were based on one-month LIBOR
plus the applicable margin. See "Description of the Certificates--Certificate
Interest Rates" in this Prospectus Supplement. The ratings on the offered
certificates will not address the likelihood of any such recovery of cap
carryover amounts by holders of such certificates.
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THERE ARE RISKS IN HOLDING SUBORDINATED CERTIFICATES
The protections afforded the senior certificates (the Class A Certificates)
in this transaction create risks for the Class M Certificates, which are
subordinated to the Class A Certificates. Prior to any purchase of any offered
Class M Certificates, consider the following factors that may adversely impact
your yield:
o Because the Class M Certificates receive interest and principal
distributions after the senior certificates receive such
distributions, there is a greater likelihood that the Class M
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 Class M Certificates.
o The Class M Certificates are not expected to receive principal
distributions until, at the earliest, November 2007 (unless the senior
certificates are reduced to zero prior to such date).
o Losses resulting from the liquidation of defaulted mortgage loans will
first reduce monthly excess cashflow and then reduce the level of
overcollateralization, if any, for the certificates. If there is no
overcollateralization, losses will be allocated to the Class M
Certificates in reverse order of payment priority. No principal or
interest will be distributable on the amount by which the certificate
principal balance of a class has been reduced by a realized loss
allocated to a Class M Certificate (except where a certificate
principal balance has been increased by a subsequent recovery). 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.
SEQUENTIAL RIGHT TO RECEIVE PRINCIPAL PAYMENTS MAY INCREASE RISK OF LOSS TO
CLASS A-2 AND CLASS A-3 CERTIFICATES
If you purchase the Class A-2 or Class A-3 certificates, you should
consider that if realized losses are such that the principal balances of the
Class M certificates are reduced to zero, holders of the Class A-3 Certificates
will not receive any payments of principal until the principal balance of the
Class A-1 and Class A-2 Certificates have been reduced to zero and holders of
the Class A-2 Certificates will not receive any payments of principal until the
principal balance of the Class A-1 Certificates have been reduced to zero.
Consequently, if realized losses are such that the principal balances of the
Class M certificates are reduced to zero, the impact of any further realized
losses with respect to payments of principal on the Class A-1, Class A-2 and
Class A-3 Certificates will be borne first by the Class A-3 Certificates and
then by the Class A-2 Certificates. See "Description of the
Certificates--Distributions--Distributions of Principal" in this Prospectus
Supplement.
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 make compensating
interest payments to cover a portion of the shortfall in interest collections
that are attributable to prepayments on the mortgage loans, but only up to the
servicing fee for the related interest accrual period. In addition, the servicer
will not cover shortfalls in interest collections arising from the application
of the Servicemembers Civil Relief Act or similar state or local laws.
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On any distribution date, any shortfalls resulting from the application of
the Servicermembers Civil Relief Act or similar state or local laws, and any
prepayment interest shortfalls resulting from prepayments in full to the extent
not covered by compensating interest payments by the servicer will be allocated,
first, to the amounts otherwise payable to the Class CE Certificates on such
distribution date, if any, and thereafter, to the Class A and Class M
Certificates, pro rata, based on the respective amounts of interest accrued on
those certificates for that distribution date. The holders of the Class A and
Class M Certificates will not be entitled to reimbursement for such shortfalls
following their allocation to such certificates. If these shortfalls are
allocated to the Class A and Class M Certificates the amount of interest paid on
those certificates will be reduced, adversely affecting the yield on such
certificates.
HIGH LOAN-TO-VALUE RATIOS INCREASE RISK OF LOSS
Mortgage loans with high loan-to-value ratios leave the mortgagor with
little to no equity in the related mortgaged property. Approximately 41.27% of
the mortgage loans (by aggregate principal balance as of the cut-off date) had
loan-to-value ratios at origination in excess of 80.00%. No mortgage loan had a
loan-to-value ratio exceeding 100.00% as of the cut-off date. 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-value 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. The primary mortgage insurance policy
provided by the PMI Insurer will provide only limited protection against some of
the risks associated with high loan-to-value ratios, and such policy will
provide such limited protection only with respect to those mortgage loans which
are covered by such a policy.
THERE IS A RISK RELATING TO THE POTENTIAL INADEQUACY OF CREDIT ENHANCEMENT FOR
THE OFFERED CERTIFICATES
The credit enhancement features described in this Prospectus Supplement are
intended to enhance the likelihood that holders of the senior certificates, and
to a limited extent, the holders of the Class M Certificates, will receive
regular payments of interest and principal. However, we cannot assure you 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 and principal on delinquent or defaulted mortgage loans if
such advances are not likely to be recovered.
If substantial losses occur as a result of defaults and delinquent payments
on the mortgage loans, you may suffer losses.
Furthermore, although a loan level primary mortgage insurance policy has
been acquired on behalf of the trust from the PMI Insurer with respect to
approximately 21.06% of the mortgage loans (by aggregate principal balance as of
the cut-off date), such policy will provide only limited protection against
losses on defaulted mortgage loans, and such policy will provide such limited
protection only with respect to those mortgage loans which are covered by such a
policy.
AN INCREASE IN DELINQUENCIES MAY OCCUR DUE TO PENDING SERVICING TRANSFER
The servicing function with respect to the mortgage loans will be
transferred from National City Bank of Indiana, an affiliate of the originator,
to the Servicer on or about November 1, 2004. During the period beginning on the
cut-off date and ending on the servicing transfer date, the primary servicing of
such mortgage loans will be performed by National City Bank of Indiana, as
subservicer to the originator, pursuant to the Flow Sale and Interim Servicing
Agreement, dated as of September 1, 2004, by and between the originator and the
seller. The servicing obligations of National City Bank of Indiana under the
Flow Sale and Interim Servicing Agreement will terminate on the servicing
transfer date. Servicing transfers involve notifying mortgagors to remit
payments to the new
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servicer, transferring physical possession of the mortgage files and records to
the new servicer and entering mortgage loan and borrower data on the management
information systems of the new servicer, and such transfers could result in
misdirected notices, misapplied payments, data input errors and other problems.
Industry experience indicates that mortgage loan delinquencies and defaults are
likely to temporarily increase during the transition to a new servicer and
immediately following servicing transfers. There can be no assurance as to the
severity or duration of any increase in the rate of delinquencies or defaults
due to transfers of servicing.
THE YIELD MAINTENANCE AGREEMENTS ARE SUBJECT TO COUNTERPARTY RISK
The assets of the trust include yield maintenance agreements which will
require the counterparty thereunder to make certain payments in the
circumstances set forth herein under "Description of the Certificates--The Yield
Maintenance Agreements" and which will be for the benefit of the holders of the
applicable classes of Class A and Class M Certificates. To the extent that
payments on these certificates depend in part on payments to be received by the
trustee under the related yield maintenance agreement, the ability of the
trustee to make such payments on such certificates will be subject to the credit
risk of the counterparty to such yield maintenance agreement.
EFFECT OF CREDITWORTHINESS OF THE PMI INSURER ON RATINGS OF THE OFFERED
CERTIFICATES
The ratings assigned to the offered certificates by the rating agencies
will be based in part on the credit ratings assigned to Radian Guaranty Inc., as
the insurer providing the primary mortgage insurance coverage on certain of the
Mortgage Loans as described in this Prospectus Supplement. The credit ratings
assigned to Radian Guaranty Inc. could be qualified, reduced or withdrawn at any
time. On January 15, 2004, S&P announced it had revised its outlook to negative
from stable for Radian Group Inc., the parent company of Radian Guaranty Inc.,
but that such change in outlook would not affect the current financial strength
rating assigned to Radian Guaranty Inc. Any qualification, reduction or
withdrawal of the ratings assigned to Radian Guaranty Inc. could result in
reduction of the ratings assigned to the offered certificates, which could in
turn affect the liquidity and market value of the offered certificates.
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
originator and the seller to repurchase certain mortgage loans pursuant to
breaches of certain limited representations and warranties made with respect to
the mortgage loans, the obligations of the servicer with respect to its
servicing obligations under the pooling and servicing agreement and the limited
obligations of the counterparty under the yield maintenance agreements. 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 and the primary mortgage insurance policy
relating to certain of 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.
THE RIGHTS OF THE NIMS INSURER COULD ADVERSELY AFFECT THE OFFERED CERTIFICATES
After the closing date, a separate entity may be established to issue net
interest margin securities secured by all or a portion of the Class CE and Class
P Certificates. A NIMS Insurer may issue a financial guaranty insurance policy
that guarantees payments on those securities. If the net interest margin
securities are so insured, the NIMS Insurer will have a number of rights under
the pooling and servicing agreement that could adversely affect
certificateholders. Pursuant to the pooling and servicing agreement, unless the
NIMS Insurer fails to make a required payment under the policy insuring the net
interest margin securities or the NIMS Insurer is the subject of a bankruptcy
proceeding, the NIMS Insurer will be entitled to exercise, certain rights of the
holders of the offered certificates, without their consent, and the holders of
the offered certificates will be able to exercise certain rights only with the
prior written consent of the NIMS Insurer. Rights of the NIMS Insurer under the
pooling and servicing agreement may include, but are not limited to, the
following:
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o the right to provide notices of servicer defaults and the right to
direct the trustee to terminate the rights and obligations of the
servicer under the pooling and servicing agreement upon a default by
the servicer;
o the right to remove the trustee or any co-trustee or custodian
pursuant to the pooling and servicing agreement for failure of such
party to perform its obligations thereunder;
o the right to direct the trustee to make investigations and take
actions pursuant to the pooling and servicing agreement;
o 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 under the circumstances set forth under "The Pooling and
Servicing Agreement--Optional Termination" in this Prospectus
Supplement; and
o the right to direct the servicer to purchase mortgage loans delinquent
in payment 90 days or more.
In addition, unless the NIMS Insurer fails to make a required payment under
the policy insuring the net interest margin securities or the NIMS Insurer is
the subject of a bankruptcy proceeding, the NIMS Insurer's consent will be
required before, among other things,
o the removal of the servicer, any successor servicer or the trustee;
o the appointment of any subservicer or co-trustee;
o any otherwise permissible waivers of prepayment charges or extensions
of due dates for payment granted by the servicer with respect to more
than 5% of the number of mortgage loans; or
o any amendment to the pooling and servicing agreement.
Investors in the offered certificates should note that:
o any insurance policy issued by the NIMS Insurer will not cover, and
will not benefit in any manner whatsoever the offered certificates;
o the rights granted to the NIMS Insurer are extensive;
o the interests of the NIMS Insurer may be inconsistent with, and
adverse to the interests of the holders of the offered certificates
and the NIMS Insurer has no obligation or duty to consider the
interests of the offered certificates in connection with the exercise
or nonexercise of the NIMS Insurer's rights; and
o the NIMS Insurer's exercise of its rights and consents may negatively
affect the offered certificates and the existence of the NIMS
Insurer's rights, whether or not exercised, may adversely affect the
liquidity of the offered certificates, relative to other asset-backed
certificates backed by comparable mortgage loans and with comparable
payment priorities and ratings.
THERE IS A RISK THAT THERE MAY BE A DELAY IN RECEIPT OF LIQUIDATION PROCEEDS,
AND THAT LIQUIDATION PROCEEDS MAY BE LESS THAN THE OUTSTANDING BALANCE OF THE
MORTGAGE LOAN
Substantial delays could be encountered in connection with the liquidation
of delinquent mortgage loans. Further, liquidation expenses such as legal fees,
real estate taxes and maintenance and preservation expenses will reduce the
portion of liquidation proceeds payable to you. If a mortgaged property fails to
provide adequate security for the mortgage loan, you will incur a loss on your
investment if the credit enhancements are insufficient to cover the loss.
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THERE ARE RISKS RELATING TO GEOGRAPHIC CONCENTRATION OF THE MORTGAGE LOANS
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.
LOCATION TOTAL
--------------------- ----------------
California 39.92%
Florida 5.98%
Illinois 4.60%
Texas 4.56%
New York 4.21%
California, Florida and several other states have experienced natural
disasters, such as earthquakes, fires, floods and hurricanes, which may not be
fully insured against and which may result in property damage and losses on the
mortgage loans. Properties located in certain parts of the United States,
particularly certain parts of Florida and other states in the southeast portion
of the United States and surrounding areas may have been damaged by the
hurricanes and tropical storms that recently affected those areas. There has
been no determination of the number of mortgaged properties securing mortgage
loans included in the mortgage pool that have been or may be affected by these
storms. No assurance can be given as to the effect of these storms on the rate
of delinquencies and losses on the mortgage loans secured by mortgaged
properties that were or may affected by these storms. Any adverse impact as a
result of these storms may be borne by the holders of the offered certificates,
particularly if the originator fails to repurchase any mortgage loan that
breaches the representation and warranty relating to damaged mortgaged
properties. Any repurchases of such mortgage loans will have the same effect on
the holders of the offered certificates as a prepayment of those mortgage loans.
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.
THE LACK OF A SECONDARY MARKET MAY LIMIT YOUR ABILITY TO SELL YOUR CERTIFICATES
The underwriters intend to make a secondary market in the offered
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. 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 offered 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 AND PREDATORY LENDING LAWS MAY CAUSE
LOSSES ON YOUR CERTIFICATES
Federal, state and local laws regulate the underwriting, origination,
servicing and collection of the mortgage loans. These laws have changed over
time and have become more restrictive or stringent with respect to specific
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activities of the servicer and the originator. Actual or alleged violations of
these federal, state and local 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 mortgage loans,
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.
As a result, these violations or alleged violations could result in
shortfalls in the distributions due on your certificates. See "Risk
Factors--Violations of Federal, State and Local Laws May Adversely Affect
Ability to Collect on Loans" and "Certain Legal Aspects of Mortgage
Loans--Anti-Deficiency Legislation, the Bankruptcy Code and Other Limitations on
Lenders" in the Prospectus. The originator has made, and the seller will make,
representations and warranties with respect to each mortgage loan relating to
compliance with federal, state and local laws at the time of origination and
will be required to repurchase or replace any mortgage loan that was not
originated in compliance with such laws. In addition, the originator (or the
seller, if the originator fails to do so) will be required to reimburse the
trust for any damages or costs incurred by the trust as a result of a breach of
the representation as to compliance with such laws. However, if the originator
and the seller are unable to fulfill this reimbursement obligation for financial
or other reasons, shortfalls in the distributions due on your certificates could
occur.
IN THE EVENT THE ORIGINATOR OR THE SELLER IS NOT ABLE TO REPURCHASE OR REPLACE
DEFECTIVE MORTGAGE LOANS YOU MAY SUFFER LOSSES ON YOUR CERTIFICATES
The originator made certain representations and warranties regarding the
mortgage loans as of September 29, 2004, pursuant to a flow sale and interim
servicing agreement, dated as of September 1, 2004, referred to herein as the
originator mortgage loan purchase agreement, under which the originator sold the
mortgage loans to the seller. These representations and warranties will be
assigned by the seller to the depositor and by the depositor to the trustee, for
the benefit of the certificateholders. Within the period of time specified in
the pooling and servicing agreement following its discovery of a breach of any
representation or warranty that materially and adversely affects the interests
of certificateholders in a mortgage loan, or receipt of notice of such breach,
the originator will be obligated to cure such breach or purchase the affected
mortgage loan from the trust for a price equal to the unpaid principal balance
thereof plus accrued interest thereon (or, in certain circumstances, to
substitute another mortgage loan).
Pursuant to the terms of the mortgage loan purchase agreement whereby the
mortgage loans will be purchased by the depositor, the seller will make to the
depositor (and the depositor will assign to the trustee for the benefit of the
certificateholders) only certain limited representations and warranties as of
the closing date, generally intended to address the accuracy of the mortgage
loan schedule and the payment and delinquency status of each mortgage loan. In
the event of a breach of any such representation or warranty that does not
constitute a breach of any representation or warranty made by the originator as
described above, the seller will be obligated in the same manner as the
originator to cure such breach or purchase the affected mortgage loans, as
described above.
To the extent that any fact, condition or event with respect to a mortgage
loan constitutes a breach of both a representation and warranty of the
originator under the originator mortgage loan purchase agreement with the
seller, and a breach of a representation and warranty of the seller under the
mortgage loan purchase agreement between the seller and the depositor, then the
only right or remedy of the trustee or any certificateholder will be the
trustee's right to enforce the obligations of the originator under the
originator mortgage loan purchase agreement, and there will be no remedy against
the seller for such breach (other than the seller's obligation to reimburse the
trust, if the originator
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fails to do so, for any damages or costs incurred by the trust as a result of a
breach of the representation as to compliance with federal, state or local laws
with respect to the origination of the mortgage loans).
If the originator or the seller, as the case may be, fails to cure a
material breach of its representations and warranties with respect to any
mortgage loan in a timely manner, such entity 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
originator or 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
originator or 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.
UNITED STATES MILITARY OPERATIONS MAY INCREASE RISK OF SHORTFALLS IN INTEREST
In response to previously executed and threatened terrorist attacks in the
United States and foreign countries, the United States has undertaken military
operations and has placed a substantial number of armed forces reservists and
members of the National Guard on active duty status. It is possible that the
number of reservists and members of the National Guard placed on active duty
status in the future may increase. To the extent that a member of the military,
or a member of the armed forces reserves or National Guard who is called to
active duty, is a mortgagor of a mortgage loan in the trust, the interest rate
limitation of the Servicemembers Civil Relief Act and any comparable state law,
will apply. Substantially all of the mortgage loans have mortgage interest rates
which exceed such limitation, if applicable. This may result in interest
shortfalls on the mortgage loans, which, in turn will be allocated ratably in
reduction of accrued interest on all classes of interest-bearing certificates,
irrespective of the availability of excess cashflow or other credit enhancement
to the extent not covered by excess interest. None of the originator, the
depositor, any underwriter, the seller, the servicer or any other party has
taken any action to determine whether any of the mortgage loans would be
affected by such interest rate limitation. See "Description of the
Certificates--Interest Distributions" in this Prospectus Supplement and "Certain
Legal Aspects of the Mortgage Loans--Servicemembers Civil Relief Act" in the
Prospectus.
RATINGS ON THE OFFERED CERTIFICATES DO NOT ADDRESS ALL OF THE FACTORS YOU SHOULD
CONSIDER WHEN PURCHASING SUCH CERTIFICATES
The rating of each class of offered certificates will depend primarily on
an assessment by the rating agencies of the mortgage loans as well as the
structure of the transaction. The rating assigned by the rating agencies of any
class of offered certificates is not a recommendation to purchase, hold or sell
any rated offered certificates, inasmuch as the rating does not comment as to
the market price or suitability for a particular investor. There is no assurance
that the ratings will remain in place for any given period of time or that the
ratings will not be qualified, lowered or withdrawn by the rating agencies. In
general, the ratings address credit risk and do not address the likelihood of
prepayments or the likelihood that any carryover cap amounts will be paid.
See "Ratings" in this Prospectus Supplement for more detail.
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.
THE MORTGAGE POOL
Certain information with respect to the Mortgage Loans to be included in
the Mortgage Pool is set forth herein. Prior to the Closing Date, Mortgage Loans
may be removed from the Mortgage Pool and other Mortgage Loans may be
substituted therefor. The Depositor believes that the information set forth
herein with respect to the Mortgage
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Pool as presently constituted is representative of the characteristics of the
Mortgage Pool as it will be constituted at the Closing Date, although certain
characteristics of the Mortgage Loans may vary.
GENERAL
The assets included in the Trust will consist primarily of a pool (the
"MORTGAGE POOL") of 6,911 closed-end, fixed-rate and adjustable-rate mortgage
loans (the "MORTGAGE LOANS") having original terms to maturity of not greater
than 360 months and an aggregate principal balance as of October 1, 2004 (the
"CUT-OFF DATE") of $1,394,878,770.49. 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 Mortgage
Loans in the aggregate, of the Fixed-Rate Mortgage Loans in the aggregate or the
Adjustable-Rate Mortgage Loans in the aggregate, in each case 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 (i) all collections and other
amounts credited against the principal balance of any such Mortgage Loan, (ii)
the principal portion of Advances, (iii) any Deficient Valuation and (iv) any
principal reduction resulting from a Servicer Modification. References to
percentages of the Mortgage Loans mean percentages based on the aggregate of the
Cut-off Date Principal Balances of the Mortgage Loans, the Fixed-Rate Mortgage
Loans or the Adjustable-Rate Mortgage Loans unless otherwise specified. The
"POOL BALANCE" is equal to the aggregate 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 as of the Cut-off 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.
Based on the representations made by the Originator, the Depositor believes
that each of the Mortgage Loans in the Mortgage Pool was originated or acquired
by the Originator generally in accordance with the underwriting standards
described under "Underwriting Standards" in this Prospectus Supplement.
The Originator made certain representations and warranties regarding the
Mortgage Loans as of September 29, 2004, pursuant to a Flow Sale and Interim
Servicing Agreement, dated as of September 1, 2004 (the "Originator Mortgage
Loan Purchase Agreement"), pursuant to which the Originator sold the Mortgage
Loans to the Seller. These representations and warranties will be assigned by
the Seller to the Depositor and by the Depositor to the Trustee, for the benefit
of the Certificateholders. The Originator, subject to certain limitations, will
be obligated under the Originator 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.
Pursuant to the terms of the Mortgage Loan Purchase Agreement, the Seller
will make to the Depositor (and the Depositor will assign to the Trustee for the
benefit of Certificateholders) only certain limited representations and
warranties as of the Closing Date, generally intended to address the accuracy of
the Mortgage Loan Schedule and the payment and delinquency status of each
Mortgage Loan and certain other matters. In the event of a breach of any such
representation or warranty that does not constitute a breach of any
representation or warranty made by the Originator as described above, the Seller
will be obligated in the same manner as the Originator to cure such breach or
purchase or substitute the affected Mortgage Loans, as described above.
To the extent that any fact, condition or event with respect to a Mortgage
Loan constitutes a breach of both a representation and warranty of the
Originator under the Originator Mortgage Loan Purchase Agreement with the Seller
and a breach of a representation and warranty of the Seller under the Mortgage
Loan Purchase Agreement between the Seller and the Depositor, then the only
right or remedy of the Trustee or any Certificateholder shall be the Trustee's
right to enforce the obligations of the Originator under the Originator Mortgage
Loan Purchase Agreement, and there shall be no remedy against the Seller for
such breaches (other than the Seller's obligation to reimburse the Trust, if the
Originator fails to do so, for any damages or costs incurred by the Trust as a
result of a
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breach of the representation as to compliance with federal, state or local
predatory and abusive lending laws with respect to the origination of the
Mortgage Loans).
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 cure, repurchase or substitution obligations described above and its
reimbursement obligation described under "The Pooling and Servicing
Agreement--Assignment of the Mortgage Loans" in this Prospectus Supplement.
The Mortgage Pool will consist of fixed-rate Mortgage Loans (the
"FIXED-RATE MORTGAGE LOANS") and adjustable-rate Mortgage Loans (the
"ADJUSTABLE-RATE MORTGAGE LOANS"). Substantially all of the Adjustable-Rate
Mortgage Loans have an initial fixed mortgage interest rate for six months, one
year, two years, three years or five years. The Fixed-Rate Mortgage Loans
consist of 931 Mortgage Loans with an aggregate principal balance of
approximately $131,296,819.84 as of the Cut-off Date. The Adjustable-Rate
Mortgage Loans consist of 5,980 Mortgage Loans with an aggregate principal
balance of approximately $1,263,581,950.65 as of the Cut-off Date.
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 October 1, 2004 will be reported as Delinquent on
November 2, 2004 if the payment is not made by the close of business on November
1, 2004.
The Mortgage Loans are subject to the "due-on-sale" provisions included
therein and each Adjustable-Rate Mortgage Loan provides that the Mortgage Loan
is assumable by a creditworthy purchaser of the related Mortgaged Property.
The Servicer will be required to make servicing advances on Delinquent
Mortgage Loans and make advances of delinquent payments of principal and
interest on Delinquent Mortgage Loans, each to the extent such advances are
deemed recoverable, until such Mortgage Loans become current or are liquidated.
MORTGAGE POOL STATISTICS
The following statistical information, unless otherwise specified, is based
upon the aggregate Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The Mortgage Loans are secured by mortgages, deeds of trust or other
similar security instruments (each, a "MORTGAGE") which the Seller has
represented create a first lien on one- to four-family residential properties
consisting of one- to four-family dwelling units, planned unit developments and
individual condominium units (each, a "MORTGAGED PROPERTY"). Generally, the
Mortgage Loans have scheduled Monthly Payments due on the first day of the month
(the day such Monthly Payments are due with respect to each Mortgage Loan, a
"DUE DATE").
Approximately 82.77% of the Mortgage Loans provide for payment by the
mortgagor of a prepayment charge in limited circumstances on certain
prepayments. No such prepayment charge will be distributed to the holders of the
Offered Certificates.
Approximately 41.27% of the Mortgage Loans (by aggregate principal balance
as of the Cut-off Date) had loan-to-value ratios at origination in excess of
80.00%. No Mortgage Loan had a loan-to-value ratio exceeding 100.00% as of the
Cut-off Date. Approximately 21.06% of the Mortgage Loans (representing 51.04% of
the Mortgage Loans having loan-to-value ratios at origination in excess of
80.00%) are PMI Mortgage Loans as described under "Description of the
Certificates--PMI Policy" in this prospectus supplement.
Approximately 58.68% of the Mortgage Loans will provide for interest only
Monthly Payments for the first 60 months of the term of the Mortgage Loan (each,
an "INTEREST ONLY MORTGAGE LOAN"). The Monthly Payments on the Interest Only
Mortgage Loans will include accrued interest and principal on such Mortgage Loan
beginning in the 61st month of the term of such Mortgage Loan. As a result of
this payment structure, Monthly Payments
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beginning after the expiration of the related interest only period of the term
of such Mortgage Loans may be significantly larger than Monthly Payments during
the related interest only period required under the Mortgage Note.
Approximately 0.02% of the Mortgage Loans will not fully amortize by their
respective maturity dates (each, a "BALLOON MORTGAGE LOAN"). The Monthly Payment
for all of the Balloon Mortgage Loans is based on an amortization schedule of
360 months, except for the final payment (the "BALLOON PAYMENT") which is due
and payable in the 180th month following origination of such Mortgage Loan,
depending on the terms of the related mortgage note. 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.
Each Mortgage Loan accrues interest at a per annum rate (the "MORTGAGE
INTEREST RATE") of not less than 4.125% per annum and not more than 10.375% per
annum and as of the Cut-off Date the weighted average Mortgage Interest Rate of
the Mortgage Loans was approximately 6.822% per annum.
The weighted average remaining term to maturity of the Mortgage Loans will
be approximately 357 months as of the Cut-off Date. None of the Mortgage Loans
had a first Due Date prior to May 1, 2004 or after November 1, 2004 or will have
a remaining term to maturity of less than 177 months or greater than 360 months
as of the Cut-off Date. The latest maturity date of any Mortgage Loan is October
1, 2034.
The average Principal Balance of the Mortgage Loans at origination was
approximately $201,941.83. No Mortgage Loan had a Cut-off Date Principal Balance
of greater than $1,000,000.00 or less than $282.10. The average Cut-off Date
Principal Balance of the Mortgage Loans was approximately $201,834.58.
All of the Adjustable-Rate Mortgage Loans provide for semi-annual
adjustment to the Mortgage Interest Rate thereon and for corresponding
adjustments to the Monthly Payment amount due thereon, in each case on each
adjustment date applicable thereto (each such date, an "ADJUSTMENT DATE"). On
each Adjustment Date for each Adjustable-Rate Mortgage Loan, the Mortgage
Interest Rate thereon will be adjusted to equal the sum of Six-Month LIBOR (the
"INDEX") and a fixed percentage amount (the "GROSS MARGIN"). As of the Cut-off
Date, the Adjustable-Rate Mortgage Loans had Gross Margins ranging from 0.375%
to 8.000%, with a weighted average Gross Margin of approximately 4.801%. The
Mortgage Interest Rate on each such Adjustable-Rate Mortgage Loan will not
increase or decrease by more than 1.000% to 3.000% per annum on the first
related Adjustment Date (the "INITIAL PERIODIC RATE CAP") and by more than
1.000% per annum on any Adjustment Date thereafter (the "PERIODIC RATE CAP").
The Adjustable-Rate Mortgage Loans have a weighted average Initial Periodic Rate
Cap of approximately 2.965% per annum and Periodic Rate Caps of 1.000% per annum
thereafter. Each Mortgage Interest Rate on each such Adjustable-Rate Mortgage
Loan will not exceed a specified maximum Mortgage Interest Rate over the life of
such Mortgage Loan (the "MAXIMUM MORTGAGE INTEREST RATE") or be less than a
specified minimum Mortgage Interest Rate over the life of such Mortgage Loan
(the "MINIMUM MORTGAGE INTEREST RATE"). As of the Cut-off Date, the
Adjustable-Rate Mortgage Loans had Maximum Mortgage Interest Rates ranging from
10.125% per annum to 16.375% per annum and Minimum Mortgage Interest Rates
ranging from 4.125% per annum to 10.375% per annum. As of the Cut-off Date, for
the Adjustable-Rate Mortgage Loans, the weighted average Minimum Mortgage
Interest Rate was approximately 6.756% per annum and the weighted average
Maximum Mortgage Interest Rate was approximately 12.756% per annum.
Except with respect to certain of the Interest Only Mortgage Loans,
effective with the first Monthly Payment due on each Adjustable-Rate Mortgage
Loan after each related Adjustment Date, the Monthly Payment amount will be
adjusted to an amount that will amortize fully the outstanding Principal Balance
of the related Mortgage Loan over its remaining term, and pay interest at the
Mortgage Interest Rate as so adjusted. The latest next Adjustment Date following
the Cut-off Date on any Adjustable-Rate Mortgage Loan occurs in October 2009 and
the weighted average number of months to the next Adjustment Date following the
Cut-off Date for all of the Adjustable-Rate Mortgage Loans is approximately 29
months. Due to the application of the Periodic Rate Caps and the Maximum
Mortgage Interest Rates, the Mortgage Interest Rate on each such Mortgage Loan,
as adjusted on any related Adjustment Date, may be less than the sum of the
Index and the related Gross Margin. See "--The Index" in this Prospectus
Supplement. None of the Adjustable-Rate Mortgage Loans had Mortgage Interest
Rates that may be converted to fixed Mortgage Interest Rates at the option of
the related mortgagor.
S-25
MORTGAGE LOAN STATISTICAL TABLES
The Mortgage Loans are expected to have the following characteristics as of
the Cut-off Date (the sum in any column may not equal the total indicated due to
rounding). Statistics in an "ARMs" column relate solely to the Adjustable-Rate
Mortgage Loans included in the Mortgage Pool, and statistics in an "FRMs" column
relate solely to the Fixed-Rate Mortgage Loans included in the Mortgage Pool:
S-26
CUT-OFF DATE PRINCIPAL BALANCES OF THE MORTGAGE LOANS(1)
NUMBER OF PRINCIPAL BALANCE
MORTGAGE LOANS OUTSTANDING AS OF THE CUT-OFF DATE
--------------------------- ---------------------------------------------------------
RANGE OF PRINCIPAL BALANCE ARMS FRMS TOTAL ARMS FRMS TOTAL
- --------------------------------- ---- ---- ----- ---- ---- -----
Less than $50,000.00............. 130 83 213 $ 5,459,063.26 $ 3,492,573.83 $ 8,951,637.09
$50,000.01 - $100,000.00......... 987 315 1,302 78,199,343.09 24,058,654.87 102,257,997.96
$100,000.01 - $150,000.00........ 1,370 252 1,622 171,540,661.24 30,970,161.07 202,510,822.312
$150,000.01 - $200,000.00........ 1,096 130 1,226 190,648,277.74 22,547,822.47 213,196,100.218
$200,000.01 - $250,000.00........ 722 56 778 161,798,776.92 12,596,037.05 174,394,813.970
$250,000.01 - $300,000.00........ 506 30 536 138,947,521.08 8,184,500.77 147,132,021.855
$300,000.01 - $350,000.00........ 332 16 348 107,900,689.18 5,231,228.60 113,131,917.78
$350,000.01 - $400,000.00........ 242 13 255 90,882,739.17 4,857,202.74 95,739,941.91
$400,000.01 - $450,000.00........ 180 7 187 76,650,739.54 2,986,988.61 79,637,728.15
$450,000.01 - $500,000.00........ 105 4 109 50,085,314.69 1,924,275.16 52,009,589.85
$500,000.01 - $550,000.00........ 100 11 111 52,677,967.33 5,891,582.89 58,569,550.22
$550,000.01 - $600,000.00........ 89 8 97 51,087,095.46 4,648,536.89 55,735,632.35
$600,000.01 - $650,000.00........ 39 5 44 24,541,899.40 3,159,853.05 27,701,752.45
$650,000.01 - $700,000.00........ 26 0 26 17,638,092.79 0.00 17,638,092.79
$700,000.01 - $750,000.00........ 23 1 24 16,740,203.11 747,401.84 17,487,604.95
$750,000.01 - $800,000.00........ 9 0 9 7,060,270.01 0.00 7,060,270.01
$800,000.01 and over............. 24 0 24 21,723,296.64 0.00 21,723,296.64
----- --- ----- ----------------- --------------- -----------------
TOTAL: 5,980 931 6,911 $1,263,581,950.65 $131,296,819.84 $1,394,878,770.49
===== === ===== ================= =============== =================
% OF AGGREGATE
PRINCIPAL BALANCE OUTSTANDING
AS OF THE CUT-OFF DATE
--------------------------------
RANGE OF PRINCIPAL BALANCE ARMS FRMS TOTAL
- --------------------------------- ---- ---- -----
Less than $50,000.00............. 0.39% 0.25% 0.64%
$50,000.01 - $100,000.00......... 5.61 1.72 7.33
$100,000.01 - $150,000.00........ 12.30 2.22 14.52
$150,000.01 - $200,000.00........ 13.67 1.62 15.28
$200,000.01 - $250,000.00........ 11.60 0.90 12.50
$250,000.01 - $300,000.00........ 9.96 0.59 10.55
$300,000.01 - $350,000.00........ 7.74 0.38 8.11
$350,000.01 - $400,000.00........ 6.52 0.35 6.86
$400,000.01 - $450,000.00........ 5.50 0.21 5.71
$450,000.01 - $500,000.00........ 3.59 0.14 3.73
$500,000.01 - $550,000.00........ 3.78 0.42 4.20
$550,000.01 - $600,000.00........ 3.66 0.33 4.00
$600,000.01 - $650,000.00........ 1.76 0.23 1.99
$650,000.01 - $700,000.00........ 1.26 0.00 1.26
$700,000.01 - $750,000.00........ 1.20 0.05 1.25
$750,000.01 - $800,000.00........ 0.51 0.00 0.51
$800,000.01 and over............. 1.56 0.00 1.56
------ ----- -------
TOTAL: 90.59% 9.41% 100.00%
====== ===== =======
- ----------------------------
(1) The average Cut-off Date Principal Balance of the Mortgage Loans was
approximately $201,834.58.
S-27
MORTGAGE INTEREST RATES OF THE MORTGAGE LOANS AS OF THE CUT-OFF DATE(1)
NUMBER OF PRINCIPAL BALANCE
MORTGAGE LOANS OUTSTANDING AS OF THE CUT-OFF DATE
------------------------ ------------------------------------------------------------
RANGE OF MORTGAGE INTEREST RATES ARMS FRMS TOTAL ARMS FRMS TOTAL
- --------------------------------- ---- ---- ----- ---- ---- -----
4.001% - 4.500%.................. 2 0 2 $ 331,600.00 $ 0.00 $ 331,600.00
4.501% - 5.000%.................. 35 0 35 9,708,246.20 0.00 9,708,246.20
5.001% - 5.500%.................. 242 3 245 67,518,615.21 1,230,603.24 68,749,218.45
5.501% - 6.000%.................. 791 16 807 212,720,654.84 5,014,563.64 217,735,218.48
6.001% - 6.500%.................. 1,165 58 1,223 291,201,168.53 11,929,487.27 303,130,655.80
6.501% - 7.000%.................. 1,256 146 1,402 272,128,795.89 26,725,338.78 298,854,134.67
7.001% - 7.500%.................. 944 204 1,148 180,922,715.05 29,859,068.14 210,781,783.19
7.501% - 8.000%.................. 795 223 1,018 130,982,049.87 27,701,234.00 158,683,283.87
8.001% - 8.500%.................. 417 147 564 59,726,088.95 15,927,096.19 75,653,185.14
8.501% - 9.000%.................. 256 95 351 30,978,338.51 9,577,466.97 40,555,805.48
9.001% - 9.500%.................. 62 30 92 5,951,358.11 2,803,877.38 8,755,235.49
9.501% - 10.000%................. 14 9 23 1,374,335.01 528,084.23 1,902,419.24
10.001% - 10.500%................ 1 0 1 37,984.48 0.00 37,984.48
----- --- ----- ----------------- --------------- -----------------
TOTAL: 5,980 931 6,911 $1,263,581,950.65 $131,296,819.84 $1,394,878,770.49
===== === ===== ================= =============== =================
% OF AGGREGATE
PRINCIPAL BALANCE OUTSTANDING
AS OF THE CUT-OFF DATE
----------------------------------
RANGE OF MORTGAGE INTEREST RATES ARMS FRMS TOTAL
- ---------------------------------- ---- ---- -----
4.001% - 4.500%.................. 0.02% 0.00% 0.02%
4.501% - 5.000%.................. 0.70 0.00 0.70
5.001% - 5.500%.................. 4.84 0.09 4.93
5.501% - 6.000%.................. 15.25 0.36 15.61
6.001% - 6.500%.................. 20.88 0.86 21.73
6.501% - 7.000%.................. 19.51 1.92 21.43
7.001% - 7.500%.................. 12.97 2.14 15.11
7.501% - 8.000%.................. 9.39 1.99 11.38
8.001% - 8.500%.................. 4.28 1.14 5.42
8.501% - 9.000%.................. 2.22 0.69 2.91
9.001% - 9.500%.................. 0.43 0.20 0.63
9.501% - 10.000%................. 0.10 0.04 0.14
10.001% - 10.500%................ 0.00 0.00 0.00
------ ----- -------
TOTAL: 90.59% 9.41% 100.00%
====== ===== =======
- ----------------------------
(1) As of the Cut-off Date, the weighted average Mortgage Interest Rate of the
Mortgage Loans was approximately 6.822% per annum.
S-28
LOAN-TO-VALUE RATIOS OF THE MORTGAGE LOANS(1)
NUMBER OF PRINCIPAL BALANCE
MORTGAGE LOANS OUTSTANDING AS OF THE CUT-OFF DATE
---------------------------- --------------------------------------------------------------
RANGE OF LOAN-TO-
VALUE RATIOS ARMS FRMS TOTAL ARMS FRMS TOTAL
- --------------------------- ---- ---- ----- ---- ---- -----
10.01% - 15.00%............ 0 1 1 $ 0.00 $ 29,982.73 $ 29,982.73
15.01% - 20.00%............ 0 1 1 0.00 59,954.34 59,954.34
20.01% - 25.00%............ 3 2 5 430,595.14 141,785.96 572,381.10
25.01% - 30.00%............ 4 3 7 300,930.33 216,277.93 517,208.26
30.01% - 35.00%............ 4 5 9 1,359,632.94 264,589.39 1,624,222.33
35.01% - 40.00%............ 7 3 10 953,179.09 199,515.41 1,152,694.50
40.01% - 45.00%............ 21 11 32 2,559,340.92 875,831.40 3,435,172.32
45.01% - 50.00%............ 22 16 38 4,064,467.88 1,175,890.82 5,240,358.70
50.01% - 55.00%............ 37 17 54 7,404,946.40 2,101,746.56 9,506,692.96
55.01% - 60.00%............ 60 16 76 12,757,784.23 1,833,195.93 14,590,980.16
60.01% - 65.00%............ 101 31 132 25,431,517.29 3,735,283.15 29,166,800.44
65.01% - 70.00%............ 128 56 184 28,813,544.48 8,163,348.15 36,976,892.63
70.01% - 75.00%............ 195 46 241 48,681,103.75 7,409,522.47 56,090,626.22
75.01% - 80.00%............ 2,788 286 3,074 615,341,120.88 44,952,351.32 660,293,472.20
80.01% - 85.00%............ 516 85 601 98,167,663.49 11,309,128.66 109,476,792.15
85.01% - 90.00%............ 890 107 997 174,061,077.86 15,469,014.87 189,530,092.73
90.01% - 95.00%............ 660 122 782 144,529,997.92 17,276,816.26 161,806,814.18
95.01% - 100.00%........... 544 123 667 98,725,048.05 16,082,584.49 114,807,632.54
----- --- ----- ----------------- --------------- -----------------
TOTAL: 5,980 931 6,911 $1,263,581,950.65 $131,296,819.84 $1,394,878,770.49
===== === ===== ================= =============== =================
% OF AGGREGATE
PRINCIPAL BALANCE OUTSTANDING
AS OF THE CUT-OFF DATE
----------------------------------
RANGE OF LOAN-TO-
VALUE RATIOS ARMS FRMS TOTAL
- --------------------------- ---- ---- -----
10.01% - 15.00%............ 0.00% 0.00% 0.00%
15.01% - 20.00%............ 0.00 0.00 0.00
20.01% - 25.00%............ 0.03 0.01 0.04
25.01% - 30.00%............ 0.02 0.02 0.04
30.01% - 35.00%............ 0.10 0.02 0.12
35.01% - 40.00%............ 0.07 0.01 0.08
40.01% - 45.00%............ 0.18 0.06 0.25
45.01% - 50.00%............ 0.29 0.08 0.38
50.01% - 55.00%............ 0.53 0.15 0.68
55.01% - 60.00%............ 0.91 0.13 1.05
60.01% - 65.00%............ 1.82 0.27 2.09
65.01% - 70.00%............ 2.07 0.59 2.65
70.01% - 75.00%............ 3.49 0.53 4.02
75.01% - 80.00%............ 44.11 3.22 47.34
80.01% - 85.00%............ 7.04 0.81 7.85
85.01% - 90.00%............ 12.48 1.11 13.59
90.01% - 95.00%............ 10.36 1.24 11.60
95.01% - 100.00%........... 7.08 1.15 8.23
------ ----- -------
TOTAL: 90.59% 9.41% 100.00%
====== ===== =======
- ----------------------------
(1) As of the Cut-off Date, the weighted average Loan-to-Value Ratio of the
Mortgage Loans was approximately 83.22%.
The "LOAN-TO-VALUE RATIO" of a Mortgage Loan generally means the ratio,
expressed as a percentage of (i) the principal amount of the Mortgage Loan at
origination over (ii) the lesser of (a) the appraised value of the related
Mortgaged Property determined in accordance with an appraisal obtained in
connection with origination of the Mortgage Loans, or (b) the sale price of the
related Mortgaged Property. Sale price shall only be considered if the Mortgage
Loan is made in connection with a purchase of the related Mortgaged Property.
S-29
ORIGINAL TERM TO MATURITY OF THE MORTGAGE LOANS
NUMBER OF PRINCIPAL BALANCE
MORTGAGE LOANS OUTSTANDING AS OF THE CUT-OFF DATE
---------------------------- --------------------------------------------------------------
ORIGINAL TERM (MONTHS) ARMS FRMS TOTAL ARMS FRMS TOTAL
- --------------------------- ---- ---- ----- ---- ---- -----
180........................ 0 111 111 $ 0.00 $ 10,689,785.24 $ 10,689,785.24
240........................ 0 4 4 0.00 373,907.41 373,907.41
360........................ 5,980 816 6,796 1,263,581,950.65 120,233,127.19 1,383,815,077.84
----- --- ----- ----------------- --------------- -----------------
TOTAL: 5,980 931 6,911 $1,263,581,950.65 $131,296,819.84 $1,394,878,770.49
===== === ===== ================= =============== =================
% OF AGGREGATE
PRINCIPAL BALANCE OUTSTANDING
AS OF THE CUT-OFF DATE
----------------------------------
ORIGINAL TERM (MONTHS) ARMS FRMS TOTAL
- --------------------------- ---- ---- -----
10.01% - 15.00%............ 0.00% 0.00% 0.00%
180........................ 0.00% 0.77% 0.77%
240........................ 0.00 0.03 0.03
360........................ 90.59 8.62 99.21
------ ----- -------
TOTAL: 90.59% 9.41% 100.00%
====== ===== =======
- ----------------------------
(1) The weighted average original term of the Mortgage Loans was approximately
359 months.
REMAINING TERMS TO MATURITY OF THE MORTGAGE LOANS(1)
NUMBER OF PRINCIPAL BALANCE
MORTGAGE LOANS OUTSTANDING AS OF THE CUT-OFF DATE
---------------------------- --------------------------------------------------------------
REMAINING TERMS (MONTHS) ARMS FRMS TOTAL ARMS FRMS TOTAL
- --------------------------- ---- ---- ----- ---- ---- -----
175 - 180.................. 0 111 111 $ 0.00 $ 10,689,785.24 $ 10,689,785.24
235 - 240.................. 0 4 4 0.00 373,907.41 373,907.41
349 - 354.................. 1 0 1 60,000.00 0.00 60,000.00
355 - 360.................. 5,979 816 6,795 1,263,521,950.65 120,233,127.19 1,383,755,077.84
----- --- ----- ----------------- --------------- -----------------
TOTAL: 5,980 931 6,911 $1,263,581,950.65 $131,296,819.84 $1,394,878,770.49
===== === ===== ================= =============== =================
% OF AGGREGATE
PRINCIPAL BALANCE OUTSTANDING
AS OF THE CUT-OFF DATE
----------------------------------
REMAINING TERMS (MONTHS) ARMS FRMS TOTAL
- --------------------------- ---- ---- -----
175 - 180.................. 0.00% 0.77% 0.77%
235 - 240.................. 0.00 0.03 0.03
349 - 354.................. 0.00 0.00 0.00
355 - 360.................. 90.58 8.62 99.20
------ ----- -------
TOTAL: 90.59% 9.41% 100.00%
====== ===== =======
- ----------------------------
(1) As of the Cut-off Date, the weighted average remaining term to maturity of
the Mortgage Loans was approximately 357 months.
S-30
PROPERTY TYPES OF THE MORTGAGE LOANS
NUMBER OF PRINCIPAL BALANCE
MORTGAGE LOANS OUTSTANDING AS OF THE CUT-OFF DATE
---------------------------- --------------------------------------------------------------
PROPERTY TYPES ARMS FRMS TOTAL ARMS FRMS TOTAL
- --------------------------- ---- ---- ----- ---- ---- -----
Single Family.............. 4,228 743 4,971 $ 850,444,983.09 $101,580,189.56 $ 952,025,172.65
Planned Unit Development... 1,036 108 1,144 248,052,603.04 18,545,780.72 266,598,383.76
Condominium................ 434 40 474 90,522,335.18 6,020,109.12 96,542,444.30
Two to Four Family......... 261 39 300 69,333,329.21 4,998,440.63 74,331,769.84
High Rise Condominium...... 21 1 22 5,228,700.13 152,299.81 5,380,999.94
----- --- ----- ----------------- --------------- -----------------
TOTAL: 5,980 931 6,911 $1,263,581,950.65 $131,296,819.84 $1,394,878,770.49
===== === ===== ================= =============== =================
% OF AGGREGATE
PRINCIPAL BALANCE OUTSTANDING
AS OF THE CUT-OFF DATE
----------------------------------
PROPERTY TYPES ARMS FRMS TOTAL
- --------------------------- ---- ---- -----
Single Family.............. 60.97% 7.28% 68.25%
Planned Unit Development... 17.78 1.33 19.11
Condominium................ 6.49 0.43 6.92
Two to Four Family......... 4.97 0.36 5.33
High Rise Condominium...... 0.37 0.01 0.39
------ ----- --------
TOTAL: 90.59% 9.41% 100.000%
====== ===== ========
S-31
CREDIT SCORES(1)
NUMBER OF PRINCIPAL BALANCE
MORTGAGE LOANS OUTSTANDING AS OF THE CUT-OFF DATE
---------------------------- --------------------------------------------------------------
RANGE OF CREDIT SCORES ARMS FRMS TOTAL ARMS FRMS TOTAL
- --------------------------- ---- ---- ----- ---- ---- -----
801 - 850.................. 12 1 13 $ 3,014,737.72 $ 144,695.93 $ 3,159,433.65
751 - 800.................. 200 35 235 52,008,381.98 7,721,590.51 59,729,972.49
701 - 750.................. 630 79 709 164,443,214.84 14,099,593.37 178,542,808.210
651 - 700.................. 1,506 207 1,713 367,260,618.57 33,769,839.05 401,030,457.625
601 - 650.................. 2,290 351 2,641 458,911,757.62 46,753,054.99 505,664,812.615
551 - 600.................. 1,154 217 1,371 191,352,216.29 23,405,127.88 214,757,344.170
501 - 550.................. 188 41 229 26,591,023.63 5,402,918.11 31,993,941.74
----- --- ----- ----------------- --------------- -----------------
TOTAL: 5,980 931 6,911 $1,263,581,950.65 $131,296,819.84 $1,394,878,770.49
===== === ===== ================= =============== =================
% OF AGGREGATE
PRINCIPAL BALANCE OUTSTANDING
AS OF THE CUT-OFF DATE
----------------------------------
RANGE OF CREDIT SCORES ARMS FRMS TOTAL
- --------------------------- ---- ---- -----
801 - 850.................. 0.22% 0.01% 0.23%
751 - 800.................. 3.73 0.55 4.28
701 - 750.................. 11.79 1.01 12.80
651 - 700.................. 26.33 2.42 28.75
601 - 650.................. 32.90 3.35 36.25
551 - 600.................. 13.72 1.68 15.40
501 - 550.................. 1.91 0.39 2.29
------ ----- -------
TOTAL: 90.59% 9.41% 100.00%
====== ===== =======
- ----------------------------
(1) As of the Cut-off Date, the weighted average Credit Scores (where Credit
Scores were available) of the Mortgage Loans was approximately 649. "CREDIT
SCORES" are statistical credit scores obtained by many mortgage lenders in
connection with the loan application to help assess a borrower's
credit-worthiness. Credit 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 Credit 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. Credit Scores
generally range from approximately 300 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 Credit 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 Credit
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, Credit Scores were not developed specifically for use in
connection with mortgage loans, but for consumer loans in general.
Therefore, a Credit Score does not take into consideration the effect of
mortgage loan characteristics on the probability of repayment by the
borrower. The Credit 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 Credit Score should
be relied upon as a basis for an expectation that the borrower will repay
the Mortgage Loan according to its terms.
S-32
ORIGINAL PREPAYMENT CHARGE TERMS(1)
NUMBER OF PRINCIPAL BALANCE
MORTGAGE LOANS OUTSTANDING AS OF THE CUT-OFF DATE
---------------------------- --------------------------------------------------------------
ORIGINAL PREPAYMENT
CHARGE TERMS
(MONTHS) ARMS FRMS TOTAL ARMS FRMS TOTAL
- --------------------------- ---- ---- ----- ---- ---- -----
No Prepayment Charges...... 986 271 1,257 $ 203,472,164.82 $ 36,821,942.02 $ 240,294,106.84
12......................... 226 33 259 63,890,664.78 4,669,523.79 68,560,188.57
24......................... 3,329 25 3,354 701,217,530.46 2,799,124.81 704,016,655.27
36......................... 1,438 602 2,040 294,867,190.59 87,006,229.22 381,873,419.81
48......................... 1 0 1 134,400.00 0.00 134,400.00
----- --- ----- ----------------- --------------- -----------------
TOTAL: 5,980 931 6,911 $1,263,581,950.65 $131,296,819.84 $1,394,878,770.49
===== === ===== ================= =============== =================
% OF AGGREGATE
PRINCIPAL BALANCE OUTSTANDING
AS OF THE CUT-OFF DATE
----------------------------------
ORIGINAL PREPAYMENT
CHARGE TERMS
(MONTHS) ARMS FRMS TOTAL
- --------------------------- ---- ---- -----
No Prepayment Charges...... 14.59% 2.64% 17.23%
12......................... 4.58 0.33 4.92
24......................... 50.27 0.20 50.47
36......................... 21.14 6.24 27.38
48......................... 0.01 0.00 0.01
------ ----- -------
TOTAL: 90.59% 9.41% 100.00%
====== ===== =======
- ----------------------------
(1) As of the Cut-off Date, the weighted average original prepayment charge
term of the Mortgage Loans with prepayment charges was approximately 27
months. The majority of the Mortgage Loans with prepayment charges require
payment of 6 months interest on 80% of the prepaid balance.
S-33
OCCUPANCY STATUS OF THE MORTGAGE LOANS(1)
NUMBER OF PRINCIPAL BALANCE
MORTGAGE LOANS OUTSTANDING AS OF THE CUT-OFF DATE
---------------------------- --------------------------------------------------------------
OCCUPANCY STATUS ARMS FRMS TOTAL ARMS FRMS TOTAL
- --------------------------- ---- ---- ----- ---- ---- -----
Owner Occupied............. 5,739 897 6,636 $1,222,740,707.10 $127,969,170.49 $1,350,709,877.59
Investor................... 196 28 224 31,474,664.96 2,370,142.26 33,844,807.22
Second Home................ 45 6 51 9,366,578.59 957,507.09 10,324,085.68
----- --- ----- ----------------- --------------- -----------------
TOTAL: 5,980 931 6,911 $1,263,581,950.65 $131,296,819.84 $1,394,878,770.49
===== === ===== ================= =============== =================
% OF AGGREGATE
PRINCIPAL BALANCE OUTSTANDING
AS OF THE CUT-OFF DATE
----------------------------------
OCCUPANCY STATUS ARMS FRMS TOTAL
- --------------------------- ---- ---- -----
Owner Occupied............. 87.66% 9.17% 96.83%
Investor................... 2.26 0.17 2.43
Second Home................ 0.67 0.07 0.74
------ ----- -------
TOTAL: 90.59% 9.41% 100.00%
====== ===== =======
- ----------------------------
(1) Based on a representation made by the borrower at the time of origination.
PURPOSE OF THE MORTGAGE LOANS
NUMBER OF PRINCIPAL BALANCE
MORTGAGE LOANS OUTSTANDING AS OF THE CUT-OFF DATE
---------------------------- --------------------------------------------------------------
PURPOSE ARMS FRMS TOTAL ARMS FRMS TOTAL
- --------------------------- ---- ---- ----- ---- ---- -----
Purchase................... 3,543 357 3,900 $ 778,970,786.86 $ 56,038,599.88 $ 835,009,386.74
Cash-Out Refinance......... 1,984 450 2,434 399,446,136.85 57,323,830.15 456,769,967.00
Rate-Term Refinance........ 452 123 575 84,959,776.94 17,765,939.81 102,725,716.75
Construction Permit........ 1 1 2 205,250.00 168,450.00 373,700.00
----- --- ----- ----------------- --------------- -----------------
TOTAL: 5,980 931 6,911 $1,263,581,950.65 $131,296,819.84 $1,394,878,770.49
===== === ===== ================= =============== =================
% OF AGGREGATE
PRINCIPAL BALANCE OUTSTANDING
AS OF THE CUT-OFF DATE
----------------------------------
PURPOSE ARMS FRMS TOTAL
- --------------------------- ---- ---- -----
Purchase................... 55.85% 4.02% 59.86%
Cash-Out Refinance......... 28.64 4.11 32.75
Rate-Term Refinance........ 6.09 1.27 7.36
Construction Permit........ 0.01 0.01 0.03
------ ----- -------
TOTAL: 90.59% 9.41% 100.00%
====== ===== =======
S-34
PRODUCT TYPE OF THE MORTGAGE LOANS
NUMBER OF PRINCIPAL BALANCE
MORTGAGE LOANS OUTSTANDING AS OF THE CUT-OFF DATE
---------------------------- --------------------------------------------------------------
PRODUCT TYPE ARMS FRMS TOTAL ARMS FRMS TOTAL
- ------------------------------ ---- ---- ----- ---- ---- -----
15 Year Fixed................. 0 107 107 $ 0.00 $ 9,979,785.24 $ 9,979,785.24
15 Year Fixed w/IO Period..... 0 1 1 0.00 375,000.00 375,000.00
15/30 Balloon w/IO Period..... 0 3 3 0.00 335,000.00 335,000.00
1/29 ARM (LIBOR).............. 6 0 6 1,527,935.50 0.00 1,527,935.50
20 Year Fixed................. 0 4 4 0.00 373,907.41 373,907.41
2/28 ARM (LIBOR).............. 2,057 0 2,057 335,399,210.77 0.00 335,399,210.77
2/28 ARM (LIBOR) w/IO Period.. 2,114 0 2,114 532,041,895.57 0.00 532,041,895.57
2/28 ARM (LIBOR) Dividend..... 1 0 1 108,602.73 0.00 108,602.73
30 Year Fixed................. 0 752 752 0.00 108,638,212.67 108,638,212.67
30 Year Fixed w/IO Period..... 0 64 64 0.00 11,594,914.52 11,594,914.52
3/27 ARM (LIBOR).............. 487 0 487 89,702,468.75 0.00 89,702,468.75
3/27 ARM (LIBOR) w/IO Period.. 566 0 566 127,760,386.58 0.00 127,760,386.58
5/25 ARM (LIBOR).............. 141 0 141 29,468,234.63 0.00 29,468,234.63
5/25 ARM (LIBOR) w/IO Period.. 514 0 514 126,021,995.56 0.00 126,021,995.56
6 Month LIBOR................. 5 0 5 1,186,949.37 0.00 1,186,949.37
6 Month LIBOR w/IO Period..... 89 0 89 20,364,271.19 0.00 20,364,271.19
----- --- ----- ----------------- --------------- -----------------
TOTAL: 5,980 931 6,911 $1,263,581,950.65 $131,296,819.84 $1,394,878,770.49
===== === ===== ================= =============== =================
% OF AGGREGATE
PRINCIPAL BALANCE OUTSTANDING
AS OF THE CUT-OFF DATE
----------------------------------
PRODUCT TYPE ARMS FRMS TOTAL
- ------------------------------ ---- ---- -----
15 Year Fixed................. 0.00% 0.72% 0.72%
15 Year Fixed w/IO Period..... 0.00 0.03 0.03
15/30 Balloon w/IO Period..... 0.00 0.02 0.02
1/29 ARM (LIBOR).............. 0.11 0.00 0.11
20 Year Fixed................. 0.00 0.03 0.03
2/28 ARM (LIBOR).............. 24.05 0.00 24.05
2/28 ARM (LIBOR) w/IO Period.. 38.14 0.00 38.14
2/28 ARM (LIBOR) Dividend..... 0.01 0.00 0.01
30 Year Fixed................. 0.00 7.79 7.79
30 Year Fixed w/IO Period..... 0.00 0.83 0.83
3/27 ARM (LIBOR).............. 6.43 0.00 6.43
3/27 ARM (LIBOR) w/IO Period.. 9.16 0.00 9.16
5/25 ARM (LIBOR).............. 2.11 0.00 2.11
5/25 ARM (LIBOR) w/IO Period.. 9.03 0.00 9.03
6 Month LIBOR................. 0.09 0.00 0.09
6 Month LIBOR w/IO Period..... 1.46 0.00 1.46
------ ----- -------
TOTAL: 90.59% 9.41% 100.00%
====== ===== =======
S-35
GEOGRAPHIC DISTRIBUTION OF THE MORTGAGE LOANS(1)
NUMBER OF PRINCIPAL BALANCE
MORTGAGE LOANS OUTSTANDING AS OF THE CUT-OFF DATE
---------------------------- --------------------------------------------------------------
LOCATION ARMS FRMS TOTAL ARMS FRMS TOTAL
- --------------------------- ---- ---- ----- ---- ---- -----
Alabama.................... 28 9 37 $ 3,697,703.59 $ 834,468.28 $ 4,532,171.87
Arizona.................... 85 6 91 13,511,455.44 789,509.14 14,300,964.58
Arkansas................... 8 6 14 1,373,796.46 475,375.92 1,849,172.38
California................. 1,606 122 1,728 527,872,273.71 28,950,060.91 556,822,334.62
Colorado................... 160 8 168 33,361,252.75 1,948,946.42 35,310,199.17
Connecticut................ 34 2 36 6,856,175.00 242,940.30 7,099,115.30
Delaware................... 1 1 2 142,703.98 254,388.21 397,092.19
District of Columbia....... 3 1 4 886,999.52 114,941.92 1,001,941.44
Florida.................... 451 63 514 75,609,941.75 7,845,060.15 83,455,001.90
Georgia.................... 211 37 248 33,750,982.82 4,929,529.25 38,680,512.07
Idaho...................... 11 1 12 1,235,441.22 118,614.53 1,354,055.75
Illinois................... 303 54 357 56,989,066.55 7,147,185.05 64,136,251.60
Indiana.................... 106 35 141 11,012,769.98 2,852,821.45 13,865,591.43
Iowa....................... 11 11 22 874,474.37 701,413.41 1,575,887.78
Kansas..................... 18 2 20 2,912,968.37 402,205.76 3,315,174.13
Kentucky................... 43 10 53 4,716,467.05 857,032.61 5,573,499.66
Louisiana.................. 17 4 21 1,812,202.00 277,677.59 2,089,879.59
Maine...................... 16 5 21 2,555,280.39 897,408.73 3,452,689.12
Maryland................... 106 15 121 23,813,877.60 3,080,758.67 26,894,636.27
Massachusetts.............. 95 5 100 24,356,857.49 1,359,959.98 25,716,817.47
Michigan................... 311 16 327 43,953,223.26 1,568,550.49 45,521,773.75
Minnesota.................. 227 12 239 42,000,870.57 1,672,601.71 43,673,472.28
Missouri................... 91 19 110 9,878,596.15 2,824,636.05 12,703,232.20
Montana.................... 3 0 3 332,949.99 0.00 332,949.99
Nebraska................... 8 1 9 988,452.87 64,930.54 1,053,383.41
Nevada..................... 124 11 135 26,311,569.67 2,432,405.35 28,743,975.02
New Hampshire.............. 17 0 17 4,013,989.41 0.00 4,013,989.41
% OF AGGREGATE
PRINCIPAL BALANCE OUTSTANDING
AS OF THE CUT-OFF DATE
----------------------------------
LOCATION ARMS FRMS TOTAL
- --------------------------- ---- ---- -----
Alabama.................... 0.27% 0.06% 0.32%
Arizona.................... 0.97 0.06 1.03
Arkansas................... 0.1 0.03 0.13
California................. 37.84 2.08 39.92
Colorado................... 2.39 0.14 2.53
Connecticut................ 0.49 0.02 0.51
Delaware................... 0.01 0.02 0.03
District of Columbia....... 0.06 0.01 0.07
Florida.................... 5.42 0.56 5.98
Georgia.................... 2.42 0.35 2.77
Idaho...................... 0.09 0.01 0.10
Illinois................... 4.09 0.51 4.60
Indiana.................... 0.79 0.20 0.99
Iowa....................... 0.06 0.05 0.11
Kansas..................... 0.21 0.03 0.24
Kentucky................... 0.34 0.06 0.40
Louisiana.................. 0.13 0.02 0.15
Maine...................... 0.18 0.06 0.25
Maryland................... 1.71 0.22 1.93
Massachusetts.............. 1.75 0.10 1.84
Michigan................... 3.15 0.11 3.26
Minnesota.................. 3.01 0.12 3.13
Missouri................... 0.71 0.20 0.91
Montana.................... 0.02 0.00 0.02
Nebraska................... 0.07 0.00 0.08
Nevada..................... 1.89 0.17 2.06
New Hampshire.............. 0.29 0.00 0.29
- -----------------------------------
(This table is continued on the next page)
S-36
(Continued from previous page)
NUMBER OF PRINCIPAL BALANCE
MORTGAGE LOANS OUTSTANDING AS OF THE CUT-OFF DATE
---------------------------- --------------------------------------------------------------
LOCATION ARMS FRMS TOTAL ARMS FRMS TOTAL
- --------------------------- ---- ---- ----- ---- ---- -----
New Jersey................. 97 15 112 $ 22,473,931.19 $ 2,558,124.64 $ 25,032,055.83
New Mexico................. 10 3 13 1,524,557.56 405,687.54 1,930,245.10
New York................... 191 38 229 51,050,631.40 7,742,244.58 58,792,875.98
North Carolina............. 162 11 173 23,667,666.40 1,192,048.50 24,859,714.90
North Dakota............... 1 0 1 85,426.38 0.00 85,426.38
Ohio....................... 266 79 345 32,046,783.01 8,501,162.21 40,547,945.22
Oklahoma................... 17 14 31 2,294,168.73 1,483,830.89 3,777,999.62
Oregon..................... 144 18 162 23,259,962.31 2,660,470.21 25,920,432.52
Pennsylvania............... 110 29 139 15,060,165.28 2,707,000.50 17,767,165.78
Rhode Island............... 24 5 29 4,688,837.14 870,734.34 5,559,571.48
South Carolina............. 53 10 63 6,807,376.69 1,226,990.63 8,034,367.32
South Dakota............... 3 0 3 306,253.36 0.00 306,253.36
Tennessee.................. 104 48 152 11,459,990.95 4,696,385.25 16,156,376.20
Texas...................... 308 151 459 46,969,165.72 16,619,304.82 63,588,470.54
Utah....................... 80 5 85 11,663,462.72 484,661.69 12,148,124.41
Vermont.................... 2 0 2 244,800.00 0.00 244,800.00
Virginia................... 70 13 83 15,575,459.07 2,176,211.07 17,751,670.14
Washington................. 155 22 177 28,400,287.45 3,394,401.23 31,794,688.68
West Virginia.............. 6 0 6 696,333.83 0.00 696,333.83
Wisconsin.................. 81 13 94 10,172,825.84 1,901,166.38 12,073,992.22
Wyoming.................... 2 1 3 311,523.66 32,972.94 344,496.60
----- --- ----- ----------------- --------------- -----------------
TOTAL: 5,980 931 6,911 $1,263,581,950.65 $131,296,819.84 $1,394,878,770.49
===== === ===== ================= =============== =================
% OF AGGREGATE
PRINCIPAL BALANCE OUTSTANDING
AS OF THE CUT-OFF DATE
----------------------------------
LOCATION ARMS FRMS TOTAL
- --------------------------- ---- ---- -----
New Jersey................. 1.61% 0.18% 1.79%
New Mexico................. 0.11 0.03 0.14
New York................... 3.66 0.56 4.21
North Carolina............. 1.70 0.09 1.78
North Dakota............... 0.01 0.00 0.01
Ohio....................... 2.30 0.61 2.91
Oklahoma................... 0.16 0.11 0.27
Oregon..................... 1.67 0.19 1.86
Pennsylvania............... 1.08 0.19 1.27
Rhode Island............... 0.34 0.06 0.4
South Carolina............. 0.49 0.09 0.58
South Dakota............... 0.02 0.00 0.02
Tennessee.................. 0.82 0.34 1.16
Texas...................... 3.37 1.19 4.56
Utah....................... 0.84 0.03 0.87
Vermont.................... 0.02 0.00 0.02
Virginia................... 1.12 0.16 1.27
Washington................. 2.04 0.24 2.28
West Virginia.............. 0.05 0.00 0.05
Wisconsin.................. 0.73 0.14 0.87
Wyoming.................... 0.02 0.00 0.02
------ ----- -------
TOTAL: 90.59% 9.41% 100.00%
====== ===== =======
- ----------------------------
(1) The greatest ZIP Code geographic concentration of the Mortgage Loans, by
Principal Balance as of the Cut-off Date, was approximately 0.48% in the
91913 ZIP Code, located in California, for all of the Mortgage Loans.
S-37
DOCUMENTATION LEVELS OF THE MORTGAGE LOANS(1)
NUMBER OF PRINCIPAL BALANCE
MORTGAGE LOANS OUTSTANDING AS OF THE CUT-OFF DATE
---------------------------- --------------------------------------------------------------
DOCUMENTATION LEVEL ARMS FRMS TOTAL ARMS FRMS TOTAL
- --------------------------- ---- ---- ----- ---- ---- -----
Full Documentation............ 4,659 592 5,251 $ 981,104,054.91 $ 82,676,724.09 $1,063,780,779.00
No Income Verification........ 796 277 1,073 148,690,377.86 37,252,096.93 185,942,474.79
Stated Plus................... 363 41 404 104,653,627.40 9,202,903.27 113,856,530.67
Limited Income Verification... 71 4 75 16,474,709.50 370,556.17 16,845,265.67
No Documentation.............. 91 17 108 12,659,180.98 1,794,539.38 14,453,720.36
----- --- ----- ----------------- --------------- -----------------
TOTAL: 5,980 931 6,911 $1,263,581,950.65 $131,296,819.84 $1,394,878,770.49
===== === ===== ================= =============== =================
% OF AGGREGATE
PRINCIPAL BALANCE OUTSTANDING
AS OF THE CUT-OFF DATE
----------------------------------
DOCUMENTATION LEVEL ARMS FRMS TOTAL
- ------------------------------ ---- ---- -----
Full Documentation............ 70.34% 5.93% 76.26%
No Income Verification........ 10.66 2.67 13.33
Stated Plus................... 7.50 0.66 8.16
Limited Income Verification... 1.18 0.03 1.21
No Documentation.............. 0.91 0.13 1.04
------ ----- -------
TOTAL: 90.59% 9.41% 100.00%
====== ===== =======
- ----------------------------
(1) For a description of each documentation level, see "Underwriting Standards"
in this Prospectus Supplement.
S-38
The following tables present certain statistics relevant only to the
Adjustable-Rate Mortgage Loans:
MAXIMUM MORTGAGE INTEREST RATES OF THE ADJUSTABLE-RATE MORTGAGE LOANS(1)
% OF AGGREGATE
RANGE OF NUMBER OF PRINCIPAL BALANCE PRINCIPAL BALANCE
MAXIMUM MORTGAGE MORTGAGE OUTSTANDING AS OF OUTSTANDING AS OF THE
INTEREST RATES LOANS THE CUT-OFF DATE CUT-OFF DATE
- ------------------------------ -------------- ----------------------- ------------------------
10.001% - 10.500%............. 2 $ 331,600.00 0.03%
10.501% - 11.000%............. 36 9,904,636.01 0.78
11.001% - 11.500%............. 242 67,518,615.21 5.34
11.501% - 12.000%............. 790 212,524,265.03 16.82
12.001% - 12.500%............. 1,165 291,201,168.53 23.05
12.501% - 13.000%............. 1,256 272,128,795.89 21.54
13.001% - 13.500%............. 944 180,922,715.05 14.32
13.501% - 14.000%............. 795 130,982,049.87 10.37
14.001% - 14.500%............. 417 59,726,088.95 4.73
14.501% - 15.000%............. 256 30,978,338.51 2.45
15.001% - 15.500%............. 62 5,951,358.11 0.47
15.501% - 16.000%............. 14 1,374,335.01 0.11
16.001% - 16.500%............. 1 37,984.48 0.00
----- ----------------- -------
TOTAL: 5,980 $1,263,581,950.65 100.00%
===== ================= =======
- ----------------------------
(1) As of the Cut-off Date, the weighted average Maximum Mortgage Interest Rate
of the Adjustable-Rate Mortgage Loans was approximately 12.756%.
MINIMUM MORTGAGE INTEREST RATE OF THE ADJUSTABLE-RATE MORTGAGE LOANS(1)
% OF AGGREGATE
NUMBER OF PRINCIPAL BALANCE PRINCIPAL BALANCE
RANGE OF MINIMUM MORTGAGE MORTGAGE OUTSTANDING AS OF OUTSTANDING AS OF THE
INTEREST RATES LOANS THE CUT-OFF DATE CUT-OFF DATE
- ------------------------------- ------------- ------------------------ ------------------------
4.001% - 4.500%................ 2 $ 331,600.00 0.03%
4.501% - 5.000%................ 35 9,708,246.20 0.77
5.001% - 5.500%................ 242 67,518,615.21 5.34
5.501% - 6.000%................ 791 212,720,654.84 16.83
6.001% - 6.500%................ 1,165 291,201,168.53 23.05
6.501% - 7.000%................ 1,256 272,128,795.89 21.54
7.001% - 7.500%................ 944 180,922,715.05 14.32
7.501% - 8.000%................ 795 130,982,049.87 10.37
8.001% - 8.500%................ 417 59,726,088.95 4.73
8.501% - 9.000%................ 256 30,978,338.51 2.45
9.001% - 9.500%................ 62 5,951,358.11 0.47
9.501% - 10.000%............... 14 1,374,335.01 0.11
10.001% - 10.500%.............. 1 37,984.48 0.00
----- ----------------- -------
TOTAL: 5,980 $1,263,581,950.65 100.00%
===== ================= =======
- ------------------
(1) As of the Cut-off Date, the weighted average Minimum Mortgage Interest
Rate of the Adjustable-Rate Mortgage Loans was approximately 6.756%.
S-39
INITIAL PERIODIC CAP OF THE ADJUSTABLE-RATE MORTGAGE LOANS(1)
% OF AGGREGATE
NUMBER OF PRINCIPAL BALANCE PRINCIPAL BALANCE
MORTGAGE OUTSTANDING AS OF OUTSTANDING AS OF THE
INITIAL PERIODIC CAP LOANS THE CUT-OFF DATE CUT-OFF DATE
- ------------------------------- ------------- ------------------------ ------------------------
1.000%......................... 94 $ 21,551,220.56 1.71%
2.000%......................... 6 1,527,935.50 0.12
3.000%......................... 5,880 1,240,502,794.59 98.17
----- ----------------- -------
TOTAL: 5,980 $1,263,581,950.65 100.00%
===== ================= =======
- ------------------
(1) As of the Cut-off Date, the weighted average Initial Periodic Cap of
the Adjustable-Rate Mortgage Loans was approximately 2.965%.
PERIODIC CAP OF THE ADJUSTABLE-RATE MORTGAGE LOANS(1)
% OF AGGREGATE
NUMBER OF PRINCIPAL BALANCE PRINCIPAL BALANCE
MORTGAGE OUTSTANDING AS OF OUTSTANDING AS OF THE
PERIODIC CAP LOANS THE CUT-OFF DATE CUT-OFF DATE
- ------------------------------- ------------- ------------------------ ------------------------
1.000%......................... 5,980 $1,263,581,950.65 100.00%
----- ----------------- -------
TOTAL: 5,980 $1,263,581,950.65 100.00%
===== ================= =======
S-40
GROSS MARGINS OF THE ADJUSTABLE-RATE MORTGAGE LOANS(1)
% OF AGGREGATE
PRINCIPAL BALANCE PRINCIPAL BALANCE
RANGE OF GROSS MARGINS NUMBER OF OUTSTANDING AS OF THE CUT-OFF OUTSTANDING
MARGINS MORTGAGE LOANS DATE AS OF THE CUT-OFF DATE
- ---------------------- -------------- ----------------------------- ----------------------
0.001% - 0.500%....... 1 $ 488,000.00 0.04%
0.501% - 1.000%....... 1 199,646.12 0.02
2.501% - 3.000%....... 21 6,232,149.73 0.49
3.001% - 3.500%....... 311 92,840,248.17 7.35
3.501% - 4.000%....... 842 231,564,900.84 18.33
4.001% - 4.500%....... 1,049 234,789,088.71 18.58
4.501% - 5.000%....... 973 201,084,162.08 15.91
5.001% - 5.500%....... 997 201,408,372.70 15.94
5.501% - 6.000%....... 892 164,909,478.02 13.05
6.001% - 6.500%....... 556 87,946,934.88 6.96
6.501% - 7.000%....... 248 32,680,287.79 2.59
7.001% - 7.500%....... 79 8,410,092.42 0.67
7.501% - 8.000%....... 10 1,028,589.19 0.08
----- ----------------- -------
TOTAL: 5,980 $1,263,581,950.65 100.00%
===== ================= =======
- ------------------
(1) As of the Cut-off Date, the weighted average Gross Margin of the
Adjustable-Rate Mortgage Loans was approximately 4.801%.
S-41
MONTH OF NEXT MORTGAGE INTEREST RATE CHANGE FOR THE ADJUSTABLE-RATE MORTGAGE
LOANS(1)
% OF AGGREGATE
PRINCIPAL BALANCE PRINCIPAL BALANCE
NEXT ADJUSTMENT NUMBER OF OUTSTANDING AS OF THE CUT-OFF OUTSTANDING
DATE MORTGAGE LOANS DATE AS OF THE CUT-OFF DATE
- ------------------------ --------------------- --------------------------------- -----------------------
January 1, 2005......... 3 $ 771,549.99 0.06%
February 1, 2005........ 8 2,430,761.75 0.19
March 1, 2005........... 83 18,348,908.82 1.45
August 1, 2005.......... 1 197,931.75 0.02
September 1, 2005....... 5 1,330,003.75 0.11
April 1, 2006........... 1 60,000.00 0.00
May 1, 2006............. 5 1,463,118.21 0.12
June 1, 2006............ 21 4,792,404.37 0.38
July 1, 2006............ 37 7,435,714.37 0.59
August 1, 2006.......... 587 108,875,389.95 8.62
September 1, 2006....... 3,513 743,702,632.17 58.86
October 1, 2006......... 8 1,220,450.00 0.10
May 1, 2007............. 1 280,000.00 0.02
June 1, 2007............ 4 377,652.52 0.03
July 1, 2007............ 13 3,025,701.82 0.24
August 1, 2007.......... 178 33,001,497.10 2.61
September 1, 2007....... 855 180,453,919.82 14.28
October 1, 2007......... 2 324,084.07 0.03
June 1, 2009............ 6 1,357,900.00 0.11
July 1, 2009............ 14 4,327,748.40 0.34
August 1, 2009.......... 68 15,065,179.28 1.19
September 1, 2009....... 565 134,141,802.51 10.62
October 1, 2009......... 2 597,600.00 0.05
----- ----------------- -------
TOTAL: 5,980 $1,263,581,950.65 100.00%
===== ================= =======
- ------------------
(1) The weighted average months to next Adjustment Date for the Adjustable-Rate
Mortgage Loans as of the Cut-off Date was approximately 29 months.
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.
S-42
THE INDEX
The Index for all 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 in The Wall Street Journal
("Six-Month LIBOR"). If Six-Month LIBOR becomes unpublished or is otherwise
unavailable, the Servicer will select an alternative index which is based upon
comparable information.
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), calculated based on a 360-day year 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.
THE SELLER
The Depositor will purchase the Mortgage Loans from Bank of America,
National Association (the "Seller"), a national banking association. The Seller
is an affiliate of the Depositor and one of the Underwriters. The Seller has its
principal place of business in Charlotte, North Carolina. The Seller acquired
the Mortgage Loans from the Originator. The Seller is engaged in a general
commercial banking business, offering a wide range of commercial, corporate,
international, financial and retail banking services to corporations,
governments and individuals.
THE ORIGINATOR
First Franklin Financial Corporation (the "Originator") is a Delaware
corporation headquartered in San Jose, California. The information set forth in
the following paragraphs has been provided by the Originator, and none of the
Depositor, the Seller, the Servicer, the Trustee, the Credit Risk Manager, any
of the Underwriters or any of their respective affiliates makes any
representation as to the accuracy or completeness of such information.
The Originator is a direct, wholly-owned subsidiary of National City Bank
of Indiana ("NCBA"). NCBA is a wholly-owned subsidiary of National City
Corporation. As of December 31, 2003, the Originator had approximately $3.290
billion in assets, approximately $2.350 billion in liabilities and approximately
$940 million in equity.
The Originator is a HUD-approved mortgagee and an approved seller/servicer
by both Fannie Mae and Freddie Mac. It currently operates twenty nine wholesale
branches, one retail branch and one portfolio retention platform in the United
States including offices in Atlanta, Georgia; Baltimore, Maryland; Boston,
Massachusetts; Charlotte, North Carolina; Chicago, Illinois; Cincinnati and
Cleveland, Ohio; Dallas and Houston, Texas; Denver, Colorado; Detroit, Michigan;
Indianapolis, Indiana; Las Vegas, Nevada; Miami and Orlando, Florida;
Minneapolis, Minnesota; New York, New York; Phoenix, Arizona; Pittsburgh,
Pennsylvania; Portland, Oregon; Salt Lake City, Utah; Seattle, Washington and
Irvine, Laguna Hills, San Bernardino, San Diego, San Jose, Studio City, Walnut
Creek and Westlake Village, California. The Originator's primary source of
originations is through mortgage brokerage companies.
Founded in 1981, the Originator has grown from a small mortgage broker to a
full-service mortgage lender with a wide variety of products. During the late
1980's and early 1990's, the Originator focused primarily on originating and
purchasing agency mortgage loans. Agency origination volume peaked in 1993 at
over $3.5 billion. In 1994, the Originator embarked on a transformation to a
full service "A" through "D" credit lender. Since that time, agency mortgage
loan origination volume has declined significantly as activities have been
focused on originating and acquiring non-agency mortgage loans. For all of 2003,
originations totaled approximately $20.1 billion, with $1.1 billion of retail
non-agency mortgage loans and $19.0 billion of wholesale non-agency mortgage
loans.
S-43
UNDERWRITING STANDARDS
All of the Mortgage Loans were originated or acquired by the Originator,
generally in accordance with the underwriting criteria described herein. The
information set forth in the following paragraphs has been provided by the
Originator, and none of the Depositor, the Servicer, the Seller, the Trustee,
the Underwriters or any other party makes any representation as to the accuracy
or completeness of such information.
The Originator's underwriting standards are primarily intended to assess
the ability and willingness of the borrower to repay the debt and to evaluate
the adequacy of the mortgaged property as collateral for the mortgage loan. All
of the Mortgage Loans were underwritten with a view toward the resale thereof in
the secondary mortgage market. The Originator considers, among other things, a
mortgagor's credit history, repayment ability and debt service-to-income ratio
("Debt Ratio"), as well as the value, type and use of the mortgaged property.
The Mortgage Loans generally bear higher rates of interest than mortgage loans
that are originated in accordance with Fannie Mae and Freddie Mac standards, and
may experience rates of delinquencies and foreclosures that are higher, and that
may be substantially higher, than those experienced by portfolios of mortgage
loans underwritten in a more traditional manner. Unless prohibited by state law
or otherwise waived by the Originator upon the payment by the related mortgagor
of higher origination fees and a higher Mortgage Rate, a majority of the
Mortgage Loans provide for the payment by the mortgagor of a prepayment charge
on certain full or partial prepayments made within one to four years from the
date of origination of the related Mortgage Loan as described under "The
Mortgage Pool--Mortgage Loan Statistics" above. The amount of the prepayment
charge is as provided in the related Mortgage Note and with respect to
approximately 82.77% of the Mortgage Loans (by aggregate principal balance as of
the Cut-off Date) that have a prepayment charge, the prepayment charge is equal
to six month's interest on any amounts prepaid in excess of 20% of the original
Principal Balance of the related Mortgage Loan in any 12 month period.
Substantially all of the mortgage loans originated by the Originator are
based on loan application packages submitted through mortgage brokerage
companies. These brokers must meet minimum standards set by the Originator based
on an analysis of the following information submitted with an application for
approval: applicable state lending license (in good standing), satisfactory
credit report only if no federal income tax identification number, signed broker
agreement, signed W-9 and signed broker authorization. Once approved, mortgage
brokerage companies are eligible to submit loan application packages in
compliance with the terms of a signed broker agreement.
The Originator has one underwriting program called the Direct Access
Program. Within the Direct Access Program, there are five documentation
programs, the Full Documentation Program, the Limited Income Verification
Program (the "LIV"), the Stated Plus Program, the No Income Verification Program
(the "NIV") and the No Documentation Program (the "No Doc"). All of the Mortgage
Loans were originated in accordance with the Originator's Direct Access Program.
While each underwriting program is intended to assess the risk of default, the
Direct Access Program makes use of credit bureau risk scores (the "Credit Bureau
Risk Score"). The Credit Bureau Risk Score is a statistical ranking of likely
future credit performance developed by Fair, Isaac & Company ("Fair, Isaac") and
the three national credit repositories--Equifax, Trans Union and First American
(formerly Experian which was formerly TRW). The Credit Bureau Risk Scores
available from the three national credit repositories are calculated by the
assignment of weightings to the most predictive data collected by the credit
repositories and range from the 300's to the 900's. Although the Credit Bureau
Risk Scores are based solely on the information at the particular credit
repository, such Credit Bureau Risk Scores have been calibrated to indicate the
same level of credit risk regardless of which credit repository is used. The
Credit Bureau Risk Score is used as an aid to, not a substitute for, the
underwriter's judgment.
The Direct Access Program was developed to simplify the origination process
for the mortgage brokerage companies approved by the Originator. In contrast to
assignment of credit grades according to traditional non-agency credit
assessment methods, i.e., mortgage and other credit delinquencies, Direct Access
relies upon a borrower's Credit Bureau Risk Score initially to determine a
borrower's likely future credit performance. Mortgage brokerage companies are
able to access Credit Bureau Risk Scores at the initial phases of the loan
application process and use the score to determine a borrower's interest rate
based upon the Originator's Direct Access Program risk-based pricing matrix
(subject to final loan approval by the Originator).
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Under the Direct Access Program, the Originator requires that the Credit
Bureau Risk Score of the primary borrower (the borrower with at least 51.00% of
total income for all LTVs) be used to determine program eligibility. Credit
Bureau Risk Scores must be obtained from at least two national credit
repositories, with the lower of the two scores being utilized in program
eligibility determination. If Credit Bureau Risk Scores are obtained from three
credit repositories, the middle of the three scores can be utilized. In all
cases, a borrower's complete credit history must be detailed in the credit
report that produces a given Credit Bureau Risk Score or the borrower is not
eligible for the Direct Access Program. Generally, the minimum Credit Bureau
Risk Score allowed under the Direct Access Program is 540.
The Credit Bureau Risk Score, along with the loan-to-value ratio, is an
important tool in assessing the creditworthiness of a Direct Access borrower.
However, these two factors are not the only considerations in underwriting a
Direct Access loan. The Originator's underwriting staff fully reviews each
Direct Access loan to determine whether the Originator's guidelines for income,
assets, employment and collateral are met.
All of the Mortgage Loans were underwritten by the Originator's
underwriters having the appropriate signature authority. Each underwriter is
granted a level of authority commensurate with their proven judgment, maturity
and credit skills. On a case by case basis, the Originator may determine that,
based upon compensating factors, a prospective mortgagor not strictly qualifying
under the underwriting risk category guidelines described below warrants an
underwriting exception. Compensating factors may include, but are not limited
to, low loan-to-value ratio, low Debt Ratio, substantial liquid assets, good
credit history, stable employment and time in residence at the applicant's
current address. It is expected that a substantial portion of the Mortgage Loans
may represent such underwriting exceptions.
The Originator's underwriters verify the income of each applicant under
various documentation programs as follows: under the Full Documentation Program,
applicants are generally required to submit verification of stable income for
the periods of six months to two years preceding the mortgage application,
depending on credit score range; under the LIV Program, the borrower is
qualified based on the income stated on the application and applicants are
generally required to submit verification of adequate cashflow to meet credit
obligations for the 6 month period preceding the application; under the Stated
Plus Program, the applicant is qualified based on the income stated on the
application. This applicant must have three months of stated income to be
verified with liquid assets that are sourced and seasoned for three months to
receive treatment similar to the Full Documentation Program for loan amounts and
LTV's; under the NIV Program, applicants are qualified based on monthly income
as stated on the mortgage application; and under the No Doc Program, employment,
income and assets are neither disclosed nor verified. For Direct Access first
lien mortgage loans with a credit score greater than or equal to 560 and not
originated in conjunction with a second lien mortgage, bank statements (for 12
months) are acceptable as full documentation. For Direct Access first lien
mortgage loans with credit scores greater than or equal to 600, regardless of
being originated with a corresponding second lien mortgage, twelve months bank
statements are acceptable as full documentation. In all cases, the income stated
must be reasonable and customary for the applicant's line of work. Although the
income is not verified under the LIV, Stated Plus and NIV Programs, a preclosing
audit generally will confirm that the business exists. Verification may be made
through phone contact to the place of business, obtaining a valid business
license, CPA/Enrolled Agent letter or through Dun and Bradstreet Information
Services.
The applicant generally must have a sufficiently established credit history
to qualify for the appropriate Credit Bureau Risk Score range under the Direct
Access Program. This credit history is substantiated by a two repository merged
report prepared by an independent credit report agency. The report typically
summarizes the applicant's entire credit history, and generally includes a seven
year public record search for each address where the applicant has lived during
the two years prior to the issuance of the credit report and contains
information relating to such matters as credit history with local and national
merchants and lenders, installment debt payments and any record of defaults,
bankruptcy, repossession, suits or judgments. In some instances, borrowers with
a minimal credit history are eligible for financing under the Direct Access
Program.
The Originator originates loans secured by 1-4 unit residential properties
made to eligible borrowers with a vested fee simple (or in some cases a
leasehold) interest in the property. The Originator's guidelines are applied in
accordance with a procedure which complies with applicable federal and state
laws and regulations and generally require an appraisal of the mortgaged
property which conforms to Freddie Mac and/or Fannie Mae standards; and if
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appropriate, a review appraisal. Generally, appraisals are provided by
appraisers approved by the Originator. Review appraisals may only be provided by
appraisers approved by the Originator. In some cases, the Originator relies on a
statistical appraisal methodology provided by a third-party.
Qualified independent appraisers must meet minimum standards of licensing
and provide errors and omissions insurance in states where it is required to
become approved to do business with the Originator. Each Uniform Residential
Appraisal Report includes a market data analysis based on recent sales of
comparable homes in the area and, where deemed appropriate, replacement cost
analysis based on the current cost of constructing a similar home. The review
appraisal may be an enhanced desk, field review or an automated valuation report
that confirms or supports the original appraiser's value of the mortgaged
premises. The review appraisal may be waived by a Standard Plus Delegated
Underwriter.
The Originator requires title insurance on all mortgage loans secured by
liens on real property. The Originator also requires that fire and extended
coverage casualty insurance be maintained on the secured property in an amount
at least equal to the principal balance of the related residential loan or the
replacement cost of the property, whichever is less.
The Originator conducts a number of quality control procedures, including a
post-funding compliance audit as well as a full re-underwriting of a random
selection of loans to assure asset quality. Under the compliance audit, all
loans are reviewed to verify credit grading, documentation compliance and data
accuracy. Under the asset quality procedure, a random selection of each month's
originations is reviewed. The loan review confirms the existence and accuracy of
legal documents, credit documentation, appraisal analysis and underwriting
decision. A report detailing audit findings and level of error is sent monthly
to each branch for response. The audit findings and branch responses are then
reviewed by the Originator's senior management. Adverse findings are tracked
monthly and over a rolling six month period. This review procedure allows the
Originator to assess programs for potential guideline changes, program
enhancements, appraisal policies, areas of risk to be reduced or eliminated and
the need for additional staff training. Under the mortgage loan programs,
various risk categories are used to grade the likelihood that the applicant will
satisfy the repayment conditions of the loan. These risk categories establish
the maximum permitted loan-to-value ratio and loan amount, given the occupancy
status of the mortgaged property and the applicant's credit history and Debt
Ratio. In general, higher credit risk mortgage loans are graded in categories
which permit higher Debt Ratios and more (or more recent) major derogatory
credit items such as outstanding judgments or prior bankruptcies; however these
loan programs establish lower maximum loan-to-value ratios and lower maximum
loan amounts for loans graded in such categories.
"Equity Refinance" transactions are defined as those instances where the
borrower receives the lesser of 2% of the new loan amount or $2,000
cash-in-hand. Funds used for debt consolidation are not included in this amount.
The Originator's guidelines under the Direct Access Program generally have
the following criteria for borrower eligibility for the specified Credit Bureau
Risk Score range.
The Debt Ratio generally may not exceed 50.49% for all credit scores on
full documentation and LIV loans. Loans meeting the residual income requirements
may have a maximum Debt Ratio of 55.49%. The Debt Ratio for NIV loans may not
exceed 50.49%.
Generally, all liens affecting title must be paid at closing. Collections,
charge-offs, judgments and liens not affecting title may remain open for
combined loan-to-value ratios less than or equal to 80%, provided certain
criteria are met. For instance, if the loan is a purchase or rate and term
refinance, a payoff of such amounts shall not be required if, the related loan
is not being originated together with a second lien loan, the balance of the
items(s) added to the loan amount does not exceed the maximum allowed combined
loan-to-value ratio, the payment amounts are included in the debt calculation,
and the Originator loan has first lien priority.
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THE SERVICER
The information contained herein with regard to Countrywide Home Loans
Servicing LP (in its capacity as servicer, the "SERVICER"), has been provided by
the Servicer. None of the Depositor, the Seller, the Trustee, the Credit Risk
Manager, any Underwriter or any of their respective affiliates have made or will
make any representation as to the accuracy or completeness of such information.
The principal executive offices of Countrywide are located at 7105
Corporate Drive, Plano, Texas 75024. Countrywide is a Texas limited partnership
directly owned by Countrywide GP, Inc. and Countrywide LP, Inc., each a Nevada
corporation and a direct wholly owned subsidiary of Countrywide Home Loans,
Inc., a New York corporation ("COUNTRYWIDE HOME LOANS"). Countrywide GP, Inc.
owns a 0.1% interest in Countrywide and is the general partner. Countrywide LP,
Inc. owns a 99.9% interest in Countrywide and is a limited partner.
Countrywide Home Loans established Countrywide in February 2000 to service
mortgage loans originated by Countrywide Home Loans that would otherwise have
been serviced by Countrywide Home Loans. In January and February, 2001,
Countrywide Home Loans transferred to Countrywide all of its rights and
obligations relating to mortgage loans serviced on behalf of Freddie Mac and
Fannie Mae, respectively. In October 2001, Countrywide Home Loans transferred to
Countrywide all of its rights and obligations relating to the bulk of its
non-agency loan servicing portfolio (other than the servicing of home equity
lines of credit), including with respect to those mortgage loans (other than
home equity lines of credit) formerly serviced by Countrywide Home Loans. While
Countrywide Home Loans expects to continue to directly service a portion of its
loan portfolio, it is expected that the servicing rights for most newly
originated Countrywide Home Loans mortgage loans will be transferred to
Countrywide upon sale or securitization of the related mortgage loans.
Countrywide is engaged in the business of servicing mortgage loans and will not
originate or acquire loans, an activity that will continue to be performed by
Countrywide Home Loans. In addition to acquiring mortgage servicing rights from
Countrywide Home Loans, it is expected that Countrywide will service mortgage
loans for non-Countrywide Home Loans affiliated parties as well as subservice
mortgage loans on behalf of other servicers.
In connection with the establishment of Countrywide, certain employees of
Countrywide Home Loans became employees of Countrywide. Countrywide has engaged
Countrywide Home Loans as a subservicer to perform certain loan servicing
activities on its behalf.
Countrywide is an approved mortgage loan servicer for Fannie Mae, Freddie
Mac, Ginnie Mae, HUD and VA and is licensed to service mortgage loans in each
state where a license is required. Its loan servicing activities are guaranteed
by Countrywide Financial Corporation, a Delaware corporation, and/or Countrywide
Home Loans when required by the owner of the mortgage loans. As of June 30,
2004, Countrywide had a net worth of approximately $11.1 billion.
COUNTRYWIDE HOME LOANS
Countrywide Home Loans is a direct wholly owned subsidiary of Countrywide
Financial, formerly known as Countrywide Credit Industries, Inc. The principal
executive offices of Countrywide Home Loans are located at 4500 Park Granada,
Calabasas, California 91302. Countrywide Home Loans is engaged primarily in the
mortgage banking business, and as such, originates, purchases, sells and
services mortgage loans. Countrywide Home Loans originates mortgage loans
through a retail branch system and through mortgage loan brokers and
correspondents nationwide. Mortgage loans originated by Countrywide Home Loans
are principally first lien, fixed or adjustable rate mortgage loans secured by
single family residences. Except as otherwise indicated, reference in the
remainder of this prospectus supplement to "Countrywide Home Loans" should be
read to include Countrywide Home Loans and its consolidated subsidiaries,
including Countrywide.
Countrywide Home Loans services substantially all of the mortgage loans it
originates or acquires. In addition, Countrywide Home Loans has purchased in
bulk the rights to service mortgage loans originated by other lenders.
Countrywide Home Loans has in the past and may in the future sell to other
mortgage bankers a portion of its portfolio of loan servicing rights. As of June
30, 2004, Countrywide Home Loans provided servicing for mortgage loans with an
aggregate principal balance of approximately $726.227 billion, substantially all
of which are being
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serviced for unaffiliated persons. As of June 30, 2004, Countrywide Home Loans
provided servicing for approximately $58.82 billion in subprime mortgage loans.
LOAN SERVICING
Countrywide has established standard policies for the servicing and
collection of mortgages. Servicing includes, but is not limited to:
(a) collecting, aggregating and remitting mortgage loan payments; (b)
accounting for principal and interest;
(c) holding escrow (impound) funds for payment of taxes and insurance;
(d) making inspections as required of the mortgaged properties;
(e) preparation of tax related information in connection with the
mortgage loans;
(f) supervision of delinquent mortgage loans;
(g) loss mitigation efforts;
(h) foreclosure proceedings and, if applicable, the disposition of
mortgaged properties; and
(i) generally administering the mortgage loans, for which it receives
servicing fees.
Billing statements with respect to mortgage loans are mailed monthly by
Countrywide. The statement details all debits and credits and specifies the
payment due. Notice of changes in the applicable loan rate are provided by
Countrywide to the mortgagor with such statements.
COLLECTION PROCEDURES
Subprime Mortgage Loans. When a mortgagor fails to make a payment on a
subprime mortgage loan, Countrywide attempts to cause the deficiency to be cured
by corresponding with the mortgagor. In most cases, deficiencies are cured
promptly. Pursuant to Countrywide's subprime servicing procedures, Countrywide
generally mails to the mortgagor a notice of intent to foreclose after the loan
becomes 31 days past due (two payments due but not received) and, generally
within 59 days thereafter, if the loan remains delinquent, institutes
appropriate legal action to foreclose on the mortgaged property. Foreclosure
proceedings may be terminated if the delinquency is cured. Mortgage loans to
borrowers in bankruptcy proceedings may be restructured in accordance with law
and with a view to maximizing recovery of such loans, including any
deficiencies.
Once foreclosure is initiated by Countrywide, a foreclosure tracking system
is used to monitor the progress of the proceedings. The system includes state
specific parameters to monitor whether proceedings are progressing within the
time frame typical for the state in which the mortgaged property is located.
During the foreclosure proceeding, Countrywide determines the amount of the
foreclosure bid and whether to liquidate the mortgage loan.
If foreclosed, the mortgaged property is sold at a public or private sale
and may be purchased by Countrywide Home Loans. After foreclosure, Countrywide
may liquidate the mortgaged property and charge off the loan balance which was
not recovered through liquidation proceeds.
Servicing and charge off policies and collection practices with respect to
subprime mortgage loans may change over time in accordance with, among other
things, Countrywide's business judgment, changes in the servicing portfolio and
applicable laws and regulations.
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FORECLOSURE AND DELINQUENCY EXPERIENCE
Subprime Mortgage Loans. The following table summarizes the delinquency and
foreclosure experience, respectively, on the dates indicated, of subprime
mortgage loans serviced by Countrywide Home Loans. A subprime mortgage loan is
characterized as delinquent if the borrower has not paid the monthly payment due
within one month of the related due date. The delinquency and foreclosure
percentages may be affected by the size and relative lack of seasoning of the
servicing portfolio because many of such loans were not outstanding long enough
to give rise to some or all of the periods of delinquency indicated in the chart
below. Accordingly, the information should not be considered as a basis for
assessing the likelihood, amount, or severity of delinquency or losses on the
mortgage loans to be transferred to the trust, and no assurances can be given
that the delinquency or foreclosure experience presented in the table below will
be indicative of such experience on the mortgage loans to be transferred to the
trust. The sum of the columns below may not equal the total indicated due to
rounding.
For purposes of the following table:
o the period of delinquency is based on the number of days payments
are contractually past due;
o certain total percentages and dollar amounts may not equal the sum
of the percentages and dollar amounts indicated in the columns due
to differences in rounding;
o the "FORECLOSURE RATE" is the dollar amount of mortgage loans in
foreclosure as a percentage of the total principal balance of
mortgage loans outstanding as of the date indicated; and
o the "BANKRUPTCY RATE" is the dollar amount of mortgage loans for
which the related borrower has declared bankruptcy as a percentage
of the total principal balance of mortgage loans outstanding as of
the date indicated.
DELINQUENCY AND FORECLOSURE EXPERIENCE
------------------------------------------------------------------------------
AS OF DECEMBER 31, 2001 AS OF DECEMBER 31, 2002
---------------------------------- ------------------------------------
PRINCIPAL BALANCE PERCENTAGE PRINCIPAL BALANCE PERCENTAGE
----------------- ---------- ----------------- ------------
Total Portfolio $19,551,859,542 100.00% $23,376,785,559 100.00%
Delinquency Percentage
30-59 Days $ 1,662,686,953 8.50% $ 1,698,025,366 7.26%
60-89 Days 531,709,311 2.72 603,338,252 2.58
90+ Days 305,081,596 1.56 331,724,070 1.42
--------------- -------- --------------- -------
Sub-Total $ 2,499,477,860 12.78% $ 2,633,087,689 11.26%
--------------- -------- --------------- -------
Foreclosure Rate $ 741,761,799 3.79% $ 710,578,271 3.04%
Bankruptcy Rate $ 519,059,001 2.65% $ 700,006,578 2.99%
DELINQUENCY AND FORECLOSURE EXPERIENCE
------------------------------------------------------------------------------
AS OF DECEMBER 31, 2003 AS OF JUNE 30, 2004
-------------------------------------- ------------------------------------
PRINCIPAL BALANCE PERCENTAGE PRINCIPAL BALANCE PERCENTAGE
----------------- ---------- ----------------- ------------
Total Portfolio $37,331,744,428 100.00% $58,816,692,429 100.00%
Delinquency Percentage
30-59 Days $ 2,321,525,725 6.22% $ 3,272,788,978 5.56%
60-89 Days 721,702,761 1.93 929,169,073 1.58
90+ Days 252,964,195 0.68 269,314,752 0.46
--------------- -------- --------------- -------
Sub-Total $ 3,296,192,681 8.83% $ 4,471,272,803 7.60%
--------------- -------- --------------- -------
Foreclosure Rate $ 765,232,333 2.05% $ 922,740,998 1.57%
Bankruptcy Rate $ 723,728,241 1.94% $ 780,353,843 1.33%
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Historically, a variety of factors, including the appreciation of real
estate values, have limited the loss and delinquency experience on subprime
mortgage loans. There can be no assurance that factors beyond the control of
Countrywide Home Loans, such as national or local economic conditions or a
downturn in the real estate markets of its lending areas, will not result in
increased rates of delinquencies and foreclosure losses in the future.
THE POOLING AND SERVICING AGREEMENT
GENERAL
The Certificates will be issued pursuant to the Pooling and Servicing
Agreement, dated as of October 1, 2004 (the "POOLING AND SERVICING AGREEMENT"),
among the Depositor, the Servicer 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 Reserve Accounts, (v) the rights of
the Trustee under each Yield Maintenance Agreement, (vi) the rights of the
Trustee under all insurance policies, including the PMI Policy in connection
with certain of the Mortgage Loans, required to be maintained pursuant to the
Pooling and Servicing Agreement and (vii) the rights of the Depositor under the
Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase
Agreement. The Offered Certificates will be transferable and exchangeable at the
corporate trust office of the Trustee.
ASSIGNMENT OF THE MORTGAGE LOANS
On or about October 21, 2004 (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 Seller will deliver or cause to be delivered to
the Trustee on behalf of the Certificateholders (or a custodian, as the
Trustee's agent for such purpose) the mortgage notes endorsed in blank and the
Related Documents. In lieu of delivery of original mortgages or mortgage notes,
if such original is not available or lost, the Seller 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.
Unless otherwise required by DBRS, Fitch or S&P, 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
the servicing of a Mortgage Loan.
Within 60 days following the Closing Date, the Trustee will review (or
cause a custodian to 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), the Seller will be obligated to either (i) substitute for such
Mortgage Loan an Eligible Substitute Mortgage Loan; provided, 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 a portion of the
Trust Fund as a REMIC or result in a prohibited transaction or contribution 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
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the calendar month in which the purchase is effected, plus the amount of any
unreimbursed Advances and Servicing Advances made by the Servicer plus any costs
and damages incurred by the Trust in connection with any violation by such
Mortgage Loan of any predatory or abusive lending law. 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 Originator or the Seller, as the case may be, will be required to
deposit in the Collection Account on or prior to the next succeeding servicer
remittance date after such obligation arises an amount (the "SUBSTITUTION
ADJUSTMENT") equal to the excess of the Purchase Price of the related Defective
Mortgage Loan over the Principal Balance (plus one month's interest on such
balance) of such Eligible Substitute Mortgage Loan.
An "Eligible Substitute Mortgage Loan" is a mortgage loan substituted by
the Originator or the Seller, as applicable, 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 the
Principal Balance of the Defective Mortgage Loan; (ii) have a Mortgage Interest
Rate not less than, and not more than 2% greater than, the Mortgage Interest
Rate of the Defective Mortgage Loan; (iii) if an Adjustable-Rate Mortgage Loan,
have the same Index as the Defective Mortgage Loan and have a Gross Margin equal
to or greater than the Defective Mortgage Loan; (iv) be of the same type as the
Defective Mortgage Loan (e.g., fixed-rate or adjustable-rate); (v) 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; (vi) comply with each
representation and warranty as to the Mortgage Loans set forth in the Originator
Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase Agreement
(deemed to be made as of the date of substitution); (vii) have been underwritten
or re-underwritten in accordance with the same underwriting criteria and
guidelines as the Mortgage Loan being replaced; (viii) be of the same or better
credit quality as the Mortgage Loan being replaced; (ix) be covered by the PMI
Policy if the Defective Mortgage Loan being replaced was covered by the PMI
Policy; and (x) satisfy certain other conditions specified in the Pooling and
Servicing Agreement.
The Seller acquired the Mortgage Loans from the Originator pursuant to the
Originator Mortgage Loan Purchase Agreement among the Seller, as purchaser, and
the Originator, as seller. Under the Originator Mortgage Loan Purchase
Agreement, the Originator made certain representations and warranties with
respect to the Mortgage Loans as of September 29, 2004, which will be assigned
by the Seller to the Depositor, and by the Depositor to the Trustee for the
benefit of the Certificateholders. Within 90 days following its discovery of a
breach of any representation or warranty that materially or adversely affects
the interests of Certificateholders in a Mortgage Loan, or receipt of notice of
such breach, the Originator will be obligated to cure such breach or purchase
the affected Mortgage Loan from the Trust for the Purchase Price (or, in certain
circumstances, to substitute another mortgage loan). In addition to the
foregoing, if the breach involves the Originator's representation that the
Mortgage Loan complies with the requirements of all applicable federal, state or
local predatory or abusive lending laws, the Originator will be obligated to
reimburse the Trust for all costs or damages incurred by the Trust as a result
of the violation of such representation (such amount, the "REIMBURSEMENT
AMOUNT").
Pursuant to the terms of the Mortgage Loan Purchase Agreement, the Seller
will make to the Depositor (and the Depositor will assign to the Trustee for the
benefit of the Certificateholders) on certain limited representations and
warranties as of the Closing Date such as: (i) the accuracy of the Mortgage Loan
Schedule; (ii) the payment and delinquency status of each Mortgage Loan; (iii)
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 (iv) each Mortgage Loan complies with any and
all requirements of any federal, state or local law with respect to the
origination of such Mortgage Loan including, without limitation, usury, truth in
lending, real estate settlement procedures, consumer credit protection, equal
credit opportunity, predatory and abusive lending laws or disclosure laws
applicable to the Mortgage Loans. In the event of a breach of any such
representation or warranty that does not constitute a breach of any
representation or warranty made by the Originator as described above, the Seller
will be
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obligated in the same manner as the Originator to cure such breach or purchase
the affected Mortgage Loans, as described above. In addition to the foregoing,
if a breach of the representation set forth in clause (iv) occurs, the Seller
will be obligated to remit to the Trust any Reimbursement Amount which the
Originator fails to pay.
To the extent that any fact, condition or event with respect to a Mortgage
Loan constitutes a breach of both a representation and warranty of the
Originator under the Originator Mortgage Loan Purchase Agreement and a breach of
a representation and warranty of the Seller under the Mortgage Loan Purchase
Agreement, then the only right or remedy of the Trustee or any Certificateholder
will be the Trustee's right to enforce the obligations of the Originator under
the Originator Mortgage Loan Purchase Agreement, and there will be no remedy
against the Seller for such breaches (other than the Seller's obligation to
remit to the Trust any Reimbursement Amount which the Originator fails to pay).
Mortgage Loans required to be transferred to the Originator or 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 or other
servicing compensation, reimbursement for Advances and Servicing Advances,
insurance proceeds to be applied to the restoration or repair of a Mortgaged
Property or similar items), the Servicer will be required to 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 State of New York, the State of California, the
State of Texas 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
the Trustee will deposit, upon receipt on the Business Day preceding each
Distribution Date, amounts withdrawn from the Collection Account for
distribution to Certificateholders on such Distribution Date and remitted to it
by the Servicer. 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.
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 "A-1" (or the equivalent) by each of S&P, Fitch
and DBRS (collectively, the "RATING AGENCIES") 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), the uninsured deposits in which account are otherwise
secured such that, as evidenced by an opinion of counsel delivered to the
Trustee and to each Rating Agency, the Certificateholders will have a claim with
respect to the funds in such account or a perfected first priority security
interest against such collateral (which shall be limited to eligible
investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution with which such account is
maintained, (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 Offered Certificates.
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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 from its own funds, or funds in the Collection Account that
are not included in the Available Funds for such Distribution Date, or a
combination of both, an amount equal to the aggregate of all payments of
principal and/or interest, net of the Servicing Fee, that were due during the
related Collection Period on the Mortgage Loans and that were not received by
the related Determination Date (any such advance, an "ADVANCE"). With respect to
the Interest Only Mortgage Loans, the Servicer will be obligated to make
Advances of scheduled interest during the interest only period of such Mortgage
Loans and Advances of principal and interest thereafter.
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, condemnation proceeds or liquidation proceeds. The purpose
of making such Advances is to maintain a regular cashflow 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 Servicemembers Civil Relief Act
(the "RELIEF ACT") or similar state or local laws. Subject to the recoverability
standard above, the Servicer's obligation to make Advances as to any Mortgage
Loan will continue until such Mortgage Loan is paid in full by the mortgagor or
disposed of by the Trust. 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 amortization schedule for such Balloon Mortgage Loan.
All Advances will be reimbursable to the Servicer from late collections,
insurance proceeds, condemnation 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,
condemnation proceeds or liquidation proceeds may be reimbursed to the Servicer
out of general funds in the Collection Account prior to the distributions on the
Certificates. In addition, the Servicer may withdraw from the Collection Account
funds that were not included in Available Funds for the preceding Distribution
Date to reimburse itself for Advances previously made. In the event the Servicer
fails in its obligation to make any such Advance, the Trustee, 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, inspection 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, condemnation 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.
The Pooling and Servicing Agreement may provide that the Servicer, with the
consent of the parties to the Pooling and Servicing Agreement, may enter into a
facility with any person providing that such person (an "ADVANCING PERSON") may
fund Advances and/or Servicing Advances, although no such facility shall reduce
or otherwise affect the Servicer's obligation to fund such Advances and/or
Servicing Advances. Any Advances and/or Servicing Advances made by an Advancing
Person will be reimbursed to the Advancing Person in the same manner as
reimbursements would be made to the Servicer.
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THE TRUSTEE
JPMorgan Chase Bank, a New York banking corporation, will act as trustee
(the "TRUSTEE") for the Certificates pursuant to the Pooling and Servicing
Agreement. The Trustee has its corporate trust office at 4 New York Plaza, 6th
Floor, New York, New York 10004-2477, Attention: Institutional Trust
Services/Global Debt: First Franklin Mortgage Loan Trust 2004-FF10. The Trustee
will perform administrative functions on behalf of the Trust Fund and for the
benefit of the Certificateholders pursuant to the terms of the Pooling and
Servicing Agreement. The compensation to be paid to the Trustee in respect of
its obligations under the Pooling and Servicing Agreement will be provided for
in the Pooling and Servicing Agreement. The Pooling and Servicing Agreement will
provide that the Trustee and any director, officer, employee or agent of the
Trustee 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 is
specifically allocated to 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 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 Depositor on the performance of such Mortgage Loans, including prepayment
charge collection analysis. 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.
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 0.015% annually
(the "CREDIT RISK MANAGER FEE RATE") of the Principal Balance of each Mortgage
Loan.
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 at the
"SERVICING FEE RATE" on each Mortgage Loan of 0.50% per annum on the same
Principal Balance on which interest on such Mortgage Loan accrues for such
calendar month. As additional servicing compensation, the Servicer is entitled
to retain all service-related fees, including assumption fees, modification
fees, extension fees, bad check 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. The Servicer is
obligated to offset any Prepayment Interest Shortfall on the 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 for such Distribution Date. 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
15th 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 15th
day. With respect to any Determination Date and each Mortgage Loan as to which a
principal prepayment was applied during the related Prepayment Period, 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 related Prepayment Period.
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OPTIONAL TERMINATION
The NIMS Insurer, if there is a NIMS Insurer, or if there is no NIMS
Insurer, the majority holder of the Class CE Certificates or, if such holder is
the Seller or is affiliated with the Seller or there is no majority holder of
the Class CE Certificates, the Servicer, 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 any Distribution Date on which the
aggregate Principal Balance of such Mortgage Loans and REO Properties is less
than 10% of the aggregate Principal Balance of the Mortgage Loans as of the
Cut-off Date. 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.
If, however, the majority holder of the Class CE Certificates is subject to
regulation by the OCC, the FDIC, the Federal Reserve or the Office of Thrift
Supervision, such holder may not exercise this option unless the aggregate fair
market value of the Mortgage Loans and REO Properties is greater than or equal
to the Termination Price. In addition, no option may be exercised until any due
and unpaid Reimbursement Amounts have been paid to the Trust. 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.
In connection with the issuance of any net interest margin securities
secured by all or a portion of the Class CE and Class P Certificates, a party
may agree to refrain from exercising this option while those securities are
outstanding.
OPTIONAL PURCHASE OF DEFAULTED LOANS
As to any Mortgage Loan which is Delinquent in payment by 90 days or more,
the Servicer may, at its option or shall, pursuant to direction from the NIMS
Insurer, if there is a NIMS Insurer, purchase such Mortgage Loan from the Trust
Fund at the Purchase Price for such Mortgage Loan, under the circumstances
described in the Pooling and Servicing Agreement.
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 the required
amounts or remit to the Trustee for deposit in the Distribution Account any
payment which continues unremedied for one Business Day 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; (ii) any failure of the Servicer to make
any Advance with respect to a Mortgage Loan or to cover any Prepayment Interest
Shortfalls on Mortgage Loans, as described herein, which failure continues
unremedied for one Business Day 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; (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; (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) any reduction, withdrawal or qualification of the
servicer rating of the Servicer by any Rating Agency which results in the
inability of the Servicer to act as a primary or special servicer for any
mortgage-backed or asset-backed transaction rated or to be rated by any Rating
Agency.
RIGHTS UPON EVENT OF SERVICING TERMINATION
So long as an event of servicing termination (as defined in the Pooling and
Servicing Agreement) remains unremedied, the Trustee may, and at the direction
of the holders of the Certificates evidencing not less than 51% of the Voting
Rights is required to, 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 Trustee will
succeed to (or appoint a successor servicer to assume) all of the
responsibilities and duties of the Servicer
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pursuant to the Pooling and Servicing Agreement, including the obligation to
make any required Advances and Servicing Advances. 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 Certificates having not less than 51% of
the Voting Rights evidenced by the Certificates so agree and have offered
indemnity satisfactory to the Trustee.
VOTING RIGHTS
With respect to any date of determination, the percentage of all the Voting
Rights allocated among holders of the Certificates (other than the Class CE,
Class P and Class R Certificates) will be 98% and will be allocated among the
classes of such Certificates in the proportion that the aggregate Certificate
Principal Balance of all the Certificates of such class then outstanding bear to
the aggregate Certificate Principal Balance of all Certificates then
outstanding. With respect to any date of determination, 1% of all the Voting
Rights will be allocated to the holders of each of the Class CE and Class P
Certificates. The Voting Rights allocated to a class of Certificates will be
allocated among all holders of each such class in proportion to the outstanding
certificate balances (or percentage interest) of such Certificates. The Class R
Certificates will not have any Voting Rights.
AMENDMENT
The Pooling and Servicing Agreement may be amended by the Depositor, the
Servicer 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 or to provide for
the rights of a NIMS Insurer, if any, as described under "-- Rights of the NIMS
Insurer under the Pooling and Servicing Agreement." In addition, the Pooling and
Servicing Agreement may be amended by the Depositor, the Servicer and 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 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?%; (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; or (iv) not cause any of the
REMICs created thereunder to be disqualified as a REMIC or result in a
prohibited transaction or contribution tax under the Code on any REMIC created
thereunder.
RIGHTS OF THE NIMS INSURER UNDER THE POOLING AND SERVICING AGREEMENT
After the Closing Date, a separate trust may be established to issue net
interest margin securities secured by all or a portion of the Class CE and Class
P Certificates. Those net interest margin securities may or may not have the
benefit of a financial guaranty insurance policy. If a policy is obtained, the
NIMS Insurer that issues that policy will be a third party beneficiary of the
Pooling and Servicing Agreement and will have a number of rights under the
Pooling and Servicing Agreement, including the following:
o the right to consent to the Servicer's exercise of its discretion to
waive assumption fees, late payment or other charges in connection
with a Mortgage Loan or to arrange for the extension of Due Dates for
payments due on a mortgage note for no more than 125 days, if the
waivers or extensions relate to more than 5% of the Mortgage Loans as
of the Cut-off Date;
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o the right to consent to the Servicer's entering into any sub-servicing
agreement with any servicing entity with respect to any of the
Mortgage Loans;
o the right to direct the Trustee to terminate all of the rights and
obligations of the Servicer under the Pooling and Servicing Agreement
relating to the Trust Fund and the assets of the Trust Fund following
the occurrence of an event of servicing termination under the Pooling
and Servicing Agreement;
o the right to approve or reject the appointment of any successor
servicer other than the Trustee, if the Servicer is required to be
replaced and the Trustee is unwilling or unable to act as successor
servicer;
o the right to consent to any amendment to the Pooling and Servicing
Agreement;
o 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 under the circumstances set forth under "The Pooling and
Servicing Agreement--Optional Termination" in this Prospectus
Supplement;
o the right to direct the Servicer to purchase Mortgage Loans delinquent
in payment 90 days or more; and
o each of the other rights described under "Risk Factors--The rights of
the NIMS Insurer could adversely affect the offered certificates."
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, and are qualified in
their entirety by reference to, the 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 A-3 Certificates
(the "CLASS A CERTIFICATES" or the "SENIOR CERTIFICATES"), the Class M-1, Class
M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7A and Class M-7F
Certificates (collectively, the "CLASS M CERTIFICATES" ), the Class CE
Certificates (together with the Class M Certificates, the "SUBORDINATED
CERTIFICATES"), the Class P Certificates (the "CLASS P CERTIFICATES") and the
Class R Certificates (the "RESIDUAL CERTIFICATES"). The Senior Certificates, the
Subordinated Certificates, the Class P Certificates and the Residual
Certificates are collectively referred to herein as the "CERTIFICATES." Only the
Class A and Class M-1, Class M-2, Class M-3, Class M-4, Class M-5 and Class M-7F
Certificates are offered hereby (the "OFFERED CERTIFICATES").
The Class A and Class M 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 November 2004 (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 Class M-7F
Certificates and any Distribution Date, the "RECORD DATE" is the last day of the
preceding calendar month (or the Closing Date, in the case of the first
Distribution Date). With respect to the Offered Certificates other than the
Class M-7F Certificates and any Distribution Date, the Record Date is the
Business Day immediately preceding such Distribution Date; provided, however,
that if any such Offered
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Certificates become Definitive Certificates (as defined herein), the Record Date
for such Certificates will be the last Business Day of the month immediately
preceding the month in which the related Distribution Date occurs.
BOOK-ENTRY CERTIFICATES
The Class A and Class M Certificates will be book-entry Certificates (the
"BOOK-ENTRY CERTIFICATES"). Persons acquiring beneficial ownership interests in
the Class A and Class M 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, N.A. 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.
The Certificate 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.
Certificate Owners 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, Certificate Owners 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
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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--REMICs--Taxation of Certain Foreign Investors" 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.
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 transfers
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, L-2967 Luxembourg, a Luxembourg limited liability company, was
formed in January 2000 through the merger of Cedel International and Deutsche
Boerse Clearing, the shareholders of which comprise 93 of the world's major
financial institutions.
Clearstream is registered as a bank in Luxembourg, and as such is subject
to regulation by 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 a variety of
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currencies, including United States dollars. Euroclear provides 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"). All operations are
conducted by the Euroclear Operator, and all Euroclear securities clearance
accounts and Euroclear cash accounts are accounts with the Euroclear Operator.
Euroclear plc 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.
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--REMICs--Taxation of Certain Foreign Investors" 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 book-entry
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
Pooling and Servicing 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.
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Definitive Certificates will be issued to beneficial owners of the
Book-Entry Certificates, or their nominees, rather than to DTC, only if DTC
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.
Upon the occurrence of the event 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.
None of the Depositor, the Servicer or the Trustee will have any
responsibility for any aspect of the records relating to or payments made on
account of beneficial ownership interests of the Book-Entry Certificates held by
Cede & 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 or payable to the Servicer, including amounts in respect of
indemnification of the Servicer, the Servicing Fee and any accrued and unpaid
Servicing Fee and amounts payable to the Trustee in respect of certain expenses
and indemnification: (i) the aggregate amount of Monthly Payments on the
Mortgage Loans due during the related Collection Period and received by the
Servicer on or prior to the related Determination Date, (ii) certain unscheduled
payments in respect of the Mortgage Loans, including prepayments (but excluding
any prepayment charges), insurance proceeds (including payments under the PMI
Policy), Subsequent Recoveries, any collections on REO properties received in
the related Prepayment Period, condemnation proceeds and liquidation proceeds,
net of certain expenses, received during the related Prepayment Period, (iii)
payments from the Servicer in connection with Advances and Compensating Interest
for such Distribution Date, (iv) the Purchase Price for any repurchased Mortgage
Loan deposited to the Collection Account during the related Prepayment Period,
(v) any Substitution Adjustments deposited in the Collection Account during the
related Prepayment Period, (vi) any Reimbursement Amount deposited to 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 "COLLECTION 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.
The "PREPAYMENT PERIOD" with respect to any Distribution Date means the
calendar month preceding the calendar month in which such Distribution Date
occurs.
INTEREST DISTRIBUTIONS
On each Distribution Date, based upon the information provided to it in a
remittance report prepared by the Servicer, the Trustee will distribute the
Interest Remittance Amount in the following order of priority to the extent
available:
first, concurrently, to the PMI Insurer, the PMI Insurer Fee and to the
Credit Risk Manager, the Credit Risk Manager Fee, pro rata;
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second, concurrently, to the Class A Certificates, pro rata, the Accrued
Certificate Interest thereon for such Distribution Date;
third, concurrently, to the Class A Certificates, pro rata, the Interest
Carry Forward Amount thereon for such Distribution Date;
fourth, to the Class M-1 Certificates, the Accrued Certificate Interest
thereon for such Distribution Date;
fifth, to the Class M-2 Certificates, the Accrued Certificate Interest
thereon for such Distribution Date;
sixth, to the Class M-3 Certificates, the Accrued Certificate Interest
thereon for such Distribution Date;
seventh, to the Class M-4 Certificates, the Accrued Certificate Interest
thereon for such Distribution Date;
eighth, to the Class M-5 Certificates, the Accrued Certificate Interest
thereon for such Distribution Date;
ninth, to the Class M-6 Certificates, the Accrued Certificate Interest
thereon for such Distribution Date;
tenth, concurrently, to the Class M-7A and Class M-7F Certificates, pro
rata, the Accrued Certificate Interest thereon for such Distribution Date; and
eleventh, the amount, if any, of the Interest Remittance Amount remaining
after application with respect to the priorities set forth above which is
defined below as the "Monthly Excess Interest Amount" for such Distribution
Date, will be applied as described below under "--Application of Monthly Excess
Cashflow Amounts."
On any Distribution Date, any shortfalls resulting from Prepayment Interest
Shortfalls not covered by Compensating Interest payments made by the Servicer or
from the application of the Relief Act or similar state laws will be allocated
first to reduce the amounts otherwise distributable to the Class CE
Certificates, and thereafter as a reduction to the Accrued Certificate Interest
for the Class A and Class M Certificates on a pro rata basis based on the
respective amounts of interest accrued on those Certificates for that
Distribution Date. The holders of the Class A and Class M Certificates will not
be entitled to reimbursement on future Distribution Dates of any such Prepayment
Interest Shortfalls or Relief Act shortfalls following their allocation to such
Certificates.
"ACCRUED CERTIFICATE INTEREST" for each Class of Class A and Class M
Certificates and each Distribution Date means an amount equal to the interest
accrued at the applicable Certificate Interest Rate during the related Interest
Accrual Period on the Certificate Principal Balance of such class of
Certificates, as reduced by that class's Interest Percentage of Prepayment
Interest Shortfalls (not covered by Compensating Interest) and shortfalls caused
by the Relief Act or similar state or local laws for such Distribution Date, as
described under "Description of the Certificates-Interest Distributions" above.
The "INTEREST ACCRUAL PERIOD" for any Distribution Date and each class of
Class A and Class M Certificates other than the Class M-7F Certificates will be
the period from and including the preceding Distribution Date, or in the case of
the first Distribution Date, from the Closing Date, through and including the
day prior to the current Distribution Date. With respect to the Class M-7F
Certificates, the Interest Accrual Period for any Distribution Date will be from
and including the first day of each month, commencing October 1, 2004, to and
including the last day of such month. Calculations of interest on the Class A
and Class M Certificates other than the Class M-7F Certificates will be made on
the basis of the actual number of days in the Interest Accrual Period and on a
360-day year. Calculations of interest on the Class M-7F Certificates will be
made on the basis of a 360-day year assumed to consist of twelve 30-day months.
The "INTEREST CARRY FORWARD AMOUNT" means for any class of Class A and
Class M Certificates and any Distribution Date, the sum of (a) the excess, if
any, of the Accrued Certificate Interest and any Interest Carry Forward Amount
for the prior Distribution Date, over the amount in respect of interest actually
distributed on such class on such prior Distribution Date and (b) interest on
such excess at the applicable Certificate Interest Rate for such class for the
related Interest Accrual Period Date.
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The "INTEREST PERCENTAGE" is, with respect to any class of Class A and
Class M 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 Class A and Class M
Certificates, in each case with respect to such Distribution Date and without
regard to Prepayment Interest Shortfalls (not covered by Compensating Interest
payments) and shortfalls caused by the Relief Act or similar state or local
laws.
The "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 Collection Period on the Mortgage Loans received by the Servicer
on or prior to the Determination Date for such Distribution Date (less the
Servicing Fee for such Mortgage Loans, certain amounts available for
reimbursement of Advances and Servicing Advances with respect to such Mortgage
Loans as described above under "The Pooling and Servicing Agreement--Advances"
and certain other reimbursable expenses pursuant to the Pooling and Servicing
Agreement), (ii) all Compensating Interest paid by the Servicer on such
Distribution Date with respect to the Mortgage Loans, (iii) the portion of any
payment in connection with any principal prepayment, substitution, Purchase
Price, Termination Price, liquidation proceeds (net of certain expenses) or
insurance proceeds (including any payments received under the PMI Policy)
relating to interest with respect to the Mortgage Loans received during the
related Prepayment Period and (iv) the portion of any Reimbursement Amount
relating to the Mortgage Loans received during the related Prepayment Period.
PRINCIPAL DISTRIBUTIONS
With respect to each Distribution Date (a) before the Stepdown Date or (b)
as to which a Trigger Event is in effect, the Principal Distribution Amount will
be allocated among and distributed in reduction of the Certificate Principal
Balances of the Certificates in the following order of priority:
first, to the Class A-1 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
second, to the Class A-2 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
third, to the Class A-3 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
fourth, to the Class M-1 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
fifth, to the Class M-2 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
sixth, to the Class M-3 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
seventh, to the Class M-4 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
eighth, to the Class M-5 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
ninth, to the Class M-6 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero;
tenth, concurrently, to the Class M-7A and Class M-7F Certificates, pro
rata, until the Certificate Principal Balance thereof has been reduced to zero;
and
eleventh, any remaining Principal Distribution Amount will be distributed
as part of the Monthly Excess Cashflow Amount as described below under
"--Application of Monthly Excess Cashflow Amounts."
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 will be allocated among and distributed in reduction of the Certificate
Principal Balances of the Certificates in the following order of priority:
first, to the Class A-1 Certificates, up to the Senior Principal
Distribution Amount, until the Certificate Principal Balance thereof has been
reduced to zero;
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second, to the Class A-2 Certificates, up to the Senior Principal
Distribution Amount remaining after priority first above, until the Certificate
Principal Balance thereof has been reduced to zero;
third, to the Class A-3 Certificates, up to the Senior Principal
Distribution Amount remaining after priority first and second above, until the
Certificate Principal Balance thereof has been reduced to zero;
fourth, to the Class M-1 Certificates, up to the Class M-1 Principal
Distribution Amount, until the Certificate Principal Balance thereof has been
reduced to zero;
fifth, to the Class M-2 Certificates, up to the Class M-2 Principal
Distribution Amount, until the Certificate Principal Balance thereof has been
reduced to zero;
sixth, to the Class M-3 Certificates, up to the Class M-3 Principal
Distribution Amount, until the Certificate Principal Balance thereof has been
reduced to zero;
seventh, to the Class M-4 Certificates, up to the Class M-4 Principal
Distribution Amount, until the Certificate Principal Balance thereof has been
reduced to zero;
eighth, to the Class M-5 Certificates, up to the Class M-5 Principal
Distribution Amount, until the Certificate Principal Balance thereof has been
reduced to zero;
ninth, to the Class M-6 Certificates, up to the Class M-6 Principal
Distribution Amount, until the Certificate Principal Balance thereof has been
reduced to zero;
tenth, concurrently, to the Class M-7A and Class M-7F Certificates, pro
rata, up to the Class M-7 Principal Distribution Amount, until the Certificate
Principal Balance thereof has been reduced to zero; and
eleventh, any remaining Principal Distribution Amount will be distributed
as part of the Monthly Excess Cashflow Amount 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.
The "CERTIFICATE PRINCIPAL BALANCE" with respect to any class of
Certificates (other than the Class CE and Class R Certificates, which have no
Certificate Principal Balance) 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 any Applied Realized Loss Amounts allocated to such class for previous
Distribution Dates;
and increased by:
o any Subsequent Recoveries allocated to such class for previous
Distribution Dates.
"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 sum of the Certificate Principal Balances
of the Class A Certificates (after taking into account the payment of the Senior
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 89.10% and (ii) the Pool Balance as of the last day of the related
Collection Period and (b) the amount by which the Pool Balance as of the last
day of the related Collection Period exceeds the product of (i) 0.35% and (ii)
the Pool Balance as of the Cut-off Date.
"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 sum of the Certificate Principal
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Balances of the Class A Certificates (after taking into account the payment of
the Senior 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 93.70% and (ii) the Pool Balance as of the
last day of the related Collection Period and (b) the amount by which the Pool
Balance as of the last day of the related Collection Period exceeds the product
of (i) 0.35% and (ii) the Pool Balance as of 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 sum of the Certificate Principal Balances
of the Class A Certificates (after taking into account the payment of the Senior
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 95.60% and (ii) the Pool
Balance as of the last day of the related Collection Period and (b) the amount
by which the Pool Balance as of the last day of the related Collection Period
exceeds the product of (i) 0.35% and (ii) the Pool Balance as of 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 sum of the Certificate Principal Balances
of the Class A Certificates (after taking into account the payment of the Senior
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
96.60% and (ii) the Pool Balance as of the last day of the related Collection
Period and (b) the amount by which the Pool Balance as of the last day of the
related Collection Period exceeds the product of (i) 0.35% and (ii) the Pool
Balance as of the Cut-off Date.
"CLASS M-5 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 sum of the Certificate Principal Balances
of the Class A Certificates (after taking into account the payment of the Senior
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 M-5 Certificates
immediately prior to such Distribution Date over (y) the lesser of (a) the
product of (i) approximately 97.60% and (ii) the Pool Balance as of the last day
of the related Collection Period and (b) the amount by which the Pool Balance as
of the last day of the related Collection Period exceeds the product of (i)
0.35% and (ii) the Pool Balance as of the Cut-off Date.
"CLASS M-6 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 sum of the Certificate Principal Balances
of the Class A Certificates (after taking into account the payment of the Senior
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
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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), (vi) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the payment of
the Class M-5 Principal Distribution Amount on such Distribution Date) and (vii)
the Certificate Principal Balance of the Class M-6 Certificates immediately
prior to such Distribution Date over (y) the lesser of (a) the product of (i)
approximately 98.60% and (ii) the Pool Balance as of the last day of the related
Collection Period and (b) the amount by which the Pool Balance as of the last
day of the related Collection Period exceeds the product of (i) 0.35% and (ii)
the Pool Balance as of the Cut-off Date.
"CLASS M-7 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 sum of the Certificate Principal Balances
of the Class A Certificates (after taking into account the payment of the Senior
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), (vi) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the payment of the Class M-5 Principal Distribution
Amount on such Distribution Date), (vii) the Certificate Principal Balance of
the Class M-6 Certificates (after taking into account the payment of the Class
M-6 Principal Distribution Amount on such Distribution Date) and (viii) the
Certificate Principal Balance of the Class M-7A and Class M-7F Certificates
immediately prior to such Distribution Date over (y) the lesser of (a) the
product of (i) approximately 99.30% and (ii) the Pool Balance as of the last day
of the related Collection Period and (b) the amount by which the Pool Balance as
of the last day of the related Collection Period exceeds the product of (i)
0.35% and (ii) the Pool Balance as of the Cut-off Date.
"EXTRA PRINCIPAL DISTRIBUTION AMOUNT" means as of any Distribution Date,
the lesser of (x) the Monthly Excess Interest Amount for such Distribution Date
and (y) the Overcollateralization Deficiency 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
Collection Period over (y) the aggregate Certificate Principal Balance of all
classes of Certificates (after taking into account all distributions of
principal on such Distribution Date and the increase of any Certificate
Principal Balance as a result of Subsequent Recoveries).
"OVERCOLLATERALIZATION DEFICIENCY" means as of any Distribution Date, the
excess, if any, of (x) the Targeted Overcollateralization Amount 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 the Class A and Class M Certificates resulting
from the distribution of the 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 Targeted Overcollateralization Amount. With
respect to any Distribution Date on which a Trigger Event is in effect, the
Overcollateralization Release Amount will be zero.
"PRINCIPAL DISTRIBUTION AMOUNT" means as of any Distribution Date, the sum
of (i) the Principal Remittance Amount (minus the Overcollateralization Release
Amount, if any) and (ii) the Extra Principal Distribution Amount, 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 (less certain amounts available for reimbursement of
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Advances and Servicing Advances as described above under "The Pooling and
Servicing Agreement--Advances" and certain other reimbursable expenses pursuant
to the Pooling and Servicing Agreement) of the following amounts (without
duplication) with respect to the Mortgage Loans and the immediately preceding
Collection Period: (i) each payment of principal on a Mortgage Loan due during
such Collection Period and received by the Servicer on or prior to the
Determination Date for such Distribution 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 insurance proceeds
(including any payments received under the PMI Policy), Subsequent Recoveries
and liquidation proceeds (net of certain expenses) allocable to principal
actually collected by the Servicer during the related Prepayment Period, (iv)
the portion of the Purchase Price allocable to principal of all repurchased
Defective Mortgage Loans with respect to such Prepayment Period, (v) any
Substitution Adjustments received during the related Prepayment Period 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 of the Mortgage Loans.
"SENIOR ENHANCEMENT PERCENTAGE" for any Distribution Date is the percentage
obtained by dividing (x) the sum of (i) the aggregate Certificate Principal
Balance of the Class M Certificates and (ii) the Overcollateralization Amount,
in each case before taking into account the distributions of principal on the
Mortgage Loans and the distribution of the Principal Distribution Amount on such
Distribution Date by (y) the Pool Balance as of the last day of the related
Collection Period.
"SENIOR 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 (a) the aggregate Certificate Principal Balance of the Class A
Certificates immediately prior to such Distribution Date over (b) the lesser of
(x) the product of (1) approximately 78.00% and (2) the Pool Balance as of the
last day of the related Collection Period and (y) the amount by which the Pool
Balance as of the last day of the related Collection Period exceeds the product
of (1) 0.35% and (2) the Pool Balance as of the Cut-off Date.
"SENIOR SPECIFIED ENHANCEMENT PERCENTAGE" means approximately 22.00%.
"60+ DAY DELINQUENT LOAN" means each Mortgage Loan (including each Mortgage
Loan in foreclosure and each Mortgage Loan for which the mortgagor has filed for
bankruptcy after the Closing Date) with respect to which any portion of a
Monthly Payment is, as of the last day of the prior Collection Period, two
months or more past due and each Mortgage Loan relating to an REO Property.
"STEPDOWN DATE" means the earlier to occur of (i) the Distribution Date on
which the aggregate Certificate Principal Balance of the Class A Certificates is
reduced to zero and (ii) the later to occur of (x) the Distribution Date in
November 2007 and (y) the first Distribution Date on which the Senior
Enhancement Percentage is greater than or equal to the Senior Specified
Enhancement Percentage.
"SUBSEQUENT RECOVERY" means any amount (net of reimbursable expenses)
received on a Mortgage Loan subsequent to such Mortgage Loan being determined to
be a Liquidated Mortgage Loan that resulted in a Realized Loss in a prior month.
If Subsequent Recoveries are received, they will be included as part of the
Principal Remittance Amount for the following Distribution Date and distributed
in accordance with the priorities described herein. In addition, after giving
effect to all distributions on a Distribution Date, the Unpaid Realized Loss
Amount for the class of Class M Certificates then outstanding with the highest
distribution priority will be decreased by the amount of such Subsequent
Recoveries until reduced to zero (with any remaining Subsequent Recoveries
applied to reduce the Unpaid Realized Loss Amount of the class with the next
highest distribution priority), and the Certificate Principal Balance of such
class or classes of Class M Certificates will be increased by the same amount.
"TARGETED OVERCOLLATERALIZATION AMOUNT" means as of any Distribution Date,
(x) prior to the Stepdown Date, approximately 0.35% of the Pool Balance on the
Cut-off Date and (y) on and after the Stepdown Date, (i) if a Trigger Event has
not occurred, the greater of (a) approximately 0.70% of the Pool Balance as of
the last day of the related Collection Period and (b) 0.35% of the Pool Balance
on the Cut-off Date and (ii) if a Trigger Event has occurred, the Targeted
Overcollateralization Amount for the immediately preceding Distribution Date.
A "TRIGGER EVENT" has occurred on a Distribution Date if (i) the
three-month rolling average of 60+ Day Delinquent Loans equals or exceeds 50.00%
of the Senior Enhancement Percentage or (ii) the aggregate amount of
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Realized Losses incurred since the Cut-off Date through the last day of the
related Collection Period (reduced by the aggregate amount of Subsequent
Recoveries received since the Cut-off Date through the last day of the related
Collection Period) divided by the Pool Balance on the Cut-off Date exceeds the
applicable percentages set forth below with respect to such Distribution Date:
DISTRIBUTION DATE OCCURRING IN PERCENTAGE
- ------------------------------ ----------------------------------------------
November 2007 through October 2008 2.65% for the first month, plus an additional
1/12th of 0.85% for each month thereafter
November 2008 through October 2009 3.50% for the first month, plus an additional
1/12th of 0.70% for each month thereafter
November 2009 through October 2010 4.20% for the first month, plus an additional
1/12th of 0.15% for each month thereafter
November 2010 and thereafter 4.35%
ALLOCATION OF LOSSES
A "REALIZED LOSS" is:
o as to any Liquidated Mortgage Loan, the unpaid Principal Balance
thereof less the net proceeds from the liquidation of, and any
insurance proceeds from, such Mortgage Loan and the related Mortgaged
Property which are applied to the Principal Balance of such 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 the application of the Monthly Excess Interest Amount to
fund such deficiency, as well as through a reduction in the
Overcollateralization Amount.
If, after giving effect to the distribution of the Principal Distribution
Amount on any Distribution Date and the increase of any Certificate Principal
Balances as a result of Subsequent Recoveries, the aggregate Certificate
Principal Balance of the Class A and Class M Certificates exceeds the Pool
Balance as of the end of the related Collection Period, such excess (the
"APPLIED REALIZED LOSS AMOUNT") will be allocated first to the Class M-7F and
Class M-7A Certificates, pro rata, and then to the Class M-6, Class M-5, Class
M-4, Class M-3, Class M-2 and Class M-1 Certificates, in that order, until their
respective Certificate Principal Balances are reduced to zero. The Certificate
Principal Balances of the Class A-1, Class A-2 and Class A-3 Certificates will
not be reduced by any Applied Realized Loss Amounts; however, under certain loss
scenarios, there will not be enough interest and
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principal on the Mortgage Loans to pay such classes of Certificates all interest
and principal amounts to which they are entitled. Any such reduction of a
Certificate Principal Balance will not be reversed or reinstated (except in the
case of Subsequent Recoveries). However, on future Distribution Dates,
Certificateholders of the related class may receive amounts in respect of prior
reductions in the related Certificate Principal Balances as described below.
Such subsequent payments will be applied sequentially to the Class M-1, Class
M-2, Class M-3, Class M-4, Class M-5, and Class M-6 Certificates in that order
and then to the Class M-7A and Class M-7F Certificates, pro rata.
APPLICATION OF MONTHLY EXCESS CASHFLOW AMOUNTS
The weighted average Net Mortgage Interest Rate for the Mortgage Loans is
generally expected to be higher than the weighted average of the interest rates
on the Certificates, thus generating certain excess interest collections which,
in the absence of losses, will not be necessary to fund interest distributions
on the Certificates. This excess interest for a Collection Period, together with
interest on the Overcollateralization Amount itself, is the "MONTHLY EXCESS
INTEREST AMOUNT."
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
Credit Risk Manager Fee Rate and (iii) the PMI Insurer Fee Rate, if applicable.
If Realized Losses occur that are not covered by the Monthly Excess
Cashflow Amount, such Realized Losses will result in an Overcollateralization
Deficiency (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 in this situation
increase the Extra Principal Distribution Amount (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 Targeted
Overcollateralization Amount.
On and after the Stepdown Date and assuming that a Trigger Event is not in
effect, the Targeted Overcollateralization Amount may be permitted to decrease
or "stepdown" slightly. If the Targeted Overcollateralization Amount is
permitted to stepdown on a Distribution Date, the Pooling and Servicing
Agreement permits a modest portion of the Principal Remittance Amount for such
Distribution Date not to be passed through as a distribution of principal on the
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, slightly lower
Targeted Overcollateralization Amount. This portion of the Principal Remittance
Amount not distributed as principal on the Certificates therefore releases a
limited portion of the overcollateralization from the Trust Fund.
On any Distribution Date, the sum of the Monthly Excess Interest Amount,
the Overcollateralization Release Amount and any portion of the Principal
Distribution Amount (without duplication) remaining after principal
distributions on the Certificates is the "MONTHLY EXCESS CASHFLOW AMOUNT," which
is required to be applied in the following order of priority (the "MONTHLY
EXCESS CASHFLOW ALLOCATION") on such Distribution Date:
(i) to the Class A Certificates, pro rata, any remaining Accrued
Certificate Interest on such classes for such Distribution Date;
(ii) to the Class A Certificates, pro rata, any Interest Carry Forward
Amount for such classes for such Distribution Date;
(iii) to the Class M-1 Certificates, any remaining Accrued Certificate
Interest on such class for such Distribution Date;
(iv) to the Class M-1 Certificates, any Interest Carry Forward Amount
for such class for such Distribution Date;
(v) to the Class M-1 Certificates, any Class M-1 Realized Loss
Amortization Amount for such class for such Distribution Date;
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(vi) to the Class M-2 Certificates, any remaining Accrued Certificate
Interest on such class for such Distribution Date;
(vii) to the Class M-2 Certificates, any Interest Carry Forward Amount
for such class for such Distribution Date;
(viii) to the Class M-2 Certificates, any Class M-2 Realized Loss
Amortization Amount for such class for such Distribution Date;
(ix) to the Class M-3 Certificates, any remaining Accrued Certificate
Interest on such class for such Distribution Date;
(x) to the Class M-3 Certificates, any Interest Carry Forward Amount
for such class for such Distribution Date;
(xi) to the Class M-3 Certificates, any Class M-3 Realized Loss
Amortization Amount for such class for such Distribution Date;
(xii) to the Class M-4 Certificates, any remaining Accrued Certificate
Interest on such class for such Distribution Date;
(xiii) to the Class M-4 Certificates, any Interest Carry Forward Amount
for such class for such Distribution Date;
(xiv) to the Class M-4 Certificates, any Class M-4 Realized Loss
Amortization Amount for such class for such Distribution Date;
(xv) to the Class M-5 Certificates, any remaining Accrued Certificate
Interest on such class for such Distribution Date;
(xvi) to the Class M-5 Certificates, any Interest Carry Forward Amount
for such class for such Distribution Date;
(xvii) to the Class M-5 Certificates, any Class M-5 Realized Loss
Amortization Amount for such class for such Distribution Date;
(xviii) to the Class M-6 Certificates, any remaining Accrued
Certificate Interest on such class for such Distribution Date;
(xix) to the Class M-6 Certificates, any Interest Carry Forward Amount
for such class for such Distribution Date;
(xx) to the Class M-6 Certificates, any Class M-6 Realized Loss
Amortization Amount for such class for such Distribution Date;
(xxi) to the Class M-7A and Class M-7F Certificates, pro rata, any
remaining Accrued Certificate Interest on such classes for such
Distribution Date;
(xxii) to the Class M-7A and Class M-7F Certificates, pro rata, any
Interest Carry Forward Amount for such classes for such Distribution Date;
(xxiii) to the Class M-7A and Class M-7F Certificates, pro rata, any
Class M-7 Realized Loss Amortization Amount for such classes for such
Distribution Date;
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(xxiv) first, to the Class A-1, Class A-2 and Class A-3 Certificates,
pro rata, and second, sequentially, to the Class M-1, Class M-2, Class M-3,
Class M-4, Class M-5, and Class M-6 Certificates in that order and third,
to the Class M-7A and Class M-7F Certificates, pro rata, to pay the Cap
Carryover Amount, if any, for each such class;
(xxv) to the Class CE Certificates, in the amounts specified in the
Pooling and Servicing Agreement; and
(xxvi) to the Class R Certificates, in the manner specified in the
Pooling and Servicing Agreement.
For purposes of the foregoing, the following terms will have the respective
meanings set forth below.
"CLASS M-1 APPLIED REALIZED LOSS AMOUNT" means as to the Class M-1
Certificates and as of any Distribution Date, the lesser of (x) the Certificate
Principal Balance thereof (after taking into account the distribution of the
Principal Distribution Amount on such Distribution Date and any increase in
Certificate Principal Balance as a result of Subsequent Recoveries, but prior to
the application of the Class M-1 Applied Realized Loss Amount, if any, on such
Distribution Date) and (y) the excess of (i) the Applied Realized Loss Amount as
of such Distribution Date over (ii) the sum of the Class M-2 Applied Realized
Loss Amount, the Class M-3 Applied Realized Loss Amount, the Class M-4 Applied
Realized Loss Amount, the Class M-5 Applied Realized Loss Amount, the Class M-6
Applied Realized Loss Amount and the Class M-7 Applied Realized Loss Amount, in
each case as of such Distribution Date.
"CLASS M-1 REALIZED LOSS AMORTIZATION AMOUNT" means as to the Class M-1
Certificates and as of any Distribution Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class M-1 Certificates as of such Distribution Date
and (y) the excess of (i) the Monthly Excess Cashflow Amount over (ii) the sum
of the amounts described in clauses (i) through (iv) of the Monthly Excess
Cashflow Allocation for such Distribution Date.
"CLASS M-2 APPLIED REALIZED LOSS AMOUNT" means as to the Class M-2
Certificates and as of any Distribution Date, the lesser of (x) the Certificate
Principal Balance thereof (after taking into account the distribution of the
Principal Distribution Amount on such Distribution Date and any increase in
Certificate Principal Balance as a result of Subsequent Recoveries, but prior to
the application of the Class M-2 Applied Realized Loss Amount, if any, on such
Distribution Date) and (y) the excess of (i) the Applied Realized Loss Amount as
of such Distribution Date over (ii) the sum of the Class M-3 Applied Realized
Loss Amount, the Class M-4 Applied Realized Loss Amount, the Class M-5 Applied
Realized Loss Amount, the Class M-6 Applied Realized Loss Amount and the Class
M-7 Applied Realized Loss Amount, in each case as of such Distribution Date.
"CLASS M-2 REALIZED LOSS AMORTIZATION AMOUNT" means as to the Class M-2
Certificates and as of any Distribution Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class M-2 Certificates as of such Distribution Date
and (y) the excess of (i) the Monthly Excess Cashflow Amount over (ii) the sum
of the amounts described in clauses (i) through (vii) of the Monthly Excess
Cashflow Allocation for such Distribution Date.
"CLASS M-3 APPLIED REALIZED LOSS AMOUNT" means as to the Class M-3
Certificates and as of any Distribution Date, the lesser of (x) the Certificate
Principal Balance thereof (after taking into account the distribution of the
Principal Distribution Amount on such Distribution Date and any increase in
Certificate Principal Balance as a result of Subsequent Recoveries, but prior to
the application of the Class M-3 Applied Realized Loss Amount, if any, on such
Distribution Date) and (y) the excess of (i) the related Applied Realized Loss
Amount as of such Distribution Date over (ii) the sum of the Class M-4 Applied
Realized Loss Amount, the Class M-5 Applied Realized Loss Amount, the Class M-6
Applied Realized Loss Amount and the Class M-7 Applied Realized Loss Amount, in
each case as of such Distribution Date.
"CLASS M-3 REALIZED LOSS AMORTIZATION AMOUNT" means as to the Class M-3
Certificates and as of any Distribution Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class M-3 Certificates as of such Distribution Date
and (y) the excess of (i) the Monthly Excess Cashflow Amount over (ii) the sum
of the amounts described in clauses (i) through (x) of the Monthly Excess
Cashflow Allocation for such Distribution Date.
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"CLASS M-4 APPLIED REALIZED LOSS AMOUNT" means as to the Class M-4
Certificates and as of any Distribution Date, the lesser of (x) the Certificate
Principal Balance thereof (after taking into account the distribution of the
Principal Distribution Amount on such Distribution Date and any increase in
Certificate Principal Balance as a result of Subsequent Recoveries, but prior to
the application of the Class M-4 Applied Realized Loss Amount, if any, on such
Distribution Date) and (y) the excess of (i) the related Applied Realized Loss
Amount as of such Distribution Date over (ii) the sum of the Class M-5 Applied
Realized Loss Amount, the Class M-6 Applied Realized Loss Amount and the Class
M-7 Applied Realized Loss Amount, in each case as of such Distribution Date.
"CLASS M-4 REALIZED LOSS AMORTIZATION AMOUNT" means as to the Class M-4
Certificates and as of any Distribution Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class M-4 Certificates as of such Distribution Date
and (y) the excess of (i) the Monthly Excess Cashflow Amount over (ii) the sum
of the amounts described in clauses (i) through (xiii) of the Monthly Excess
Cashflow Allocation for such Distribution Date.
"CLASS M-5 APPLIED REALIZED LOSS AMOUNT" means as to the Class M-5
Certificates and as of any Distribution Date, the lesser of (x) the Certificate
Principal Balance thereof (after taking into account the distribution of the
Principal Distribution Amount on such Distribution Date and any increase in
Certificate Principal Balance as a result of Subsequent Recoveries, but prior to
the application of the Class M-5 Applied Realized Loss Amount, if any, on such
Distribution Date) and (y) the excess of (i) the related Applied Realized Loss
Amount as of such Distribution Date over (ii) the sum of the Class M-6 Applied
Realized Loss Amount and the Class M-7 Applied Realized Loss Amount, in each
case as of such Distribution Date.
"CLASS M-5 REALIZED LOSS AMORTIZATION AMOUNT" means as to the Class M-5
Certificates and as of any Distribution Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class M-5 Certificates as of such Distribution Date
and (y) the excess of (i) the Monthly Excess Cashflow Amount over (ii) the sum
of the amounts described in clauses (i) through (xvi) of the Monthly Excess
Cashflow Allocation for such Distribution Date.
"CLASS M-6 APPLIED REALIZED LOSS AMOUNT" means as to the Class M-6
Certificates and as of any Distribution Date, the lesser of (x) the Certificate
Principal Balance thereof (after taking into account the distribution of the
Principal Distribution Amount on such Distribution Date and any increase in
Certificate Principal Balance as a result of Subsequent Recoveries, but prior to
the application of the Class M-6 Applied Realized Loss Amount, if any, on such
Distribution Date) and (y) the excess of (i) the related Applied Realized Loss
Amount as of such Distribution Date over (ii) the Class M-7 Applied Realized
Loss Amount as of such Distribution Date.
"CLASS M-6 REALIZED LOSS AMORTIZATION AMOUNT" means as to the Class M-6
Certificates and as of any Distribution Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class M-6 Certificates as of such Distribution Date
and (y) the excess of (i) the Monthly Excess Cashflow Amount over (ii) the sum
of the amounts described in clauses (i) through (xix) of the Monthly Excess
Cashflow Allocation for such Distribution Date.
"CLASS M-7 APPLIED REALIZED LOSS AMOUNT" means as to the Class M-7A and
Class M-7F Certificates and as of any Distribution Date, the lesser of (x) the
aggregate Certificate Principal Balance thereof (after taking into account the
distribution of the Principal Distribution Amount on such Distribution Date and
any increase in the aggregate Certificate Principal Balance thereof as a result
of Subsequent Recoveries, but prior to the application of the Class M-7 Applied
Realized Loss Amount, if any, on such Distribution Date) and (y) the Applied
Realized Loss Amount as of such Distribution Date.
"CLASS M-7 REALIZED LOSS AMORTIZATION AMOUNT" means as to the Class M-7A
and Class M-7F Certificates and as of any Distribution Date, the lesser of (x)
the aggregate Unpaid Realized Loss Amount for the Class M-7A and Class M-7F
Certificates as of such Distribution Date and (y) the excess of (i) the Monthly
Excess Cashflow Amount over (ii) the sum of the amounts described in clauses (i)
through (xxii) of the Monthly Excess Cashflow Allocation for such Distribution
Date.
"REALIZED LOSS AMORTIZATION AMOUNT" means each of the Class M-1 Realized
Loss Amortization Amount, the Class M-2 Realized Loss Amortization Amount, the
Class M-3 Realized Loss Amortization Amount, the Class M-4 Realized Loss
Amortization Amount, the Class M-5 Realized Loss Amortization Amount, the Class
M-6 Realized Loss Amortization Amount and the Class M-7 Realized Loss
Amortization Amount.
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"UNPAID REALIZED LOSS AMOUNT" means for any class of Class M Certificates
and as to any Distribution Date, the excess of (x) the cumulative amount of
related Applied Realized Loss Amounts allocated to such class for all prior
Distribution Dates over (y) the sum of (a) the cumulative amount of any
Subsequent Recoveries allocated to such class and (b) the cumulative amount of
related Realized Loss Amortization Amounts with respect to such class for all
prior Distribution Dates.
CERTIFICATE INTEREST RATES
Interest for each Distribution Date will accrue on the Class A and Class M
Certificates other than the Class M-7F Certificates during the related Interest
Accrual Period at a per annum rate (the "CERTIFICATE INTEREST Rate") equal to
the least of (i) One-Month LIBOR plus the applicable certificate margin set
forth in the table below, (ii) the Maximum Rate Cap (the lesser of (i) and (ii)
for each such class, the "PASS-THROUGH RATE") and (iii) the Pool Cap for such
Distribution Date. Interest for each Distribution Date will accrue on the Class
M-7F Certificates during the related Interest Accrual Period at the Certificate
Interest Rate equal to the lesser of (i) its fixed coupon rate of 5.500% per
annum (or 6.000% for Interest Accrual Periods relating to Distribution Dates
after the Optional Termination Date) (the "CLASS M-7F FIXED RATE") and (ii) the
Pool Cap for such Distribution Date. During each Interest Accrual Period
relating to the Distribution Dates after the Optional Termination Date, each of
the certificate margins relating to the Class A and Class M Certificates other
than the Class M-7F Certificates will be "stepped-up" to the applicable
certificate margin set forth in the table below if the optional termination
right is not exercised.
STEPPED UP CERTIFICATE
CERTIFICATE MARGIN MARGIN
------------------ -----------------------
Class A-1 0.170% 0.340%
Class A-2 0.400% 0.800%
Class A-3 0.540% 1.080%
Class M-1 0.850% 1.275%
Class M-2 1.550% 2.325%
Class M-3 1.700% 2.550%
Class M-4 2.350% 3.525%
Class M-5 3.500% 5.250%
Class M-6* 3.500% 5.250%
Class M-7A* 3.500% 5.250%
- ---------
* Non-Offered Certificates
With respect to the Class A and Class M Certificates, other than the Class
M-7F Certificates, interest in respect of any Distribution Date will accrue
during the related Interest Accrual Period on the basis of a 360-day year and
the actual number of days elapsed. With respect to the Class M-7F Certificates,
interest in respect of any Distribution Date will accrue during the related
Interest Accrual Period on the basis of a 360-day year consisting of twelve
30-day months.
The "POOL CAP" for any Distribution Date will be a per annum rate (subject
to adjustment based on the actual number of days elapsed in the related Interest
Accrual Period) equal to the average of the Net Mortgage Interest Rates for the
Mortgage Loans, weighted on the basis of the Principal Balances of the Mortgage
Loans as of the first day of the related Collection Period.
The "MAXIMUM RATE CAP" for any Distribution Date will be a per annum rate
(subject to adjustment based on the actual number of days elapsed in the related
Interest Accrual Period) equal to the average of the Net Maximum Mortgage
Interest Rates for the Adjustable-Rate Mortgage Loans and the Net Mortgage
Interest Rates for the Fixed-Rate Mortgage Loans, weighted on the basis of the
Principal Balances of the Mortgage Loans as of the first day of the related
Collection Period.
If on any Distribution Date, the Accrued Certificate Interest for any Class
A or Class M Certificate is based on the Pool Cap, the excess of (i) the amount
of interest such Certificate would have been entitled to receive on such
Distribution Date based on its Pass-Through Rate over (ii) the amount of
interest such Certificate received on such
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Distribution Date based on the Pool Cap, together with the unpaid portion of any
such excess from prior Distribution Dates (and interest accrued thereon at the
then applicable Pass-Through Rate on such Certificate) will be the "CAP
CARRYOVER AMOUNT." Any Cap Carryover Amount will be paid on the same or future
Distribution Dates from amounts that would otherwise be distributed on the Class
CE Certificates, and then, to the extent remaining unpaid, from amounts in the
applicable Reserve Account, as set forth herein under "Description of the
Certificates--The Yield Maintenance Agreements."
The "NET MAXIMUM MORTGAGE INTEREST RATE" for each Adjustable-Rate Mortgage
Loan is the applicable Maximum Mortgage Interest Rate less the sum of (i) the
Servicing Fee Rate, (ii) the Credit Risk Manager Fee Rate and (iii) the PMI
Insurer Fee Rate, if applicable.
CALCULATION OF ONE-MONTH LIBOR
One-Month LIBOR for the first Distribution Date will be determined on the
second business day preceding the Closing Date and for each subsequent
Distribution Date will be determined on the second business day prior to the
immediately preceding Distribution Date (each such date, a "LIBOR DETERMINATION
DATE"). With respect to each Distribution Date, "ONE-MONTH LIBOR" will equal the
interbank offered rate for one-month United States dollar deposits in the London
market as quoted on Telerate Page 3750 as of 11:00 A.M., London time, on the
related LIBOR Determination Date. "TELERATE PAGE 3750" means the display
designated as page 3750 on the Moneyline Telerate (or such other page as may
replace page 3750 on that service for the purpose of displaying London interbank
offered rates of major banks). If such rate does not appear on such page (or
such other page as may replace that page on that service, or if such service is
no longer offered, such other service for displaying One-Month LIBOR or
comparable rates as may be selected by the Trustee), the rate will be the
Reference Bank Rate. The "REFERENCE BANK RATE" will be determined on the basis
of the rates at which deposits in U.S. Dollars are offered by the reference
banks (which shall be three major banks that are engaged in transactions in the
London interbank market, selected by the Trustee) as of 11:00 A.M., London time,
on the related LIBOR Determination Date to prime banks in the London interbank
market for a period of one month in amounts approximately equal to the aggregate
Certificate Principal Balance of the Class A and Class M Certificates (other
than the Class M-7F Certificates). The Trustee will request the principal London
office of each of the reference banks to provide a quotation of its rate. If at
least two such quotations are provided, the rate will be the arithmetic mean of
the quotations (rounded upwards if necessary to the nearest whole multiple of
0.001%). If on such date fewer than two quotations are provided as requested,
the rate will be the arithmetic mean of the rates quoted by one or more major
banks in New York City, selected by the Trustee, as of 11:00 A.M., New York City
time, on such date for loans in United States dollars to leading European banks
for a period of one month in amounts approximately equal to the aggregate
Certificate Principal Balance of the Class A and Class M Certificates (other
than the Class M-7F Certificates). If no such quotations can be obtained, the
rate will be One-Month LIBOR for the prior Distribution Date.
The establishment of One-Month LIBOR on each LIBOR Determination Date by
the Trustee and the Trustee's calculation of the rate of interest applicable to
the Offered Certificates for the related Interest Accrual Period shall (in the
absence of manifest error) be final and binding.
THE YIELD MAINTENANCE AGREEMENTS
The Trustee on behalf of the Trust Fund will enter into three separate
yield maintenance agreements (each a "YIELD MAINTENANCE AGREEMENT") with Bank of
America, National Association, as counterparty (the "COUNTERPARTY"), which will
be for the benefit of (i) the Class A Certificates, (ii) the Class M-1, Class
M-2 and Class M-3 Certificates and (iii) the Class M-4, Class M-5, Class M-6 and
Class M-7A Certificates.
Pursuant to each Yield Maintenance Agreement, if, with respect to any
Distribution Date on or prior to the Distribution Date in March 2008, One-Month
LIBOR as of two London business days prior to the first day of the Interest
Accrual Period for the Offered Certificates relating to such Distribution Date
exceeds the applicable strike rate for such Distribution Date set forth in the
applicable table in Annex II to this Prospectus Supplement, the Counterparty
will be obligated to pay to the Trustee two London business days prior to the
end of the related Interest Accrual Period for such Distribution Date, for
deposit into the applicable Reserve Account, an amount equal to the product of
(a) the excess of the lesser of (i) One-Month LIBOR and (ii) the applicable
ceiling rate, over the applicable strike rate for such Distribution Date, in
each case as set forth in the applicable table in Annex II to this
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Prospectus Supplement, (b) the product of the cap notional amount and the scale
factor, both as set forth for that Distribution Date on the applicable table in
Annex II to this Prospectus Supplement and (c) a fraction, the numerator of
which is the actual number of days elapsed since the previous Distribution Date,
or in the case of the first Distribution Date, from the Closing Date, to but
excluding the current Distribution Date and the denominator of which is 360, (in
each case, the related "YIELD MAINTENANCE AGREEMENT PAYMENT"). Each of the Yield
Maintenance Agreements will terminate after the Distribution Date in March 2008.
The Yield Maintenance Agreements will be governed by and construed in
accordance with the law of the State of New York. The obligations of the
Counterparty are limited to those specifically set forth in the related Yield
Maintenance Agreements.
Bank of America, National Association is a national banking association
organized under the laws of the United States, with its principal executive
offices located in Charlotte, North Carolina. Bank of America, National
Association is a wholly-owned indirect subsidiary of Bank of America Corporation
and is engaged in a general commercial banking business, offering a wide range
of commercial corporate, international, financial and retail banking services to
corporations, governments and individuals. Moody's Investors Service, Inc.
("MOODY'S") rates Bank of America, National Association's long term certificates
of deposit as "Aa1" and short-term certificates of deposit as "P-1." S&P rates
Bank of America, National Association's long term certificates of deposit as
"AA-" and short-term certificates of deposit as "A-1+." Fitch rates long-term
certificates of deposit of Bank of America, National Association as "AA" and
short-term certificates of deposit as "F1+." DBRS rates long-term certificates
of deposit of Bank of America, National Association as "AA" and short-term
certificates of deposit as "R-1(middle)." Further information with respect to
such ratings may be obtained from S&P, Fitch and DBRS, respectively. No
assurances can be given that the current ratings of Bank of America, National
Association's instruments will be maintained. Bank of America, National
Association is an affiliate of the Depositor and Banc of America Securities LLC,
one of the Underwriters.
RESERVE ACCOUNTS
Pursuant to the Pooling and Servicing Agreement, the Trustee will establish
three separate trust accounts (each, a "RESERVE ACCOUNT") for deposit of any
Yield Maintenance Agreement Payments that it may receive under the related Yield
Maintenance Agreement. Each Reserve Account is part of the Trust Fund and will
not be an asset of any REMIC.
Holders of the Class A Certificates will be entitled to receive the Yield
Maintenance Agreement Payments, if any, with respect to the related Yield
Maintenance Agreement deposited into the related Reserve Account with respect to
any Distribution Date to the extent that distributions to the Class A
Certificates pursuant to clause (xxiv) of the Monthly Excess Cashflow Allocation
are not sufficient to fully pay any Cap Carryover Amounts on the Class A
Certificates for any Distribution Date. Holders of each class of Class M-1,
Class M-2 and Class M-3 Certificates will be entitled to receive Yield
Maintenance Agreement Payments, if any, with respect to the related Yield
Maintenance Agreement deposited into the related Reserve Account with respect to
any Distribution Date to the extent that distributions to the Class M-1, Class
M-2 and Class M-3 Certificates pursuant to clause (xxiv) of the Monthly Excess
Cashflow Allocation are not sufficient to fully pay any Cap Carryover Amounts on
such Certificates for any Distribution Date. Holders of each class of Class M-4,
Class M-5, Class M-6 and Class M-7A Certificates will be entitled to receive
Yield Maintenance Agreement Payments, if any, with respect to the related Yield
Maintenance Agreement deposited into the related Reserve Account with respect to
any Distribution Date to the extent that distributions to the Class M-4, Class
M-5, Class M-6 and Class M-7A Certificates pursuant to clause (xxiv) of the
Monthly Excess Cashflow Allocation are not sufficient to fully pay any Cap
Carryover Amounts on such Certificates for any Distribution Date. Each Reserve
Account will be funded solely from amounts received by the Trustee from the
Yield Maintenance Agreement Payments paid pursuant to the related Yield
Maintenance Agreement.
Any distribution by the Trustee from amounts in the Reserve Accounts will
be made on the applicable Distribution Date in the following order of priority:
(A) to the Class A-1, Class A-2 and Class A-3 Certificates from the Reserve
Account relating to such Certificates,
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(i) in each case only up to the related Cap Amount for the related
class any remaining unpaid Cap Carryover Amounts for such classes for such
Distribution Date (after distributions to the Class A-1, Class A-2 and Class A-3
Certificates pursuant to clause (xxiv) of the Monthly Excess Cashflow
Allocation) distributed pro rata to each class based on the related Cap Amount
for such class;
(ii) any remaining unpaid Cap Carryover Amounts for such classes for
such Distribution Date (after distributions to the Class A-1, Class A-2 and
Class A-3 Certificates pursuant to clause (xxiv) of the Monthly Excess Cashflow
Allocation and clause (A)(i) above), without regard to the related Cap Amount,
distributed pro rata to each such class based on the unpaid Cap Carryover Amount
for such class;
(B)to the Class M-1, Class M-2 and Class M-3 Certificates from the Reserve
Account relating to such Certificates,
(i) in each case only up to the related Cap Amount for the related
class, any remaining unpaid Cap Carryover Amounts for such classes for such
Distribution Date (after distributions to the Class M-1, Class M-2 and Class M-3
Certificates pursuant to clause (xxiv) of the Monthly Excess Cashflow
Allocation), distributed sequentially, to the Class M-1, Class M-2 and Class M-3
Certificates, in that order; and
(ii) any remaining unpaid Cap Carryover Amounts for such classes for
such Distribution Date (after distributions to the Class M-1, Class M-2 and
Class M-3 Certificates pursuant to clause (xxiv) of the Monthly Excess Cashflow
Allocation and clause (B)(i) above), without regard to the related Cap Amount,
distributed sequentially, to the Class M-1, Class M-2 and Class M-3
Certificates, in that order;
(C).to the Class M-4, Class M-5, Class M-6 and Class M-7A Certificates from
the Reserve Account relating to such Certificates,
(i) in each case only up to the related Cap Amount for the related
class, any remaining unpaid Cap Carryover Amounts for such classes for such
Distribution Date (after distributions to the Class M-4, Class M-5, Class M-6
and Class M-7A Certificates pursuant to clause (xxiv) of the Monthly Excess
Cashflow Allocation), distributed sequentially, to the Class M-4, Class M-5,
Class M-6 and Class M-7A Certificates, in that order; and
(ii) any remaining unpaid Cap Carryover Amounts for such classes for
such Distribution Date (after distributions to the Class M-4, Class M-5, Class
M-6 and Class M-7A Certificates pursuant to clause (xxiv) of the Monthly Excess
Cashflow Allocation and clause (C)(i) above), without regard to the related Cap
Amount, distributed sequentially, to the Class M-4, Class M-5, Class M-6 and
Class M-7A Certificates, in that order; and
(D) to the Class CE Certificates, any remaining amounts on deposit in the
Reserve Accounts.
The "CAP AMOUNT" referred to in clauses (A), (B) and (C) above shall mean
the following:
The Cap Amount for each class of the Class A-1, Class A-2 and Class A-3
Certificates and any Distribution Date is equal to (i) the Yield Maintenance
Agreement Payment relating to such classes for such Distribution Date multiplied
by (ii) a fraction equal to (a) the Certificate Principal Balance of such class
immediately prior to such Distribution Date divided by (b) the aggregate
Certificate Principal Balance of the Class A-1, Class A-2 and Class A-3
Certificates immediately prior to such Distribution Date.
The Cap Amount for each class of the Class M-1, Class M-2 and Class M-3
Certificates and any Distribution Date is equal to (i) the Yield Maintenance
Agreement Payment relating to such classes for such Distribution Date multiplied
by (ii) a fraction equal to (a) the Certificate Principal Balance of such class
immediately prior to such Distribution Date divided by (b) the aggregate
Certificate Principal Balance of the Class M-1, Class M-2 and Class M-3
Certificates immediately prior to such Distribution Date.
The Cap Amount for each class of the Class M-4, Class M-5, Class M-6 and
Class M-7A Certificates and any Distribution Date is equal to (i) the Yield
Maintenance Agreement Payment relating to such classes for such Distribution
Date multiplied by (ii) a fraction equal to (a) the Certificate Principal
Balance of such class immediately
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prior to such Distribution Date divided by (b) the aggregate Certificate
Principal Balance of the Class M-4, Class M-5, Class M-6 and Class M-7A
Certificates immediately prior to such Distribution Date.
THE PMI POLICY
Approximately 21.06% of the Mortgage Loans (by aggregate principal balance
as of the Cut-off Date) (the "PMI MORTGAGE LOANS") with original loan-to-value
ratios in excess of 80%, will be insured by the PMI Insurer pursuant to a
primary mortgage insurance policy (the "PMI POLICY"). The PMI Policy will insure
against default under each PMI Mortgage Loan in an amount equal to a percentage
of the principal balance equal to 100% minus a fraction equal to (x) 60.00% over
(y) the original loan-to-value ratio of the related PMI Mortgage Loan. The PMI
Insurer Fee will be paid from interest collections on the related PMI Mortgage
Loans. The PMI Policy is subject to various limitations and exclusions as
described below or as provided in the PMI Policy, and will provide only limited
protection against losses on defaulted PMI Mortgage Loans.
The PMI Policy only covers those Mortgage Loans which meet certain
underwriting criteria. The Mortgage Loans, if any, which are 30 days or more
delinquent as of the Cut-off Date or for which the first monthly payment was not
timely made will be excluded from coverage. The PMI Policy is required to remain
in force with respect to each PMI Mortgage Loan until (i) the principal balance
of the PMI Mortgage Loan is paid in full or liquidated, or (ii) any event
specified in the PMI Policy occurs that allows for the termination of the PMI
Policy by the PMI Insurer. Such events include, but are not limited to, failure
to pay the PMI Insurer Fee when due or to comply with any condition as required
by the PMI Policy.
The PMI Policy generally requires that delinquencies on any PMI Mortgage
Loan must be reported to the PMI Insurer within fifteen (15) days after such PMI
Mortgage Loan is three months in default, and appropriate proceedings to obtain
title to the Mortgaged Property securing the PMI Mortgage Loan must be commenced
within six months of default. The PMI Policy contains substantially the
following provisions: (i) for the insured to present a claim, the insured must
have acquired, and tendered to the PMI Insurer, good and merchantable title to
the Mortgaged Property securing the PMI Mortgage Loan, free and clear of all
liens and encumbrances, including, but not limited to, any right of redemption
by the mortgagor unless such acquisition of good and merchantable title is
excused under the terms of the PMI Policy; (ii) a claim generally includes
unpaid principal, accrued interest to the date a claim is submitted to the PMI
Insurer by the insured, and certain expenses; (iii) when a claim is presented
the PMI Insurer will have the option of either (A) paying the claim in full,
taking title to the Mortgaged Property securing the PMI Mortgage Loan, and
arranging for its sale or (B) paying the insured percentage of the claim and
with the insured retaining title to the Mortgaged Property securing the PMI
Mortgage Loan; (iv) claims generally must be filed within 60 days after the
insured has acquired good and merchantable title to the Mortgaged Property
securing the PMI Mortgage Loan; and (v) a claim generally must be paid within 60
days after the claim is filed by the insured.
Unless approved in writing by the PMI Insurer, the insured under the PMI
Policy may not make any change in the terms of a PMI Mortgage Loan, including
the borrowed amount, interest rate, term or amortization schedule of the PMI
Mortgage Loan, except as specifically permitted by terms of the PMI Mortgage
Loan; nor make any change in the Mortgaged Property or other collateral securing
the PMI Mortgage Loan; nor release any Mortgagor under the PMI Mortgage Loan
from liability. If a PMI Mortgage Loan is assumed with the insured's approval,
the PMI Insurer's liability for coverage of the PMI Mortgage Loan under the PMI
Policy generally will terminate as of the date of such assumption, unless the
PMI Insurer approves the assumption in writing.
The PMI Policy specifically excludes coverage of: (1) any claim resulting
from a default existing at the inception of coverage or occurring after lapse or
cancellation of coverage; (2) any claim, if the mortgage, deed of trust or other
similar instrument did not provide the insured at origination with a first lien
on the Mortgaged Property securing the PMI Mortgage Loan; and (3) certain claims
involving or arising out of any breach by the insured of its obligations under,
or its failure to comply with the terms of, the PMI Policy or of its obligations
as imposed by operation of law.
In issuing the PMI Policy, the PMI Insurer has relied upon certain
information and data regarding the PMI Mortgage Loans furnished to the PMI
Insurer by the Seller. The PMI Policy will not insure against a loss sustained
by reason of a default arising from or involving certain matters, including (i)
fraud or negligence in origination or
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servicing of the PMI Mortgage Loans, including, but not limited to,
misrepresentation by the lender, borrower or other persons involved in the
origination of the PMI Mortgage Loan or the application for insurance, (ii)
failure to construct the Mortgaged Property securing a PMI Mortgage Loan in
accordance with specified plans or (iii) physical damage to the Mortgaged
Property securing a PMI Mortgage Loan.
The preceding description of the PMI Policy is only a brief outline and
does not purport to summarize or describe all of the provisions, terms and
conditions of the PMI Policy. For a more complete description of these
provisions, terms and conditions, reference is made to the PMI Policy, a copy of
which is available upon request from the Trustee.
THE PMI INSURER
Radian Guaranty Inc., a Pennsylvania corporation with its corporate office
in Philadelphia, Pennsylvania (the "PMI INSURER"), is a private mortgage
insurance company and a wholly-owned subsidiary of Radian Group Inc., an
insurance holding company listed on the New York Stock Exchange. The PMI Insurer
is licensed in all 50 states and in the District of Columbia to offer such
insurance and is approved as a private mortgage insurer by Fannie Mae and
Freddie Mac. The PMI Insurer's financial strength is rated "AA" by S&P and Fitch
and "Aa3" by Moody's. The PMI Insurer's financial strength currently is not
rated by any other rating agency. Each financial strength rating of the PMI
Insurer should be evaluated independently. The ratings reflect the respective
rating agencies' current assessments of the creditworthiness of the PMI Insurer
and its ability to pay claims on its policies of insurance. Any further
explanation as to the significance of the above ratings may be obtained only
from the applicable rating agency. The above ratings are not recommendations to
buy, sell or hold any class of Offered Certificates, and such ratings are
subject to revision, qualification or withdrawal at any time by the applicable
rating agencies. Any downward revision, qualification or withdrawal of any of
the above ratings may have a material adverse effect on the market prices of the
Offered Certificates. The PMI Insurer does not guaranty the market prices of the
Offered Certificates nor does it guaranty that its financial strength ratings
will not be revised, qualified or withdrawn.
Copies of the PMI Insurer's quarterly and annual statutory financial
statements, which are based on accounting principles that differ in significant
respects from generally accepted accounting principles, are available upon
request to the PMI Insurer at Radian Guaranty Inc., 1601 Market Street,
Pennsylvania 19103. Radian's telephone number is (215) 231-1000.
For purposes of the foregoing, the following terms will have the respective
meaning set forth below.
The "PMI INSURER FEE" for any Distribution Date is the premium payable to
the PMI Insurer at the PMI Insurer Fee Rate on the aggregate principal balance
of the PMI Mortgage Loans as of the first day of the related Collection Period
plus any applicable premium taxes on the PMI Mortgage Loans located in the
States of West Virginia and Kentucky.
The "PMI INSURER FEE RATE" for any Distribution Date is the rate per annum
set forth in the Pooling and Servicing Agreement.
YIELD, PREPAYMENT AND MATURITY CONSIDERATIONS
The yields to maturity and weighted average lives of the Offered
Certificates will depend upon, among other things, the price at which such
Offered Certificates are purchased, the amount and timing of principal payments
on the applicable 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 and whether payments are received from the Counterparty
under the related Yield Maintenance Agreement, if applicable.
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
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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 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. The Mortgage Loans may have a greater than normal risk of
future defaults and delinquencies, as compared to newly originated, high quality
one- to four-family residential mortgage loans of comparable size and geographic
concentration because the Mortgage Loans are of sub-prime credit quality. See
"Risk Factors--The nature of sub-prime mortgage loans may increase risk of loss"
in this Prospectus Supplement.
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, the Originator or Servicer). Because certain of the
Mortgage Loans contain prepayment charges, the rate of principal payments may be
less than the rate of principal payments for mortgage loans which did not have
prepayment charges. The Mortgage Loans are subject to the "due-on-sale"
provisions included therein and each Adjustable-Rate Mortgage Loan provides that
the Mortgage Loan 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 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 applicable
Mortgage Loans. Further, an investor should consider the risk that, in the case
of any Offered Certificate purchased at a discount, a slower than anticipated
rate of principal payments (including prepayments) on the applicable 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 purchased at a
premium, a faster than anticipated rate of principal payments on the applicable
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. As is the case with the Fixed-Rate Mortgage
Loans, the Adjustable-Rate Mortgage Loans may be subject to a greater rate of
principal prepayments in a low interest rate environment. For example, if
prevailing interest rates were to fall, mortgagors with adjustable-rate mortgage
loans may be inclined to refinance their adjustable-rate mortgage loans with a
fixed-rate loan to "lock in" a lower interest rate. The existence of the
applicable Initial Periodic Rate Cap, Periodic Rate Cap and Maximum Mortgage
Interest Rate also may affect the likelihood of prepayments resulting from
refinancings. No assurances can be given as to the rate of prepayments on the
Mortgage Loans in stable or changing interest rate environments. In addition,
the delinquency and loss experience of the Adjustable-Rate Mortgage Loans may
differ from that on the Fixed-Rate Mortgage Loans because the amount of the
Monthly Payments on the Adjustable-Rate Mortgage Loans are subject to adjustment
on each Adjustment Date. Further, a majority of the Adjustable-Rate Mortgage
Loans will not have their initial Adjustment Date for two to five years after
the origination thereof. The Adjustable-Rate Mortgage Loans may be subject to
greater rates of prepayments as they approach their initial Adjustment Dates
even if market interest rates are only
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slightly higher or lower than the Mortgage Interest Rates on such
Adjustable-Rate Mortgage Loans as borrowers seek to avoid changes in their
Monthly Payments.
The interest-only feature of the Interest Only Mortgage Loans may reduce
the perceived benefits of refinancing to take advantage of lower market interest
rates or to avoid adjustments in the Mortgage Interest Rates. However, as a
Mortgage Loan with such a feature nears the end of its interest-only period, the
borrower may be more likely to refinance the Mortgage Loan, even if market
interest rates are only slightly less than the Mortgage Interest Rate in order
to avoid the increase in the monthly payments to amortize the Mortgage Loan over
its remaining life.
The weighted average life and yield to maturity of each class of
Certificates 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 Certificates. The level of Monthly Excess
Cashflow Amounts available on any Distribution Date to be applied in reduction
of the Certificate Principal Balances of the Certificates 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), (ii) the delinquency and default experience of the
Mortgage Loans and (iii) the level of the Index for the Adjustable-Rate 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.
The Class M Certificates are not expected to receive any principal
distributions until at least the Distribution Date in November 2007 (unless the
aggregate Certificate Principal Balance of the Senior Certificates is reduced to
zero prior thereto). As a result, the weighted average lives of the Class M
Certificates will be longer than would have been the case if principal
distributions were to be made on a pro rata basis. The longer weighted average
lives may increase the risk that an Applied Realized Loss Amount will be
allocated to one or more classes of Class M Certificates.
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 one or more of 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.
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."
S-80
Prepayments on mortgage loans are commonly measured relative to a
prepayment model or standard. The prepayment models used in this Prospectus
Supplement (the "PREPAYMENT ASSUMPTIONS") are based on an assumed rate of
prepayment each month of the then unpaid principal balance of two hypothetical
pools of mortgage loans similar to the Mortgage Loans.
For the Adjustable-Rate Mortgage Loans, the Prepayment Assumption is the
"ADJUSTABLE-RATE PREPAYMENT CURVE" or "ARM PPC," which assumes a prepayment rate
of 4.00% CPR per annum of the then-outstanding principal balance of a
hypothetical pool of adjustable-rate mortgage loans in the first month of the
life of such mortgage loans and an additional approximate 1.348% per annum in
each month thereafter until 35.00% CPR is reached in the twenty-fourth month.
Beginning in the twenty-fourth month and in each month thereafter during the
life of such mortgage loans, ARM PPC assumes a constant prepayment rate of
35.00% CPR per annum each month.
For the Fixed-Rate Mortgage Loans, the Prepayment Assumption is the
"FIXED-RATE PREPAYMENT CURVE" or "FRM PPC," which assumes a prepayment rate of
2.30% CPR per annum of the then-outstanding principal balance of a hypothetical
pool of fixed-rate mortgage loans in the first month of the life of such
mortgage loans and an additional 2.30% per annum in each month thereafter until
23.00% CPR is reached in the tenth month. Beginning in the tenth month and in
each month thereafter during the life of such mortgage loans, FRM PPC assumes a
constant prepayment rate of 23.00% CPR per annum each month.
"CPR" represents a constant assumed rate of principal prepayment each month
relative to the then-outstanding principal balance of a pool of mortgage loans
for the life of such 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-85 through S-93 (the "DECREMENT 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 Decrement 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.
The percentages and weighted average lives in the Decrement Tables were
determined using the following assumptions (collectively, the "STRUCTURING
ASSUMPTIONS"): (i) the Mortgage Loans have the characteristics set forth in the
table below, (ii) the closing date for the Offered Certificates occurs on
October 21, 2004 and the Offered Certificates are 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 November 2004, 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 Assumptions indicated, (v) there
are no Prepayment Interest Shortfalls, (vi) neither the Seller nor the
Originator is required to substitute or repurchase any of the Mortgage Loans
pursuant to the Originator Mortgage Loan Purchase Agreement, the Mortgage Loan
Purchase Agreement or the Pooling and Servicing Agreement and no optional
termination is exercised (except with respect to the entries identified by the
row heading "Weighted Avg. Life to Optional Termination Date" in the tables
below), (vii) the Targeted Overcollateralization Amount is set initially as
specified herein and thereafter decreases as described in the definition
thereof, (viii) scheduled payments for all Mortgage Loans are received on the
Due Date commencing in November 2004, the principal portion of such payments is
computed prior to giving effect to prepayments received in such month and there
are no losses or delinquencies with respect to such Mortgage Loans, (ix) such
prepayments are received on the last day of each month commencing in October
2004, (x) the Servicing Fee Rate is 0.50% per annum, the Credit Risk Manager Fee
Rate is 0.0150% per annum and the PMI Insurer Fee Rate is 0.2485% per annum,
(xi) One-Month LIBOR is at all times equal to 1.84000%, (xii) the Certificate
Interest Rates for the Offered Certificates are as set forth or described above
under "Description of the Certificates--Certificate Interest Rates," (xiii) the
Mortgage Interest Rate for each Adjustable-Rate Mortgage Loan adjusts
semi-annually on its next Adjustment Date (and on subsequent Adjustment Dates,
if necessary) to equal the sum of (a) the assumed level of the Index and (b) the
respective Gross Margin (such sum being subject to the applicable Initial
Periodic Rate Caps, Periodic Rate Caps, Minimum Mortgage Interest Rates and
Maximum Mortgage Interest Rates)
S-81
and (xiv) with respect to the Adjustable-Rate Mortgage Loans, Six-Month LIBOR is
equal to 2.17000%. 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 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 at the indicated percentages of the applicable
Prepayment Assumption.
S-82
ASSUMED MORTGAGE LOAN CHARACTERISTICS
(ADJUSTABLE-RATE MORTGAGE LOANS)
INITIAL ORIGINAL ORIGINAL MAXIMUM
CUT-OFF DATE MORTGAGE TERM TO INTEREST GROSS MORTGAGE
PRINCIPAL INTEREST MATURITY SEASONING ONLY PERIOD MARGIN INTEREST
DESCRIPTION BALANCE ($) RATE (%) (MONTHS) (MONTHS) (MONTHS)(1) (%) RATE (%)
- ---------------------------- -------------- -------- -------- ---------- ----------- ------- --------
1/29 ARM (LIBOR) 458,690.00 6.2132 360 1 0 3.5000 12.2132
1/29 ARM (LIBOR) 728,500.86 7.9084 360 1 0 5.7377 13.9084
1/29 ARM (LIBOR) 162,390.95 7.9990 360 1 0 6.7500 13.9990
1/29 ARM (LIBOR) 178,353.69 7.0000 360 1 0 6.2500 13.0000
2/28 ARM (LIBOR) 47,460,773.23 7.3930 360 1 0 5.3044 13.3930
2/28 ARM (LIBOR) 21,104,252.54 7.2315 360 1 0 5.1152 13.2315
2/28 ARM (LIBOR) 233,425,075.48 7.2295 360 1 0 5.3872 13.2295
2/28 ARM (LIBOR) 33,409,109.52 7.1040 360 1 0 5.5786 13.1062
2/28 ARM (LIBOR) Dividend 108,602.73 6.5000 360 2 0 4.8750 12.5000
2/28 ARM (LIBOR) w/IO Period 52,190,692.30 7.0019 360 1 60 4.6767 13.0019
2/28 ARM (LIBOR) w/IO Period 34,826,451.72 6.8898 360 1 60 4.5621 12.8898
2/28 ARM (LIBOR) w/IO Period 390,157,142.69 6.5465 360 1 60 4.6360 12.5465
2/28 ARM (LIBOR) w/IO Period 54,867,608.86 6.3927 360 1 60 4.8895 12.3927
3/27 ARM (LIBOR) 45,375,616.27 7.0166 360 1 0 5.2052 13.0166
3/27 ARM (LIBOR) 998,131.49 7.1806 360 1 0 4.7300 13.1806
3/27 ARM (LIBOR) 2,670,758.07 7.0984 360 1 0 5.2050 13.0984
3/27 ARM (LIBOR) 40,657,962.92 6.9921 360 1 0 5.1402 12.9872
3/27 ARM (LIBOR) w/IO Period 39,624,731.74 6.7101 360 1 60 4.8165 12.7101
3/27 ARM (LIBOR) w/IO Period 2,808,530.00 6.7381 360 1 60 4.3716 12.7381
3/27 ARM (LIBOR) w/IO Period 2,424,276.00 6.4989 360 1 60 4.3941 12.4989
3/27 ARM (LIBOR) w/IO Period 82,768,448.84 6.4116 360 1 60 4.4843 12.4116
3/27 ARM (LIBOR) w/IO Period 134,400.00 4.8750 360 1 60 4.0000 10.8750
5/25 ARM (LIBOR) 5,704,044.37 6.7928 360 1 0 4.6123 12.7928
5/25 ARM (LIBOR) 619,058.17 6.7950 360 1 0 4.0276 12.7950
5/25 ARM (LIBOR) 10,521,290.52 6.7503 360 1 0 4.4226 12.7503
5/25 ARM (LIBOR) 12,623,841.57 6.4442 360 1 0 4.2870 12.4442
5/25 ARM (LIBOR) w/IO Period 9,236,961.99 6.6459 360 1 60 4.2071 12.6459
5/25 ARM (LIBOR) w/IO Period 2,413,020.00 6.7181 360 1 60 3.5985 12.7181
5/25 ARM (LIBOR) w/IO Period 49,366,629.31 6.4181 360 1 60 4.0018 12.4181
5/25 ARM (LIBOR) w/IO Period 65,005,384.26 6.2823 360 1 60 3.9845 12.2823
6Mo ARM LIBOR 229,274.92 8.1250 360 1 0 4.6250 14.1250
6Mo ARM LIBOR 696,878.62 6.6314 360 1 0 4.8528 12.6314
6Mo ARM LIBOR 260,795.83 6.1250 360 1 0 5.0000 12.1250
6Mo ARM LIBOR w/IO Period 3,191,380.00 6.1328 360 1 60 4.5965 12.1328
6Mo ARM LIBOR w/IO Period 392,720.00 6.7628 360 1 60 4.0887 12.7628
6Mo ARM LIBOR w/IO Period 11,793,088.82 5.8414 360 1 60 4.1647 11.8414
6Mo ARM LIBOR w/IO Period 4,987,082.37 5.6555 360 1 60 4.1365 11.6555
MINIMUM MONTHS TO
MORTGAGE NEXT INITIAL PERIODIC
INTEREST ADJUSTMENT PERIODIC RATE CAP
DESCRIPTION RATE (%) DATE (MONTHS) RATE CAP (%) (%)
- ---------------------------- -------- ------------- ------------ ---------
1/29 ARM (LIBOR) 6.2132 11 2.0000 1.0000
1/29 ARM (LIBOR) 7.9084 11 2.0000 1.0000
1/29 ARM (LIBOR) 7.9990 11 2.0000 1.0000
1/29 ARM (LIBOR) 7.0000 11 2.0000 1.0000
2/28 ARM (LIBOR) 7.3930 23 3.0000 1.0000
2/28 ARM (LIBOR) 7.2315 23 3.0000 1.0000
2/28 ARM (LIBOR) 7.2295 23 3.0000 1.0000
2/28 ARM (LIBOR) 7.1040 23 3.0000 1.0000
2/28 ARM (LIBOR) Dividend 6.5000 22 3.0000 1.0000
2/28 ARM (LIBOR) w/IO Period 7.0019 23 3.0000 1.0000
2/28 ARM (LIBOR) w/IO Period 6.8898 23 3.0000 1.0000
2/28 ARM (LIBOR) w/IO Period 6.5465 23 3.0000 1.0000
2/28 ARM (LIBOR) w/IO Period 6.3927 23 3.0000 1.0000
3/27 ARM (LIBOR) 7.0166 35 3.0000 1.0000
3/27 ARM (LIBOR) 7.1806 35 3.0000 1.0000
3/27 ARM (LIBOR) 7.0984 35 3.0000 1.0000
3/27 ARM (LIBOR) 6.9921 35 3.0000 1.0000
3/27 ARM (LIBOR) w/IO Period 6.7101 35 3.0000 1.0000
3/27 ARM (LIBOR) w/IO Period 6.7381 35 3.0000 1.0000
3/27 ARM (LIBOR) w/IO Period 6.4989 35 3.0000 1.0000
3/27 ARM (LIBOR) w/IO Period 6.4116 35 3.0000 1.0000
3/27 ARM (LIBOR) w/IO Period 4.8750 35 3.0000 1.0000
5/25 ARM (LIBOR) 6.7928 59 3.0000 1.0000
5/25 ARM (LIBOR) 6.7950 59 3.0000 1.0000
5/25 ARM (LIBOR) 6.7503 59 3.0000 1.0000
5/25 ARM (LIBOR) 6.4442 59 3.0000 1.0000
5/25 ARM (LIBOR) w/IO Period 6.6459 59 3.0000 1.0000
5/25 ARM (LIBOR) w/IO Period 6.7181 59 3.0000 1.0000
5/25 ARM (LIBOR) w/IO Period 6.4181 59 3.0000 1.0000
5/25 ARM (LIBOR) w/IO Period 6.2823 59 3.0000 1.0000
6Mo ARM LIBOR 8.1250 5 1.0000 1.0000
6Mo ARM LIBOR 6.6314 5 1.0000 1.0000
6Mo ARM LIBOR 6.1250 5 1.0000 1.0000
6Mo ARM LIBOR w/IO Period 6.1328 5 1.0000 1.0000
6Mo ARM LIBOR w/IO Period 6.7628 5 1.0000 1.0000
6Mo ARM LIBOR w/IO Period 5.8414 5 1.0000 1.0000
6Mo ARM LIBOR w/IO Period 5.6555 5 1.0000 1.0000
- ----------------------------
(1) Principal payments on the Interest Only Mortgage Loans begin in the 61st
month of the term of such Mortgage Loans and the principal amortizes over
the remaining term.
S-83
ASSUMED MORTGAGE LOAN CHARACTERISTICS
(FIXED-RATE MORTGAGE LOANS)
ORIGINAL ORIGINAL
CUT-OFF DATE MORTGAGE ORIGINAL TERM TO INTEREST
PRINCIPAL INTEREST AMORTIZATION MATURITY SEASONING ONLY PERIOD
DESCRIPTION BALANCE ($) RATE (%) TERM (MONTH) (MONTHS) (MONTHS) (MONTHS)(1)
- -------------------------- -------------- --------- ------------- --------- ---------- -----------
15 Year Fixed 3,116,792.94 7.4218 180 180 1 0
15 Year Fixed 329,553.86 8.6381 180 180 1 0
15 Year Fixed 160,137.85 7.8045 180 180 2 0
15 Year Fixed 6,373,300.59 7.3318 180 180 1 0
15 Year Fixed w/IO Period 375,000.00 7.2500 180 180 1 60
15/30 Balloon w/IO Period 335,000.00 7.4519 360 180 1 60
20 Year Fixed 102,708.98 7.1250 240 240 2 0
20 Year Fixed 271,198.43 7.8631 240 240 2 0
30 Year Fixed 31,226,527.27 7.5300 360 360 1 0
30 Year Fixed 4,339,969.93 7.7410 360 360 1 0
30 Year Fixed 2,525,086.96 8.0367 360 360 1 0
30 Year Fixed 70,546,628.51 7.4157 360 360 1 0
30 Year Fixed w/IO Period 2,375,912.83 7.6494 360 360 1 60
30 Year Fixed w/IO Period 113,900.00 8.6250 360 360 1 60
30 Year Fixed w/IO Period 9,105,101.69 7.2563 360 360 1 60
- ----------------------------
(1) Principal payments on the Interest Only Mortgage Loans begin in the 61st
month of the term of such Mortgage Loans and the principal amortizes over
the remaining term.
S-84
PERCENTAGE OF INITIAL CERTIFICATE PRINCIPAL BALANCE OUTSTANDING(1) AT THE
SPECIFIED PERCENTAGES OF THE PREPAYMENT ASSUMPTION
CLASS A-1
ARM PPC 0% 50% 75% 100% 125% 150% 175%
- ------------------ ---- ---- ---- ----- ----- ---- ----
FRM PPC 0% 50% 75% 100% 125% 150% 175%
- ------------------ ---- ---- ---- ----- ----- ---- ----
Distribution Date
- -----------------
Initial Percentage 100 100 100 100 100 100 100
October 25, 2005 98 74 62 50 38 25 13
October 25, 2006 97 24 0 0 0 0 0
October 25, 2007 95 0 0 0 0 0 0
October 25, 2008 93 0 0 0 0 0 0
October 25, 2009 91 0 0 0 0 0 0
October 25, 2010 85 0 0 0 0 0 0
October 25, 2011 79 0 0 0 0 0 0
October 25, 2012 73 0 0 0 0 0 0
October 25, 2013 66 0 0 0 0 0 0
October 25, 2014 58 0 0 0 0 0 0
October 25, 2015 50 0 0 0 0 0 0
October 25, 2016 42 0 0 0 0 0 0
October 25, 2017 32 0 0 0 0 0 0
October 25, 2018 22 0 0 0 0 0 0
October 25, 2019 12 0 0 0 0 0 0
October 25, 2020 1 0 0 0 0 0 0
October 25, 2021 0 0 0 0 0 0 0
October 25, 2022 0 0 0 0 0 0 0
October 25, 2023 0 0 0 0 0 0 0
October 25, 2024 0 0 0 0 0 0 0
October 25, 2025 0 0 0 0 0 0 0
October 25, 2026 0 0 0 0 0 0 0
October 25, 2027 0 0 0 0 0 0 0
October 25, 2028 0 0 0 0 0 0 0
October 25, 2029 0 0 0 0 0 0 0
October 25, 2030 0 0 0 0 0 0 0
October 25, 2031 0 0 0 0 0 0 0
October 25, 2032 0 0 0 0 0 0 0
October 25, 2033 0 0 0 0 0 0 0
October 25, 2034 0 0 0 0 0 0 0
Weighted Avg. Life to
Maturity (in years)(2) 10.50 1.51 1.19 1.00 0.87 0.78 0.71
Weighted Avg. Life to
Optional Termination Date
(in years)(2) 10.50 1.51 1.19 1.00 0.87 0.78 0.71
- ----------------------------
(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-85
PERCENTAGE OF INITIAL CERTIFICATE PRINCIPAL BALANCE OUTSTANDING(1) AT THE
SPECIFIED PERCENTAGES OF THE PREPAYMENT ASSUMPTION
CLASS A-2
ARM PPC 0% 50% 75% 100% 125% 150% 175%
- ----------------------- ---- ---- ----- ---- ---- ---- ----
FRM PPC 0% 50% 75% 100% 125% 150% 175%
- ----------------------- ---- ---- ----- ---- ---- ---- ----
Distribution Date
- -----------------
Initial Percentage 100 100 100 100 100 100 100
October 25, 2005 100 100 100 100 100 100 100
October 25, 2006 100 100 95 78 62 46 32
October 25, 2007 100 86 60 37 17 1 0
October 25, 2008 100 64 38 20 6 0 0
October 25, 2009 100 47 23 6 0 0 0
October 25, 2010 100 35 11 0 0 0 0
October 25, 2011 100 25 3 0 0 0 0
October 25, 2012 100 16 0 0 0 0 0
October 25, 2013 100 10 0 0 0 0 0
October 25, 2014 100 4 0 0 0 0 0
October 25, 2015 100 0 0 0 0 0 0
October 25, 2016 100 0 0 0 0 0 0
October 25, 2017 100 0 0 0 0 0 0
October 25, 2018 100 0 0 0 0 0 0
October 25, 2019 100 0 0 0 0 0 0
October 25, 2020 100 0 0 0 0 0 0
October 25, 2021 94 0 0 0 0 0 0
October 25, 2022 87 0 0 0 0 0 0
October 25, 2023 80 0 0 0 0 0 0
October 25, 2024 72 0 0 0 0 0 0
October 25, 2025 64 0 0 0 0 0 0
October 25, 2026 55 0 0 0 0 0 0
October 25, 2027 48 0 0 0 0 0 0
October 25, 2028 40 0 0 0 0 0 0
October 25, 2029 31 0 0 0 0 0 0
October 25, 2030 22 0 0 0 0 0 0
October 25, 2031 12 0 0 0 0 0 0
October 25, 2032 2 0 0 0 0 0 0
October 25, 2033 0 0 0 0 0 0 0
October 25, 2034 0 0 0 0 0 0 0
Weighted Avg. Life to
Maturity (in years)(2) 22.64 5.43 3.84 3.00 2.45 2.06 1.83
Weighted Avg. Life to
Optional Termination Date
(in years)(2) 22.64 5.43 3.84 3.00 2.45 2.06 1.83
- ----------------------------
(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-86
PERCENTAGE OF INITIAL CERTIFICATE PRINCIPAL BALANCE OUTSTANDING(1) AT THE
SPECIFIED PERCENTAGES OF THE PREPAYMENT ASSUMPTION
CLASS A-3
ARM PPC 0% 50% 75% 100% 125% 150% 175%
- -------------------- --- ---- ---- ---- ---- ---- ----
FRM PPC 0% 50% 75% 100% 125% 150% 175%
- -------------------- --- ---- ---- ---- ---- ---- ----
Distribution Date
- -----------------
Initial Percentage 100 100 100 100 100 100 100
October 25, 2005 100 100 100 100 100 100 100
October 25, 2006 100 100 100 100 100 100 100
October 25, 2007 100 100 100 100 100 100 41
October 25, 2008 100 100 100 100 100 81 41
October 25, 2009 100 100 100 100 75 40 20
October 25, 2010 100 100 100 85 43 20 8
October 25, 2011 100 100 100 56 25 10 2
October 25, 2012 100 100 84 37 15 4 0
October 25, 2013 100 100 62 24 8 1 0
October 25, 2014 100 100 46 16 4 0 0
October 25, 2015 100 97 34 11 1 0 0
October 25, 2016 100 79 25 6 0 0 0
October 25, 2017 100 64 18 3 0 0 0
October 25, 2018 100 51 13 1 0 0 0
October 25, 2019 100 41 9 0 0 0 0
October 25, 2020 100 33 6 0 0 0 0
October 25, 2021 100 27 4 0 0 0 0
October 25, 2022 100 21 2 0 0 0 0
October 25, 2023 100 17 0 0 0 0 0
October 25, 2024 100 13 0 0 0 0 0
October 25, 2025 100 10 0 0 0 0 0
October 25, 2026 100 7 0 0 0 0 0
October 25, 2027 100 4 0 0 0 0 0
October 25, 2028 100 2 0 0 0 0 0
October 25, 2029 100 1 0 0 0 0 0
October 25, 2030 100 0 0 0 0 0 0
October 25, 2031 100 0 0 0 0 0 0
October 25, 2032 100 0 0 0 0 0 0
October 25, 2033 53 0 0 0 0 0 0
October 25, 2034 0 0 0 0 0 0 0
Weighted Avg. Life to
Maturity (in years)(2) 29.10 15.22 10.59 7.95 6.28 5.13 3.84
Weighted Avg. Life to
Optional Termination Date
(in years)(2) 28.62 12.21 8.37 6.32 5.01 4.12 3.12
- ----------------------------
(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-87
PERCENTAGE OF INITIAL CERTIFICATE PRINCIPAL BALANCE OUTSTANDING(1) AT THE
SPECIFIED PERCENTAGES OF THE PREPAYMENT ASSUMPTION
CLASS M-1
ARM PPC 0% 50% 75% 100% 125% 150% 175%
- ----------------- --- ---- ---- ---- ---- ---- ----
FRM PPC 0% 50% 75% 100% 125% 150% 175%
- ----------------- --- ---- ---- ---- ---- ---- ----
Distribution Date
- -----------------
Initial Percentage 100 100 100 100 100 100 100
October 25, 2005 100 100 100 100 100 100 100
October 25, 2006 100 100 100 100 100 100 100
October 25, 2007 100 100 100 100 100 100 100
October 25, 2008 100 100 78 53 35 22 23
October 25, 2009 100 90 58 35 20 11 5
October 25, 2010 100 73 42 23 12 5 0
October 25, 2011 100 60 31 15 7 0 0
October 25, 2012 100 49 23 10 2 0 0
October 25, 2013 100 40 17 7 0 0 0
October 25, 2014 100 33 13 2 0 0 0
October 25, 2015 100 27 9 0 0 0 0
October 25, 2016 100 22 7 0 0 0 0
October 25, 2017 100 17 4 0 0 0 0
October 25, 2018 100 14 1 0 0 0 0
October 25, 2019 100 11 0 0 0 0 0
October 25, 2020 100 9 0 0 0 0 0
October 25, 2021 100 7 0 0 0 0 0
October 25, 2022 100 5 0 0 0 0 0
October 25, 2023 100 3 0 0 0 0 0
October 25, 2024 100 1 0 0 0 0 0
October 25, 2025 100 0 0 0 0 0 0
October 25, 2026 100 0 0 0 0 0 0
October 25, 2027 90 0 0 0 0 0 0
October 25, 2028 80 0 0 0 0 0 0
October 25, 2029 68 0 0 0 0 0 0
October 25, 2030 56 0 0 0 0 0 0
October 25, 2031 43 0 0 0 0 0 0
October 25, 2032 30 0 0 0 0 0 0
October 25, 2033 15 0 0 0 0 0 0
October 25, 2034 0 0 0 0 0 0 0
Weighted Avg. Life to
Maturity (in years)(2) 26.37 9.17 6.37 4.92 4.20 3.88 3.89
Weighted Avg. Life to
Optional Termination Date
(in years)(2) 26.24 8.46 5.85 4.55 3.91 3.65 3.50
- ----------------------------
(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-88
PERCENTAGE OF INITIAL CERTIFICATE PRINCIPAL BALANCE OUTSTANDING(1) AT THE
SPECIFIED PERCENTAGES OF THE PREPAYMENT ASSUMPTION
CLASS M-2
ARM PPC 0% 50% 75% 100% 125% 150% 175%
- ------------------ --- ---- ---- ---- ---- ---- ----
FRM PPC 0% 50% 75% 100% 125% 150% 175%
- ------------------ --- ---- ---- ---- ---- ---- ----
Distribution Date
- -----------------
Initial Percentage 100 100 100 100 100 100 100
October 25, 2005 100 100 100 100 100 100 100
October 25, 2006 100 100 100 100 100 100 100
October 25, 2007 100 100 100 100 100 100 100
October 25, 2008 100 100 78 53 35 22 13
October 25, 2009 100 90 58 35 20 11 0
October 25, 2010 100 73 42 23 12 0 0
October 25, 2011 100 60 31 15 1 0 0
October 25, 2012 100 49 23 9 0 0 0
October 25, 2013 100 40 17 1 0 0 0
October 25, 2014 100 33 13 0 0 0 0
October 25, 2015 100 27 7 0 0 0 0
October 25, 2016 100 22 1 0 0 0 0
October 25, 2017 100 17 0 0 0 0 0
October 25, 2018 100 14 0 0 0 0 0
October 25, 2019 100 11 0 0 0 0 0
October 25, 2020 100 6 0 0 0 0 0
October 25, 2021 100 2 0 0 0 0 0
October 25, 2022 100 0 0 0 0 0 0
October 25, 2023 100 0 0 0 0 0 0
October 25, 2024 100 0 0 0 0 0 0
October 25, 2025 100 0 0 0 0 0 0
October 25, 2026 100 0 0 0 0 0 0
October 25, 2027 90 0 0 0 0 0 0
October 25, 2028 80 0 0 0 0 0 0
October 25, 2029 68 0 0 0 0 0 0
October 25, 2030 56 0 0 0 0 0 0
October 25, 2031 43 0 0 0 0 0 0
October 25, 2032 30 0 0 0 0 0 0
October 25, 2033 15 0 0 0 0 0 0
October 25, 2034 0 0 0 0 0 0 0
Weighted Avg. Life to
Maturity (in years)(2) 26.35 9.00 6.24 4.81 4.07 3.67 3.51
Weighted Avg. Life to
Optional Termination Date
(in years)(2) 26.24 8.46 5.85 4.53 3.85 3.50 3.37
- ----------------------------
(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.
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PERCENTAGE OF INITIAL CERTIFICATE PRINCIPAL BALANCE OUTSTANDING(1) AT THE
SPECIFIED PERCENTAGES OF THE PREPAYMENT ASSUMPTION
CLASS M-3
ARM PPC 0% 50% 75% 100% 125% 150% 175%
- ----------------- --- ---- ---- ---- ---- ---- ----
FRM PPC 0% 50% 75% 100% 125% 150% 175%
- ----------------- --- ---- ---- ---- ---- ---- ----
Distribution Date
- -----------------
Initial Percentage 100 100 100 100 100 100 100
October 25, 2005 100 100 100 100 100 100 100
October 25, 2006 100 100 100 100 100 100 100
October 25, 2007 100 100 100 100 100 100 100
October 25, 2008 100 100 78 53 35 22 6
October 25, 2009 100 90 58 35 20 0 0
October 25, 2010 100 73 42 23 3 0 0
October 25, 2011 100 60 31 14 0 0 0
October 25, 2012 100 49 23 0 0 0 0
October 25, 2013 100 40 17 0 0 0 0
October 25, 2014 100 33 5 0 0 0 0
October 25, 2015 100 27 0 0 0 0 0
October 25, 2016 100 22 0 0 0 0 0
October 25, 2017 100 17 0 0 0 0 0
October 25, 2018 100 10 0 0 0 0 0
October 25, 2019 100 1 0 0 0 0 0
October 25, 2020 100 0 0 0 0 0 0
October 25, 2021 100 0 0 0 0 0 0
October 25, 2022 100 0 0 0 0 0 0
October 25, 2023 100 0 0 0 0 0 0
October 25, 2024 100 0 0 0 0 0 0
October 25, 2025 100 0 0 0 0 0 0
October 25, 2026 100 0 0 0 0 0 0
October 25, 2027 90 0 0 0 0 0 0
October 25, 2028 80 0 0 0 0 0 0
October 25, 2029 68 0 0 0 0 0 0
October 25, 2030 56 0 0 0 0 0 0
October 25, 2031 43 0 0 0 0 0 0
October 25, 2032 30 0 0 0 0 0 0
October 25, 2033 12 0 0 0 0 0 0
October 25, 2034 0 0 0 0 0 0 0
Weighted Avg. Life to
Maturity (in years)(2) 26.32 8.77 6.08 4.69 3.94 3.57 3.36
Weighted Avg. Life to
Optional Termination Date
(in years)(2) 26.24 8.46 5.85 4.53 3.82 3.47 3.27
- ----------------------------
(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.
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PERCENTAGE OF INITIAL CERTIFICATE PRINCIPAL BALANCE OUTSTANDING(1) AT THE
SPECIFIED PERCENTAGES OF THE PREPAYMENT ASSUMPTION
CLASS M-4
ARM PPC 0% 50% 75% 100% 125% 150% 175%
- ------------------ --- ---- ---- ---- ---- ---- ----
FRM PPC 0% 50% 75% 100% 125% 150% 175%
- ------------------ --- ---- ---- ---- ---- ---- ----
Distribution Date
- -----------------
Initial Percentage 100 100 100 100 100 100 100
October 25, 2005 100 100 100 100 100 100 100
October 25, 2006 100 100 100 100 100 100 100
October 25, 2007 100 100 100 100 100 100 100
October 25, 2008 100 100 78 53 35 22 0
October 25, 2009 100 90 58 35 20 0 0
October 25, 2010 100 73 42 23 0 0 0
October 25, 2011 100 60 31 0 0 0 0
October 25, 2012 100 49 23 0 0 0 0
October 25, 2013 100 40 5 0 0 0 0
October 25, 2014 100 33 0 0 0 0 0
October 25, 2015 100 27 0 0 0 0 0
October 25, 2016 100 22 0 0 0 0 0
October 25, 2017 100 7 0 0 0 0 0
October 25, 2018 100 0 0 0 0 0 0
October 25, 2019 100 0 0 0 0 0 0
October 25, 2020 100 0 0 0 0 0 0
October 25, 2021 100 0 0 0 0 0 0
October 25, 2022 100 0 0 0 0 0 0
October 25, 2023 100 0 0 0 0 0 0
October 25, 2024 100 0 0 0 0 0 0
October 25, 2025 100 0 0 0 0 0 0
October 25, 2026 100 0 0 0 0 0 0
October 25, 2027 90 0 0 0 0 0 0
October 25, 2028 80 0 0 0 0 0 0
October 25, 2029 68 0 0 0 0 0 0
October 25, 2030 56 0 0 0 0 0 0
October 25, 2031 43 0 0 0 0 0 0
October 25, 2032 30 0 0 0 0 0 0
October 25, 2033 0 0 0 0 0 0 0
October 25, 2034 0 0 0 0 0 0 0
Weighted Avg. Life to
Maturity (in years)(2) 26.27 8.55 5.92 4.57 3.86 3.45 3.29
Weighted Avg. Life to
Optional Termination Date
(in years)(2) 26.24 8.46 5.85 4.53 3.82 3.42 3.26
- ----------------------------
(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.
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PERCENTAGE OF INITIAL CERTIFICATE PRINCIPAL BALANCE OUTSTANDING(1) AT THE
SPECIFIED PERCENTAGES OF THE PREPAYMENT ASSUMPTION
CLASS M-5
ARM PPC 0% 50% 75% 100% 125% 150% 175%
- ------------------ --- ---- ---- ---- ---- ---- ----
FRM PPC 0% 50% 75% 100% 125% 150% 175%
- ------------------ --- ---- ---- ---- ---- ---- ----
Distribution Date
- -----------------
Initial Percentage 100 100 100 100 100 100 100
October 25, 2005 100 100 100 100 100 100 100
October 25, 2006 100 100 100 100 100 100 100
October 25, 2007 100 100 100 100 100 100 100
October 25, 2008 100 100 78 53 35 5 0
October 25, 2009 100 90 58 35 0 0 0
October 25, 2010 100 73 42 9 0 0 0
October 25, 2011 100 60 31 0 0 0 0
October 25, 2012 100 49 8 0 0 0 0
October 25, 2013 100 40 0 0 0 0 0
October 25, 2014 100 33 0 0 0 0 0
October 25, 2015 100 20 0 0 0 0 0
October 25, 2016 100 3 0 0 0 0 0
October 25, 2017 100 0 0 0 0 0 0
October 25, 2018 100 0 0 0 0 0 0
October 25, 2019 100 0 0 0 0 0 0
October 25, 2020 100 0 0 0 0 0 0
October 25, 2021 100 0 0 0 0 0 0
October 25, 2022 100 0 0 0 0 0 0
October 25, 2023 100 0 0 0 0 0 0
October 25, 2024 100 0 0 0 0 0 0
October 25, 2025 100 0 0 0 0 0 0
October 25, 2026 100 0 0 0 0 0 0
October 25, 2027 90 0 0 0 0 0 0
October 25, 2028 80 0 0 0 0 0 0
October 25, 2029 68 0 0 0 0 0 0
October 25, 2030 56 0 0 0 0 0 0
October 25, 2031 43 0 0 0 0 0 0
October 25, 2032 30 0 0 0 0 0 0
October 25, 2033 0 0 0 0 0 0 0
October 25, 2034 0 0 0 0 0 0 0
Weighted Avg. Life to
Maturity (in years)(2) 26.18 8.25 5.71 4.42 3.74 3.36 3.17
Weighted Avg. Life to
Optional Termination Date
(in years)(2) 26.18 8.25 5.71 4.42 3.74 3.36 3.17
- ----------------------------
(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.
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PERCENTAGE OF INITIAL CERTIFICATE PRINCIPAL BALANCE OUTSTANDING(1) AT THE
SPECIFIED PERCENTAGES OF THE PREPAYMENT ASSUMPTION
CLASS M-7F
ARM PPC 0% 50% 75% 100% 125% 150% 175%
- ------------------ --- ---- ---- ---- ---- ---- ----
FRM PPC 0% 50% 75% 100% 125% 150% 175%
- ------------------ --- ---- ---- ---- ---- ---- ----
Distribution Date
- -----------------
Initial Percentage 100 100 100 100 100 100 100
October 25, 2005 100 100 100 100 100 100 100
October 25, 2006 100 100 100 100 100 100 100
October 25, 2007 100 100 100 100 100 100 100
October 25, 2008 100 100 55 7 0 0 0
October 25, 2009 100 79 15 0 0 0 0
October 25, 2010 100 47 0 0 0 0 0
October 25, 2011 100 20 0 0 0 0 0
October 25, 2012 100 0 0 0 0 0 0
October 25, 2013 100 0 0 0 0 0 0
October 25, 2014 100 0 0 0 0 0 0
October 25, 2015 100 0 0 0 0 0 0
October 25, 2016 100 0 0 0 0 0 0
October 25, 2017 100 0 0 0 0 0 0
October 25, 2018 100 0 0 0 0 0 0
October 25, 2019 100 0 0 0 0 0 0
October 25, 2020 100 0 0 0 0 0 0
October 25, 2021 100 0 0 0 0 0 0
October 25, 2022 100 0 0 0 0 0 0
October 25, 2023 100 0 0 0 0 0 0
October 25, 2024 100 0 0 0 0 0 0
October 25, 2025 100 0 0 0 0 0 0
October 25, 2026 100 0 0 0 0 0 0
October 25, 2027 80 0 0 0 0 0 0
October 25, 2028 59 0 0 0 0 0 0
October 25, 2029 37 0 0 0 0 0 0
October 25, 2030 13 0 0 0 0 0 0
October 25, 2031 0 0 0 0 0 0 0
October 25, 2032 0 0 0 0 0 0 0
October 25, 2033 0 0 0 0 0 0 0
October 25, 2034 0 0 0 0 0 0 0
Weighted Avg. Life to
Maturity (in years)(2) 24.42 6.04 4.23 3.40 3.13 3.09 3.09
Weighted Avg. Life to
Optional Termination Date
(in years)(2) 24.42 6.04 4.23 3.40 3.13 3.09 3.09
- ----------------------------
(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.
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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 such Certificates (other
than the Class A-1 Certificates) has been calculated on the basis of the
Structuring Assumptions and the assumption that there are no prepayments. The
Final Scheduled Distribution Date for the Class A-1 Certificates has been
calculated on the basis of the structuring assumptions and assuming
Adjustable-Rate Mortgage Loans prepay at 7.8% ARM PPC and the Fixed-Rate
Mortgage Loans prepay at 7.8% FRM PPC. 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 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.
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.
CERTAIN MATERIAL FEDERAL INCOME TAX CONSEQUENCES
GENERAL
The Pooling and Servicing Agreement provides that certain assets of the
Trust Fund, exclusive of the Yield Maintenance Agreements, the Reserve Accounts,
the Basis Risk Arrangements (as defined below) and certain assets described in
the pooling and servicing agreement will comprise two REMICs organized in a
tiered REMIC structure consisting of a Lower Tier REMIC and an Upper Tier REMIC.
The Lower Tier REMIC will issue uncertificated regular interests and those
interests will be held by the Upper Tier REMIC. Each of the Lower Tier REMIC and
Upper Tier REMIC will designate a single class of interests as the residual
interest in that REMIC. Elections will be made to treat each of the Lower Tier
REMIC and the Upper Tier REMIC as a REMIC for federal income tax purposes.
Except to the extent described in the next paragraph, each class of Offered
Certificates will represent beneficial ownership of the corresponding class of
regular interests issued by the Upper Tier REMIC. The Trust Fund will also
include a grantor trust which will hold the Yield Maintenance Agreements, the
Reserve Accounts and the Basis Risk Arrangements, as defined below.
The Offered Certificates will represent beneficial ownership of the
corresponding class of regular interests issued by the Upper Tier REMIC and of
the right to receive Cap Carryover Amounts from amounts otherwise distributable
to the Class CE Certificates as part of the Monthly Excess Cashflow Amount or,
to the extent such amounts are insufficient, from the Yield Maintenance
Agreements, to the extent available. Holders of the Offered Certificates must
allocate their basis between their regular interest and their right to receive
such Cap Carryover Amounts as set forth below under "--Taxation of Basis Risk
Arrangements."
Upon the issuance of the Offered Certificates, Hunton & Williams LLP will
deliver its opinion to the effect that, assuming compliance with the Pooling and
Servicing Agreement, for federal income tax purposes, each of the 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 will qualify as a grantor
trust under Subpart E, Part 1 of Subchapter J of the Code.
TAXATION OF REGULAR INTERESTS
For federal income tax reporting purposes, the regular interest portion of
the classes of the Class A and Class M 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
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determination the Mortgage Loans will prepay at a constant rate of 100% ARM PPC
with respect to the Adjustable-Rate Mortgage Loans and 100% FRM PPC with respect
to the Fixed-Rate Mortgage Loans. 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.
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 Class A and Class M Certificates, other than that portion related to
the Basis Risk Arrangements, generally will be treated as assets described in
Section 7701(a)(19)(C) of the Code for a domestic building and loan association
and "real estate assets" under Section 856(c)(5)(B) of the Code for a real
estate investment trust (a "REIT"), in the same proportion that the assets in
the Trust Fund would be so treated. In addition, interest on the Class A and
Class M Certificates, other than that portion related to the Basis Risk
Arrangements, generally will be treated as "interest on obligations secured by
mortgages on real property" under Section 856(c)(3)(B) of the Code for a REIT,
to the extent that the Class A and Class M Certificates are treated as "real
estate assets" under Section 856(c)(5)(B) 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 portion of the Class A
and Class M Certificates and income qualify for these treatments, such regular
interest portion generally will qualify for such treatments in their entirety.
However, no portion of a Class A or Class M Certificateholder's basis or income
allocable to a Basis Risk Arrangement will qualify for such treatment. As a
result, the Class A and Class M Certificates are not suitable investments for
inclusion in another REMIC.
TAXATION OF THE BASIS RISK ARRANGEMENTS
General. Each holder of a Class A and Class M 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 Cap Carryover
Amounts on the date it purchases its Certificates. The rights to receive such
payments (referred to as the "BASIS RISK ARRANGEMENTS") are beneficially owned
by holders of Class A and Class M 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 Class A and Class M Certificates must
allocate the price they pay for such Certificates between their REMIC regular
interest and the applicable Basis Risk Arrangement based on their relative fair
market values. To the extent rights to receive payments are determined to have a
value on the Closing Date 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
cap premium (the "CAP PREMIUM") paid by the holders of Class A and Class M
Certificates. A holder of a Class A and Class M Certificate will be required to
amortize the Cap Premium under a level payment method as if the Cap Premium
represented the present value of a series of equal payments made over the life
of the applicable Basis Risk 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 Cap Premium (or some other reasonable rate).
Prospective purchasers of Offered Certificates should consult their own tax
advisors regarding the appropriate method of amortizing any Cap 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 Cap Premium would be treated in part as a loan under the Swap
Regulations.
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
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applicable Basis Risk Arrangement must be netted against payments, if any,
deemed made as a result of the Cap Premiums over the recipient's taxable year,
rather than accounted for on a gross basis. Net income or deduction with respect
to net 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 would 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 a Class A
and Class M Certificate that is considered to be allocated to rights under a
Basis Risk 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 Basis
Risk Arrangement in connection with the sale or exchange of a Class A and Class
M Certificate would be considered a "termination payment" under the Swap
Regulations allocable to such Certificate. A holder of an Offered Certificate
will have gain or loss from such a termination of a Basis Risk Arrangement equal
to (i) any termination payment it received or is deemed to have received minus
(ii) the unamortized portion of any Cap Premium paid (or deemed paid) by the
beneficial owner upon entering into or acquiring its interest in a Basis Risk
Arrangement.
Gain or loss realized upon the termination of a Basis Risk 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.
REMIC TAXES AND REPORTING
It is not anticipated that the Trust Fund 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 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 the Trust Fund, such tax will be borne (i) by the Trustee, if the Trustee 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 Trust Fund,
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 Trustee. 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.
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.
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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
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
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.
The U.S. Department of Labor has extended to Banc of America, an
administrative exemption (the "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 initial purchase, the holding and the subsequent
resale by Plans of certificates in pass-through trusts that consist of certain
receivables, loans and other obligations that meet the conditions and
requirements of the Exemption. The Exemption can apply to certificates in a
pass-through trust holding mortgage loans, and the Exemption may apply to the
Offered Certificates.
Among the conditions that must be satisfied for the Exemption to apply are
the following:
(1) the acquisition of the certificates by a Plan is on terms
(including the price for the certificates) that are at least as
favorable to the Plan as they would be in an arm's length transaction
with an unrelated party;
(2) the 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 S&P, Moody's or Fitch (collectively, the
"EXEMPTION RATING AGENCIES");
(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
underwriters in connection with the distribution of the certificates
represents not more than reasonable compensation for underwriting the
certificates; the sum of all payments made to and retained by the
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
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(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, as
amended (the "ACT").
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 Exemption provides relief from certain self-dealing/conflict
of interest prohibited transactions that may occur when the Plan fiduciary
causes a Plan to acquire certificates in a trust 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 Exemption does not apply to Plans sponsored by
any Underwriter, the Trustee, the Servicer, any obligor with respect to Mortgage
Loans included in the Trust constituting more than five percent of the aggregate
unamortized principal balance of the assets in the Trust, or any affiliate of
such parties (the "RESTRICTED GROUP").
The Exemption will apply to the acquisition and holding by Plans of the
Offered Certificates if all conditions of the Exemption 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 Exemption, and the potential consequences in their specific
circumstances, prior to making an investment in the Offered Certificates.
Moreover, each Plan fiduciary should determine whether under the general
fiduciary standards of investment 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.
LEGAL INVESTMENT
The Class A-1, Class A-2, Class A-3 and Class M-1 Certificates will
constitute "mortgage related securities" for purposes of the Secondary Mortgage
Market Enhancement Act of 1984, as amended ("SMMEA"). The Class M-2, Class M-3,
Class M-4, Class M-5 and M-7F Certificates will not constitute "mortgage related
securities" for purposes of 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, between the Depositor and Banc of America Securities LLC ("BANC OF
AMERICA" ), an affiliate of the Depositor, as representative (in such capacity,
the "REPRESENTATIVE") of Banc of America, Countrywide Securities Corporation, an
affiliate of the Servicer, and
S-98
Blaylock & Partners, L.P. (collectively with Banc of America, the
"UNDERWRITERS"), the Underwriters have severally agreed to purchase and the
Depositor has agreed to sell to the Underwriters the Offered Certificates as
follows: Banc of America will acquire approximately 90% of each class of Offered
Certificates, Countrywide Securities Corporation will acquire approximately 5%
of each class of Offered Certificates and Blaylock & Partners, L.P. will acquire
approximately 5% of each class of Offered Certificates.
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 time 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 they act 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 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.
The Depositor has agreed to indemnify the Underwriters against, or make
contributions to the Underwriters 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 the Underwriters
by Hunton & Williams LLP.
RATINGS
It is a condition to the issuance of the Offered Certificates that the
Certificates receive the following ratings from Fitch, S&P and DBRS:
CLASS FITCH S&P DBRS
----- ----- --- ----
A-1 AAA AAA AAA
A-2 AAA AAA AAA
A-3 AAA AAA AAA
M-1 AA AA AA
M-2 A A A
M-3 A- A- A(low)
M-4 BBB+ BBB+ BBB(high)
M-5 BBB BBB BBB
M-7F None BBB- None
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
likelihood of the payment of any Cap Carryover Amount, the frequency of
prepayments on the Mortgage Loans, or the possibility that a holder of an
Offered Certificate might realize a lower than anticipated yield.
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
S-99
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-100
INDEX OF DEFINED TERMS
60+ Day Delinquent Loan..........................S-67 Collection Period................................S-61
Accrued Certificate Interest.....................S-62 Combined Loan-to-Value Ratio.....................S-29
Act..............................................S-98 Compensating Interest............................S-54
Adjustable-Rate Mortgage Loans...................S-24 Counterparty.....................................S-74
Adjustable-Rate Prepayment Curve.................S-81 CPR..............................................S-81
Adjustment Date..................................S-25 Credit Risk Manager..............................S-54
Advance..........................................S-53 Credit Risk Manager Fee..........................S-54
Advancing Person.................................S-53 Credit Risk Manager Fee Rate.....................S-54
Applied Realized Loss Amount.....................S-68 Credit Scores....................................S-32
ARM PPC..........................................S-81 Cut-off Date.....................................S-23
Available Funds..................................S-61 Cut-off Date Principal Balance...................S-23
Balloon Mortgage Loan............................S-25 DBRS.............................................S-11
Balloon Payment..................................S-25 Decrement Tables.................................S-81
Banc of America..................................S-98 Defective Mortgage Loans.........................S-52
Basis Risk Arrangements..........................S-95 Deficient Valuation..............................S-68
beneficial owner.................................S-58 Definitive Certificate...........................S-58
Book-Entry Certificates..........................S-58 Delinquent.......................................S-24
Business Day.....................................S-52 Determination Date...............................S-54
Cap Amount.......................................S-74 Distribution Account.............................S-52
Cap Premium......................................S-95 Distribution Date................................S-57
Certificate Interest Rate........................S-73 DTC...............................................S-6
Certificate Owners...............................S-58 Due Date.........................................S-24
Certificate Principal Balance....................S-64 Eligible Account.................................S-52
Certificateholder................................S-58 Eligible Substitute Mortgage Loan................S-51
Certificates.....................................S-57 ERISA............................................S-97
Class A Certificates.............................S-57 ERISA Plan.......................................S-97
Class M Certificates.............................S-57 Euroclear...................................S-6, S-59
Class M-1 Applied Realized Loss Amount...........S-71 Euroclear Operator...............................S-60
Class M-1 Principal Distribution Amount..........S-64 Euroclear Participants...........................S-59
Class M-1 Realized Loss Amortization Amount......S-71 European Depositaries............................S-58
Class M-2 Applied Realized Loss Amount...........S-71 Exemption........................................S-97
Class M-2 Principal Distribution Amount..........S-64 Exemption Rating Agencies........................S-97
Class M-2 Realized Loss Amortization Amount......S-71 Extra Principal Distribution Amount..............S-66
Class M-3 Applied Realized Loss Amount...........S-71 Financial Intermediary...........................S-58
Class M-3 Principal Distribution Amount..........S-65 Fitch............................................S-11
Class M-3 Realized Loss Amortization Amount......S-71 Fixed-Rate Mortgage Loans........................S-24
Class M-4 Applied Realized Loss Amount...........S-72 Fixed-Rate Prepayment Curve......................S-81
Class M-4 Principal Distribution Amount..........S-65 FRM PPC..........................................S-81
Class M-4 Realized Loss Amortization Amount......S-72 Global Securities.................................I-1
Class M-5 Applied Realized Loss Amount...........S-72 Gross Margin.....................................S-25
Class M-5 Principal Distribution Amount..........S-65 Index............................................S-25
Class M-5 Realized Loss Amortization Amount......S-72 Indirect Participants............................S-58
Class M-6 Applied Realized Loss Amount...........S-72 Initial Periodic Rate Cap........................S-25
Class M-6 Principal Distribution Amount..........S-65 Interest Accrual Period..........................S-62
Class M-6 Realized Loss Amortization Amount......S-72 Interest Carry Forward Amount....................S-62
Class M-7 Applied Realized Loss Amount...........S-72 Interest Only Mortgage Loan......................S-24
Class M-7 Principal Distribution Amount..........S-66 Interest Percentage..............................S-63
Class P Certificates.............................S-57 Interest Remittance Amount.......................S-63
Clearstream.......................................S-6 IRS..............................................S-95
Clearstream Participants.........................S-59 LIBOR Determination Date.........................S-74
Closing Date.....................................S-50 Liquidated Mortgage Loan.........................S-68
Code.............................................S-94 Maximum Mortgage Interest Rate...................S-25
Collection Account...............................S-52 Maximum Rate Cap.................................S-73
S-101
Minimum Mortgage Interest Rate...................S-25 Realized Loss....................................S-68
Monthly Excess Cashflow Allocation...............S-69 Realized Loss Amortization Amount................S-72
Monthly Excess Cashflow Amount...................S-69 Record Date......................................S-57
Monthly Excess Interest Amount...................S-69 Reference Bank Rate..............................S-74
Monthly Payment..................................S-24 Reimbursement Amount.............................S-51
Moody's..........................................S-75 REIT.............................................S-95
Mortgage.........................................S-24 Related Documents................................S-50
Mortgage Interest Rate...........................S-25 Relevant Depositary..............................S-58
Mortgage Loan Purchase Agreement.................S-23 Relief Act.......................................S-53
Mortgage Loan Schedule...........................S-50 REMIC............................................S-11
Mortgage Loans...................................S-23 Representative...................................S-98
Mortgage Pool....................................S-23 Reserve Account..................................S-75
Mortgaged Property...............................S-24 Residual Certificates............................S-57
Net Maximum Mortgage Interest Rate...............S-74 Restricted Group.................................S-98
Net Mortgage Interest Rate.......................S-69 Rules............................................S-58
NIMS Insurer......................................S-7 S&P..............................................S-11
Offered Certificates.............................S-57 Seller...........................................S-43
OID..............................................S-94 Senior Certificates..............................S-57
OID Regulations..................................S-95 Senior Enhancement Percentage....................S-67
One-Month LIBOR..................................S-74 Senior Specified Enhancement Percentage..........S-67
Optional Termination Date........................S-55 Servicer.........................................S-47
Originator........................................S-6 Servicer Modification............................S-68
Originator Mortgage Loan Purchase Agreement......S-23 Servicing Advance................................S-53
Overcollateralization Amount.....................S-66 Servicing Fee....................................S-54
Overcollateralization Deficiency.................S-66 Servicing Fee Rate...............................S-54
Overcollateralization Release Amount.............S-66 Similar Law......................................S-97
Participants.....................................S-58 Six-Month LIBOR..................................S-43
Pass-Through Rate................................S-73 SMMEA......................................S-11, S-98
Periodic Rate Cap................................S-25 Stepdown Date....................................S-67
Plans............................................S-97 Structuring Assumptions..........................S-81
PMI Insurer......................................S-78 Subordinated Certificates........................S-57
PMI Insurer Fee..................................S-78 Subsequent Recovery..............................S-67
PMI Insurer Fee Rate.............................S-78 Substitution Adjustment..........................S-51
PMI Mortgage Loans...............................S-77 Swap Regulations.................................S-95
PMI Policy.......................................S-77 Targeted Overcollateralization Amount............S-67
Pool Balance.....................................S-23 Telerate Page 3750...............................S-74
Pool Cap.........................................S-73 Termination Price................................S-55
Pooling and Servicing Agreement..................S-50 Terms and Conditions.............................S-60
Prepayment Assumptions...........................S-81 Trigger Event....................................S-67
Prepayment Interest Shortfall....................S-54 Trust.............................................S-6
Prepayment Period................................S-61 Trust Fund.......................................S-50
Principal Balance................................S-23 Trustee..........................................S-54
Principal Distribution Amount....................S-66 U.S. Person.......................................I-3
Principal Remittance Amount......................S-66 Underwriters.....................................S-99
Prospectus........................................S-6 Unpaid Realized Loss Amount......................S-73
Prospectus Supplement.............................S-6 Yield Maintenance Agreement......................S-74
Purchase Price...................................S-50 Yield Maintenance Agreement Payment..............S-75
Rating Agencies..................................S-52
S-102
ANNEX I
GLOBAL CLEARANCE, SETTLEMENT AND TAX DOCUMENTATION PROCEDURES
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.
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
I-1
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 interest 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 credited to the
respective clearing 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 interest 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.
(a) 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
I-2
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:
(b) 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;
(c) 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
(d) 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
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.
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 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
I-3
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 a U.S. Person. This
summary does not deal with all aspects of U.S. Federal income tax withholding
that may be relevant to foreign holders of the Global Securities. Investors are
advised to consult their own tax advisors for specific tax advice concerning
their holding and disposing of the Global Securities.
I-4
ANNEX II
YIELD MAINTENANCE SCHEDULES
CLASS A YIELD MAINTENANCE AGREEMENT CAP NOTIONAL AMOUNT,
STRIKE RATE, CEILING RATE AND SCALE FACTOR SCHEDULE
DISTRIBUTION DATE CAP NOTIONAL AMOUNT STRIKE RATE CEILING RATE SCALE FACTOR
----------------- ------------------- ----------- ------------ ------------
11/25/2004 12,414,420.00 4.84% 9.65% 100
12/25/2004 12,346,752.97 5.71% 9.65% 100
1/25/2005 12,261,794.66 5.51% 9.65% 100
2/25/2005 12,159,587.79 5.51% 9.65% 100
3/25/2005 12,040,240.49 6.14% 9.65% 100
4/25/2005 11,903,927.47 5.53% 9.65% 100
5/25/2005 11,750,892.50 5.71% 9.64% 100
6/25/2005 11,581,443.38 5.52% 9.64% 100
7/25/2005 11,395,957.26 5.71% 9.64% 100
8/25/2005 11,194,889.84 5.51% 9.63% 100
9/25/2005 10,981,609.02 5.50% 9.63% 100
10/25/2005 10,756,562.03 5.72% 9.63% 100
11/25/2005 10,520,248.66 5.51% 9.62% 100
12/25/2005 10,273,204.26 5.71% 9.62% 100
1/25/2006 10,016,013.03 5.50% 9.61% 100
2/25/2006 9,749,300.47 5.49% 9.60% 100
3/25/2006 9,473,730.67 6.12% 9.60% 100
4/25/2006 9,190,003.39 5.50% 9.59% 100
5/25/2006 8,898,853.12 5.68% 9.58% 100
6/25/2006 8,601,038.64 5.49% 9.58% 100
7/25/2006 8,297,346.47 5.67% 9.57% 100
8/25/2006 7,988,584.55 5.48% 9.57% 100
9/25/2006 7,675,578.21 5.48% 9.57% 100
10/25/2006 7,359,167.40 7.56% 9.57% 100
11/25/2006 7,054,555.06 7.30% 9.57% 100
12/25/2006 6,760,485.24 7.55% 9.57% 100
1/25/2007 6,476,590.40 7.29% 9.57% 100
2/25/2007 6,202,515.88 7.29% 9.57% 100
3/25/2007 5,937,919.43 8.11% 9.56% 100
4/25/2007 5,682,470.85 7.89% 9.56% 100
5/25/2007 5,436,011.68 8.17% 9.56% 100
6/25/2007 5,198,063.51 7.89% 9.56% 100
7/25/2007 4,968,330.09 8.16% 9.56% 100
8/25/2007 4,746,525.55 7.88% 9.56% 100
9/25/2007 4,532,374.01 7.87% 9.55% 100
10/25/2007 4,325,609.29 9.23% 9.55% 100
11/25/2007 4,126,239.11 8.91% 9.55% 100
12/25/2007 4,126,239.11 9.22% 9.55% 100
1/25/2008 4,120,131.34 8.90% 9.55% 100
2/25/2008 3,980,133.56 8.90% 9.55% 100
3/25/2008 3,844,951.33 9.54% 9.55% 100
II-1
CLASS M-1, CLASS M-2 AND CLASS M-3 YIELD MAINTENANCE AGREEMENT CAP NOTIONAL
AMOUNT, STRIKE RATE, CEILING RATE AND SCALE FACTOR SCHEDULE
DISTRIBUTION DATE CAP NOTIONAL AMOUNT STRIKE RATE CEILING RATE SCALE FACTOR
----------------- ------------------- ----------- ------------ ------------
11/25/2004 1,227,490.00 4.07% 8.88% 100
12/25/2004 1,227,490.00 4.94% 8.88% 100
1/25/2005 1,227,490.00 4.74% 8.88% 100
2/25/2005 1,227,490.00 4.74% 8.88% 100
3/25/2005 1,227,490.00 5.37% 8.88% 100
4/25/2005 1,227,490.00 4.76% 8.88% 100
5/25/2005 1,227,490.00 4.95% 8.88% 100
6/25/2005 1,227,490.00 4.76% 8.88% 100
7/25/2005 1,227,490.00 4.95% 8.88% 100
8/25/2005 1,227,490.00 4.76% 8.88% 100
9/25/2005 1,227,490.00 4.75% 8.88% 100
10/25/2005 1,227,490.00 4.97% 8.88% 100
11/25/2005 1,227,490.00 4.77% 8.88% 100
12/25/2005 1,227,490.00 4.97% 8.88% 100
1/25/2006 1,227,490.00 4.77% 8.88% 100
2/25/2006 1,227,490.00 4.77% 8.88% 100
3/25/2006 1,227,490.00 5.40% 8.88% 100
4/25/2006 1,227,490.00 4.79% 8.88% 100
5/25/2006 1,227,490.00 4.98% 8.88% 100
6/25/2006 1,227,490.00 4.79% 8.88% 100
7/25/2006 1,227,490.00 4.98% 8.88% 100
8/25/2006 1,227,490.00 4.79% 8.88% 100
9/25/2006 1,227,490.00 4.79% 8.88% 100
10/25/2006 1,227,490.00 6.87% 8.88% 100
11/25/2006 1,227,490.00 6.61% 8.88% 100
12/25/2006 1,227,490.00 6.86% 8.88% 100
1/25/2007 1,227,490.00 6.60% 8.88% 100
2/25/2007 1,227,490.00 6.60% 8.88% 100
3/25/2007 1,227,490.00 7.43% 8.88% 100
4/25/2007 1,227,490.00 7.21% 8.88% 100
5/25/2007 1,227,490.00 7.49% 8.88% 100
6/25/2007 1,227,490.00 7.21% 8.88% 100
7/25/2007 1,227,490.00 7.48% 8.88% 100
8/25/2007 1,227,490.00 7.20% 8.88% 100
9/25/2007 1,227,490.00 7.20% 8.88% 100
10/25/2007 1,227,490.00 8.56% 8.88% 100
11/25/2007 1,227,490.00 8.24% 8.88% 100
12/25/2007 1,101,261.86 8.58% 8.91% 100
1/25/2008 929,668.33 8.23% 8.88% 100
2/25/2008 898,079.17 8.23% 8.88% 100
3/25/2008 867,576.58 8.87% 8.88% 100
II-2
CLASS M-4, CLASS M-5, CLASS M-6 AND CLASS M-7A YIELD MAINTENANCE AGREEMENT CAP
NOTIONAL AMOUNT, STRIKE RATE, CEILING RATE AND SCALE FACTOR SCHEDULE
DISTRIBUTION DATE CAP NOTIONAL AMOUNT STRIKE RATE CEILING RATE SCALE FACTOR
----------------- ------------------- ----------- ------------ ------------
11/25/2004 238,050.00 2.03% 6.84% 100
12/25/2004 238,050.00 2.90% 6.84% 100
1/25/2005 238,050.00 2.70% 6.84% 100
2/25/2005 238,050.00 2.70% 6.84% 100
3/25/2005 238,050.00 3.33% 6.84% 100
4/25/2005 238,050.00 2.72% 6.84% 100
5/25/2005 238,050.00 2.91% 6.84% 100
6/25/2005 238,050.00 2.72% 6.84% 100
7/25/2005 238,050.00 2.91% 6.84% 100
8/25/2005 238,050.00 2.72% 6.84% 100
9/25/2005 238,050.00 2.71% 6.84% 100
10/25/2005 238,050.00 2.93% 6.84% 100
11/25/2005 238,050.00 2.73% 6.84% 100
12/25/2005 238,050.00 2.93% 6.84% 100
1/25/2006 238,050.00 2.73% 6.84% 100
2/25/2006 238,050.00 2.73% 6.84% 100
3/25/2006 238,050.00 3.36% 6.84% 100
4/25/2006 238,050.00 2.75% 6.84% 100
5/25/2006 238,050.00 2.94% 6.84% 100
6/25/2006 238,050.00 2.75% 6.84% 100
7/25/2006 238,050.00 2.94% 6.84% 100
8/25/2006 238,050.00 2.75% 6.84% 100
9/25/2006 238,050.00 2.75% 6.84% 100
10/25/2006 238,050.00 4.83% 6.84% 100
11/25/2006 238,050.00 4.57% 6.84% 100
12/25/2006 238,050.00 4.82% 6.84% 100
1/25/2007 238,050.00 4.56% 6.84% 100
2/25/2007 238,050.00 4.56% 6.84% 100
3/25/2007 238,050.00 5.39% 6.84% 100
4/25/2007 238,050.00 5.17% 6.84% 100
5/25/2007 238,050.00 5.45% 6.84% 100
6/25/2007 238,050.00 5.17% 6.84% 100
7/25/2007 238,050.00 5.44% 6.84% 100
8/25/2007 238,050.00 5.16% 6.84% 100
9/25/2007 238,050.00 5.16% 6.84% 100
10/25/2007 238,050.00 6.52% 6.84% 100
11/25/2007 238,050.00 6.20% 6.84% 100
12/25/2007 180,415.05 6.52% 6.85% 100
1/25/2008 173,302.26 6.20% 6.85% 100
2/25/2008 166,434.20 6.20% 6.85% 100
3/25/2008 159,802.38 6.84% 6.85% 100
II-3
PROSPECTUS
ASSET BACKED FUNDING CORPORATION
Depositor
ASSET BACKED CERTIFICATES
ASSET BACKED NOTES
(ISSUABLE IN SERIES)
--------------------
- -------------------------------------------------------------------------------
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.
- -------------------------------------------------------------------------------
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.
The date of this prospectus is October 12, 2004.
TABLE OF CONTENTS
IMPORTANT NOTICE ABOUT
INFORMATION PRESENTED IN THIS PROSPECTUS AND THE
ACCOMPANYING PROSPECTUS
SUPPLEMENT ............................................................. 4
SUMMARY OF PROSPECTUS ...................................................... 5
RISK FACTORS ............................................................... 10
Risks Associated with the Securities ................................... 10
Risks Associated with the Assets ....................................... 12
Violations of Federal, State and Local 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 ............................................. 17
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 ......................................................... 23
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 ........................................................ 28
Refinancing ......................................................... 28
Due-on-Sale Clauses ................................................. 28
THE DEPOSITOR .............................................................. 29
DESCRIPTION OF THE SECURITIES .............................................. 30
General ................................................................ 30
Distributions .......................................................... 30
Available Distribution Amount .......................................... 31
Distributions of Interest on the Securities ............................ 32
Distributions of Principal of the Securities ........................... 32
Categories of Classes of Securities .................................... 33
Components ............................................................. 35
Distributions on the Securities of Prepayment
Premiums ........................................................... 36
Allocation of Losses and Shortfalls .................................... 36
Advances in Respect of Delinquencies ................................... 36
Reports to Securityholders ............................................. 37
Termination ............................................................ 38
Optional Purchases ..................................................... 39
Definitive Form ........................................................ 39
Book-Entry Registration and Definitive
Securities ......................................................... 39
DESCRIPTION OF THE AGREEMENTS .............................................. 43
Agreements Applicable to a Series ...................................... 43
REMIC Securities, FASIT Securities,
Grantor Trust Securities ......................................... 43
Securities That Are Partnership Interests
for Tax Purposes and Notes ....................................... 43
Material Terms of the Pooling and Servicing
Agreements and Underlying Servicing
Agreements ......................................................... 43
General ............................................................. 43
Assignment of Assets; Repurchases ................................... 44
Representations and Warranties;
Repurchases ...................................................... 45
Collection Account and Related Accounts ............................. 46
Realization Upon Defaulted Assets ................................... 50
Hazard Insurance Policies ........................................... 52
Contracts ........................................................... 53
Fidelity Bonds and Errors and Omissions
Insurance ........................................................ 53
Due-on-Sale Provisions .............................................. 53
Retained Interest; Servicing Compensation
and Payment of Expenses .......................................... 54
Evidence as to Compliance ........................................... 54
Certain Matters Regarding Servicers, the
Master Servicer and the Depositor ................................ 55
Special Servicers ................................................... 55
Events of Default under the Agreements .............................. 56
Rights Upon Event of Default under the
Agreements ....................................................... 56
Amendment ........................................................... 57
The Trustee ......................................................... 57
Duties of the Trustee ............................................... 57
Certain Matters Regarding the Trustee ............................... 58
Resignation and Removal of the Trustee .............................. 58
Material Terms of the Indenture ........................................ 58
General ............................................................. 58
Events of Default ................................................... 58
Discharge of Indenture .............................................. 60
Indenture Trustee's Annual Report ................................... 60
The Indenture Trustee ............................................... 60
DESCRIPTION OF CREDIT SUPPORT .............................................. 61
General ................................................................ 61
Subordinate Securities ................................................. 61
Overcollateralization .................................................. 61
Excess Interest ........................................................ 62
Cross-Support Provisions ............................................... 62
Limited Guarantee ...................................................... 62
Financial Guaranty Insurance Policy or
Surety Bond ........................................................ 62
Letter of Credit ....................................................... 62
Pool Insurance Policies ................................................ 62
Special Hazard Insurance Policies ...................................... 62
Mortgagor Bankruptcy Bond .............................................. 63
Reserve Funds .......................................................... 63
CERTAIN LEGAL ASPECTS OF MORTGAGE
LOANS .................................................................. 63
General ................................................................ 63
Types of Mortgage Instruments .......................................... 64
Interest in Real Property .............................................. 64
Cooperative Loans ...................................................... 64
Land Sale Contracts .................................................... 65
2
Foreclosure ............................................................ 66
General ............................................................. 66
Judicial Foreclosure ................................................ 66
Equitable Limitations on Enforceability of Certain Provisions ....... 66
Non-Judicial Foreclosure/Power of Sale .............................. 67
Public Sale ......................................................... 67
Rights of Redemption ................................................ 68
Cooperative Loans ................................................... 68
Junior Mortgages ....................................................... 69
Rights of Redemption ................................................... 70
Anti-Deficiency Legislation, the Bankruptcy
Code and Other Limitations on Lenders .............................. 70
Enforceability of Certain Provisions ................................... 72
Environmental Considerations ........................................... 72
Due-on-Sale Clauses .................................................... 74
Prepayment Premiums .................................................... 75
Subordinate Financing .................................................. 75
Applicability of Usury Laws ............................................ 75
Alternative Mortgage Instruments ....................................... 76
Homeowners Protection Act of 1998 ...................................... 76
Texas Home Equity Loans ................................................ 77
Servicemembers Civil Relief Act ........................................ 77
Forfeiture for Drug, RICO and Money
Laundering Violations .............................................. 77
CERTAIN LEGAL ASPECTS OF THE
CONTRACTS .............................................................. 78
General ................................................................ 78
Security Interests in the Manufactured Homes ........................... 78
Enforcement of Security Interests in
Manufactured Homes ................................................. 80
Servicemembers Civil Relief Act ........................................ 80
Consumer Protection Laws ............................................... 80
Transfers of Manufactured Homes;
Enforceability of Due-on-Sale Clauses .............................. 80
Applicability of Usury Laws ............................................ 81
FEDERAL INCOME TAX CONSEQUENCES ............................................ 82
General ................................................................ 82
Taxable Mortgage Pools .............................................. 82
REMICS ................................................................. 83
Classification of REMICs ............................................ 83
Characterization of Investments in
REMIC Securities ................................................. 84
Tiered REMIC Structures ............................................. 85
Taxation of Owners of Regular Securities ............................ 85
General ............................................................. 85
Original Issue Discount ............................................. 85
Acquisition Premium ................................................. 87
Variable Rate Regular Securities .................................... 87
Market Discount ..................................................... 89
Amortizable Premium ................................................. 90
Election to Treat All Interest Under the
Constant Yield Method ............................................ 90
Treatment of Losses ................................................. 91
Sale or Exchange of Regular Securities .............................. 91
Taxation of Owners of Residual Securities ........................... 92
Taxation of REMIC Income ............................................ 92
Basis and Losses .................................................... 93
Treatment of Certain Items of REMIC
Income and Expense ............................................... 94
Limitations on Offset or Exemption of
REMIC Income ..................................................... 94
Tax-Related Restrictions on Transfer of
Residual Securities .............................................. 95
Sale or Exchange of a Residual Security ............................. 98
Mark to Market Regulations .......................................... 98
Taxes That May Be Imposed on the
REMIC Pool ....................................................... 99
Prohibited Transactions ............................................. 99
Contributions to the REMIC Pool After
the Startup Day .................................................. 99
Net Income from Foreclosure Property ................................ 99
Liquidation of the REMIC Pool ....................................... 99
Administrative Matters .............................................. 99
Limitations on Deduction of Certain
Expenses ......................................................... 100
Taxation of Certain Foreign Investors ............................... 100
Regular Securities .................................................. 100
Residual Securities ................................................. 101
Backup Withholding .................................................. 101
Reporting Requirements .............................................. 102
Grantor Trust Funds .................................................... 102
Classification of Grantor Trust Funds ............................... 102
Standard Securities .................................................... 103
General ............................................................. 103
Tax Status .......................................................... 103
Premium and Discount ................................................ 104
Recharacterization of Servicing Fees ................................ 105
Sale or Exchange of Standard Securities ............................. 105
Stripped Securities .................................................... 106
General ............................................................. 106
Status of Stripped Securities ....................................... 107
Taxation of Stripped Securities ..................................... 107
Reporting Requirements and Backup
Withholding ...................................................... 108
Taxation of Certain Foreign Investors ............................... 109
Partnership Trust Funds ................................................ 109
Classification of Partnership Trust Funds ........................... 109
Characterization of Investments in
Partnership Securities and Debt
Securities ....................................................... 109
Taxation of Debt Securityholders .................................... 109
Treatment of the Debt Securities as
Indebtedness ..................................................... 109
Taxation of Owners of Partnership
Securities ....................................................... 110
Treatment of the Partnership Trust Fund
as a Partnership ................................................. 110
Partnership Taxation ................................................ 110
Discount and Premium ................................................ 111
Section 708 Termination ............................................. 111
Disposition of Securities ........................................... 112
Allocations Between Transferors and
Transferees ...................................................... 112
Section 731 Distributions ........................................... 112
Section 754 Election ................................................ 113
Administrative Matters .............................................. 113
Tax Consequences to Foreign
Securityholders .................................................. 113
Backup Withholding .................................................. 114
STATE AND OTHER TAX CONSEQUENCES ........................................... 114
ERISA CONSIDERATIONS ....................................................... 115
LEGAL INVESTMENT ........................................................... 119
METHODS OF DISTRIBUTION .................................................... 120
LEGAL MATTERS .............................................................. 121
FINANCIAL INFORMATION ...................................................... 121
RATING ..................................................................... 121
WHERE YOU CAN FIND MORE
INFORMATION ............................................................ 122
INCORPORATION OF CERTAIN
INFORMATION BY REFERENCE ............................................... 122
INDEX OF SIGNIFICANT DEFINITIONS ........................................... 123
3
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 214 North
Tryon Street, Charlotte, North Carolina 28255 and the depositor's telephone
number is (704) 386-2400.
4
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
SECURITIES.
THIS SUMMARY PROVIDES AN OVERVIEW OF CERTAIN CALCULATIONS, CASH FLOWS
AND OTHER INFORMATION TO AID YOUR UNDERSTANDING OF THE TERMS OF THE SECURITIES
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:
5
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 of 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 in Europe; 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;
6
o home improvement installment sales contracts or installment loans
that are unsecured;
o manufactured housing installment sales contracts and installment
loan agreements; and
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 overcollateralization o excess interest
o subordination o cross-support
o financial guaranty o reserve fund
insurance policy o mortgage pool insurance policy
o spread account o special hazard insurance policy
o letter of credit
o cash collateral account
7
Any credit support will be described in detail in the applicable
prospectus supplement.
See "Description of Credit Support" in this prospectus.
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 interests 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 activities are subject to legal investment laws and
regulations, regulatory capital requirements or review by regulatory
authorities, then you may be subject to restrictions on investment in the
securities. You should consult your own legal advisors for assistance in
determining the suitability of the securities for you and the consequences of
the purchase, ownership and sale of the securities.
For additional information see "Legal Investment" in this prospectus
and in the prospectus supplement.
8
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; excess interest; overcollateralization; cross-support; a
financial guaranty insurance policy; a reserve fund; a spread account; a
mortgage pool insurance policy; a special hazard insurance policy; a cash
collateral account; a letter of credit; 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 the credit enhancement may provide only very limited coverage as to
certain types of losses, and may provide no coverage as to certain
types of losses; and
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.
10
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.
Neither the depositor nor any of its affiliates will have any obligation to
maintain any rating of any series of securities.
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
11
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.
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
12
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 judgment
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.
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
13
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
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,
14
but significant limitations are 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 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
or 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 agreement.
VIOLATIONS OF FEDERAL, STATE AND LOCAL LAWS MAY ADVERSELY AFFECT ABILITY TO
COLLECT ON LOANS
The mortgage loans may also be subject to federal, state and local
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.
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;
15
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.
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. As a result, these violations or alleged
violations could result in shortfalls in the distributions due on your
securities.
In the past few years, a number of legislative proposals have been
introduced at both the federal, state and local level that are designed to
discourage predatory lending practices. Some states have enacted, or may enact,
laws or regulations that prohibit inclusion of some provisions in mortgage loans
that have mortgage rates or origination costs in excess of prescribed levels,
and require that borrowers be given certain disclosures prior to the
consummation of such mortgage loans. In some cases, state and local laws may
impose requirements and restrictions greater than those in the Home Ownership
and Equity Protection Act of 1994. Lawsuits have been brought in various states
making claims against assignees of high cost loans for violations of state law.
Named defendants in these cases include numerous participants within the
secondary mortgage market, including some securitization trusts. The seller of
the assets, either directly or indirectly, to the depositor will make
representations and warranties with respect to each asset relating to compliance
with federal, state and local laws at the time of origination, that none of the
mortgage loans are subject to the Home Ownership and Equity Protection Act of
1994 and that none of the mortgage loans are "high cost" loans within the
meaning of such federal, state and local laws. In the event of a breach of any
such representations, the party specified in the related prospectus supplement
will be required to cure such breach or repurchase or replace the affected
mortgage loan. In addition, such party will be required to reimburse the related
trust fund for any damages or costs incurred by such trust fund as a result of a
breach of the representation as to compliance with federal, state and local
laws. However, if such party is unable to fulfill this reimbursement obligation
for financial or other reasons, shortfalls in the distributions due on your
securities could occur. See "Description of the Agreements--Material Terms of
the Pooling and Servicing Agreements and Underlying Servicing
Agreements--Representations and Warranties; Repurchases" and see "Certain Legal
Aspects of the Mortgage Loans" in this prospectus for other limitations on the
enforceability of mortgage loans.
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.
See "Certain Legal Aspects of the Contracts" in this prospectus for
other limitations on the enforceability of the home improvement contracts.
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.
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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.
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.
17
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.
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
18
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.
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.
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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.
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
20
supplement, the Unsecured Home Improvement Loans will be fully amortizing and
will bear interest at a fixed or variable annual percentage rate.
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
21
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.
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."
22
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
overcollateralization, excess interest, cross-support, a reserve fund, a
guarantee, a letter of credit, an insurance policy, a spread account 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."
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
23
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.
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.
24
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.
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.
25
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.
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
26
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.
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.
27
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.
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."
28
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 214 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.
29
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 "SENIOR 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
30
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.
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.
31
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
32
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.
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.
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
33
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 predetermined principal balance schedule derived by assuming two
as a "PAC")................................. constant prepayment rates for the underlying Assets. These two
rates are the endpoints for he "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.
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.
Super Senior Class............................. A Class of Senior Securities that will not bear its share of
certain losses or is not allocated certain losses
after the Classes of Subordinated Securities are
no longer outstanding and one or more specified
Classes of Senior Securities bear such losses.
Super Senior Support Class..................... A Class of Senior Securities that bears certain losses allocated
to one or more Classes of Senior Securities or is allocated
certain
34
losses while one or more Classes of Senior Securities
are not allocated losses.
Support Class (also sometimes A Class that is entitled to receive principal payments on any
referred to as a "COMPANION Distribution Date only if scheduled payments have been made on
CLASS")..................................... 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 predetermined principal balance schedule derived by assuming a
"TAC")...................................... 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.
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
35
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."
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
36
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;
(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;
37
(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;
(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
38
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.
DEFINITIVE FORM
If so specified in the related prospectus supplement, Securities of a
Series may be issued as 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
39
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.
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.
40
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 International, L-2967 Luxembourg ("CLEARSTREAM"), a
Luxembourg limited liability company, was formed in January 2000 through the
merger of Cedel International and Deutsche Boerse Clearing, the shareholders of
which comprise 93 of the of the world's major financial institutions.
Clearstream is registered as a bank in Luxembourg, and as such is
subject to regulation by 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 the Euroclear Operator in
Brussels to facilitate settlement of trades between systems. Clearstream
currently accepts over 200,000 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 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"). All operations are
conducted by the Euroclear Operator, and all Euroclear securities clearance
accounts and Euroclear cash accounts are accounts with the Euroclear Operator.
Euroclear plc 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.
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 Euroclear 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
41
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 Securityholder 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 if DTC 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 or under the circumstances
specified in the related prospectus supplement or as provided in the related
Pooling and Servicing Agreement. 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 Corporation, 214 North Tryon Street, Charlotte, North Carolina 28255,
Attention: Vice President.
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
43
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.
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
44
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.
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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
46
("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.
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;
(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
47
(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:
to make distributions to the Securityholders on each Distribution Date;
(i) 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;
(ii) 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;
(iii) 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;
(iv) 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;
(v) 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";
(vi) 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;
(vii) 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";
(viii) to pay a Servicer, as additional servicing
compensation, interest and investment income earned in respect of
amounts held in the Collection Account;
(ix) 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;
(x) 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
48
deed in lieu of foreclosure or otherwise, such payments to be made out
of income received on such property;
(xi) 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;
(xii) 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;
(xiii) to pay for the cost of various opinions of counsel
obtained pursuant to the applicable Agreement for the benefit of
Securityholders;
(xiv) 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;
(xv) 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;
(xvi) to make any other withdrawals permitted by the
applicable Agreement; and
(xvii) 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, subject to the terms and conditions of
the applicable agreement.
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
49
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."
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
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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 the close of the third
calendar year after the year of the acquisition of the property by the Trust
Fund 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.
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
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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.
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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
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transferring obligor. See "Certain Legal Aspects of the Contracts--Transfers of
Manufactured Homes; Enforceability of "Due-on-Sale" Clauses."
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, 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.
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.
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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 none of any Servicer, the
Depositor or 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 none of a Servicer, the Depositor or 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.
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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.
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
56
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 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.
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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 and all Securityholders. Upon receiving such notice of resignation, the
Depositor is required promptly to appoint a successor trustee acceptable to the
Servicer. 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 Servicer.
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 Corporation, 214 North Tryon Street, Charlotte, North Carolina 28255,
Attention: Vice President.
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
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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.
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
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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.
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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,
overcollateralization, excess interest, cross-support, 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.
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 a group thereof, overcollateralization which results from the
excess of the aggregate principal balance of the related Assets, or 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.
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EXCESS INTEREST
If specified in the related prospectus supplement, the Assets in a
Trust Fund may generate more interest than is necessary to pay the interest
earned on the Classes of Securities each month. The excess interest may be used
to maintain overcollateralization, to pay interest that was previously earned
but not paid to certain Classes of Securities and to reimburse certain Classes
of Securities for losses and certain shortfalls that they experienced
previously.
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 Assets prior to
distributions on Subordinate Securities evidencing interests in a different
group of Assets 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.
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.
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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.
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.
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,
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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.
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 Relief Act)
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
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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.
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.
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
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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
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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.
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
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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.
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
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the lender's lien against proceeds from the sale of the Cooperative apartment,
subject, however, to the Cooperative's right to sums due under such proprietary
lease or occupancy agreement. The total amount owed to the Cooperative by the
tenant-stockholder, which the lender generally cannot restrict and does not
monitor, could reduce the value of the collateral below the outstanding
principal balance of the Cooperative Loan and accrued and unpaid interest
thereon.
Recognition agreements also provide that in the event of a foreclosure
on a Cooperative Loan, the lender must obtain the approval or consent of the
Cooperative as required by the proprietary lease before transferring the
Cooperative shares or assigning the proprietary lease. 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.
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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.
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
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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.)
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.
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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.
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
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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.
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
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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.
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.
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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 premium 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.
PREPAYMENT PREMIUMS
Some state laws restrict the imposition of Prepayment Premiums and late
fees even when the mortgage loans expressly provide for the collection of those
charges. Although the Alternative Mortgage Transaction Parity Act of 1982 (the
"PARITY ACT"), permits the collection of Prepayment Premiums and late fees in
connection with some types of eligible mortgage loans preempting any contrary
state law prohibitions, some states may not recognize the preemptive authority
of the Parity Act or have formally opted out of the Parity Act. As a result, it
is possible that Prepayment Premiums and late fees may not be collected even on
loans that provide for the payment of those charges. The "OTS", the agency that
administers the Parity Act for unregulated, non-federally chartered housing
creditors, withdrew its favorable Parity Act regulations and Chief Counsel
Opinions that previously authorized state-chartered housing creditors to charge
Prepayment Premiums and late fees in certain circumstances notwithstanding
contrary state law, effective with respect to mortgage loans originated on or
after July 1, 2003. However, the OTS's ruling does not retroactively affect
mortgage loans originated by such entities before July 1, 2003.
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
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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.
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.
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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.
SERVICEMEMBERS CIVIL RELIEF ACT
Generally, under the terms of the Servicemembers Civil Relief Act (the
"RELIEF ACT"), a mortgagor who enters military service after the origination of
such mortgagor's Mortgage Loan, including a mortgagor who was in reserve status
and is called to active duty after origination of the Mortgage Loan, may not be
charged interest, including fees and charges, in excess of 6% per annum during
the period of the mortgagor's active duty status. In addition to adjusting the
interest, the lender must forgive any such interest in excess of 6%, unless a
court or administrative agency orders otherwise upon application of the lender.
Further, the Relief Act provides broad discretion for a court to modify a
mortgage loan upon application by the mortgagor. The Relief Act applies to
mortgagors who are members of the U.S. Armed Forces and officers of the U.S.
Public Health Service or the National Oceanic and Atmospheric Administration
assigned to duty with the military. The California Military and Veterans Code
(the "CALIFORNIA MILITARY CODE") provides protection substantially similar to
that provided by the Relief Act 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. In
addition, other 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. It is
possible that the Relief Act, the California Military Code or similar state law
could have an effect, for an indeterminate period of time, on the ability of the
Servicer to collect full amounts of interest on certain of the Mortgage Loans in
a Trust Fund. Any shortfall in interest collections resulting from the
application of the Relief Act, the California Military Code or similar state law
could result in losses to the holders of the Securities of the related Series.
Further, since the Relief Act, the California Military Code and similar state
law impose 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, 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.
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
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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.
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
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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.
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.
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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.
SERVICEMEMBERS CIVIL RELIEF ACT
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--Servicemembers Civil Relief Act."
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-
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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 LLP or Hunton & Williams LLP, 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
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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.
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.
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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 LLP or Hunton &
Williams LLP 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 under Code Sections 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."
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.
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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."
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
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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).
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
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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.
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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
91
(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.
Regular Securityholders that recognize a loss on a sale or exchange of
a Regular Security for federal income tax purposes in excess of certain
threshold amounts should consult their tax advisors as to the need to file IRS
Form 8886 (disclosing certain potential tax shelters) on their federal income
tax returns.
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
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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.
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. Regulations have been issued addressing
the federal income tax treatment of "inducement fees" received by transferees of
noneconomic residual interests. The regulations require inducement fees to be
included in income over a period reasonably related to the period in which a
Residual Security is expected to generate taxable income or net loss to its
holder. Under two proposed safe harbor methods, inducement fees are permitted to
be included in income: (i) in the same amounts and over the same period that the
holder uses for financial reporting purposes, provided that such period is not
shorter than the period the related REMIC is expected to generate taxable income
or (ii) ratably over the remaining anticipated weighted average life of all the
regular and residual interests issued by the related REMIC, determined based on
actual distributions projected as remaining to be made on such interests under
the applicable prepayment assumption. If a Residual Holder sells or otherwise
disposes of the residual interest, any unrecognized portion of the inducement
fee is required to be taken into account at the time of the sale or disposition.
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 "--
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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.
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.
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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.
There are 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.
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.
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
95
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.
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
96
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) 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."
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.
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
97
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.
The Residual Holder that recognize a loss on a sale or exchange of a
Residual Security for federal income tax purposes in excess of certain threshold
amounts should consult their tax advisors as to the need to file IRS Form 8886
(disclosing certain potential tax shelters) on their federal income tax returns.
Mark to Market Regulations
The IRS has 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.
98
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.
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
99
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 of (i) 3% of the excess, if
any, of adjusted gross income over a statutory threshold amount or (ii) 80% of
the amount of itemized deductions otherwise allowable for such year. These
limitations will be phased out and eliminated by 2010. 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
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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.
Final withholding regulations (the "WITHHOLDING REGULATIONS"),
effective January 2001, provide alternative methods of satisfying the beneficial
ownership certification requirement described above. The Withholding Regulations
provide for a new series of withholding certificates that must be used for all
payments after December 31, 2000. The Withholding 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 Withholding 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 28% (increasing to 31%
after 2010) 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 Withholding 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.
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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.
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. 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.
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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 a statutory threshold amount or (ii) 80% of the amount of itemized
deductions otherwise allowable for such year. These limitations will be phased
out and eliminated by 2010. 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 LLP or Hunton &
Williams LLP 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).
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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).
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 points 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.
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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.
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.
105
A Securityholder that recognize a loss on a sale or exchange of a
Standard Security for federal income tax purposes in excess of certain threshold
amounts should consult their tax advisors as to the need to file IRS Form 8886
(disclosing certain potential tax shelters) on their federal income tax returns.
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.
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
106
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.
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
107
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.
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
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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.
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 LLP or Hunton & Williams LLP 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
LLP or Hunton & Williams LLP will deliver its opinion that the Debt Securities
will be classified as indebtedness
109
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."
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
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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.
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
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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).
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 to the extent that 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.
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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.
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
113
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.
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 28% (increasing to 31% after 2010) 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.
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.
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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
115
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.
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 an Underwriter;
the "RESTRICTED GROUP" 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
116
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.
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
117
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.
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.
118
LEGAL INVESTMENT
As will be specified in the applicable prospectus supplement, certain
Classes of the Securities will 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. The appropriate characterization of those Securities not qualifying
as "mortgage related securities" for purposes of SMMEA ("NON-SMMEA SECURITIES")
under various legal investment restrictions, and thus the ability of investors
subject to these restrictions to purchase such Securities, may be subject to
significant interpretive uncertainties. Accordingly, all investors whose
investment activities are subject to legal investment laws and regulations,
regulatory capital requirements, or review by regulatory authorities should
consult with their own legal advisors in determining whether and to what extent
the Non-SMMEA Securities constitute legal investments for them.
Classes which qualify as "mortgage related securities" 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" secured by loans on residential, or
mixed residential and commercial properties, in most cases by requiring the
affected investors to rely solely upon existing state law, and not SMMEA.
Pursuant to Section 347 of the Riegle Community Development and Regulatory
Improvement Act of 1994, which amended the definition of "mortgage related
security" to include, in relevant part, Securities satisfying the rating and
qualified originator requirements for "mortgage related securities," but
evidencing interests in a Trust Fund consisting, in whole or in part, of first
liens on one or more parcels of real estate upon which are located one or more
commercial structures, states were authorized to enact legislation, on or before
September 23, 2001, specifically referring to Section 347 and prohibiting or
restricting the purchase, holding or investment by state-regulated entities in
those types of Securities. 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,"
other than stripped mortgage related securities (unless the credit union
complies with the requirements of 12 C.F.R. ss. 703.16(e) for investing in those
securities), residual interests in mortgage related securities and commercial
mortgage related securities, subject to compliance with general rules governing
investment policies and practices; however, credit unions approved for the
NCUA's "investment pilot program" under 12 C.F.R. ss. 703.19 may be able to
invest in those prohibited forms of securities. The OTS has issued Thrift
Bulletin 13a (December 1, 1998), " Management of Interest Rate Risk, Investment
Securities, and Derivative Activities" and Thrift Bulletin 73a (December 18,
2001), "Investing in Complex Securities," which thrift institutions subject to
the jurisdiction of the OTS should consider before investing in any of the
Offered Securities.
119
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.
Investors 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.
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
120
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 LLP, New York, New York
or Hunton & Williams LLP, 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").
Ratings on mortgage pass-through securities address the likelihood of
receipt by Securityholders of all distributions on the underlying mortgage
loans. These ratings address the structural, legal and issuer-related aspects
associated with such securities, the nature of the underlying assets and the
credit quality of the guarantor, if any. Ratings on mortgage pass-through
securities 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 securities 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.
121
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 and any other materials the
Depositor files with the Commission may be read and copied at the Commission's
Public Reference Room at 450 Fifth Street N.W., Washington, D.C. 20549.
Information concerning the operation of the Commission's Public Reference Room
may be obtained by calling the Commission at (800) SEC-0330. 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. Copies
of any documents incorporated to this prospectus by reference will be provided
at no cost to each person, including any beneficial owner, to whom a prospectus
is delivered upon written or oral request directed to Asset Backed Funding
Corporation, 214 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).
Copies of any documents incorporated to this prospectus by reference
will be provided at no cost to each person, including any beneficial owner, to
whom a prospectus is delivered upon written or oral request directed to Asset
Backed Funding Corporation, 214 North Tryon Street, Charlotte, North Carolina
28255, telephone number (704) 386-2400.
122
INDEX OF SIGNIFICANT DEFINITIONS
TERMS PAGE
- ----- ----
1998 Policy Statement.....................................................120
Accrual Period.............................................................24
Accrual Securities.........................................................30
Accrued Security Interest..................................................32
Adjustable Rate Assets.....................................................18
Agreement..................................................................43
ARM Contracts..............................................................21
ARM Loans..................................................................19
ARM Unsecured Home Improvement Loans.......................................21
Asset Conservation Act.....................................................74
Asset Group................................................................30
Asset Seller...............................................................17
Assets.....................................................................17
Available Distribution Amount..............................................31
Balloon Payment Assets.....................................................18
Banc of America Securities................................................120
Bankruptcy Code............................................................70
Bi-weekly Assets...........................................................18
Book-Entry Securities......................................................30
Buy Down Assets............................................................18
Buydown Funds..............................................................84
Buydown Mortgage Loans.....................................................26
Buydown Period.............................................................26
California Military Code...................................................77
Capitalized Interest Account...............................................22
Cash Flow Agreement........................................................23
Cede.......................................................................40
CERCLA.....................................................................73
Certificates...............................................................30
Class......................................................................30
Cleanup Costs..............................................................73
Clearstream................................................................41
Clearstream Participants...................................................41
Closing Date................................................................5
Code.......................................................................82
Collection Account.........................................................46
Commission.................................................................19
Companion Class............................................................35
Component..................................................................33
Contract Borrower..........................................................65
Contract Lender............................................................65
Contract Rate..............................................................22
Contracts..................................................................17
Convertible Assets.........................................................18
Cooperative................................................................64
Cooperative Loans..........................................................64
Cooperatives...............................................................19
Covered Trust..............................................................61
CPR........................................................................25
Credit Support.............................................................23
Cut-off Date...............................................................19
Cut-off Date................................................................5
Debt Securities............................................................82
Definitive Securities......................................................30
Deposit Trust Agreement....................................................43
Depositor..................................................................29
Depositories...............................................................42
Determination Date.........................................................30
Disqualified Organization..................................................96
Distribution Date..........................................................24
DOL.......................................................................115
DTC Participants...........................................................40
Due Period.................................................................31
EDGAR.....................................................................122
electing large partnership.................................................96
ERISA.....................................................................115
Euroclear..................................................................41
Euroclear Operator.........................................................41
Euroclear Participants.....................................................41
Excess Servicing..........................................................105
Exchange Act...............................................................40
Excluded Plan.............................................................116
Exemption.................................................................115
FASIT......................................................................82
FASIT Securities...........................................................82
FDIC.......................................................................46
FFIEC.....................................................................120
Fitch.....................................................................116
GEM Assets.................................................................18
GPM Assets.................................................................18
Grantor Trust Fund.........................................................82
Grantor Trust Securities...................................................82
Home Equity Loans..........................................................19
Home Improvement Contracts.................................................19
HOPA.......................................................................76
Increasing Payment Assets..................................................18
Indenture..................................................................43
Indenture Servicing Agreement..............................................43
Indenture Trustee..........................................................43
Indirect Participants......................................................40
Insurance Proceeds.........................................................31
Interest Reduction Assets..................................................18
IRS........................................................................51
Issuer......................................................................5
Land Sale Contracts........................................................19
Legal Investment............................................................8
Level Payment Assets.......................................................18
Liquidation Proceeds.......................................................31
Loan-to-Value Ratio........................................................19
Lock-out Date..............................................................20
Lock-out Period............................................................20
Manufactured Home..........................................................21
Mark to Market Regulations.................................................98
Master Servicer............................................................43
123
MERS.......................................................................44
Moody's...................................................................116
Mortgage Loans.............................................................17
Mortgage Notes.............................................................19
Mortgage Rate..............................................................20
Mortgaged Properties.......................................................18
Mortgages..................................................................19
Multifamily Mortgage Loan..................................................18
Multifamily Property.......................................................18
National Housing Act.......................................................20
NCUA......................................................................119
new partnership...........................................................111
Non-Equity Securities.....................................................117
Non-Pro Rata Security......................................................86
Nonrecoverable Advance.....................................................36
Non-SMMEA Securities......................................................119
Non-U.S. Person...........................................................101
Notes......................................................................30
OCC.......................................................................119
Offered Securities.........................................................30
OID Regulations............................................................82
old partnership...........................................................111
Originator.................................................................19
OTS........................................................................75
PAC........................................................................34
PAC I......................................................................34
PAC II.....................................................................34
Parity Act.................................................................75
Parties in Interest.......................................................115
Partnership Securities.....................................................82
Partnership Trust Fund.....................................................82
Pass-Through Entity........................................................96
Pass-Through Rate..........................................................32
PCBs.......................................................................73
Permitted Investments......................................................47
Plans.....................................................................115
PMI........................................................................76
Pooling and Servicing Agreement............................................43
Pre-Funded Amount..........................................................22
Pre-Funding Account........................................................22
Pre-Funding Period.........................................................22
Prepayment Assumption......................................................86
Prepayment Premium.........................................................20
PTCE......................................................................117
PTE.......................................................................115
Purchase Price.............................................................45
Rating Agency.............................................................121
RCRA.......................................................................73
Record Date................................................................30
Refinance Loans............................................................19
Registration Statement....................................................122
Regular Securities.........................................................83
Regular Securityholder.....................................................85
Related Proceeds...........................................................36
Relief Act.................................................................77
REMIC......................................................................82
REMIC Pool.................................................................82
REMIC Provisions...........................................................82
REMIC Regulations..........................................................82
REMIC Securities...........................................................82
REO Property...............................................................37
Residual Holders...........................................................92
Residual Securities........................................................83
Restricted Group..........................................................116
Retained Interest..........................................................54
Revolving Credit Line Loans................................................20
S&P.......................................................................116
SEC.......................................................................122
Secured-creditor exemption.................................................73
Securities.................................................................30
Security...................................................................43
Security Balance...........................................................25
Security Owners............................................................40
Securityholder.............................................................23
Senior Certificates........................................................30
Senior Notes...............................................................30
Senior Securities..........................................................30
Series.....................................................................30
Servicer....................................................................5
Servicers..................................................................43
Servicing Standard.........................................................49
Single Family Mortgage Loan................................................18
Single Family Property.....................................................18
SMMEA.....................................................................119
SPA........................................................................25
Special Servicer...........................................................55
Standard Securities.......................................................103
Startup Day................................................................83
Statistical Calculation Date................................................5
Step-up Rate Assets........................................................18
Strip Securities...........................................................30
Stripped Securities.......................................................106
Stripped Securityholder...................................................107
Subordinate Certificates...................................................30
Subordinate Securities.....................................................30
Subsequent Assets..........................................................22
Superliens.................................................................73
TAC........................................................................35
Taxable Mortgage Pools.....................................................82
Terms and Conditions.......................................................41
Texas Home Equity Laws.....................................................77
Tiered REMICs..............................................................85
TILA Amendment.............................................................72
Title V....................................................................75
Title VIII.................................................................76
Trust......................................................................30
Trust Fund.................................................................30
Trustee....................................................................43
U.S. Person................................................................97
UCC........................................................................40
Underlying Servicing Agreement.............................................43
Underwriter...............................................................116
124
Unsecured Home Improvement Loans...........................................17
UST........................................................................73
Value......................................................................19
Voting Rights..............................................................56
Warranting Party...........................................................45
Withholding Regulations...................................................101
125
$1,380,139,000
(APPROXIMATE)
ASSET BACKED FUNDING CORPORATION
DEPOSITOR
BANK OF AMERICA, NATIONAL ASSOCIATION
SELLER
COUNTRYWIDE HOME LOANS SERVICING LP
SERVICER
FIRST FRANKLIN MORTGAGE LOAN TRUST 2004-FF10
ASSET-BACKED CERTIFICATES, SERIES 2004-FF10
------------------
PROSPECTUS SUPPLEMENT
------------------
BANC OF AMERICA SECURITIES LLC
COUNTRYWIDE SECURITIES CORPORATION
BLAYLOCK & PARTNERS, L.P.
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 First Franklin Mortgage Loan Trust 2004-FF10,
Asset-Backed Certificates, Series 2004-FF10 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 First Franklin Mortgage Loan Trust 2004-FF10, Asset-Backed
Certificates, Series 2004-FF10 and with respect to their unsold allotments or
subscriptions. In addition, all dealers selling the First Franklin Mortgage Loan
Trust 2004-FF10, Asset-Backed Certificates, Series 2004-FF10 will be required to
deliver a Prospectus Supplement and Prospectus for ninety days following the
date of this Prospectus Supplement.
October 18, 2004