<PAGE>
PROSPECTUS SUPPLEMENT DATED MARCH 15, 2000
(TO PROSPECTUS DATED JANUARY 27, 2000)
$337,375,000 (Approximate)
First Franklin Mortgage Loan Asset Backed Certificates,
Series 2000-FF1
First Franklin Financial Corporation,
Mortgage Loan Originator
Merrill Lynch Mortgage Investors, Inc.
Depositor
Merrill Lynch Mortgage Investors, Inc. is offering to sell the following
Certificates:
------------------------------------------------------------------------------
Initial
Certificate Pass-Through Price to Underwriting Proceeds to
Class Balance Rate Public Discount Depositor
------------------------------------------------------------------------------
A-1 $293,481,000.00 variable 100.000000% 0.20% 99.800000%
-------------------------------------------------------------------------------
M-1 $15,492,000.00 variable 100.000000% 0.20% 99.800000%
-------------------------------------------------------------------------------
M-2 14,631,000.00 variable 100.000000% 0.20% 99.800000%
-------------------------------------------------------------------------------
B 13,771,000.00 variable 100.000000% 0.20% 99.800000%
-------------------------------------------------------------------------------
Total 337,375,000.00 $337,375,000.00 $674,750.00 $336,700,250.00
-------------------------------------------------------------------------------
(1) Plus or minus 5%.
The Certificates represent interests in a pool of conventional,
adjustable-rate, one- to four-family, first lien mortgage loans having original
terms to maturity of 30 years. First Franklin Financial Corporation originated
or acquired the mortgage loans in the ordinary course of its business.
The trustee will make distributions on the Certificates to you on the 20th
day of each month or, if the 20th is not a business day, on the next business
day, beginning in April 2000. You will earn interest on your Certificate from
the previous distribution date (or, in the case of the first distribution date,
from the date the Certificates are issued) through the day before such
distribution date. Your interest will be based on a 360-day year and the actual
number of days since you last received interest, and will be based on the
then-outstanding principal balance of your Certificate and the then-applicable
interest rate.
You will receive payments on the Certificates only from payments received
on the mortgage loans. No entity has any obligation to make payments on the
Certificates from its own funds. Neither the Certificates nor the mortgage loans
are insured or guaranteed by any governmental agency or instrumentality.
- ----------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
The Attorney General of the State of New York has not passed on or endorsed the
merits of this offering. Any representation to the contrary is unlawful.
Before buying these Certificates, you should consider the factors set
forth under "Risk Factors" beginning on page S-[_] of the Prospectus Supplement.
---------------------
Merrill Lynch & Co.
---------------------
<PAGE>
Important notice about information presented in this Prospectus
Supplement and the accompanying Prospectus
We tell you about the certificates in two separate documents that
progressively provide more detail; (a) the accompanying Prospectus, which
provides general information, some of which may not apply to a particular series
of securities, including your series; and (b) this Prospectus Supplement, which
describes the specific terms of your series of securities.
If the terms of your series of certificates vary between this Prospectus
Supplement and the Prospectus, you should rely on the information in this
Prospectus Supplement.
We include cross-references in this Prospectus Supplement and in the
accompanying Prospectus to captions in these materials where you can find
further related discussions. The following Table of Contents and the Table of
Contents included in the accompanying Prospectus provide the pages on which
these captions can be found.
You can find a listing of the pages where capitalized terms used in this
Prospectus Supplement are defined under the caption "Index of Principal
Definitions" beginning on page S-56 in this Prospectus Supplement and under the
caption "Index of Defined Terms" beginning on page 102 in the accompanying
Prospectus.
---------------------
S-2
<PAGE>
Table of Contents
Page
----
SUMMARY OF PROSPECTUS SUPPLEMENT........................................... S-4
Title of Series....................................................... S-4
The Certificates...................................................... S-4
Depositor of Mortgage Loans........................................... S-4
Mortgage Loan Originator.............................................. S-4
Servicer.............................................................. S-4
Trustee............................................................... S-4
Cut-off Date.......................................................... S-4
Closing Date.......................................................... S-4
Final Scheduled Distribution Date..................................... S-5
The Mortgage Pool..................................................... S-6
Distributions - General............................................... S-7
Interest Distributions................................................ S-7
Pass-Through Rates.................................................... S-7
Principal Distributions............................................... S-7
Credit Enhancement.................................................... S-8
Subordination..................................................... S-8
Application of Realized Losses.................................... S-8
Overcollateralization............................................. S-8
Monthly Excess Cash Flow.......................................... S-8
Optional Termination.................................................. S-8
Certain Federal Income Tax Consequences............................... S-9
Ratings............................................................... S-9
Legal Investment...................................................... S-9
ERISA Considerations.................................................. S-9
RISK FACTORS...............................................................S-10
Subordination.........................................................S-10
Underwriting Standards and Limited Operating History..................S-10
Geographic Concentration..............................................S-10
Limited Market in Which to Resell Certificates........................S-10
Limited Availability to Resell Book-Entry Registration
Certificates..........................................................S-11
Receipt of Distributions May be Delayed Because of
Book-Entry Registration...............................................S-11
Certificates Are not Obligations of Any Entity........................S-11
Yield Considerations..................................................S-11
THE MORTGAGE LOAN ORIGINATOR...............................................S-11
THE MORTGAGE POOL..........................................................S-12
General...........................................................S-12
Statistical Information...........................................S-13
The Index.........................................................S-17
Underwriting Standards; Representation............................S-17
YIELD ON THE CERTIFICATE...................................................S-23
Certain Shortfalls in Collections of Interest.....................S-23
General Prepayment Considerations.................................S-23
Special Yield Considerations with Respect to the
Mortgage Loans....................................................S-25
The Subordinated Certificates.....................................S-25
Weighted Average Lives............................................S-26
Final Scheduled Distribution Date.................................S-32
DESCRIPTION OF THE CERTIFICATES............................................S-32
General...........................................................S-32
Book Entry Registration and Definitive Certificates...............S-33
Calculation of One-Month LIBOR....................................S-36
Interest Distributions............................................S-36
Pass-Through Rates................................................S-37
Principal Distributions...........................................S-38
Credit Enhancement................................................S-41
Allocation of Losses..............................................S-42
Application of Monthly Excess Cash Flow Amounts...................S-42
Monthly Advances..................................................S-44
POOLING AND SERVICING AGREEMENT............................................S-45
General...........................................................S-45
Assignment of the Mortgage Loans..................................S-45
The Servicer......................................................S-45
The Trustee.......................................................S-48
Servicing and Other Compensation and Payment of Expenses..........S-48
Pledge and Assignment of Servicer's Rights........................S-48
Voting Rights.....................................................S-49
Termination.......................................................S-49
CERTAIN FEDERAL INCOME TAX CONSEQUENCES....................................S-49
General...........................................................S-49
Taxation of Regular Interests.....................................S-50
USE OF PROCEEDS............................................................S-52
UNDERWRITING...............................................................S-52
LEGAL.MATTERS..............................................................S-52
RATINGS....................................................................S-52
LEGAL INVESTMENT...........................................................S-53
ERISA CONSIDERATIONS....................................................S-53
INDEX OF PRINCIPAL DEFINITIONS..........................................S-56
S-3
<PAGE>
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 Prospectus and Prospectus
Supplement carefully before you decide to purchase a Certificate. If capitalized
terms are not defined in this Summary, they are defined in the Prospectus.
<TABLE>
<S> <C>
Title of Series....................First Franklin Mortgage Loan Asset Backed
Certificates, Series 2000-FF1.
The Certificates...................The Class A, Class M-1, Class M-2, Class B,
Class BB, Class X and Class R Certificates are
the entire ownership interest in a trust fund
which is composed primarily of first lien
mortgage loans. The trust will issue the
Certificates pursuant to a Pooling and Servicing
Agreement among Merrill Lynch Mortgage
Investors, Inc., Litton Loan Servicing LP and
The Chase Manhattan Bank. Merrill Lynch
Mortgage Investors, Inc. is offering to sell
the Class A, Class M-1, Class M-2 and Class B
Certificates but not the Class BB, Class X and
Class R Certificates. The trust is offering
each class of Certificates as book-entry
securities clearing through DTC (in the United
States) or Clearstream, Luxembourg or Euroclear
(in Europe). See "Description of the
Certificates - Book-Entry Registration and
Definitive Certificates" in the Prospectus
Supplement.
Depositor of Mortgage Loans........Merrill Lynch Mortgage Investors, Inc. will
deposit the mortgage loans in the trust fund.
The Depositor is a Delaware corporation and a
wholly-owned, limited purpose subsidiary of
Merrill Lynch Mortgage Capital Inc., which is a
wholly owned indirect subsidiary of Merrill
Lynch & Co., Inc. The Depositor is an affiliate
of the Underwriter.
Mortgage Loan Originator...........First Franklin Financial Corporation, a Delaware
corporation, originated or acquired the
Mortgage Loans generally in accordance with
the underwriting standards described in "The
Mortgage Pool - Underwriting Standards" in
the Prospectus Supplement.
Servicer...........................Litton Loan Servicing LP will service the
mortgage loans for an annual servicing fee,
payable monthly, of 0.50% of the total principal
balance of the mortgage loans. The Servicer must
advance delinquent payments of principal and
interest on the mortgage loans, subject to
certain limitations. The Servicer will also be
entitled to a special servicing fee with respect
to seriously delinquent mortgage loans. See
"Description of the Certificates--Monthly
Advances" in the Prospectus Supplement and
"Description of the Certificates--Advances in
Respect of Delinquencies" in the Prospectus.
Trustee............................The.Chase Manhattan Bank, a New York banking
corporation.
Cut-off Date.......................The close of business on March 1, 2000.
Closing Date.......................On or about March 20, 2000.
</TABLE>
S-4
<PAGE>
<TABLE>
<S> <C>
Final Scheduled Distribution
Dates..............................The Final Scheduled Distribution Date for each Class
of offered Certificates is set forth below:
Class A January 20, 2030
Class M-1 March 1, 2031
Class M-2 March 1, 2031
Class B March 1, 2031
Each such Final Scheduled Distribution Date
has been calculated as described under
"Yield on the Certificates--Final Scheduled
Distribution Dates" in the Prospectus
Supplement.
</TABLE>
S-5
<PAGE>
<TABLE>
<S> <C>
The Mortgage Pool......The following table shows the characteristics of the
mortgage loans (percentages are based on the aggregate
principal balance as of March 1, 2000)
Aggregate Current Principal Balance $344,259,896
Average Current Principal Balance $128,359
Range of Current Principal Balance $21,695 - $595,241
Average Original Principal Balance $128,571
Range of Original Principal Balance $23,200 - $596,250
Prepayment Penalties 96.96%
Product
Six Month LIBOR 0.05%
1/29 LIBOR 0.10%
2/28 LIBOR 86.56%
3/27 LIBOR 13.30%
Mortgage Interest Rates
Weighted Average By Type of Index
Six Month LIBOR 10.435%
1/29 LIBOR 10.641%
2/28 LIBOR 9.424%
3/27 LIBOR 9.039%
Gross Margin
Weighted Average By Type of Index
Six Month LIBOR 6.322%
1/29 LIBOR 6.641%
2/28 LIBOR 4.837%
3/27 LIBOR 4.229%
Current Weighted Average Mortgage Interest Rate 9.375%
Range of Current Mortgage Interest Rates 7.125% - 14.375%
Weighted Average Gross Margin 4.759%
Range of Gross Margins 3.000% - 12.750%
Weighted Average Maximum Lifetime Mortgage 15.375%
Interest Rate
Range of Maximum Lifetime Mortgage Interest 13.125% - 20.375%
Rates
Weighted Average Lifetime Minimum Mortgage
Interest Rate 9.375%
Range of Minimum Lifetime Mortgage Interest
Rates 7.125% - 14.375%
Weighted Average Loan-to-Value Ratio 79.58%
Weighted Average Original Amortization Term 360 months
Weighted Average Remaining Amortization Term 358 months
Weighted Average Initial Periodic Cap 3.000%
Range of Initial Periodic Caps 1.000% - 6.000%
Weighted Average Periodic Cap 1.000%
Weighted Average Months to Interest Roll 23 months
Range of Months to Interest Roll 4 month - 34 months
Weighted Average Interest Roll Frequency 6 months
Weighted Average Credit Bureau Risk Score* 649
Range of Credit Bureau Risk Scores** 504 - 803
Mortgaged Premises
Single-family dwellings 73.98%
Planned unit developments 17.65%
Condominiums 5.31%
Two-to-four family dwellings 2.65%
Manufactured Homes 0.42%
Max Zip Code Concentration (%) 0.76%
Max Zip Code Concentration (zip) 93065
Geographic Concentration (above 5% of pool) CA 45.81%
</TABLE>
* This number represents a weighted average based on
96.18% of the pool from the Direct Access Program
**Range of FICO Scores from loans originated under the
Direct Access Program only
S-6
<PAGE>
The interest rate and monthly payment on each mortgage
loan adjusts every six months, except that the first
adjustment date for approximately 0.10% of the Mortgage
Loans will be one year from the origination date of such
loan, the first adjustment date for approximately 86.56%
of the mortgage loans will be two years from the
origination of such loan and the first adjustment date
for approximately 13.30% of the mortgage loans will be
three years from the origination of such loan. The new
interest rate is the sum of six-month LIBOR and a fixed
margin. None of the Mortgage Loans will negatively
amortize or convert from an adjustable rate to a fixed
rate. See "The Mortgage Pool" in the Prospectus
Supplement for more information about the mortgage loans.
Distributions--
General...............The distribution date will be the 20th day of each
month or, if such day is not a business day, the next
business day, beginning in April 2000. Distributions will
generally include payments made on the mortgage loans
during the related Collection Period. The Collection
Period for the distribution date in April 2000 will be
from March 2 to April 1, 2000.
Interest
Distributions.........On each distribution date, you will be entitled to
receive interest earned since the previous distribution
date on your Certificate at the Pass-Through Rate and any
interest which you earned previously but which you did
not receive. There are certain circumstances which could
reduce the amount of interest paid to you. See
"Description of the Certificates - Interest Distributions
on the Certificates" in the Prospectus Supplement.
Pass-Through Rates.....The pass-through rate on your Certificate on each
distribution date will be a per annum rate equal to the
lower of the following two options:
o the sum of one-month LIBOR, which is a floating
interest rate, plus the following fixed number of
basis points:
Basis
Class Points
----- ------
A 30
M-1 55
M-2 100
B 200
o the percentage obtained by dividing (A) the total
amount of interest which should have been received on
the mortgage loans at the weighted average mortgage
rate minus the trustee and servicer fee rate by (B)
the product of (1) the total principal balance of all
the Certificates, and (2) the number of days since the
last distribution date divided by 360.
If on any distribution date, the Pass-Through Rate is
limited by the second option listed above, you will be
entitled to receive the excess of (i) the interest
distributable had the pass-through rate been based on the
first option listed above (but not more than the weighted
average maximum mortgage rate on the mortgage loans minus
the trustee and servicer fees) over (ii) the interest
actually distributed on such distribution date based on
the second option listed above. This additional amount of
interest is called the LIBOR Shortfall.
Principal
Distributions..........On each distribution date, you will receive a
distribution of principal if there is cash available on
that date for your class of Certificate. You should
review the priority of payments described under
"Description of the Certificates - Principal
Distributions on the Certificates" in the Prospectus
Supplement.
S-7
<PAGE>
Credit Enhancement.....Credit enhancements reduce the harm caused holders of
Certificates by shortfalls in payments received on the
mortgage loans. They can reduce the effect of shortfalls
on all classes, or they can allocate shortfalls so they
affect some classes before others. This transaction
employs the following four forms of credit enhancement.
See "Description of the Certificates - Credit
Enhancement" in the Prospectus Supplement.
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 is not enough
money 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 date, the
total principal balance of the Certificates is greater
than the total principal balance of the mortgage loans,
the principal balance of the Certificates that are lower
in order of payment priority will be reduced by the
amount of such excess.
Overcollateralization. Although the total principal
balance of the mortgage loans is approximately
$344,259,896, the trust is issuing only $337,375,000
total principal amount of Certificates. The remaining
2.00% of the total principal balance of the mortgage
loans will absorb losses on the mortgage loans before
such losses affect the Certificates. If the level of
overcollateralization falls below what is required, the
excess interest described in the next section 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 so that the required level of
overcollateralization is reached.
Monthly Excess Cashflow. Because more interest is paid by
the borrowers than is necessary to pay the interest
earned on the Certificates , there will be excess
interest each month. Some of the excess interest will be
used to pay interest on Certificates that was previously
earned but not paid, and some of the excess interest will
be used to reimburse Certificates for losses that they
experienced previously.
Optional Termination...The owner of the Class X Certificate has the option (or
if the owner of the Class X Certificate does not exercise
such option, the Servicer has the option) to purchase all
the mortgage loans and any properties that the trust
acquired in satisfaction of any of the mortgage loans.
This option can be exercised only when the total
principal balance of the mortgage loans, including the
mortgage loans related to the properties which the
trustee has acquired, is 10% or less than the total
principal balance of the mortgage loans on the cut-off
date. If the option is exercised, your Certificate will
be retired early and you will be entitled to the
following amounts:
o the outstanding principal balance of your Certificate;
o one month's interest on such balance at the
Pass-through Rate;
o any interest previously earned but not paid; and
o any LIBOR Shortfall 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
"Pooling and Servicing Agreement - Termination" in the
Prospectus Supplement.
S-8
<PAGE>
Certain Federal
Income Tax
Consequences......... The trustee will elect to treat the assets of the Trust
Fund as comprising several real estate mortgage
investment conduits, or REMICs, for federal income tax
purposes. In addition, under the terms of your
Certificate, you have the right to receive certain
payments that will not be treated as having been paid by
a REMIC. For federal income tax purposes, the trustee
will treat that right as the right to receive payments
under an interest rate cap contract.
For federal income tax reporting purposes, the offered
Certificates will not be treated as having been issued
with original issue discount.
For further information regarding the federal income tax
consequences of investing in the offered Certificates,
see "Certain Federal Income Tax Consequences" in the
Prospectus Supplement and in the Prospectus.
Ratings............... The trust will not issue the Certificates unless they
receive the respective ratings set forth below from
Standard & Poor's Rating Services, a division of The
McGraw-Hill Companies, Inc. and Fitch IBCA, Inc.:
Class Standard & Poor's Fitch
----- ----------------- -----
A AAA AAA
M-1 AA AA
M-2 A A
B BBB BBB
The rating on the Certificates indicates the likelihood
that you will receive all funds to which you are entitled
by the terms of the Certificates. 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
frequency of prepayments on the mortgage loans or the
effect of such prepayments on your yield. The ratings
also do not address the likelihood of the payment of any
LIBOR Shortfall. See "Yield on the Certificates" and
"Ratings" in the Prospectus Supplement and "Yield
Considerations" in the Prospectus.
Legal Investment...... You should consult with your lawyer to see if you are
permitted to buy the offered Certificates since the legal
investment rules vary depending on what kind of entity
you are and who regulates you. The Class A and Class M-1
Certificates will be "mortgage related securities" for
purposes of the Secondary Mortgage Market Enhancement Act
of 1984 so long as they are rated in one of the two
highest rating categories by at least one rating agency.
The Class M-2 and Class B Certificates will not be
"mortgage related securities" for purposes of SMMEA. See
"Legal Investment" in the 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 you should
review carefully with your lawyer whether you can buy or
hold an offered Certificate. See "ERISA Considerations"
in the Prospectus Supplement and in the Prospectus.
S-9
<PAGE>
RISK FACTORS
In addition to the matters described elsewhere in this Prospectus
Supplement and the Prospectus, you should carefully consider the following risk
factors before deciding to purchase a Certificate.
Subordination
If you buy a Class M-1, Class M-2 or Class B Certificate, you will not
receive any payments on your Certificate until the holders of the Class A
Certificates have received all payments to which they are entitled.
Additionally, payments on the Class M-2 Certificates will be subordinate to
payments on the Class M-1 Certificates and payments on the Class B Certificates
will be subordinate to payments on the Class M-1 and Class M-2 Certificates. As
a result, the yield on your subordinated Certificate will be sensitive to losses
on the mortgage loans. This sensitivity increases with the subordination of a
Certificate, so that the yield on the Class B Certificate is the most sensitive.
You should carefully consider the risk that you may lose all or a part of the
money that you paid for the subordinated Certificate if losses are greater than
expected.
If you buy a subordinated Certificate you will not receive any principal
distributions until April 2003 at the earliest, unless the Class A Certificates
have been paid down to zero before that date. As a result, your subordinated
Certificate will be outstanding longer than would be the case if principal were
distributed on a proportionate basis among the Class A Certificates and the
subordinated Certificates. Because your subordinated Certificate is outstanding
longer, there is a greater period of time during which losses on the mortgage
loans will affect your subordinated Certificate. Therefore the risk that you
will lose all or part of the money you paid for the Certificate also increases.
Underwriting Standards and Limited Operating History of the Mortgage Loan
Originator
Until late 1994, the Mortgage Loan Originator originated and purchased
mortgage loans made only to borrowers with "A" quality credit histories. Since
that time, the Mortgage Loan Originator has focused its activities on
originating and purchasing mortgage loans that are ineligible for purchase by
FNMA or FHLMC due to characteristics that do not meet FNMA or FHLMC underwriting
guidelines. These loans include a loan made to a borrower whose creditworthiness
and repayment ability do not satisfy such FNMA and FHLMC underwriting guidelines
or a borrower who may have a record of major derogatory credit items such as
default on a prior mortgage loan, credit write-offs, outstanding judgments or
prior bankruptcies. As a result of this approach to underwriting, the mortgage
loans in the trust fund may experience higher rates of delinquencies, defaults
and foreclosures than mortgage loans underwritten in a more traditional manner.
In addition, changes in the values of the mortgaged properties may have a
greater effect on the delinquency, foreclosure, bankruptcy and loss experience
of the mortgage loans than on mortgage loans originated to conform to FNMA or
FHLMC guidelines.
Geographic Concentration
Mortgaged Properties located in the State of California secure
approximately 45.81% of the mortgage loans by aggregate principal balance as of
the Cut-off Date. This geographic concentration might magnify the effect on the
mortgage pool of adverse economic conditions in California and might increase
the rate of delinquencies, defaults and losses on the mortgage loans more than
would be the case if the Mortgaged Properties were more geographically
diversified. See "The Mortgage Pool--Underwriting Standards; Representations" in
the Prospectus Supplement.
Limited Market in which to Resell Certificates
The underwriter may assist in resales of the Certificates, but it is under
no obligation to do so. A secondary market for the Certificates may not develop.
If a secondary market does develop, it might not continue or it might not be
sufficiently liquid to allow you to resell your Certificate.
S-10
<PAGE>
Limited Ability To Resell Book-Entry Registration Certificates
Since the Certificates are being offered as book-entry securities, you may
have difficulty selling, pledging or otherwise taking action with your
Certificate since some potential buyers may not want to buy a security for which
they cannot receive a physical Certificate and some potential buyers may not
participate in the DTC, Clearstream, Luxembourg or Euroclear systems. See
"Description of the Certificates--Book-Entry Registration and Definitive
Certificates" in the Prospectus Supplement.
Receipt Of Distributions May Be Delayed Because of Book-Entry Registration
You may experience some delay in your receipt of distributions of interest
and principal on Certificates since such distributions will be forwarded by the
Trustee to DTC and DTC will credit such distributions to the accounts of its
participants which will thereafter credit them to your account. See "Description
of the Certificates--Book-Entry Registration and Definitive Certificates" in the
Prospectus Supplement.
Certificates Are Not Obligations of Any Entity
The offered Certificates will not represent an interest in or obligation
of any entity except for the obligations of the Depositor and of the Mortgage
Loan Originator pursuant to certain limited representations and warranties made
with respect to the mortgage loans and of the Servicer with respect to its
servicing obligations under the Pooling and Servicing Agreement (including the
limited obligation to make certain monthly advances). Neither the Certificates
nor the underlying mortgage loans will be guaranteed or insured by any
governmental agency or instrumentality. Proceeds of the assets included in the
Trust Fund (including the mortgage loans) will be the sole source of payments on
the offered Certificates. You will not be able to receive money from any entity
in the event that such proceeds are not enough to make all payments provided for
under the offered Certificates.
Yield Considerations
Because the interest rates on the mortgage loans are based on the Index
while the Pass-Through Rates on the offered Certificates are based in part on
One-Month LIBOR and because the first adjustment date of many of the mortgage
loans is more than six months after origination, one or more Pass-Through Rates
may be limited by the Available Fund Pass-Through Rate. Although you are
entitled to receive, to the extent funds are available, any related LIBOR
Shortfall, such funds might not be available or, if available, might not be
sufficient. The ratings of the Offered Certificates do not address the
likelihood of the payment of any LIBOR Shortfall.
Also, because the interest rates on the mortgage loans are based on the
addition of a fixed number of basis points to the Index, the resulting rates
could be higher than market interest rates. If they are higher, prepayments may
increase as borrowers refinance their mortgage loans at the lower rate.
THE MORTGAGE LOAN ORIGINATOR
First Franklin Financial Corporation is a Delaware corporation
headquartered in San Jose, California (the "Mortgage Loan Originator"). The
information set forth in the following paragraphs has been provided by the
Mortgage Loan Originator and neither the Depositor nor any other party makes any
representation as to the accuracy or completeness of such information.
The Mortgage Loan Originator is a direct, wholly-owned subsidiary of First
Franklin Financial Companies, Inc. First Franklin Financial Companies is a
financial services holding company, a wholly-owned subsidiary of National City
Corporation. At October 31, 1999, the Mortgage Loan Originator had approximately
$881.38 million in assets, approximately $566.23 million in liabilities and
approximately $315.15 million in equity.
The Mortgage Loan Originator is a HUD-approved mortgagee and an approved
seller/servicer by both FNMA and FHLMC. It currently operates twenty four
wholesale branches and one retail branch in the United States including offices
in Atlanta, GA; Baltimore, MD; Bellevue, WA; Boston, MA; Chicago, IL;
Cincinnati, OH; Denver,
S-11
<PAGE>
CO; Detroit, MI; Ft. Lauderdale, FL; Dallas, Houston, TX; Las Vegas, NV;
Orlando, FL; Portland, OR; Phoenix, AZ; Salt Lake City, UT; and Irvine, Laguna
Hills, San Bernardino, San Diego, San Jose, Studio City, Walnut Creek, and
Westlake Village, CA. The Mortgage Loan Originator's primary source of
originations is through mortgage brokerage companies.
Founded in 1981, the Mortgage Loan 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 Mortgage Loan Originator
focused primarily on originating and purchasing Agency mortgage loans. Agency
origination volume peaked in 1993 at over $3.5 billion.
In 1994, the Mortgage Loan 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 the ten
months ended October 31, 1999, originations totaled more than $52.02 million and
$3.565 billion of Retail and Wholesale non-Agency mortgage loans, respectively.
THE MORTGAGE POOL
General
The Mortgage Pool will consist of conventional, one- to four-family,
adjustable-rate Mortgage Loans secured by first liens on residential real
properties (the "Mortgaged Properties"). The Mortgage Loans have original terms
to maturity of 30 years. The Mortgage Loans will consist of approximately 2,682
Mortgage Loans having an aggregate principal balance as of the Cut-off Date of
approximately $344,259,896, after application of payments of principal due on or
before the Cut-off Date (whether or not received).
The Mortgage Loans are secured by mortgages or deeds of trust or other
similar security instruments creating first liens on one- to four-family
residential properties consisting of detached or semi-detached one- to
four-family dwelling units, townhouses, individual condominium units and
individual units in planned unit developments and manufactured housing. The
Mortgage Loans to be included in the Mortgage Pool were acquired by the
Depositor from Merrill Lynch Mortgage Capital, Inc., an affiliate, which
acquired them from the Mortgage Loan Originator. See "--Underwriting Standards;
Representations" herein.
All of the Mortgage Loans have scheduled monthly payments due on the first
day of the month (with respect to each Mortgage Loan, a "Due Date"). Each
Mortgage Loan is assumable upon transfer or sale of the Mortgaged Property by
the related mortgagor if the purchaser or transferee meets the then current
credit requirements of the Mortgage Loan Originator.
Approximately 96.96% of the Mortgage Loans provide for payment by the
mortgagor of a prepayment charge in limited circumstances on certain
prepayments. Generally, each such Mortgage Loan provides for payment of a
prepayment charge on certain partial prepayments and all prepayments in full
made within one year, two years, three years or four years from the date of
origination of such Mortgage Loan. The amount of the prepayment charge is as
provided in the related Mortgage Note and generally equals six months' interest
on the amount of the prepayment in excess of 20% of the original principal
amount of the loan. Any prepayment charges received on the Mortgage Loans will
not be available for distribution on the Offered Certificates.
Each Mortgage Loan provides for semiannual adjustment to the Mortgage 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"); provided, however, that in the case of
approximately 0.10% of the Mortgage Loans (each a "one year Delayed First
Adjustment Date Mortgage Loan"), the first Adjustment Date for each such
Mortgage Loan will occur after an initial period of one year from the
origination thereof; in the case of approximately 86.56% of the Mortgage Loans
(each a "two year Delayed First Adjustment Date Mortgage Loan"), the first
Adjustment Date for each such Mortgage Loan will occur after an initial period
of two years from the origination thereof; and in the case of approximately
13.30% of the Mortgage Loans (each a
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<PAGE>
"three year Delayed First Adjustment Date Mortgage Loan"), the first Adjustment
Date for each such Mortgage Loan will occur after an initial period of three
years from the origination thereof. On each Adjustment Date for each Mortgage
Loan, the Mortgage Rate thereon will be adjusted to equal the sum, rounded to
the nearest multiple of 0.125%, of the Index (as described below) and a fixed
percentage amount (the "Gross Margin"); provided, however, that the Mortgage
Rate on each such Mortgage Loan generally will not increase or decrease by more
than 100 basis points on any related Adjustment Date other than on the first
Adjustment Date (the "Periodic Rate Cap") and will not exceed a specified
maximum Mortgage Rate over the life of such Mortgage Loan (the "Maximum Mortgage
Rate") or be less than a specified minimum Mortgage Rate over the life of such
Mortgage Loan (the "Minimum Mortgage Rate"). In general, the one year Delayed
First Adjustment Date Mortgage Loans have a Periodic Rate Cap of 200 basis
points for their first Adjustment Date, the two year Delayed First Adjustment
Date Mortgage Loans have a Periodic Rate Cap of 300 basis points for their First
Adjustment Date and the three year Delayed First Adjustment Date Mortgage Loans
have a Periodic Rate Cap of 300 basis points for their first Adjustment Date,
while each have subsequent Periodic Rate Caps of 100 basis points for each
Adjustment Date thereafter and have a Minimum Mortgage Rate equal to the related
initial Mortgage Rate. 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 Rate as so adjusted. None of the Mortgage
Loans permits the related mortgagor to convert the adjustable Mortgage Rate
thereon to a fixed Mortgage Rate.
Statistical Information
Set forth below is certain summary statistical information regarding the
Mortgage Loans expected to be included in the Trust Fund as of the Closing Date.
All such information is approximate and is given as of the Cut-off Date. Prior
to the Closing Date, Mortgage Loans may be removed from the Trust Fund and other
Mortgage Loans may be substituted therefor. In addition, Mortgage Loans may be
prepaid at any time. As a result, certain characteristics of the Mortgage Loans
in the Trust Fund may vary from the characteristics set forth below as of the
Cut-off Date.
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<PAGE>
Principal Balances at Origination
Aggregate
Principal
Balance
Outstanding % of Aggregate
Number as of Current
Range of Origination Date of the Cut-off Principal
Principal Balances Loans Date* Balance
- --------------------------- ------- ----------- -------------
$ 0.01 - 25,000.00 4 $ 97,113 0.03%
25,000.01 - 50,000.00 188 7,728,727 2.25
50,000.01 - 75,000.00 456 28,640,137 8.32
75,000.01 - 100,000.00 522 45,692,371 13.27
100,000.01 - 125,000.00 424 47,513,405 13.80
125,000.01 - 150,000.00 334 45,597,075 13.24
150,000.01 - 175,000.00 196 31,714,056 9.21
175,000.01 - 200,000.00 175 32,766,515 9.52
200,000.01 - 225,000.00 112 23,773,223 6.91
225,000.01 - 250,000.00 74 17,608,274 5.11
250,000.01 - 275,000.00 62 16,240,324 4.72
275,000.01 - 300,000.00 43 12,392,091 3.60
300,000.01 - 325,000.00 25 7,751,641 2.25
325,000.01 - 350,000.00 20 6,782,496 1.97
350,000.01 - 375,000.00 12 4,327,885 1.26
375,000.01 - 400,000.00 10 3,942,589 1.15
400,000.01 - 425,000.00 6 2,477,673 0.72
425,000.01 - 450,000.00 7 3,066,319 0.89
450,000.01 - 500,000.00 5 2,414,239 0.70
500,000.01 - 550,000.00 6 3,138,500 0.91
550,000.01 - 600,000.00 1 595,241 0.17
- ------- ----
Total 2,682 $344,259,896 100.00%
The average principal balance of the Mortgage Loans at origination was
approximately $128,571. No Mortgage Loan had a principal balance at origination
greater than $596,250 or less than $23,200.
* Total may not add up due to rounding.
Principal Balances as of the Cut-off Date
Aggregate
Principal % of Aggregate
Balance Principal
Outstanding Balance
Number as of Outstanding
Range of Cut-off Date Principal of the Cut-off as of
Balances Loans Date* the Cut-off Date
- ------------------------------- ----- ----------- ----------------
$ 0.01 - 25,000.00 5 $ 118,808 0.03%
25,000.01 - 50,000.00 188 7,728,727 2.25
50,000.01 - 75,000.00 456 28,640,137 8.32
75,000.01 - 100,000.00 522 45,692,371 13.27
100,000.01 - 125,000.00 424 47,513,405 13.80
125,000.01 - 150,000.00 333 45,575,380 13.24
150,000.01 - 175,000.00 197 31,888,916 9.26
175,000.01 - 200,000.00 174 32,591,655 9.47
200,000.01 - 225,000.00 112 23,773,223 6.91
225,000.01 - 250,000.00 74 17,608,274 5.11
250,000.01 - 275,000.00 62 16,240,324 4.72
275,000.01 - 300,000.00 44 12,691,861 3.69
300,000.01 - 325,000.00 24 7,451,871 2.16
325,000.01 - 350,000.00 20 6,782,496 1.97
350,000.01 - 375,000.00 12 4,327,885 1.26
375,000.01 - 400,000.00 10 3,942,589 1.15
400,000.01 - 425,000.00 7 2,895,243 0.84
425,000.01 - 450,000.00 6 2,648,750 0.77
450,000.01 - 500,000.00 5 2,414,239 0.70
500,000.01 - 550,000.00 6 3,138,500 0.91
550,000.01 - 600,000.00 1 595,241 0.17
- ------- ----
Total 2,682 $344,259,896 100.00%
The average principal balance of the Mortgage Loans as of the Cut-off Date was
approximately $128,359. No Mortgage Loan had a principal balance as of the
Cut-off Date greater than $595,241 or less than $21,695.
* Total may not add up due to rounding.
Property Type
Aggregate
Principal % of Aggregate
Balance Principal
Outstanding Balance
Number as of Outstanding
of the Cut-off as of the
Property Type Loans Date* Cut-off Date
- -------------- ----- ------------ --------------
Single Family 2,049 $254,676,066 73.98%
Planned Unit Development 381 60,757,353 17.65
Condo 163 18,279,315 5.31
Two- to Four-Family 73 9,108,837 2.65
Manufactured Housing 16 1,438,325 0.42
-- --------- ----
Total 2,682 $344,259,896 100.00%
* Total may not add up due to rounding.
Occupancy Status
Aggregate
Principal % of Aggregate
Balance Principal
Outstanding Balance
Number as of Outstanding
of The Cut-off as of
Occupancy Loans Date* the Cut-off Date
- --------- ----- ----- ----------------
Owner Occupied 2,637 $340,137,262 98.80%
Non-Owner Occupied 45 4,122,634 1.20
-- --------- ------
Total 2,682 $344,259,896 100.00%
The occupancy status of a Mortgaged Property is as represented by the
* Total may not add up due to rounding.
Mortgage Rates as of the Cut-off Date
Aggregate
Principal % of Aggregate
Balance Principal
Outstanding Balance
Number as of Outstanding
of The Cut-off as of
Range of Mortgage Rates (%) Loans Date* the Cut-off Date
- --------------------------- ----- ----- ----------------
7.000 - 7.499 1 $ 177,661 0.05%
7.500 - 7.999 32 5,418,109 1.57
8.000 - 8.499 175 30,083,051 8.74
8.500 - 8.999 796 116,603,084 33.87
9.000 - 9.499 456 57,028,339 16.57
9.500 - 9.999 504 62,891,700 18.27
10.000 - 10.499 245 26,016,074 7.56
10.500 - 10.999 223 24,047,913 6.99
11.000 - 11.499 78 7,576,829 2.20
11.500 - 11.999 80 7,350,098 2.14
12.000 - 12.499 39 3,216,193 0.93
12.500 - 12.999 23 1,956,376 0.57
13.000 - 13.499 10 506,502 0.15
13.500 - 13.999 17 1,260,705 0.37
14.000 - 14.499 3 127,256 0.04
- ------- ----
Total 2,682 $344,259,896 100.00%
As of the Cut-off Date, the weighted average Mortgage Rate of the Mortgage Loans
was approximately 9.375% per annum and ranged from 7.125% to 14.375%.
* Total may not add up due to rounding.
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<PAGE>
Original Loan-to-Value Ratios
Aggregate
Principal % of Aggregate
Balance Principal
Outstanding Balance
Number as of Outstanding
Range of Original Loan-to-Value of the Cut-off as of
Ratios (%) Loans Date* the Cut-off Date
- ---------- ----- --------- ----------------
20.01 - 30.00 7 $ 470,800 0.14%
30.01 - 40.00 7 454,170 0.13
40.01 - 50.00 28 2,722,037 0.79
50.01 - 60.00 53 4,981,226 1.45
60.01 - 70.00 115 12,710,751 3.69
70.01 - 80.00 2,065 271,921,258 78.99
80.01 - 90.00 405 50,849,409 14.77
90.01 - 100.00 2 150,245 0.04%
- ------- -----
Total 2,682 $344,259,896 100.00%
The weighted average Loan-to-Value Ratio at origination of the Mortgage Loans
was approximately 79.58%. No Mortgage Loan had a Loan-to-Value Ratio at
origination greater than 97.05% or less than 22.13%.
*Total may not add up due to rounding.
Geographic Distribution of the Mortgaged Properties
Aggregate
Principal % of Aggregate
Balance Principal
Outstanding Balance
Number as of Outstanding
of the Cut-off as of
State Loans Date* the Cut-off Date
- ----- ----- ----- ----------------
Alabama 22 $ 2,067,941 0.60%
Arizona 81 9,903,840 2.88
Arkansas 1 51,128 0.01
California 896 157,696,343 45.81
Colorado 80 11,051,043 3.21
Connecticut 30 3,202,901 0.93
Delaware 2 253,680 0.07
District Of Columbia 2 212,836 0.06
Florida 132 12,231,831 3.55
Georgia 54 5,660,210 1.64
Idaho 10 1,020,136 0.30
Illinois 157 16,754,492 4.87
Indiana 23 1,877,369 0.55
Iowa 37 2,612,531 0.76
Kansas 10 738,456 0.21
Kentucky 20 1,552,181 0.45
Louisiana 4 448,817 0.13
Maine 10 902,990 0.26
Maryland 36 5,417,589 1.57
Massachusetts 45 5,101,785 1.48
Michigan 119 10,913,667 3.17
Minnesota 21 1,957,568 0.57
Mississippi 5 355,101 0.10
Missouri 27 2,082,060 0.60
Montana 1 90,598 0.03
Nebraska 12 743,360 0.22
Nevada 24 2,891,653 0.84
New Hampshire 9 877,917 0.26
New Jersey 27 2,871,034 0.83
New Mexico 12 1,743,495 0.51
North Carolina 26 2,603,630 0.76
Ohio 161 13,548,719 3.94
Oklahoma 6 611,291 0.18
Oregon 136 16,107,327 4.68
Pennsylvania 12 1,048,310 0.30
Rhode Island 6 644,648 0.19
South Carolina 23 1,733,481 0.50
South Dakota 12 738,517 0.21
Tennessee 16 1,483,317 0.43
Texas 129 14,453,321 4.20
Utah 99 11,502,219 3.34
Vermont 4 370,642 0.11
Virginia 19 2,021,796 0.59
Washington 96 11,826,994 3.44
West Virginia 1 37,773 0.01
Wisconsin 27 2,243,358 0.65
-- --------- ----
Total 2,682 $344,259,896 100.00%
*Total may not add up due to rounding.
Purpose of the Mortgage Loans
Aggregate
Principal % of Aggregate
Balance Principal
Outstanding Balance
Number as of Outstanding
of the Cut-off as of
Loan Purpose Loans Date* the Cut-off Date
- ------------ ----- ----- ----------------
Purchase 2,161 $282,660,930 82.11%
Cashout 377 44,936,230 13.05
Refinance 144 16,662,736 4.84
--- ---------- ----
Total 2,682 $344,259,896 100.00%
*Total may not add up due to rounding.
Mortgage Loan Programs
Aggregate
Principal % of Aggregate
Balance Principal
Outstanding Balance
Number as of Outstanding
of the Cut-off as of
Documentation Loans Date* the Cut-off Date
- ------------- ----- ----- ----------------
Full Documentation Program 2,465 $318,863,542 92.62%
No Income Verification 137 15,608,349 4.53
Alternative Income Verification 39 5,042,154 1.46
Limited Income Verification 41 4,745,851 1.38
-- --------- ----
Total 2,682 $344,259,896 100.00%
*Total may not add up due to rounding.
Mortgage Loan Risk Categories
Aggregate
Principal % of Aggregate
Balance Principal
Outstanding Balance
Number as of Outstanding
of the Cut-off as of
Risk Categories Loans Date* the Cut-off Date
- --------------- ----- ----- ----------------
Direct Access 2,566 $331,094,685 96.18%
Scored Advantage 39 5,042,154 1.46
A1 4 410,302 0.12
A- 25 2,997,685 0.87
B 23 2,528,402 0.73
C 19 1,871,831 0.54
D 6 314,837 0.09
- ------- ----
Total 2,682 $344,259,896 100.00%
*Total may not add up due to rounding.
Credit Bureau Risk Score for Direct Access Loans Only
% of Aggregate
Principal
Aggregate Balance
Principal Outstanding
Balance as of
Outstanding the Cut-off
Number as of Date for Direct
of the Cut-off Access
Credit Bureau Risk Score Loans Date* Loans only
- ------------------------ ----- ----- ----------
504 - 520 13 $ 745,376 0.22%
521 - 540 34 2,924,140 0.85
541 - 560 47 4,296,522 1.25
561 - 580 123 12,308,845 3.58
581 - 600 169 17,444,030 5.07
601 - 620 391 47,888,784 13.91
621 - 640 409 50,685,312 14.72
641 - 660 529 69,993,203 20.33
661 - 680 360 54,244,994 15.76
681 - 700 201 27,271,314 7.92
701 - 720 131 19,976,430 5.80
721 - 740 77 11,719,344 3.40
741 - 760 46 6,310,956 1.83
761 - 780 28 3,945,296 1.15
781 - 800 6 902,685 0.26
801 - 803 2 437,454 0.13
- ------- ----
Total 2,566 $331,094,685 96.18%
The weighted average Credit Bureau risk Score of the Direct Access Mortgage
Loans as of the Cut-off Date was approximately 649.
*Total may not add up due to rounding.
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<PAGE>
Gross Margin
Aggregate % of Aggregate
Principal Principal
Balance Balance
Number Outstanding Outstanding
of as of the as of
Gross Margin(%) Loans Cut-off Date* the Cut-off Date
- --------------- ----- ------------- ----------------
3.00 - 3.24 5 $ 602,038 0.17%
3.25 - 3.49 35 6,369,452 1.85
3.50 - 3.74 108 17,127,185 4.98
3.75 - 3.99 275 43,010,227 12.49
4.00 - 4.24 322 45,125,659 13.11
4.25 - 4.49 355 51,384,197 14.93
4.50 - 4.74 243 32,715,801 9.50
4.75 - 4.99 227 26,147,244 7.60
5.00 - 5.24 198 24,448,363 7.10
5.25 - 5.49 180 20,463,618 5.94
5.50 - 5.74 157 16,915,762 4.91
5.75 - 5.99 142 16,316,173 4.74
6.00 - 6.24 107 12,085,939 3.51
6.25 - 6.49 95 10,875,357 3.16
6.50 - 6.74 55 5,727,823 1.66
6.75 - 6.99 47 4,310,880 1.25
7.00 - 7.24 40 3,599,094 1.05
7.25 - 7.49 28 2,338,847 0.68
7.50 - 7.74 18 1,455,892 0.42
7.75 - 7.99 17 1,318,875 0.38
8.00 - 8.24 12 834,283 0.24
8.25 - 8.49 12 805,477 0.23
8.50 - 8.74 3 216,242 0.06
12.75 - 12.99 1 65,469 0.02
- ------ ----
Total 2,682 $344,259,896 100.00%
The weighted average Gross Margin as of the Cut-off Date was approximately
4.759%.
*Total may not add up due to rounding.
Maximum Mortgage Rates
Aggregate
Principal % of Aggregate
Balance Principal
Outstanding Balance
Number as of Outstanding
of the Cut-off as of
Maximum Mortgage Rate(%) Loans Date* the Cut-off Date
- ------------------------ ----- ----- ----------------
13.125 - 13.499 1 $ 177,666 0.05%
13.500 - 13.999 32 5,418,109 1.57
14.000 - 14.499 175 30,083,051 8.74
14.500 - 14.999 796 116,603,084 33.87
15.000 - 15.499 456 57,028,339 16.57
15.500 - 15.999 504 62,891,700 18.27
16.000 - 16.499 245 26,016,074 7.56
16.500 - 16.999 223 24,047,913 6.99
17.000 - 17.499 78 7,576,829 2.20
17.500 - 17.999 80 7,350,098 2.14
18.000 - 18.499 39 3,216,193 0.93
18.500 - 18.999 23 1,956,376 0.57
19.000 - 19.499 10 506,502 0.15
19.500 - 19.999 17 1,260,705 0.37
20.000 - 20.500 3 127,256 0.04
- ------- ----
Total 2,682 $344,259,896 100.00%
The weighted average Maximum Mortgage Rate of the Mortgage Loans as of the
Cut-off Date was approximately 15.375% per annum and ranged from 13.125% to
20.375%.
*Total may not add up due to rounding.
Minimum Mortgage Rates
Aggregate
Principal % of Aggregate
Balance Principal
Outstanding Balance
Number as of Outstanding
of the Cut-off as of
Minimum Mortgage Rate (%) Loans Date* the Cut-off Date
- ------------------------- ----- ----- ----------------
7.000 - 7.499 1 $ 177,666 0.05%
7.500 - 7.999 32 5,418,109 1.57
8.000 - 8.499 175 30,083,051 8.74
8.500 - 8.999 796 116,603,084 33.87
9.000 - 9.499 456 57,028,339 16.57
9.500 - 9.999 504 62,891,700 18.27
10.000 - 10.499 245 26,016,074 7.56
10.500 - 10.999 223 24,047,913 6.99
11.000 - 11.499 78 7,576,829 2.20
11.500 - 11.999 80 7,350,098 2.14
12.000 - 12.499 39 3,216,193 0.93
12.500 - 12.999 23 1,956,376 0.57
13.000 - 13.499 10 506,502 0.15
13.500 - 13.999 17 1,260,705 0.37
14.000 - 14.499 3 127,256 0.04
- ------- ----
Total 2,682 $344,259,896 100.00%
The weighted average Minimum Mortgage Rate of the Mortgage Loans as of the
Cut-off Date was approximately 9.375% per annum and ranged from 7.125% to
14.375%.
*Total may not add up due to rounding.
Next Rate Adjustment Dates
Aggregate
Principal % of Aggregate
Balance Principal
Outstanding Balance
Number as of Outstanding
of The Cut-off as of
Month of Next Adjustment Loans Date* the Cut-off Date
- ------------------------ ----- ----- ----------------
July 1, 2000 2 $ 169,859 0.05%
December 1, 2000 4 567,023 0.16
January 1, 2001 2 387,671 0.11
February 1, 2001 1 103,266 0.03
September 1, 2001 1 64,561 0.02
October 1, 2001 32 3,282,484 0.95
October 7, 2001 1 98,828 0.03
November 1, 2001 140 17,604,188 5.11
November 15, 2001 1 67,916 0.02
December 1, 2001 667 81,745,811 23.75
January 1, 2002 1,462 192,902,366 56.03
February 1, 2002 7 969,667 0.28
December 1, 2002 108 11,589,941 3.37
January 1, 2003 254 34,706,315 10.08
--- ---------- -----
Total 2,682 $344,259,896 100.00%
As of the Cut-off Date, the weighted average next Adjustment Date of the
Mortgage Loans was 23 months.
*Total may not add up due to rounding.
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<PAGE>
The Index
As of any Adjustment Date, the Index applicable to the determination of
the Mortgage Rate on each Mortgage Loan will be the average of the interbank
offered rates for six-month United States dollar deposits in the London market
("Six-Month LIBOR") as published in The Wall Street Journal and as most recently
available as of the first business day of the month preceding the month of such
Adjustment Date, as specified in the related Mortgage Note.
In the event that the Index becomes unavailable or otherwise unpublished,
the Servicer will select a comparable alternative index over which it has no
direct control and which is readily verifiable.
The table below sets forth historical average rates of Six-Month LIBOR for
the months indicated as made available from FNMA, which rates may differ from
the rates of the Index, which is six-month LIBOR as published in The Wall Street
Journal as described above. The table does not purport to be representative of
the subsequent rates of the Index which will be used to determine the Mortgage
Rate on each Mortgage Loan.
Year
------------------------------------------------------------------
Month 2000 1999 1998 1997 1996 1995 1994 1993 1992
------ ------ ------ ------ ------ ------ ------ ------ ------
January 6.24 5.04 5.75% 5.71% 5.34% 6.69% 3.39% 3.44% 4.25%
February 5.17 5.78 5.68 5.29 6.44 4.00 3.33 4.38
March 5.08 5.80 5.96 5.52 6.44 4.25 3.38 4.55
April 5.08 5.87 6.08 5.42 6.31 4.63 3.31 4.27
May 5.19 5.81 6.01 5.64 6.06 5.00 3.44 4.25
June 5.63 5.87 5.94 5.84 5.88 5.25 3.56 4.13
July 5.68 5.82 5.83 5.92 5.88 5.33 3.56 3.63
August 5.91 5.69 5.86 5.74 5.94 5.33 3.44 3.63
September 5.97 5.36 5.85 5.75 5.99 5.69 3.38 3.31
October 6.14 5.13 5.80 5.58 5.95 6.00 3.50 3.64
November 6.06 5.28 6.04 5.55 5.74 6.44 3.52 3.89
December 6.14 5.17 6.01 5.62 5.56 7.00 3.50 3.64
Underwriting Standards; Representations
The Depositor acquired the Mortgage Loans from Merrill Lynch Mortgage
Capital Inc., an affiliate, which acquired the Mortgage Loans from the Mortgage
Loan Originator pursuant to an Amended and Restated Master Mortgage Loan
Purchase, Warranties and Interim Servicing Agreement, dated as of January 1,
1998. All of the Mortgage Loans were originated or acquired by the Mortgage Loan
Originator, generally in accordance with the underwriting criteria described
herein. The information set forth in the following paragraphs has been provided
by the Mortgage Loan Originator and neither the Depositor nor any other party
makes any representation as to the accuracy or completeness of such information.
The Mortgage Loan 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 Mortgage Loan
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
S-17
<PAGE>
originated in accordance with FNMA and FHLMC 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 Mortgage Loan 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 year, two years or three years from the
date of origination of the related Mortgage Loan as described under "--General"
above. The amount of the prepayment charge is as provided in the related
Mortgage Note but is generally equal to six month's interest on any amounts
prepaid in excess of 20% of the original principal balance of the related
Mortgage Loan.
Substantially all of the Mortgage Loans originated by the Mortgage Loan
Originator are based on loan application packages submitted through mortgage
brokerage companies. These brokers must meet minimum standards set by the
Mortgage Loan Originator based on an analysis of the following information
submitted with an application for approval: resumes of the principals, company
financial statements, applicable state lending license (in good standing) and
satisfactory credit report. Once approved, mortgage brokerage companies are
eligible to submit loan application packages in compliance with the terms of a
signed broker agreement.
The Mortgage Loan Originator has three underwriting programs, the Standard
Program, the Direct Access Program and the Scored Advantage Program, and four
documentation programs within each, the Full Documentation Program, the Limited
Income Verification Program (the "LIV"), the No Income Verification Program (the
"NIV") and the Alternative Income Verification Program (the "AIV"). 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 300s to the 900s. 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 Mortgage Loan
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 Mortgage Loan Originator's Direct Access
Program risk-based pricing matrix (subject to final loan approval by the
Mortgage Loan Originator).
Under the Direct Access Program, the Mortgage Loan Originator requires
that the Credit Bureau Risk Score of the primary borrower (the borrower with at
least 60% of total income) 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 500. The weighted average
Credit Bureau Risk Score of the Mortgage Loans underwritten in accordance with
the Direct Access Program is 649.
The Credit Bureau Risk Score, along with LTV, 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 Mortgage Loan Originator's underwriting staff fully reviews each Direct
Access loan to determine whether the Mortgage Loan Originator's guidelines for
income, assets, employment and collateral are met.
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The Scored Advantage Program is a streamlined origination process for
salaried borrowers who have been employed by their current employers for at
least three years, in the case of applicants with a Credit Bureau Risk Score
greater than 640, or two years, in the case of applicants with a Credit Bureau
Risk Score greater than 660. Under the Scored Advantage Program, applicants are
not required to submit pay stubs or W-2 forms. Verification of an applicant's
employment history and income are made (i) verbally by an employee of the
Mortgage Loan Originator, (ii) by using an automated income verification source
or (iii) by a third party service provider which verbally confirms length of
employment and obtains written confirmation of income.
For primary borrowers with at least 60% of total income, the Scored
Advantage Program determines an applicant's eligibility based on the Credit
Bureau Risk Score of the primary borrower. For primary borrowers with less than
60% of total income, the Scored Advantage Program requires that the lower Credit
Bureau Risk Score (in the case of two borrowers) or the middle Credit Bureau
Risk Score (in the case of three borrowers) be used to determine program
eligibility. In addition, the Mortgage Loan Originator requires that all
co-borrowers have been employed by their current employers for at least one
year.
All of the Mortgage Loans were underwritten by the Mortgage Loan
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 Mortgage Loan
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 LTV, 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 to be included in the Mortgage Pool may represent
such underwriting exceptions.
The Mortgage Loan 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
application dependent 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 cash flow to meet credit
obligations for the 6 month period preceding the application; under the NIV
Program, applicants are qualified based on monthly income as stated on the
mortgage application; and under the AIV Program, salaried borrowers are
qualified based on a verbal verification of income stated on the mortgage
application. For A1 and A- credit grades and Direct Access loans with a credit
score greater than or equal to 600, bank statements (for 12 to 24 months) are
acceptable as full documentation. For Direct Access loans with credit scores
greater than or equal to 640, six 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 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 or through Dun and Bradstreet
Information Services.
The applicant must have a sufficiently established credit history to
qualify for the appropriate credit grade under the Standard Program (as
described below) or 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. Under the Standard
Program, the applicant must generally provide a letter explaining all late
payments on mortgage debt and, generally, consumer (non-mortgage) debt within
the last two years and credit inquiries made within the last 90 days. In some
instances, borrowers with a minimal credit history are eligible for financing
under the Standard and Direct Access Programs.
The Mortgage Loan 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 Mortgage Loan
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 FHLMC and/or
FNMA standards; and if appropriate, a review appraisal. Generally, appraisals
are provided by appraisers approved
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by the Mortgage Loan Originator. Review appraisals may only be provided by
appraisers approved by the Mortgage Loan Originator. In some cases, the Mortgage
Loan 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 most states to become approved to
do business with the Mortgage Loan 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 a desk, field review or an automated valuation report that
confirms or supports the original appraiser's value of the mortgaged premises.
Under the Standard Program, the Mortgage Loan Originator's guidelines permit
single-family loans with maximum LTVs at origination of up to 90% on A1 and A-
credit grades. Lower LTVs generally are required in the B, C and D credit
grades, depending on the type and occupancy of the property.
In general, the maximum loan amount for mortgage loans originated under
the Standard Program is $550,000, however mortgage loans on a case by case basis
may be originated with higher balances subject to Corporate Office approval.
The Mortgage Loan Originator requires title insurance on all mortgage
loans secured by liens on real property. The Mortgage Loan 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. None of the mortgage loans will be covered by a primary mortgage insurance
policy.
The Mortgage Loan 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 Mortgage Loan
Originator's senior management. Adverse findings are tracked monthly and over a
rolling six month period. This review procedure allows the Mortgage Loan
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 LTV 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 LTVs and
maximum loan amounts for loans graded in such categories. In all categories
under the Standard Program, for purposes of determining whether a prospective
mortgagor has been 30-days late, the Mortgage Loan Originator uses a "rolling
30-day period," i.e. a continuous sequence of 30-day late payments will be
considered as a single 30-day late payment.
Equity Refinance transactions are defined as those instances where the
borrower receives the lesser of 1% of the new loan amount or $1,000
cash-in-hand. Funds used for debt consolidation are not included in this amount.
The Mortgage Loan Originator's guidelines under the Direct Access Program
generally have the following criteria for borrower eligibility for the specified
Credit Bureau Risk Score range.
"600 and higher": No liens or judgments affecting title may remain open
after the funding of the loan. Collections, charge-offs, or judgments not
affecting title with individual balances greater than $1,000 must be paid prior
to loan closing unless the time elapsed since the collection, charge-off, or
judgment is greater than two years. The maximum LTV of 90% is permitted for
owner occupied single family (1-2 units) property. The maximum LTV generally is
reduced by 5% on a mortgaged property consisting of 3-4 units. LTVs for
non-owner occupied
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properties and second homes are limited to 80%. The Debt Ratio generally may not
exceed 50% for 600-639 credit scores, and 60% for (greater than) 640. Debt
Ratios greater than 55% generally require a predetermined minimum monthly gross
income.
"570-599": No liens or judgments affecting title may remain open after the
funding of the loan. Collections, charge-offs, or judgments not affecting title
with individual balances greater than $1,500 must be paid prior to loan closing
unless the time elapsed since the collection, charge-off, or judgment is greater
than two years. A maximum LTV of 85% is permitted for a purchase, rate/term,
debt consolidation or cash-out transaction. The maximum LTV generally is reduced
by 5% on a mortgaged property consisting of 3-4 units. Properties with rural
characteristics may be subject to further LTV reduction. LTVs for non-owner
occupied properties and second homes are limited to 75%. Generally, the Debt
Ratio may not exceed 55%.
"540-569": No liens or judgments affecting title may remain open after the
funding of the loan. Collections, charge-offs, or judgments not affecting title
with individual balances greater than $2,500 must be paid prior to loan closing
unless the time elapsed since the collection, charge-off, or judgment is greater
than two years. A maximum LTV of 80% is permitted for a purchase, rate/term,
debt consolidation or cash-out transaction. Properties with rural
characteristics may be subject to further LTV reduction. LTVs for non-owner
occupied properties and second homes are limited to 70%. The Debt Ratio must be
60% or less. Debt Ratios greater than 55% generally require a predetermined
minimum monthly gross income.
"500-539": No liens or judgment affecting title may remain open after the
funding of the loan. A maximum LTV of 75% is permitted for purchase, rate/term,
debt consolidation or cash out transaction for borrowers whose credit score
falls within 520-539; a maximum LTV of 70% for 500-519. Non-owner occupied and
second home not eligible. The Debt Ratio must be 60% or less. Debt Ratios
greater than 55% generally require a predetermined minimum monthly gross income.
For all of the above, collections, charge-offs, judgments and liens not
affecting title may remain open for LTVs less than or equal to 75%. For Credit
Scores greater than or equal to 570, bank statements are considered the same as
full documentation for salaried and self-employed borrowers. Twenty-four (24)
months personal or business statements are required to 90% LTV and 12 months to
80% LTV.
The Mortgage Loan Originator's guidelines under the Standard Program
generally have the following categories and criteria for grading the potential
likelihood that an applicant will satisfy the repayment obligations of a
mortgage loan:
"A1": Within the A1 risk category, the applicant must have demonstrated
steady employment over the last two years. The applicant must have generally
repaid installment and revolving debt according to its terms with a maximum of
25% of total credit (reported open and/or active in the last 24 months) no more
than 30 days delinquent in the past 12 months. A maximum of one 30-day late
payment, and no 60-day late payments within the last 12 months is permitted on
an existing mortgage loan on the primary residence of the applicant for LTVs up
to and including 85% (no 30-day late payments are permitted for LTVs greater
than 85%). No liens or judgments affecting title to property may remain open
after the funding of the loan. Collections, charge-offs, or judgments not
affecting title are not allowed in the last 12 months. Collections, charge-offs,
or judgments greater than 12 months not affecting title and with respect to
loans with LTVs less than or equal to 75% or with individual balances of $500 or
less may remain after the funding of the loan. No bankruptcy, discharge or
notice of default filings may have occurred during the preceding three years.
The mortgaged property must be in at least average condition. A maximum LTV of
90% is permitted for an owner occupied single family property. The maximum LTV
ratio generally is reduced by 5% on a mortgaged property consisting of
three-to-four units. Properties with rural characteristics may be subject to
further LTV reduction. LTVs for non-owner occupied properties and second homes
are limited to 80%. The Debt Ratio generally may not exceed 45%.
"A-": Within the A- risk category, the applicant must have demonstrated
steady employment over the last two years. The applicant generally must have
repaid installment and revolving debt according to its terms with a maximum of
50% of total credit (reported open and/or active in the last 24 months) no more
than 30 days delinquent in the last twelve months - except for isolated minor
occurrences up to 60 days delinquent. A maximum of two 30-day late payments are
permitted on an existing mortgage loan on the primary residence of the
applicant. No liens or
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judgments affecting title to property may remain open after the funding of the
loan. Generally, judgments and liens affecting title in the last 12 months are
not allowed. Collections, charge-offs or judgments not affecting title and
greater than $500 in the last 12 months are not allowed. Items not affecting
title less than or equal to $500 in the last 12 months must be paid at loan
closing. Collections, charge-offs or judgments greater than 12 months with
balances greater than $1,000 must be paid at loan closing unless the time
elapsed since the occurrence is greater than three years. No liens or judgments
affecting title to the property may remain open after the funding of the loan.
No bankruptcy discharge may have occurred during the preceding two years while
no notice of default filing may have occurred during the preceding three years.
The mortgaged property must be in at least average condition. A maximum LTV of
90% is permitted for a purchase, rate/term refinance and debt consolidation loan
and 85% for a cash-out transaction on an owner occupied single family property.
The maximum LTV generally is reduced by 5% on a mortgaged property consisting of
three-to-four units. Properties with rural characteristics may be subject to
further LTV reduction. LTVs for non-owner occupied properties generally are
limited to 80% purchase and 75% refinance. Second homes are limited to 80%
purchase or refinance. Generally, the Debt Ratio may not exceed 47%; however
Debt Ratios to 55% are allowed at reduced LTVs. Debt Ratios greater than 50%
generally require a predetermined minimum monthly gross income.
"B": Within the B risk category, the applicant must have demonstrated
steady employment over the last two years. The applicant must have generally
repaid installment and revolving debt according to its terms with a maximum of
one 90-day late payment permitted on any account in the last 12 months. A
maximum of four 30-day late payments and no 60-day late payments, or three
30-day late payments and one 60-day late payment within the last 12 months are
permitted on an existing mortgage loan on the primary residence of the applicant
for LTVs up to and including 80%. For LTVs in excess of 80%, a maximum of four
30-day late payments or two 30-day and one 60-day late payments within the last
12 months are permitted for a purchase or a rate/term refinance loan and a
maximum of four 30-day late payments within the last 12 months are permitted for
a debt consolidation loan. The mortgage may be no more than 30 days delinquent
at closing for LTVs less than or equal to 80% and must be current for LTVs
greater than 80%. No bankruptcy, discharge or notice of default filings may have
occurred during the preceding two years; however for LTVs of 75% and less, the
bankruptcy may have been discharged at least 12 months (instead of 24 months).
No liens or judgments affecting title to the property may remain open after the
funding of the loan. Collections, charge-offs, or judgments not affecting title
with balances greater than $1,500 must be paid at loan closing unless the time
elapsed since the occurrence is greater than two years. The mortgaged property
must be in at least average condition. A maximum LTV of 85% is permitted for an
owner occupied single family property. The maximum LTV generally is reduced by
5% on a mortgaged property consisting of three-to-four units. Properties with
rural characteristics may be subject to further LTV reduction. LTVs for
non-owner occupied properties generally are limited to 70% and second homes are
limited to 75%. Generally the Debt Ratio must be 50% or less, but this may
increase to 60% at reduced LTVs. Debt Ratios greater than 50% generally require
a predetermined minimum monthly gross income.
"C": Within the C risk category, the applicant must have demonstrated
steady employment over the last 12 months. The applicant may have experienced
significant credit problems in the past. Consumer credit derogatory items may
not exceed one 120-days delinquent on any account in the last 12 months. A
maximum of six 30-day, two 60-day, and one 90-day late payments within the last
12 months are permitted on an existing mortgage loan on the primary residence of
the applicant. An existing mortgage loan may be no more than 90 days delinquent
at settlement. No notice of foreclosure filing may have occurred during the
preceding 12 months. For LTVs of greater than 70%, no bankruptcy filing or
discharge may have occurred during the preceding 12 months. For LTVs of 70% or
less, no seasoning or re-established credit is required for bankruptcies. No
liens or judgments affecting title to the property may remain open after the
funding of the loan. Collections, charge-offs, or judgments not affecting title
with balances greater than $2,500 must be paid at loan closing unless the time
elapsed since the occurrence is greater than two years. The mortgaged property
must be in at least average condition. A maximum LTV of 80% is permitted for an
owner occupied single family property. The maximum LTV generally is reduced by
5% on a mortgaged property consisting of three-to-four units. Properties with
rural characteristics may be subject to further LTV reduction. LTVs for
non-owner occupied properties and second homes are generally limited to 65%.
Generally the Debt Ratio must be 55% or less, but this may increase to 60% at
reduced LTVs. Debt Ratios greater than 50% generally require a predetermined
minimum monthly gross income.
"D": Within the D risk category, the applicant may have experienced
significant credit problems in the past. The existing mortgage loan can
generally be no more than 120 days delinquent at the time of loan closing.
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Any foreclosure must be consummated prior to loan closing. An open Notice of
Default (NOD) may be paid through loan proceeds on an owner occupied primary
residence only to a maximum 65% LTV. No seasoning or reestablished credit is
required for bankruptcies. All liens and judgments affecting title to the
property must be paid in full at closing. Collections, charge-offs, or judgments
not affecting title to the property may remain open after the funding of the
loan. The mortgaged property must be in at least average condition. A maximum
LTV of 70% is permitted for an owner occupied single family property. The
maximum LTV generally is reduced by 5% on a mortgaged property consisting of
three-to-four units. Generally, the Debt Ratio may not exceed 60%. Debt Ratios
greater than 50% generally require a predetermined minimum monthly gross income.
Under the Standard Program borrowers are generally eligible for one or two
risk upgrades if the payment history for all mortgage liens indicates no
thirty-day late payment within the past twelve months.
For all of the above, collections, charge-offs, judgments and liens not
affecting title to the property may remain open for LTVs less than or equal to
75%. For A1 and A- Programs, bank statements are considered the same as full
documentation for salaried and self-employed borrowers. Twenty-four (24) months
personal or business statements are required to 90% LTV and 12 months to 80%
LTV.
The Mortgage Loan Originator made representations and warranties with
respect to the Mortgage Loans as of the date it sold the Mortgage Loans to the
Depositor. The Mortgage Loan Originator will be obligated to repurchase or
substitute for Mortgage Loans in respect of which a material breach of the
representations and warranties it has made has occurred (other than those
breaches which have been cured). For a discussion of the representations and
warranties made and the repurchase obligation, see "Description of the
Agreements--Representations and Warranties; Repurchases" in the Prospectus.
YIELD ON THE CERTIFICATES
Certain Shortfalls in Collections of Interest
When a principal prepayment in full is made on a Mortgage Loan, the
mortgagor is charged interest only for the period from the Due Date of the
preceding monthly payment up to the date of such prepayment, instead of for a
full month. When a partial principal prepayment is made on a Mortgage Loan, the
mortgagor is charged interest on the amount of such prepayment up to the date of
such prepayment and not for the balance of the month in which such prepayment is
made. Principal prepayments in full received, and partial principal prepayments
applied, from the first day of a month through the Determination Date in such
month (other than the month of the Cut-off Date) will be distributed on the
Distribution Date in the same month thereby eliminating any shortfall to
Certificateholders. Principal prepayments in full received and partial principal
prepayments applied after the Determination Date in a month (or, in the case of
the first Distribution Date, from the Cut-off Date through the thirtieth day of
the month preceding such Distribution Date) will be distributed on the
Distribution Date in the following month. Regarding the interest shortfalls
attributable to the latter full and partial prepayments by the mortgagors on the
Mortgage Loans ("Prepayment Interest Shortfalls"), the Servicer will be
obligated to pay from its own funds such shortfalls, but only to the extent of
50% of its Servicing Fee for the related Collection Period. See "Pooling and
Servicing Agreement--Servicing and Other Compensation and Payment of Expenses"
herein. In addition, the application of the Soldiers' and Sailors' Civil Relief
Act of 1940, as amended (the "Relief Act"), to any Mortgage Loan will adversely
affect, for an indeterminate period of time, the ability of the Servicer to
collect full amounts of interest on such Mortgage Loan. The effect of any
shortfalls resulting from the application of the Relief Act, will be to reduce
the aggregate amount of interest collected that is available for distribution to
Certificateholders. See "Certain Legal Aspects of the Mortgage Loans--Soldiers'
and Sailors' Civil Relief Act of 1940" in the Prospectus.
General Prepayment Considerations
The rate of principal payments on the Offered Certificates, the aggregate
amount of distributions on the Offered Certificates and the yield 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 such Mortgage
Loans as the same change to accommodate changes in the Mortgage Rates and by the
rate of principal prepayments thereon (including for this purpose payments
resulting from refinancings, liquidations of the Mortgage Loans due to defaults,
casualties, condemnations and repurchases, whether
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optional or required, by the Depositor or the Mortgage Loan Originator, as the
case may be). The Mortgage Loans generally may be prepaid by the mortgagors at
any time; however, as described under "The Mortgage Pool" herein, with respect
to a majority of the Mortgage Loans, a prepayment may subject the related
mortgagor to a prepayment charge, which will not be available to holders of the
Offered Certificates. In addition, the Mortgage Loans are assumable in
connection with the conveyance of the related Mortgaged Property by persons who
meet the then current credit standards of the Servicer for mortgage loans
similar to the Mortgage Loans.
Prepayments, liquidations and repurchases of the Mortgage Loans will
result in distributions in respect of principal to the Holders of the Offered
Certificates then entitled to receive such distributions that otherwise would be
distributed over the remaining terms of the Mortgage Loans. See "Maturity and
Prepayment Considerations" in the Prospectus. Since the rate of payment of
principal on the Mortgage Loans will depend on future events and a variety of
factors (as described more fully herein and in the Prospectus under "Yield
Considerations" and "Maturity and Prepayment Considerations"), no assurance can
be given as to such rate or the rate of principal prepayments. The extent to
which the yield to maturity of the Offered Certificates may vary from the
anticipated yield will depend upon the degree to which such Certificates are
purchased at a discount or premium and the degree to which the timing of
payments thereon is sensitive to prepayments on the Mortgage Loans. Further, in
the case of Offered Certificates purchased at a discount, an investor should
consider the risk that a slower than anticipated rate of principal payments on
the Mortgage Loans could result in an actual yield to such investor that is
lower than the anticipated yield and, in the case of Offered Certificates
purchased at a premium, an investor should consider the risk that a faster than
anticipated rate of principal payments could result in an actual yield to such
investor that is lower than the anticipated yield. In general, the earlier a
prepayment of principal on the Mortgage Loans, the greater will be the effect on
the yield to maturity of an investor in the Offered Certificates. As a result,
the effect on an investor's yield of principal payments occurring on the
Mortgage Loans at a rate higher (or lower) than the rate anticipated by the
investor during the period immediately following the issuance of the Offered
Certificates would not be fully offset by a subsequent like reduction (or
increase) in the rate of principal payments.
It is highly unlikely that the Mortgage Loans will prepay at any constant
rate until maturity or that all of the Mortgage Loans will prepay at the same
rate, and the prepayment charges imposed in connection with prepayments on
certain of the Mortgage Loans will have an uncertain effect on the rate and
timing of prepayments on the Mortgage Loans. Moreover, the timing of prepayments
on the Mortgage Loans may significantly affect the actual yield to maturity on
the Offered Certificates, even if the average rate of principal payments
experienced over time is consistent with an investor's expectation.
The rate of payments (including prepayments) on pools of mortgage loans is
influenced by a variety of economic, geographic, social and other factors. If
prevailing mortgage rates fall significantly below the Mortgage Rates on the
Mortgage Loans, the rate of prepayment (and refinancing) would be expected to
increase. Conversely, if prevailing mortgage rates rise significantly above the
Mortgage Rates on the Mortgage Loans, the rate of prepayment on the Mortgage
Loans would be expected to decrease. Other factors affecting prepayment of
mortgage loans include changes in mortgagors' housing needs, job transfers,
unemployment, mortgagors' net equity in the mortgaged properties and servicing
decisions. The existence of the Periodic Rate Cap, Maximum Mortgage Rates and
Minimum Mortgage Rates also may affect the prepayment experience on the Mortgage
Loans. In addition, the prepayment experience on the Delayed First Adjustment
Date Mortgage Loans may differ from that on the other Mortgage Loans, especially
as they approach their first Adjustment Date. At such time, the prepayment
experience on the Delayed First Adjustment Date Mortgage Loans may be more
sensitive to relatively small changes in market interest rates. There can be no
certainty as to the rate of prepayments on the Mortgage Loans during any period
or over the life of the Certificates. See "Yield Considerations" and "Maturity
and Prepayment Considerations" in the Prospectus.
In general, defaults on mortgage loans are expected to occur with greater
frequency in their early years. In addition, default rates generally are higher
for mortgage loans used to refinance an existing mortgage loan than on mortgage
loans used to purchase a home. In the event of a mortgagor's default on a
Mortgage Loan, other than as provided by the overcollateralization provisions of
the Trust Fund, there can be no assurance that recourse will be available beyond
the specific Mortgaged Property pledged as security for repayment. See "The
Mortgage Pool--Underwriting Standards; Representations" herein.
S-24
<PAGE>
Special Yield Considerations with Respect to the Mortgage Loans
The Mortgage Rates on the Mortgage Loans adjust semiannually (in the case
of the Delayed First Adjustment Date Mortgage Loans, after an initial period of
one or two years) based upon the Index, whereas the Pass-Through Rates on the
Offered Certificates adjust monthly based upon One-Month LIBOR as described
under "Description of the Certificates--Calculation of One-Month LIBOR" herein,
subject to the Available Funds Pass-Through Rate. As a result, increases in the
Pass-Through Rates on the Offered Certificates may be limited for extended
periods in a rising interest rate environment. In addition, because each
Pass-Through Rate is determined, to some extent, by the Mortgage Rates on the
Mortgage Loans, disproportionate prepayments of Mortgage Loans with Mortgage
Rates above the then current weighted average Mortgage Rate may adversely affect
the Pass-Through Rate on one or more Classes of Offered Certificates by lowering
the Available Funds Pass-Through Rate. Investors should note that approximately
0.10% of the Mortgage Loans are one year Delayed First Adjustment Date Mortgage
Loans, approximately 86.56% of the Mortgage Loans are two year Delayed First
Adjustment Date Mortgage Loans and approximately 13.30% of the Mortgage Loans
are three year Delayed First Adjustment Date Mortgage Loans. The interest due on
the Mortgage Loans during any Collection Period may not equal the amount of
interest that would accrue at One-Month LIBOR plus the applicable Pass-Through
Margin during the related Interest Accrual Period in which case the applicable
Pass-Through Rate will be limited to the Available Funds Pass-Through Rate.
Although Holders of the Offered Certificates are entitled to receive from and to
the limited extent of funds available therefor as described herein, any related
LIBOR Carryover Amount, there can be no assurance that such funds will be
available or, if available, sufficient for such purposes. The ratings of the
Offered Certificates do not address the likelihood of the payment of any LIBOR
Carryover Amount. Since the Pass-Through Margin is different for each Class of
Offered Certificates, it is possible that, on any particular Distribution Date,
the LIBOR Rate applicable to one or more Classes of Offered Certificates, may be
less than the Available Funds Pass-Through Rate, while the LIBOR Rate applicable
to one or more other Classes of Offered Certificates may exceed the Available
Funds Pass-Through Rate. In addition, the Index and One-Month LIBOR may respond
differently to economic and market factors. Thus, it is possible, that if both
One-Month LIBOR and the Index rise during the same period, One-Month LIBOR may
rise more rapidly than the Index or may rise higher than the Index. In addition,
the Index and/or One-Month LIBOR may not move at the same time or in the same
direction as market interest rates generally. It is possible that market
interest rates may fall at the same time that One-Month LIBOR and/or the Index
is rising.
The Subordinated Certificates
The weighted average lives of, and the yields to maturity on, the
Subordinated Certificates, in increasing order of their numerical Class
designations, will be progressively more sensitive to the rate and timing of
mortgagor defaults and the severity of ensuing losses on the Mortgage Loans. If
the actual rate and severity of losses on the Mortgage Loans is higher than
those assumed by a holder of a Subordinated Certificate, the actual yield to
maturity of such Certificate may be lower than the yield expected by such Holder
based on such assumption. The timing of losses on the Mortgage Loans will also
affect an investor's actual yield to maturity, even if the rate of defaults and
severity of losses over the life of the Mortgage Pool 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. Applied Realized Loss Amounts on the
Mortgage Loans will reduce the Class Certificate Balance of the applicable Class
of Subordinated Certificates (and if the Subordinated Certificates are no longer
outstanding, will reduce the Class Certificate Balance of the Class A
Certificates), without the receipt of cash attributable to such reduction. As a
result of such reductions, less interest will accrue on such Class of
Subordinated Certificates (or Class A Certificates) than otherwise would be the
case.
The Principal Remittance Amount includes the net proceeds in respect of
principal received upon liquidation of a Liquidated Mortgage Loan. If such net
proceeds are less than the unpaid principal balance, the Pool Principal Balance
will decline more than the aggregate Class Certificate Balance of the Offered
Certificates, thereby reducing the Overcollateralization Amount. If such
difference is not covered by the Overcollateralization Amount, or the
application of the Monthly Excess Cashflow Amount, the Class of Subordinated
Certificates then outstanding with the highest numerical Class designation will
bear such loss as a result of the application of Applied Realized Loss Amounts.
In addition, the Subordinated Certificates will not be entitled to any principal
distributions prior to the Stepdown Date or during the continuation of a Trigger
Event (unless all of the Certificates with a higher payment priority have been
paid in full). Because of the disproportionate distribution of principal of the
Class A Certificates, depending on the timing of Realized Losses, the
Subordinated Certificates may bear a disproportionate percentage of the Realized
Losses on the Mortgage Loans.
S-25
<PAGE>
For all purposes, the Class B Certificates will be deemed to have the
highest numerical Class designation and the lowest payment priority of any Class
of Subordinated Certificates.
Weighted Average Lives
Weighted average life refers to the average amount of time that will
elapse from the date of issuance of a security until each dollar of principal of
such security will be repaid to the investor. The weighted average lives of the
Offered Certificates will be influenced by the rate at which principal on the
Mortgage Loans is paid, which may be in the form of scheduled payments or
prepayments (including prepayments of principal by the borrower as well as
amounts received by virtue of condemnation, insurance or foreclosure with
respect to the Mortgage Loans), and the timing thereof.
Prepayments on mortgage loans are commonly measured relative to a
prepayment standard or model. The model used in this Prospectus Supplement (the
"Prepayment Assumption") assumes a prepayment rate of 25% CPR. The Constant
Prepayment Rate model ("CPR") assumes that the outstanding principal balance of
a pool of mortgage loans prepays at a specified constant annual rate or CPR. In
generating monthly cash flows, this rate is converted to an equivalent constant
monthly rate. To assume 25% CPR or any other CPR percentage is to assume that
the stated percentage of the outstanding principal balance of the pool is
prepaid over the course of a year. No representation is made that the Mortgage
Loans will prepay at 25% CPR or at any other rate. Neither the prepayment model
used herein nor any other prepayment model or assumption purports to be an
historical description of prepayment experience or a prediction of the
anticipated rate of prepayment of any pool of mortgage loans, including the
Mortgage Loans included in the Mortgage Pool.
The tables following the next paragraph indicate the percentage of the
initial Class Certificate Balance of each Class of Offered Certificates that
would be outstanding after each of the dates shown at various percentages of the
Prepayment Assumption and the corresponding weighted average lives. The tables
are based on the following assumptions (the "Modeling Assumptions"): (i) the
Mortgage Pool consists of Mortgage Loans with the characteristics set forth in
the table below, (ii) distributions on such Certificates are received, in cash,
on the 20th day of each month, commencing in April 2000, (iii) the Mortgage
Loans prepay at the percentages of the Prepayment Assumption indicated, (iv) no
defaults or delinquencies occur in the payment by mortgagors of principal and
interest on the Mortgage Loans and no shortfalls due to the application of the
Relief Act are incurred, (v) none of the Depositor, the Mortgage Loan
Originator, the holder of the Class X Certificates, the Servicer or any other
person purchases from the Trust Fund any Mortgage Loan pursuant to any
obligation or option under the Agreement, except as indicated in footnote two in
the tables, (vi) scheduled monthly payments on the Mortgage Loans are received
on the first day of each month commencing in April 2000, and are computed prior
to giving effect to any prepayments received in the prior month, and the number
of days of accrual on the Mortgage Loans in the first accrual period is the same
as the number of days in the first Interest Accrual Period for the Certificates,
(vii) prepayments representing payment in full of individual Mortgage Loans are
received on the last day of each month commencing in March 2000, and include 30
days' interest thereon, (viii) the scheduled monthly payment for each Mortgage
Loan is calculated based on its principal balance, Mortgage Rate, original term
to maturity and remaining term to maturity such that the Mortgage Loan will
amortize in amounts sufficient to repay the remaining principal balance of such
Mortgage Loan by its remaining term to maturity, (ix) the Certificates are
purchased on March 20, 2000, (x) the Index remains constant at 6.32% per annum
and the Mortgage Rate on each Mortgage Loan is adjusted on the next Adjustment
Date (and on subsequent Adjustment Dates if necessary) to equal the Index plus
the applicable Gross Margin, subject to the applicable Periodic Rate Cap, (xi)
One-Month LIBOR remains constant at 5.88% per annum, (xii) the monthly payment
on each Mortgage Loan is adjusted on the Due Date immediately following the next
Adjustment Date (and on subsequent Adjustment Dates, if necessary) to equal a
fully amortizing monthly payment as described in clause (viii) above, and (xiii)
the Expense Fee Rate is equal to 0.5115% per annum.
S-26
<PAGE>
Hypothetical Mortgage Loans (6 Month LIBOR):
<TABLE>
<CAPTION>
Original Remaining
Maximum Minimum Term to Term to Initial Subsequent
Principal Months to Interest Gross Interest Interest Maturity Maturity Periodic Periodic
Balance ($) Rate Change Rate % Margin % Rate % Rate % (Months) (Months) Rate % Rate %
----------- ----------- ------ -------- ------ ------ -------- -------- ------ ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
327,967 9 10.641 6.641 16.641 10.641 360 357 2.000 1.000
10,194,987 22 10.302 5.238 16.302 10.302 360 357 3.000 1.000
3,329,282 22 9.521 4.977 15.521 9.521 360 358 3.000 1.000
195,563,624 22 9.212 4.649 15.212 9.212 360 358 3.002 1.000
83,162,867 21 9.728 5.143 15.728 9.728 360 358 3.000 1.000
285,335 34 9.177 3.759 15.177 9.177 360 358 3.000 1.000
286,754 34 10.158 5.510 16.158 10.158 360 358 3.000 1.000
41,466,786 34 8.998 4.190 14.998 8.998 360 358 3.000 1.000
3,732,298 34 9.399 4.602 15.399 9.399 360 358 3.000 1.000
169,859 4 10.435 6.322 16.435 10.435 360 358 1.650 1.000
653,176 22 11.941 7.115 17.941 11.941 360 358 3.000 1.000
4,448,610 22 10.596 6.016 16.596 10.596 360 358 3.000 1.000
264,430 22 10.317 5.714 16.317 10.317 360 358 3.000 1.000
373,921 22 8.982 4.391 14.982 8.982 360 358 3.000 1.000
</TABLE>
There will be discrepancies between the characteristics of the actual
Mortgage Loans and the characteristics assumed in preparing the tables. Any such
discrepancy may have an effect upon the percentages of the initial Class
Certificate Balance outstanding (and the weighted average life) of each Class of
Offered Certificates set forth in the tables. In addition, since the actual
Mortgage Loans will have characteristics that differ from those assumed in
preparing the tables set forth below and, since it is not likely the level of
the Index will remain constant as assumed, each Class of Offered Certificates
may mature earlier or later than indicated by the tables. Variations in the
prepayment experience and the balance of the Mortgage Loans that prepay may
increase or decrease the percentages of initial Class Certificate Balances (and
weighted average lives) shown in the following tables. Such variations may occur
even if the average prepayment experience of all such Mortgage Loans equals any
of the specified percentages of the Prepayment Assumption.
S-27
<PAGE>
Class A Certificates
-----------------------------------------------------------
Distribution Date 0% CPR 15% CPR 20% CPR 25% CPR 30% CPR 35% CPR 40% CPR
- ----------------- ------ ------- ------- ------- ------- ------- -------
Initial Percentage 100 100 100 100 100 100 100
March 20, 2001 99 82 76 70 64 58 53
March 20, 2002 98 66 57 48 39 32 24
March 20, 2003 98 53 42 31 22 14 8
March 20, 2004 97 42 33 26 19 14 8
March 20, 2005 96 36 26 19 13 9 0
March 20, 2006 95 30 21 14 9 0 0
March 20, 2007 94 25 16 10 0 0 0
March 20, 2008 93 21 13 0 0 0 0
March 20, 2009 92 18 10 0 0 0 0
March 20, 2010 90 15 0 0 0 0 0
March 20, 2011 89 13 0 0 0 0 0
March 20, 2012 87 10 0 0 0 0 0
March 20, 2013 85 9 0 0 0 0 0
March 20, 2014 83 0 0 0 0 0 0
March 20, 2015 80 0 0 0 0 0 0
March 20, 2016 78 0 0 0 0 0 0
March 20, 2017 75 0 0 0 0 0 0
March 20, 2018 71 0 0 0 0 0 0
March 20, 2019 67 0 0 0 0 0 0
March 20, 2020 63 0 0 0 0 0 0
March 20, 2021 58 0 0 0 0 0 0
March 20, 2022 53 0 0 0 0 0 0
March 20, 2023 47 0 0 0 0 0 0
March 20, 2024 41 0 0 0 0 0 0
March 20, 2025 35 0 0 0 0 0 0
March 20, 2026 29 0 0 0 0 0 0
March 20, 2027 23 0 0 0 0 0 0
March 20, 2028 16 0 0 0 0 0 0
March 20, 2029 0 0 0 0 0 0 0
Weighted Avg. Life
in Years (1)(2) 20.91 4.71 3.50 2.73 2.18 1.77 1.42
Weighted Avg. Life
in Years (1)(3) 20.95 5.08 3.81 2.98 2.39 1.94 1.56
- ----------------------------------
(1) The weighted average life of a Certificate is determined by (a) multiplying
the amount of each distribution of principal by the number of years from the
date of issuance of the Certificate to the related Distribution Date, (b)
adding the results and (c) dividing the sum by the initial Certificate
Principal Balance of the Certificate.
(2) Assumes the owner of the Class X Certificate exercises its option to
purchase the Mortgage Loans when the aggregate principal balance of the
Mortgage Loans and REO Properties remaining is 10% or less of Cut-off Date
Pool Principal Balance. See "Pooling and Servicing Agreement--Termination"
herein.
(3) Assumes that the Certificates remain outstanding to their maturity date.
S-28
<PAGE>
Class M-1 Certificates
-----------------------------------------------------------
Distribution Date 0% CPR 15% CPR 20% CPR 25% CPR 30% CPR 35% CPR 40% CPR
- ----------------- ------ ------- ------- ------- ------- ------- -------
Initial Percentage 100 100 100 100 100 100 100
March 20, 2001 100 100 100 100 100 100 100
March 20, 2002 100 100 100 100 100 100 100
March 20, 2003 100 100 100 100 100 100 100
March 20, 2004 100 100 80 62 47 36 80
March 20, 2005 100 86 63 46 33 22 0
March 20, 2006 100 72 50 34 23 0 0
March 20, 2007 100 61 40 25 0 0 0
March 20, 2008 100 51 32 0 0 0 0
March 20, 2009 100 43 25 0 0 0 0
March 20, 2010 100 36 0 0 0 0 0
March 20, 2011 100 30 0 0 0 0 0
March 20, 2012 100 25 0 0 0 0 0
March 20, 2013 100 21 0 0 0 0 0
March 20, 2014 100 0 0 0 0 0 0
March 20, 2015 100 0 0 0 0 0 0
March 20, 2016 100 0 0 0 0 0 0
March 20, 2017 100 0 0 0 0 0 0
March 20, 2018 100 0 0 0 0 0 0
March 20, 2019 100 0 0 0 0 0 0
March 20, 2020 100 0 0 0 0 0 0
March 20, 2021 100 0 0 0 0 0 0
March 20, 2022 100 0 0 0 0 0 0
March 20, 2023 100 0 0 0 0 0 0
March 20, 2024 98 0 0 0 0 0 0
March 20, 2025 85 0 0 0 0 0 0
March 20, 2026 71 0 0 0 0 0 0
March 20, 2027 55 0 0 0 0 0 0
March 20, 2028 38 0 0 0 0 0 0
March 20, 2029 0 0 0 0 0 0 0
Weighted Avg. Life
in Years (1)(2) 27.11 8.76 6.52 5.22 4.52 4.24 4.28
Weighted Avg. Life
in Years (1)(3) 27.20 9.57 7.17 5.75 4.96 4.60 4.60
- ----------------------------------
(1) The weighted average life of a Certificate is determined by (a) multiplying
the amount of each distribution of principal by the number of years from the
date of issuance of the Certificate to the related Distribution Date, (b)
adding the results and (c) dividing the sum by the initial Certificate
Principal Balance of the Certificate.
(2) Assumes the owner of the Class X Certificate exercises its option to
purchase the Mortgage Loans when the aggregate principal balance of the
Mortgage Loans and REO Properties remaining is 10% or less of Cut-off Date
Pool Principal Balance. See "Pooling and Servicing Agreement--Termination"
herein.
(3) Assumes that the Certificates remain outstanding to their maturity date.
S-29
<PAGE>
Class M-2 Certificates
-----------------------------------------------------------
Distribution Date 0% CPR 15% CPR 20% CPR 25% CPR 30% CPR 35% CPR 40% CPR
- ----------------- ------ ------- ------- ------- ------- ------- -------
Initial Percentage 100 100 100 100 100 100 100
March 20, 2001 100 100 100 100 100 100 100
March 20, 2002 100 100 100 100 100 100 100
March 20, 2003 100 100 100 100 100 100 100
March 20, 2004 100 100 80 62 47 35 25
March 20, 2005 100 86 63 46 33 22 0
March 20, 2006 100 72 50 34 23 0 0
March 20, 2007 100 61 40 25 0 0 0
March 20, 2008 100 51 32 0 0 0 0
March 20, 2009 100 43 25 0 0 0 0
March 20, 2010 100 36 0 0 0 0 0
March 20, 2011 100 30 0 0 0 0 0
March 20, 2012 100 25 0 0 0 0 0
March 20, 2013 100 21 0 0 0 0 0
March 20, 2014 100 0 0 0 0 0 0
March 20, 2015 100 0 0 0 0 0 0
March 20, 2016 100 0 0 0 0 0 0
March 20, 2017 100 0 0 0 0 0 0
March 20, 2018 100 0 0 0 0 0 0
March 20, 2019 100 0 0 0 0 0 0
March 20, 2020 100 0 0 0 0 0 0
March 20, 2021 100 0 0 0 0 0 0
March 20, 2022 100 0 0 0 0 0 0
March 20, 2023 100 0 0 0 0 0 0
March 20, 2024 98 0 0 0 0 0 0
March 20, 2025 85 0 0 0 0 0 0
March 20, 2026 71 0 0 0 0 0 0
March 20, 2027 55 0 0 0 0 0 0
March 20, 2028 38 0 0 0 0 0 0
March 20, 2029 0 0 0 0 0 0 0
Weighted Avg. Life
in Years (1)(2) 27.11 8.76 6.52 5.19 4.43 4.03 3.86
Weighted Avg. Life
in Years (1)(3) 27.20 9.47 7.08 5.65 4.81 4.34 4.12
- ----------------------------------
(1) The weighted average life of a Certificate is determined by (a) multiplying
the amount of each distribution of principal by the number of years from the
date of issuance of the Certificate to the related Distribution Date, (b)
adding the results and (c) dividing the sum by the initial Certificate
Principal Balance of the Certificate.
(2) Assumes the owner of the Class X Certificate exercises its option to
purchase the Mortgage Loans when the aggregate principal balance of the
Mortgage Loans and REO Properties remaining is 10% or less of Cut-off Date
Pool Principal Balance. See "Pooling and Servicing Agreement--Termination"
herein.
(3) Assumes that the Certificates remain outstanding to their maturity date.
S-30
<PAGE>
Class B Certificates
-----------------------------------------------------------
Distribution Date 0% CPR 15% CPR 20% CPR 25% CPR 30% CPR 35% CPR 40% CPR
- ----------------- ------ ------- ------- ------- ------- ------- -------
Initial Percentage 100 100 100 100 100 100 100
March 20, 2001 100 100 100 100 100 100 100
March 20, 2002 100 100 100 100 100 100 100
March 20, 2003 100 100 100 100 100 100 100
March 20, 2004 100 100 80 62 47 35 25
March 20, 2005 100 86 63 46 33 21 0
March 20, 2006 100 72 50 34 21 0 0
March 20, 2007 100 61 40 25 0 0 0
March 20, 2008 100 51 32 0 0 0 0
March 20, 2009 100 43 25 0 0 0 0
March 20, 2010 100 36 0 0 0 0 0
March 20, 2011 100 30 0 0 0 0 0
March 20, 2012 100 25 0 0 0 0 0
March 20, 2013 100 19 0 0 0 0 0
March 20, 2014 100 0 0 0 0 0 0
March 20, 2015 100 0 0 0 0 0 0
March 20, 2016 100 0 0 0 0 0 0
March 20, 2017 100 0 0 0 0 0 0
March 20, 2018 100 0 0 0 0 0 0
March 20, 2019 100 0 0 0 0 0 0
March 20, 2020 100 0 0 0 0 0 0
March 20, 2021 100 0 0 0 0 0 0
March 20, 2022 100 0 0 0 0 0 0
March 20, 2023 100 0 0 0 0 0 0
March 20, 2024 98 0 0 0 0 0 0
March 20, 2025 85 0 0 0 0 0 0
March 20, 2026 71 0 0 0 0 0 0
March 20, 2027 55 0 0 0 0 0 0
March 20, 2028 38 0 0 0 0 0 0
March 20, 2029 0 0 0 0 0 0 0
Weighted Avg. Life
in Years (1)(2) 27.10 8.74 6.51 5.17 4.37 3.90 3.62
Weighted Avg. Life
in Years (1)(3) 27.16 9.09 6.78 5.39 4.55 4.05 3.74
- ----------------------------------
(1) The weighted average life of a Certificate is determined by (a) multiplying
the amount of each distribution of principal by the number of years from the
date of issuance of the Certificate to the related Distribution Date, (b)
adding the results and (c) dividing the sum by the initial Certificate
Principal Balance of the Certificate.
(2) Assumes the owner of the Class X Certificate exercises its option to
purchase the Mortgage Loans when the aggregate principal balance of the
Mortgage Loans and REO Properties remaining is 10% or less of Cut-off Date
Pool Principal Balance. See "Pooling and Servicing Agreement--Termination"
herein.
(3) Assumes that the Certificates remain outstanding to their maturity date.
S-31
<PAGE>
There is no assurance that prepayments of the Mortgage Loans will conform
to any of the levels of the Prepayment Assumption indicated in the table above,
or to any other level, or that the actual weighted average life of any Class of
Offered Certificates will conform to any of the weighted average lives set forth
in the table above. Furthermore, the information contained in the table with
respect to the weighted average lives is not necessarily indicative of the
weighted average lives that might be calculated or projected under different or
varying prepayment or Index level assumptions. The characteristics of the
Mortgage Loan will differ from those assumed in preparing the table above. In
addition, it is unlikely that any Mortgage Loan will prepay at any constant
percentage until maturity, that all of the Mortgage Loans will prepay at the
same rate or that the level of the Index will remain constant at any level for
any period of time. The timing of changes in the rate of prepayments may
significantly affect the actual yield to maturity to investors, even if the
average rate of principal prepayments and the level of the Index is consistent
with the expectations of investors.
Final Scheduled Distribution Dates
The Final Scheduled Distribution Date of each Class of Offered
Certificates is set forth under "Summary of Prospectus Supplement." The Final
Scheduled Distribution Date for the Class A Certificates has been calculated on
the basis of the Modeling Assumptions and the assumptions that there are no
prepayments and no Monthly Excess Interest Amounts are used to create
overcollateralization. The Final Scheduled Distribution Date for each other
Class of Offered Certificates has been set to equal the Distribution Date in the
thirteenth month after the month of maturity of the latest maturing Mortgage
Loan. Since the rate of distributions in reduction of the Class Certificate
Balance of each Class of Offered Certificates will depend on the rate of payment
(including prepayments) of the Mortgage Loans, the Class Certificate 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.
DESCRIPTION OF THE CERTIFICATES
General
The Certificates will consist of (i) the Class A Certificates (the "Class
A Certificates"), (ii) the Class M-1 Certificates and the Class M-2 Certificates
(collectively, the "Mezzanine Certificates"), (iii) the Class B Certificates
(collectively with the Mezzanine Certificates, the "Subordinated Certificates"),
(iv) the Class BB Certificates (the "Class BB Certificates"), (v) the Class X
Certificates (the "Class X Certificates"), and (vi) the Class R Certificates
(the "Residual Certificates" and with the Class BB Certificates and the Class X
Certificates, the "Non-Offered Certificates"). Only the Class A Certificates and
the Subordinated Certificates (collectively, the "Offered Certificates") are
offered hereby. The Non-Offered Certificates, which are not being offered
hereby, may be sold at any time on or after the Closing Date in accordance with
the Agreement.
The Certificates represent in the aggregate the entire beneficial
ownership interest in a Trust Fund (the "Trust Fund") consisting primarily of a
pool (the "Mortgage Pool") of conventional, one- to four-family, first lien
mortgage loans having original terms to maturity of 30 years (the "Mortgage
Loans"). The Class A Certificates evidence an initial beneficial interest in the
Trust Fund of 85.25% and the Class M-1, Class M-2 and Class B Certificates
evidence initial beneficial interests in the Trust Fund of 4.50%, 4.25% and
4.00%, respectively.
The "Class Certificate Balance" of any Class of Certificates as of any
Distribution Date is the initial Class Certificate Balance thereof reduced by
the sum of (i) all amounts previously distributed to Holders of Certificates of
such Class as payments of principal and (ii) in the case of any Class of Offered
Certificates, any Applied Realized Loss Amounts allocated to such Class.
All distributions to Holders of the Offered Certificates, other than the
final distribution on the Offered Certificates, will be made by or on behalf of
the Trustee to the persons in whose names such Offered Certificates are
registered at the close of business on each Record Date. Such distributions will
be made either (i) by check mailed to the address of each such Certificateholder
as it appears in the Certificate Register or (ii) upon written request to
S-32
<PAGE>
the Trustee at least five business days prior to the relevant Record Date by any
Holder of Offered Certificates having an aggregate initial Certificate Principal
Balance that is in excess of $5,000,000 by wire transfer in immediately
available funds to the account of such Certificateholder specified in the
request. The final distribution on any Class of Offered Certificates will be
made in like manner, but only upon presentment and surrender of such
Certificates at the corporate trust office of the Trustee or such other location
specified in the notice to Certificateholders of such final distribution.
Book-Entry Registration and Definitive Certificates
The Offered Certificates will be issued, maintained and transferred on the
book-entry records of DTC and its Participants in minimum denominations of
$100,000 and integral multiples of $1,000 in excess thereof. The Offered
Certificates will initially be represented by one or more global certificates
registered in the name of the nominee of DTC (together with any successor
clearing agency selected by the Depositor, the "Clearing Agency"), except as
provided below. The Depositor has been informed by DTC that DTC's nominee will
be CEDE & Co. ("CEDE"). No Certificate Owner will be entitled to receive a
certificate representing such person's interest, except as set forth below.
Unless and until Definitive Certificates are issued under the limited
circumstances described herein, all references to actions by Certificateholders
with respect to the Offered Certificates refer to actions taken by DTC upon
instructions from its Participants (as defined below), and all references herein
to distributions, notices, reports and statements to Certificateholders with
respect to the Offered Certificates refer to distributions, notices, reports and
statements to DTC or CEDE, as the registered holder of the Offered Certificates,
for distribution to Certificate Owners in accordance with DTC procedures.
Holders of Offered Certificates may hold their Certificates through DTC
(in the United States) or Clearstream, Luxembourg ("Clearstream") or the
Euroclear System ("Euroclear") in Europe. Transfers within DTC, Clearstream or
Euroclear, as the case may be, will be in accordance with the usual rules and
operating procedures of the relevant system (in Europe) 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 Clearstream's and
Euroclear's names on the books of their respective depositories 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 The Chase Manhattan Bank will act as depositary for Euroclear (in such
capacities, individually the "Depositary" and collectively the "Depositaries").
Transfers between Participants (as defined below) will occur in accordance with
DTC rules. Transfers between Clearstream Participants and Euroclear Participants
(each as defined below) will occur in accordance with their respective rules and
operating procedures.
DTC is a limited-purpose trust company organized under the laws of the
State of New York, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the UCC and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Exchange Act. DTC was created
to hold securities for its participating organizations ("Participants") and
facilitate the clearance and settlement of securities transactions between
Participants through electronic book-entry changes in their accounts, thereby
eliminating the need for physical movement of certificates. Participants include
securities brokers and dealers, banks, trust companies and clearing corporations
and may include certain other organizations. Indirect access to the DTC system
also is available to others such as banks, brokers, dealers and trust companies
that clear through or maintain a custodial relationship with a Participant,
either directly or indirectly ("Indirect Participants").
Beneficial owners of the Offered Certificates ("Certificate Owners") or
prospective owners, as the case may be, that are not Participants or Indirect
Participants but desire to purchase, sell or otherwise transfer ownership of, or
other interests in the Offered Certificates may do so only through Participants
and Indirect Participants. In addition, such Certificate Owners will receive all
distributions of principal and interest on the Offered Certificates from the
Trustee or the applicable paying agent through DTC and its Participants. Under a
book-entry format, Certificateholders may receive payments after the related
Distribution Date because, while payments are required to be forwarded to CEDE &
Co., as nominee for DTC on each such date, DTC will forward such payments to its
Participants which thereafter will be required to forward them to Indirect
Participants or Certificate Owners. The
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only "Certificateholder" (as such term is used in the Agreement) will be CEDE &
Co., as nominee of DTC, and the Certificate Owners will not be recognized by the
Trustee as Certificateholders under the Agreement. Certificate Owners will be
permitted to exercise the rights of Certificate Owners under the Agreement only
indirectly through DTC and its Participants who in turn will exercise their
rights though DTC.
Under the rules, regulations and procedures creating and affecting DTC and
its operations, DTC is required to make book-entry transfers among Participants
on whose behalf it acts with respect to the Certificates and is required to
receive and transmit distributions of principal of and interest on the
Certificates. Participants and Indirect Participants with which Certificate
Owners have accounts with respect to the Certificates similarly are required to
make book-entry transfers and receive and transmit such payments on behalf of
their respective Certificate Owners.
Because DTC can act only on behalf of Participants, who in turn act on
behalf of Indirect Participants and certain other entities, the ability of a
Certificate Owner to pledge Certificates to persons or entities that do not
participate in the DTC system, or otherwise take actions in respect of such
Certificates, may be limited due to the lack of a physical certificate for such
Certificates.
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 DTC in
accordance with DTC rules on behalf of the relevant European international
clearing system by its Depositary; however, such cross-market transactions will
require delivery of instructions to the relevant European international clearing
system by the counterparty in such system in accordance with its rules and
procedures and within its established deadlines (European time). The relevant
European international clearing system will, if the transaction meets its
settlement requirements, deliver instructions to its 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
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 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 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.
Clearstream is incorporated under the laws of Luxembourg as a professional
depository. Clearstream holds securities for its participating organizations
("Clearstream Participants") and facilitates the clearance and settlement of
securities transactions between Clearstream Participants through electronic
book-entry changes in accounts of Clearstream Participants, thereby eliminating
the need for physical movement of certificates. Transactions may be settled in
Clearstream in any of 28 currencies, including United States dollars.
Clearstream provides to its Clearstream Participants, among other things,
services for safekeeping, administration, clearance and settlement of
internationally traded securities and securities lending and borrowing.
Clearstream interfaces with domestic markets in several countries. As a
professional depository, Clearstream is subject to regulation by the Luxembourg
Monetary Institute. Clearstream Participants are recognized financial
institutions around the world, including underwriters, securities brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations. Indirect access to Clearstream is also available to others, such
as banks, brokers, dealers and trust companies that clear through or maintain a
custodial relationship with a Clearstream Participant, either directly or
indirectly.
Euroclear was created in 1968 to hold securities for participants of
Euroclear ("Euroclear Participants") and to clear and settle transactions
between Euroclear Participants through simultaneous electronic book-entry
delivery against payment, thereby eliminating the need for physical movement of
certificates and any risk from lack of simultaneous transfers of securities and
cash. Transactions may now be settled in any of 32 currencies, including United
States dollars. Euroclear includes various other services including lending and
borrowing and interfaces with
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domestic markets in several countries generally similar to the arrangements for
cross-market transfers with DTC described above. Euroclear is operated by the
Brussels, Belgium office of Morgan Guaranty Trust Company of New York (the
"Euroclear Operator"), under contract with Euroclear Clearance Systems S.C., a
Belgian cooperative corporation (the "Cooperative"). All operations are
conducted by the Euroclear Operator, and all Euroclear securities clearance
accounts and Euroclear cash accounts are accounts with the Euroclear Operator,
and not the Cooperative. The Cooperative establishes policy for Euroclear on
behalf of Euroclear Participants. Euroclear Participants include banks
(including central banks), securities brokers and dealers and other professional
financial intermediaries. Indirect access to Euroclear is also available to
other firms that clear through or maintain a custodial relationship with a
Euroclear Participant, either directly or indirectly. The Euroclear Operator is
the Belgian branch of a New York banking corporation which is a member bank of
the Federal Reserve System and the New York State Banking Department, as well as
the Belgian Banking Commission.
Securities clearance accounts and cash accounts with the Euroclear
Operator are governed by the Terms and Conditions Governing Use of Euroclear and
the related Operating Procedures of the Euroclear system and applicable Belgian
law (collectively, the "Terms and Conditions"). The Terms and Conditions govern
transfers of securities and cash with 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 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 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 its Depositary. Such distributions will be
subject to tax reporting in accordance with relevant United States tax laws and
regulations. See "Certain Federal Income Tax Consequences." Clearstream or the
Euroclear Operator, as the case may be, will take any other action permitted to
be taken by a Certificateholder under the Agreement on behalf of a Clearstream
Participant or Euroclear Participant only in accordance with its relevant rules
and procedures and subject to 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 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.
DTC has advised the Depositor that it will take any action permitted to be
taken by a Certificateholder under the Agreement only at the direction of one or
more Participants to whose account with DTC the Certificates are credited.
Certificates initially issued as Book-Entry Certificates will be issued as
Definitive Certificates only if (i) DTC or the Depositor advises the Trustee in
writing that DTC is no longer willing or able to properly discharge its
responsibilities as nominee and depository with respect to the Certificates and
the Servicer is unable to locate a qualified successor or (ii) the Depositor, at
its option, elects to terminate the book-entry system through DTC or (iii) if
Holders of Offered Certificates evidencing not less than 51% of the Voting
Rights advise the Trustee in writing that the continuation of a book-entry
system through DTC (or a successor thereto) to the exclusion of any physical
certificates being issued to Certificate Owners is no longer in the best
interests of Certificate Owners.
Upon the occurrence of any of the events described in the immediately
preceding paragraph, DTC is required to notify all Participants of the
availability through DTC of Definitive Certificates for the Certificates. Upon
surrender by DTC of the certificate or certificates representing such
Certificates and instructions for registration, the Trustee will issue such
Certificates in the form of Definitive Certificates as Certificateholders under
the Agreement and such Holders of Definitive Certificates will deal directly
with the Trustee with respect to transfers, notices and distributions. In the
event that Definitive Certificates are issued or DTC ceases to be the clearing
agency for the Certificates, the Agreement will provide that the applicable
Certificateholders will be notified of such event.
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Calculation of One-Month LIBOR
The Pass-Through Rates 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, an "Interest
Determination Date"). The Trustee will determine the London interbank offered
rate for one-month U.S. dollar deposits ("One-Month LIBOR") for each Interest
Accrual Period on the basis of the offered rates of the Reference Banks for
one-month U.S. dollar deposits, as such rates appear on the Telerate Page 3750,
as of 11:00 a.m. (London time) on such Interest Determination Date. As used in
this section: "LIBOR business day" means a day on which banks are open for
dealing in foreign currency and exchange in London and New York City; "Telerate
Page 3750" means the display page currently so designated on the Dow Jones
Telerate Service (or such other page as may replace the Telerate Page 3750 page
on that service for the purpose of displaying London interbank offered rates of
major banks); and "Reference Banks" means leading banks selected by the Trustee
and engaged in transactions in Eurodollar deposits in the international
Eurocurrency market (i) with an established place of business in London, (ii)
whose quotations appear on the Telerate Page 3750 on the Interest Determination
Date in question, (iii) which have been designated as such by the Depositor and
(iv) which are not controlling, controlled by, or under common control with, the
Depositor or the Mortgage Loan Originator.
On each Interest Determination Date, One-Month LIBOR for the related
Interest Accrual Period will be established by the Trustee as follows:
(a) If on such Interest Determination Date two or more Reference Banks
provide such offered quotations, One-Month LIBOR for the related
Interest Accrual Period shall be the arithmetic mean of such offered
quotations (rounded upwards if necessary to the nearest whole multiple
of 0.001%).
(b) If on such Interest Determination Date fewer than two Reference Banks
provide such offered quotations, One-Month LIBOR for the related
Interest Accrual Period shall be the higher of (x) One-Month LIBOR as
determined on the previous Interest Determination Date and (y) the
Reserve Interest Rate. The "Reserve Interest Rate" shall be the rate
per annum that the Trustee determines to be either (i) the arithmetic
mean (rounded upwards if necessary to the nearest whole multiple of
0.001%) of the one-month U.S. dollar lending rates which New York City
banks selected by the Depositor are quoting on the relevant Interest
Determination Date to the principal London offices of leading banks in
the London interbank market or, in the event that the Trustee can
determine no such arithmetic mean (ii) the lowest one-month U.S.
dollar lending rate which New York City banks selected by the
Depositor are quoting on such Interest Determination Date to leading
European banks.
The establishment of One-Month LIBOR on each Interest Determination Date
by the Trustee and the Trustee's calculation of the rate of interest applicable
to each Class of Offered Certificates for the related Interest Accrual Period
shall (in the absence of manifest error) be final and binding.
Interest Distributions
On each Distribution Date the Interest Remittance Amount will be
distributed in the following order of priority:
First, to the Trustee, the Trustee Fee and the expenses of the Trustee;
Second, to the Holders of the Class A Certificates, the related Accrued
Certificate Interest plus the Class A Interest Carry Forward Amount;
Third, to the extent of the Interest Remittance Amount then remaining, to
the Holders of the Class M-1 Certificates, the related Accrued Certificate
Interest;
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Fourth, to the extent of the Interest Remittance Amount then remaining, to
the Holders of the Class M-2 Certificates, the related Accrued Certificate
Interest;
Fifth, to the extent of the Interest Remittance Amount then remaining, to
the Holders of the Class B Certificates, the related Accrued Certificate
Interest; and
Sixth, the amount, if any, of the Interest Remittance Amount remaining in
the Certificate Account after application with respect to the priorities set
forth above is defined as the "Monthly Excess Interest Amount" for such
Distribution Date and will be applied as described below under "--Application of
Monthly Excess Cashflow Amounts."
"Accrued Certificate Interest" means the interest accrued during the
related Interest Accrual Period on the Class Certificate Balance of such Class
of Offered Certificates at the then-applicable Pass-Through Rate, subject to
reduction only in the event of shortfalls caused by the Relief Act.
"Interest Carry Forward Amount" means for any class of 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 Pass-Through Rate for the actual number of days elapsed since the
prior Distribution Date.
"Interest Remittance Amount" means, as of any Determination Date, the sum,
without duplication, of (i) all interest due and collected or advanced during
the related Collection Period on the Mortgage Loans (less the Servicing Fee,
certain amounts available for reimbursement of Monthly Advances and Servicing
Advances as described below under "-Advances" and certain other reimbursable
expenses pursuant to the Agreement), (ii) all Compensating Interest paid by the
Servicer on such Determination Date and (iii) the portion of any payment in
connection with any substitution, Purchase Price or Net Liquidation Proceeds
relating to interest.
The "Interest Accrual Period" for any Distribution Date is the period from
the Distribution Date in the month immediately preceding the month in which such
Distribution Date occurs (or, in the case of the first Distribution Date, from
the Closing Date) through the day before such Distribution Date. All
distributions of interest will be based on a 360-day year and the actual number
of days in the applicable Interest Accrual Period.
Pass-Through Rates
The Pass-Through Rate on each Class of Offered Certificates on each
Distribution Date will be a rate per annum equal to the lesser of (i) One-Month
LIBOR (as defined herein) plus the applicable Pass-Through Margin (the "LIBOR
Rate"), and (ii) the Available Funds Pass-Through Rate for such Distribution
Date. The "Pass-Through Margin" for each Class of Offered Certificates will be
as set forth below; provided, however, that for each Interest Accrual Period
beginning after the Distribution Date on which the aggregate Stated Principal
Balance (as defined herein) of the Mortgage Loans is 10% or less of the Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date (the "Cut-off
Date Pool Principal Balance") each such Pass-Through Margin will be doubled for
the Senior Certificates and increased by 50% for the Subordinated Certificates:
Class Pass-Through Margin
----- -------------------
A 0.30%
M-1 0.55%
M-2 1.00%
B 2.00%
If, on any Distribution Date, the Pass-Through Rate for any Class of
Offered Certificates is limited by the Available Funds Pass-Through Rate, the
excess of (i) the LIBOR Rate (but not more than the Expense Adjusted Maximum
Mortgage Rate) over (ii) the Available Funds Pass-Through Rate is the "LIBOR
Shortfall" for such Class
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and Distribution Date. On such Distribution Date, Holders of the Offered
Certificates will be entitled to receive, from and to the limited extent of
funds available therefor as described herein, an amount equal to the sum of (i)
the LIBOR Shortfall for such Distribution Date and (ii) the LIBOR Carryover
Amount for such Distribution Date.
The "Available Funds Pass-Through Rate" will be, with respect to any
Distribution Date, the per annum rate equal to the percentage obtained by
dividing (x) the amount of interest that accrued on the Mortgage Loans in
respect of the related Collection Period at the weighted average of the related
Mortgage Rates applicable to monthly payments due on such Mortgage Loans during
such Collection Period, reduced by the Expense Fee Rate, by (y) the product of
(i) the aggregate Class Certificate Balance and (ii) the actual number of days
elapsed during such Interest Accrual Period divided by 360.
The "Expense Adjusted Maximum Mortgage Rate" on any Mortgage Loan is equal
to the applicable Maximum Mortgage Rate thereon minus the sum of (i) the Trustee
Fee Rate, and (ii) the Servicing Fee Rate (collectively, the "Expense Fee
Rate"). For any Distribution Date, the Trustee Fee Rate is 0.0115% per annum and
the Servicing Fee Rate is 0.50% per annum.
The "LIBOR Carryover Amount" for any Class of Offered Certificates and any
Distribution Date will equal the sum of (i) the excess, if any, of the LIBOR
Shortfall for such Class on all preceding Distribution Dates over the amount, if
any, actually distributed in respect thereof on such preceding Distribution
Dates and (ii) interest on such excess for the actual number of days elapsed
since the prior Distribution Date at the applicable LIBOR Rate (limited by the
Expense Adjusted Maximum Mortgage Rate). The ratings of the Offered Certificates
do not address the likelihood of the payment of any LIBOR Carryover Amount.
Principal Distributions
With respect to each Distribution Date (a) before the Stepdown Date or (b)
with respect to which a Trigger Event is in effect, Holders of the Class A
Certificates will be entitled to receive 100% of the Principal Distribution
Amount for such Distribution Date until the Class Certificate Balance thereof
has been reduced to zero. Once the Class Certificate Balance of the Class A
Certificates has been reduced to zero, the Holders of the Class M-1 Certificates
will be entitled to receive 100% of the Principal Distribution Amount for such
Distribution Date until the Class Certificate Balance of the Class M-1
Certificates has been reduced to zero. Similarly if the Class Certificate
Balance of the Class M-1 Certificates has been reduced to zero, the Holders of
the Class M-2 Certificates will be entitled to receive 100% of the Principal
Distribution Amount until the Class Certificate Balance of the Class M-2
Certificates has been reduced to zero. Finally, if the Class Certificate Balance
of the Class M-2 Certificates has been reduced to zero, the Holders of the Class
B Certificates will be entitled to receive 100% of the Principal Distribution
Amount until the Class Certificate Balance of the Class B Certificates has been
reduced to zero.
In the event that on any Distribution Date on or after the Stepdown Date
on which a Trigger Event is in effect the Holders of the Class A Certificates
will be entitled to receive 100% of the Principal Distribution Amount until the
Class Certificate Balance of the Class A Certificates has been reduced to zero.
Once the Class Certificate Balance of the Class A Certificates has been reduced
to zero, the Holders of the Class M-1 Certificates will be entitled to receive
100% of the Principal Distribution Amount for such Distribution Date until the
Class Certificate Balance of the Class M-1 Certificates has been reduced to
zero. Similarly if the Class Certificate Balance of the Class M-1 Certificates
has been reduced to zero, the Holders of the Class M-2 Certificates will be
entitled to receive 100% of the Principal Distribution Amount until the Class
Certificate Balance of the Class M-2 Certificates has been reduced to zero.
Finally, if the Class Certificate Balance of the Class M-2 Certificates has been
reduced to zero, the Holders of the Class B Certificates will be entitled to
receive 100% of the Principal Distribution Amount until the Class Certificate
Balance of the Class B Certificates has been reduced to zero.
With respect to each Distribution Date (a) on or after the Stepdown Date
and (b) as long as a Trigger Event is not in effect, the Holders of all Classes
of Offered Certificates will be entitled to receive payments of principal, in
the order of priority and in the amounts set forth below and to the extent of
the Principal Distribution Amount:
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First, the lesser of (x) the Principal Distribution Amount and (y) the
Class A Principal Distribution Amount will be distributed to the Class A
Certificates, until the Class Certificate Balance thereof has been reduced to
zero;
Second, the lesser of (x) the excess of (i) the Principal Distribution
Amount over (ii) the amount distributed to the Class A Certificates in clause
First above and (y) the Class M-1 Principal Distribution Amount will be
distributed to the Class M-1 Certificates, until the Class Certificate Balance
thereof has been reduced to zero;
Third, the lesser of (x) the excess of (i) the Principal Distribution
Amount over (ii) the sum of the amount distributed to the Class A Certificates
in clause First above and the amount distributed to the Class M-1 Certificates
in clause Second above and (y) the Class M-2 Principal Distribution Amount will
be distributed to the Class M-2 Certificates, until the Class Certificate
Balance thereof has been reduced to zero;
Fourth, the lesser of (x) the excess of (i) the Principal Distribution
Amount over (ii) the sum of the amount distributed to the Class A Certificates
pursuant to Clause First above, the amount distributed to the Class M-1
Certificates pursuant to Clause Second above and the amount distributed to the
Class M-2 Certificates pursuant to Clause Third above and (y) the Class B
Principal Distribution Amount will be distributed to the Class B Certificates,
until the Class Certificate Balance thereof has been reduced to zero; and
Fifth, any amount of the Principal Remittance Amount remaining after
making all of the distributions in Clauses First, Second, Third and Fourth above
will be included as part of the Monthly Excess Cashflow Amount and will be
applied as described below under "--Application of Monthly Excess Cashflow
Amounts."
All Prepayment Premiums will be paid to the owner of the Class X
Certificate.
For purposes of the foregoing, the following terms will have the
respective meanings set forth below.
"Class A Principal Distribution Amount" means as of any Distribution Date
(a) prior to the Stepdown Date or with respect to which a Trigger Event is in
effect, the lesser of (i) 100% of the Principal Distribution Amount and (ii) the
Class Certificate Balance of the Class A Certificates and (b) on or after the
Stepdown Date and as long as a Trigger Event is not in effect, the positive
difference, if any, of the excess of (x) the Class Certificate Balance of the
Class A Certificates immediately prior to such Distribution Date over (y) the
lesser of (A) the product of (i) approximately 70.5% and (ii) the Pool Principal
Balance as of the last day of the related Collection Period and (B) the Pool
Principal Balance as of the last day of the related Collection Period minus
$1,721,299.48.
"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 positive difference, if any, of the excess of (x) the sum of (i) the
Class Certificate Balance of the Class A Certificates (after taking into account
the payment of the Class A Principal Distribution Amount on such Distribution
Date) and (ii) the Class Certificate Balance of the Class M-1 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) approximately 79.5% and (ii) the Pool Principal Balance as of the
last day of the related Collection Period and (B) the Pool Principal Balance as
of the last day of the related Collection Period minus $1,721,299.48.
"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 positive difference, if any, of the excess of (x) the sum of (i) the
Class Certificate Balance of the Class A Certificates (after taking into account
the payment of the Class A Principal Distribution Amount on such Distribution
Date), (ii) the Class Certificate 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 Class Certificate Balance of the Class
M-2 Certificates immediately prior to such Distribution Date over (y) the lesser
of (A) the product of (i) approximately 88.0% and (ii) the Pool Principal
Balance as of the last day of the related Collection Period and (B) the Pool
Principal Balance as of the last day of the related Collection Period minus
$1,721,299.48.
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"Class B Principal Distribution Amount" means as of any Distribution Date
on or after the Stepdown Date and as long as a Trigger Event is not in effect,
the positive difference, if any, of the excess of (x) the sum of (i) the Class
Certificate Balance of the Class A Certificates (after taking into account the
payment of the Class A Principal Distribution Amount on such Distribution Date),
(ii) the Class Certificate 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 Class Certificate 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 Class Certificate
Balance of the Class B Certificates immediately prior to such Distribution Date
over (y) the lesser of (A) the product of (i) approximately 96.0% (ii) the Pool
Principal Balance as of the last day of the related Collection Period and (B)
the Pool Principal Balance as of the last day of the related Collection Period
minus $1,721,299.48.
"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,
provided that on the first Distribution Date principal due during the period
from the Cut-off Date to the related Determination Date will be distributed,
which will reduce the amount available on such Distribution Date for
distribution as Extra Principal Distribution Amount.
"Liquidated Mortgage Loan" means as to any Distribution Date, a Mortgage
Loan with respect to which the Servicer has determined, in accordance with the
servicing procedures specified in the Agreement, as of the end of the preceding
Collection Period, that all Liquidation Proceeds which it expects to recover
with respect to such Mortgage Loan have been recovered.
"Overcollateralization Amount" means as of any Distribution Date the
excess, if any, of (x) the Pool Principal Balance as of the last day of the
immediately preceding Collection Period over (y) the aggregate Class Certificate
Balance of all Classes of Offered Certificates (after taking into account all
distributions of principal on such Distribution Date).
"Overcollateralization Deficiency" means, as of any Distribution Date, the
excess, if any, of (x) the Targeted Overcollateralization Amount for such
Distribution Date over (y) the Overcollateralization Amount for such
Distribution Date, calculated for this purpose after taking into account the
reduction on such Distribution Date of the Class Certificate Balances of all
Classes of the Offered Certificates resulting from the distribution of the
Principal Remittance 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 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 Offered Certificates on such Distribution
Date, over (ii) the Targeted Overcollateralization Amount for such Distribution
Date.
"Prepayment Premium" means, with respect to any Mortgage Loan, the
penalties or premiums, if any, due in connection with the prepayment of such
Mortgage Loan in accordance with the terms thereof.
"Principal Distribution Amount" means as of any Distribution Date, the sum
of (i) the Principal Remittance Amount (minus, for Distribution Dates occurring
on and after the Stepdown Date and for which a Trigger Event is not in effect,
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 Monthly
Advances and Servicing Advances as described below under "-Advances" and certain
other reimbursable expenses pursuant to the Agreement) of the following amounts
(without duplication) with respect to the immediately preceding Collection
Period: (i) each payment of principal on a Mortgage Loan received by the
Servicer
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during such Collection Period, including all full and partial principal
prepayments (excluding Prepayment Premiums) and any Advances with respect
thereto, (ii) the Net Liquidation Proceeds allocable to principal actually
collected by the Servicer during the related Collection Period, (iii) the
portion of the Purchase Price allocable to principal of all repurchased
Defective Mortgage Loans with respect to such Collection Period and (iv) any
Substitution Adjustment Amounts received on or prior to the previous
Determination Date and not yet distributed.
"Senior Enhancement Percentage" for any Distribution Date is the
percentage obtained by dividing (x) the sum of (i) the aggregate Class
Certificate Balance of the Subordinated Certificates and (ii) the
Overcollateralization Amount, in each case after taking into account the
distribution of the Principal Distribution Amount on such Distribution Date by
(y) the Pool Principal Balance as of the last day of the related Collection
Period.
"Senior Specified Enhancement Percentage" on any date of determination
thereof means 29.50%.
"60+ Day Delinquent Loan" means each Mortgagee Loan 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 (without giving effect to any grace period),
each Mortgage Loan in foreclosure, all REO Property and each Mortgage Loan for
which the Mortgagor has filed for bankruptcy.
"Stepdown Date" means the earlier to occur of (i) the later to occur of
(x) the Distribution Date in April 2003 and (y) the first Distribution Date on
which the Senior Enhancement Percentage (after taking into account distributions
of principal on such Distribution Date) is greater than or equal to the Senior
Specified Enhancement Percentage and (ii) the Distribution Date on which the
Class Certificate Balance of the Class A Certificates has been reduced to zero.
"Targeted Overcollateralization Amount" means as of any Distribution Date,
(x) prior to the Stepdown Date, 2.00% of the initial Class Certificate Balance
of the Pool Principal Balance and (y) on and after the Stepdown Date and
assuming a Trigger Event is not in effect, the greater of (i) 4.00% of the Pool
Principal Balance as of the last day of the related Collection Period and (ii)
$1,721,299.48. If a Trigger Event is in effect on and after the Stepdown Date,
the Targeted Overcollateralization Amount shall be equal to the Targeted
Overcollateralization Amount for the immediately preceding Distribution Date.
A "Trigger Event" has occurred on a Distribution Date if the three-month
rolling average of 60+ Day Delinquent Loans equals or exceeds one-half of the
Senior Enhancement Percentage; provided, that if the Class Certificate Balance
of the Class A Certificates has been reduced to zero, a Trigger Event will have
occurred if the three-month rolling average of 60+ Day Delinquent Loans equals
or exceeds 14.75%.
Credit Enhancement
The credit enhancement consists of the subordination of the Subordinated
Certificates to the Class A Certificates, the further subordination of each
other Class of Subordinated Certificates that is junior in priority of
distribution, the priority of the application of the Applied Realized Loss
Amounts and the overcollateralization provisions of the Trust Fund as described
herein.
The rights of the holders of the Subordinated Certificates to receive
distributions with respect to the Mortgage Loans will be subordinated, to the
extent described herein, to such rights of the holders of the Class A
Certificates. This subordination is intended to enhance the likelihood of
regular receipt by the holders of the Class A Certificates of the full amount of
their scheduled monthly payment of interest and principal and to afford such
Certificateholders protection against Realized Losses. The protection afforded
to the holders of the Class A Certificates by means of the subordination of the
Subordinated Certificates will be accomplished by the preferential right of the
holders of the Class A Certificates to receive, prior to any distribution being
made on a Distribution Date in respect of the Subordinated Certificates, the
amounts of interest due them and principal available for distribution on such
Distribution Date.
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<PAGE>
In addition, the rights of the holders of the Class M-2 and Class B
Certificates to receive distributions will be subordinated, to the extent
described herein, to such rights of the holders of the Class A Certificates and
the Class M-1 Certificates. This subordination is intended to enhance the
likelihood of regular receipt by the holders of the Class A Certificates and the
Class M-1 Certificates of the amount of interest due them and principal
available for distribution and to afford such Certificateholders with protection
against losses.
The rights of the holders of the Class B Certificates to receive
distributions will be subordinated in the same manner to such rights of the
holders of the Class A Certificates, the Class M-1 Certificates and the Class
M-2 Certificates. This subordination is intended to enhance the likelihood of
regular receipt by the holders of the Class A Certificates, the Class M-1
Certificates and the Class M-2 Certificates of the amount of interest due them
and principal available for distribution and to afford such Certificateholders
with protection against losses.
The protection afforded to the Class B Certificateholders against losses
is provided by the Overcollateralization Amount and the Monthly Excess Cashflow
Amounts, as described below.
Allocation of Losses
If a Mortgage Loan becomes a Liquidated Mortgage Loan during a Collection
Period, the Net Liquidation Proceeds relating thereto and allocated to principal
may be less than the Stated Principal Balance of such Mortgage Loan. The amount
of such insufficiency is a "Realized Loss." Realized Losses will, in effect, be
absorbed first by the Class R 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 the aggregate Class Certificate Balance of the
Offered Certificates exceeds the Pool Principal Balance as of the end of the
related Collection Period, such excess will be allocated against the Class B,
Class M-2, Class M-1 and Class A Certificates, in that order and until the
respective Class Certificate Balances thereof are reduced to zero. Any
allocation of such excess in reduction of a Class Certificate Balance is
referred to as an "Applied Realized Loss Amount." Any such reduction of a Class
Certificate Balance will not be reversed or reinstated. However, on future
Distribution Dates, Certificateholders of the related Class may receive amounts
in respect of prior reductions in the related Class Certificate Balances as
described below. Such subsequent payments will be applied in the reverse of the
order set forth above.
Application of Monthly Excess Cashflow Amounts
The weighted average Available Funds Pass-Through Rate for the Mortgage
Loans is generally expected to be higher than the weighted average of the
Pass-Through Rates on the Offered Certificates, thus generating certain excess
interest collections which, in the absence of losses, will not be necessary to
fund interest distributions on the Offered Certificates. This excess interest
for a Collection Period, together with interest on the Overcollateralization
Amount itself, is the "Monthly Excess Interest Amount."
The required level of overcollateralization for any Distribution Date is
the Targeted Overcollateralization Amount. The Targeted Overcollateralization
Amount is initially (i.e., prior to the Stepdown Date) $6,885,197.92.
If Realized Losses not accounted for by an application of the Monthly
Excess Interest Amount occur, such Realized Losses will result in an
Overcollateralization Deficiency (since it will reduce the Pool Principal
Balance without giving rise to a corresponding reduction of the aggregate Class
Certificate Balance). The cashflow priorities of the Trust Fund require that, in
this situation, an Extra Principal Distribution Amount be paid (subject to the
availability of any Monthly Excess Cashflow Amount in subsequent months) for the
purpose of re-establishing the Overcollateralization Amount at the then-required
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 "step-down." If the Targeted Overcollateralization Amount is permitted to
"step-down" on a Distribution Date, the Agreement permits a portion of the
Principal Remittance Amount for such Distribution Date not to be passed through
as a distribution of principal on such
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<PAGE>
Distribution Date. This has the effect of decelerating the amortization of the
Offered Certificates relative to the Pool Principal Balance, thereby reducing
the actual level of the Overcollateralization Amount to the new, lower Targeted
Overcollateralization Amount. This portion of the Principal Remittance Amount
not distributed as principal on the Offered Certificates therefore releases
overcollateralization from the Trust Fund. The amount of such releases are the
"Overcollateralization Release Amounts."
On any Distribution Date, the sum of the Monthly Excess Interest Amount
and the Overcollateralization Release Amount is the "Monthly Excess Cashflow
Amount", which is required to be applied in the following order of priority on
such Distribution Date:
(1) to fund the Class A Interest Carry Forward Amount, if any;
(2) to fund the Extra Principal Distribution Amount for such
Distribution Date;
(3) to fund the Class M-1 Interest Carry Forward Amount, if any;
(4) to fund the Class M-1 Realized Loss Amortization Amount for such
Distribution Date;
(5) to fund the Class M-2 Interest Carry Forward Amount, if any;
(6) to fund the Class M-2 Realized Loss Amortization Amount for such
Distribution Date;
(7) to fund the Class B Interest Carry Forward Amount, if any;
(8) to fund the Class B Realized Loss Amortization Amount for such
Distribution Date;
(9) to fund the aggregate amount of LIBOR Carryover Amount, among all
Classes of Offered Certificates in proportion to the respective LIBOR
Carryover Amounts for each such Class in the same priority order as
interest distributions;
(10) to pay current and due and owing Special Servicing Fees;
(11) to pay certain amounts in respect of indemnification that may be
required to be paid by the Trust pursuant to the Agreement;
(12) if a successor Servicer has been appointed, to pay the successor
Servicer or the Trustee, as applicable, any Transition Costs;
(13) to fund a distribution to the Holders of the Class BB Certificates;
(14) to fund a distribution to the Holders of the Class X Certificates;
and
(15) to fund a distribution to the Holders of the Class R Certificates.
For purposes of the foregoing, the following terms will have the
respective meanings set forth below.
"Class B Applied Realized Loss Amount" means, as to the Class B
Certificates and as of any Distribution Date, the lesser of (x) the Class
Certificate Balance thereof (after taking into account the distribution of the
Principal Distribution Amount on such Distribution Date, but prior to the
application of the Class B Applied Realized Loss Amount, if any, on such
Distribution Date) and (y) the Applied Realized Loss Amount as of such
Distribution Date.
"Class B Realized Loss Amortization Amount" means, as to the Class B
Certificates and as of any Distribution Date, the lesser of (x) the Class B
Unpaid Realized Loss Amount as of such Distribution Date and (y) the excess of
(i) the Monthly Excess Cashflow Amount over (ii) the sum of the Class A Interest
Carry Forward Amount, the Extra Principal Distribution Amount, the Class M-1
Realized Loss Amortization Amount, the Class M-
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<PAGE>
2 Realized Loss Amortization Amount, the Class M-1 Interest Carry Forward
Amount, the Class M-2 Interest Carry Forward Amount and the Class B Interest
Carry Forward Amount, in each case for such Distribution Date.
"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 Class
Certificate Balance thereof (after taking into account the distribution of the
Principal Distribution Amount on such Distribution Date, 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 and the Class B 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 Class M-1
Unpaid Realized Loss Amount as of such Distribution Date and (y) the excess of
(i) the Monthly Excess Cashflow Amount over (ii) the sum of the Class A Interest
Carry Forward Amount, the Extra Principal Distribution Amount and the Class M-1
Interest Carry Forward Amount, in each case 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 Class
Certificate Balance thereof (after taking into account the distribution of the
Principal Distribution Amount on such Distribution Date, 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 related Applied Realized Loss
Amount as of such Distribution Date over (ii) the Class B Applied Realized Loss
Amount and the Class B 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 Class M-2
Unpaid Realized Loss Amount as of such Distribution Date and (y) the excess of
(i) the Monthly Excess Cashflow Amount over (ii) the sum of the Class A Interest
Carry Forward Amount, the Extra Principal Distribution Amount, the Class M-1
Interest Carry Forward Amount, the Class M-1 Realized Loss Amortization Amount
and the related Class M-2 Interest Carry Forward Amount, in each case for such
Distribution Date.
A "Transition Cost" means any documented fees and expenses and allocated
costs reasonably incurred by a successor Servicer or the Trustee in connection
with a transfer of servicing from the Servicer to a successor Servicer.
"Unpaid Realized Loss Amount" means for any Class of Subordinated
Certificates and as to any Distribution Date, the excess of (x) the aggregate
cumulative amount of related Applied Realized Loss Amounts with respect to such
Class for all prior Distribution Dates over (y) the aggregate, cumulative amount
of related Realized Loss Amortization Amounts with respect to such Class for all
prior Distribution Dates.
Monthly Advances
Subject to the following limitations, the Servicer will be obligated to
advance or cause to be advanced by the Servicer before each Distribution Date
its own funds in an amount equal to the aggregate of all payments of principal
and interest, net of the Servicing Fee Rate, that were due during the related
Collection Period on the Mortgage Loans and that were delinquent on the related
Determination Date, plus certain amounts representing assumed payments not
covered by any current net income on the Mortgaged Properties acquired by
foreclosure or deed in lieu of foreclosure (any such advance, a "Monthly
Advance").
Monthly Advances are required to be made only to the extent they are
deemed by the Servicer to be recoverable from related late collections,
insurance proceeds or liquidation proceeds. The purpose of making such Monthly
Advances is to maintain a regular cash flow to the Certificateholders, rather
than to guarantee or insure against losses. The Servicer will not be required to
make any Monthly 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 Relief Act.
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<PAGE>
All Monthly Advances will be reimbursable to the Servicer from late
collections, insurance proceeds and liquidation proceeds from the Mortgage Loan
as to which such unreimbursed Monthly Advances were made. In addition, any
Monthly Advances or Servicing Advances previously made in respect of any
Mortgage Loan that are deemed by the Servicer to be nonrecoverable from related
late collections, insurance proceeds or liquidation proceeds may be reimbursed
to the Servicer out of any funds in the Collection Account prior to the
distributions on the Certificates. In the event the Servicer fails in its
obligations to make any such advance, the Trustee will be obligated to make any
such advance, to the extent required in the Agreement.
POOLING AND SERVICING AGREEMENT
General
The Certificates will be issued pursuant to the Pooling and Servicing
Agreement, dated as of March 1, 2000 (the "Agreement") among the Depositor, the
Servicer and the Trustee, a form of which is filed as an exhibit to the
Registration Statement. The Trust Fund created under the 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 received after the
Cut-off Date (other than payments due on or before the Cut-off Date), together
with any proceeds thereof, (iii) any Mortgaged Properties acquired on behalf of
Certificateholders by foreclosure or by deed in lieu of foreclosure, and any
revenues received thereon, (iv) the rights of the Trustee under all insurance
policies required to be maintained pursuant to the Agreement and (v) the rights
of the Depositor under the Mortgage Loan Purchase Agreement between the
Depositor and the Mortgage Loan Originator. Reference is made to the Prospectus
for important information in addition to that set forth herein regarding the
Trust Fund, the terms and conditions of the Agreement and the Offered
Certificates. The Offered Certificates will be transferable and exchangeable at
the corporate trust offices of the Trustee, located in New York, New York. The
Depositor will provide to a prospective or actual Certificateholder without
charge, on written request, a copy (without exhibits) of the Agreement. Requests
should be addressed to the Secretary, Merrill Lynch Mortgage Investors, Inc.
Assignment of the Mortgage Loans
The Depositor will deliver to the Trustee with respect to each Mortgage
Loan (i) the original Mortgage Note endorsed without recourse to the Trustee to
reflect the transfer of the Mortgage Loan, (ii) the original Mortgage with
evidence of recording indicated thereon and (iii) an original assignment of the
Mortgage in recordable form to the Trustee, reflecting the transfer of the
Mortgage Loan. Such assignments of Mortgage Loans are required to be recorded by
or on behalf of the Depositor in the appropriate offices for real property
records. The Trustee, concurrently with the Depositor's assignment, will deliver
the Certificates to the Depositor in exchange for the Mortgage Loans.
The Servicer
The information set forth in the following paragraphs has been provided by
Litton Loan Servicing LP. None of the Depositor, the Mortgage Loan Originator,
the Trustee, the Underwriter or any of their respective affiliates have made or
will make any representation as to the accuracy or completeness of such
information.
Litton Loan Servicing LP (the "Servicer"), a Delaware limited partnership
formed in December 1996, will act as the servicer of the Mortgage Loans pursuant
to the Pooling and Servicing Agreement. All of the general and limited
partnership interests of the Servicer are owned, indirectly, by Enhance
Financial Services Group Inc. ("EFSG"), Mortgage Guaranty Insurance Corporation
and C-BASS Holding LLC. On October 1, 1998 Litton Loan Servicing, Inc., a
wholly-owned subsidiary of EFSG, transferred its business to the Servicer. From
and after October 1, 1998 all activities formerly conducted by Litton Loan
Servicing, Inc. are being conducted by Litton Loan Servicing LP. The Servicer
currently employs approximately 202 individuals. The main office of the Servicer
is located at 5373 W. Alabama, Houston, Texas 77056. The Servicer is currently a
Fannie Mae and Freddie Mac approved servicer and an approved FHA and VA lender
with a servicing portfolio in excess of $3.688 billion. The Servicer specializes
in servicing sub-performing mortgage loans and entering into workouts with the
related mortgagors. Other transactions for which the Servicer acts as servicer
include Housing Securities, Inc. 1995-RP1, C-BASS ABS, LLC 1997-1, C-BASS ABS,
LLC 1997-3, C-BASS ABS, LLC 1998-1,
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<PAGE>
Merrill Lynch Mortgage Investors, Inc., Series 1998-FF2, Series 1998-FF3, Series
1998-GN3, Series 1999-H1, Series 1999-H2, Series 1999-CB1, Series 1999-CB2,
Series 1999-CB4, Series 1999-NC1 and Series 2000-CB1, New Century Mortgage
Securities, Inc., Series 1999-NCC, Financial Asset Securities Corporation,
Series 1998-3, Series 1999-CB5, Asset Backed Funding Corporation, Series 1999-1
and The Prudential Home Mortgage Securities Company, Inc., Series 1990-09,
Series 1990-14, Series 1991-05, Series 1991-10, Series 1991-14, Series 1991-20,
Series 1992-06, Series 1992-12, Series 1992-16, Series 1992-23, Series 1992-31,
Series 1992-36, Series 1992-44 and Series 1993-5.
Fitch IBCA, Inc. ("Fitch") assigned the Servicer its RSS1 residential
special servicer rating on November 16, 1999. The rating is based on the
Servicer's ability to manage and liquidate nonperforming residential mortgage
loans and real estate owned assets. This RSS1 rating is the highest special
servicer rating attainable from Fitch which reflects the Servicer's
sophisticated proprietary default management technology, the financial strength
of its well-capitalized parent and its highly experienced management and staff.
Fitch assigned the Servicer its RPS2 primary servicer rating for sub-prime
and high loan-to-value ratio product. The RPS2 rating is currently the highest
subprime primary servicer rating attainable from Fitch for any subprime
servicer, which is based on the strength of the Servicer's loan administration
processes including new loan set-up procedures and related technology, loan
accounting/cash management and loan reporting. The RPS2 rating for high
loan-to-value ratio product is based on the Servicer's intensive focus on early
collection and loss mitigation.
In addition, Duff & Phelps Credit Rating Co. ("DCR") has assigned the
Servicer its Special Servicer Designation(TM)for residential mortgages.
Delinquency and Foreclosure Experience. The following table sets forth the
delinquency and foreclosure experience of the mortgage loans serviced by the
Servicer, as of the dates indicated. The Servicer's portfolio of mortgage loans
may differ significantly from the Mortgage Loans in the Trust Fund in terms of
interest rates, principal balances, geographic distribution, types of properties
and other possibly relevant characteristics. There can be no assurance, and no
representation is made, that the delinquency and foreclosure experience with
respect to the Mortgage Loans in the Trust Fund will be similar to that
reflected in the table below, nor is any representation made as to the rate at
which losses may be experienced on liquidation of defaulted mortgage loans. The
actual delinquency experience on the Mortgage Loans in the Trust Fund will
depend, among other things, upon the value of the real estate securing the
Mortgage Loans in the Trust Fund and the ability of the related mortgagor to
make required payments. It should be noted that the Servicer's business
emphasizes to a certain degree the acquisition of servicing rights with respect
to non-performing and subperforming mortgage loans and the Servicer has been an
active participant in the market for these servicing rights during 1999. The
acquisition of these servicing rights may have affected the delinquency and
foreclosure experience of the Servicer in the period ending on December 31, 1999
as compared with the annual periods ending on December 31, 1998 and December 31,
1997.
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<PAGE>
<TABLE>
<CAPTION>
Delinquency and Foreclosure Experience(1)
As of December 31, 1999 As of December 31, 1998 As of December 31, 1997
------------------------ ----------------------- -----------------------
% by % by No. % by
Principal Principal No. of Principal Principal of Principal Principal
No. of Loans Balance(2) Balance Loans Balance(2) Balance Loans Balance(2) Balance
------------ ----------- --------- ------ ------------ --------- ----- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Current Loans 37,105 $2,580,776,677 69.98% 39,063 $2,489,678,138 78.01% 28,982 $1,360,468,860 80.48%
Period of
Delinquency(3)
30 Days 4,638 $ 323,122,291 8.76% 3,689 $ 233,734,152 7.32% 2,534 $ 111,026,184 6.57%
60-89 1,886 $ 133,339,006 3.62% 1,497 $ 87,944,512 2.76% 728 $ 29,739,192 1.76%
90 Days or more 2,056 $ 127,745,979 3.46% 2,578 $ 121,504,523 3.81% 1,348 $ 50,772,586 3.00%
-------- -------------- ------- --------- -------------- ------- -------- -------------- -------
Total Delinquency 8,580 $ 584,207,276 15.84% 7,764 $ 443,183,187 13.89% 4,610 $ 191,537,962 11.33%
Foreclosures/
Bankruptcy(4) 5,503 $ 433,109,387 11.74% 2,780 $ 197,668,255 6.19% 1,344 $ 98,380,747 5.82%
Real Estate Owned 1,264 $ 89,691,707 2.43% 1,009 $ 60,867,154 1.91% 427 $ 39,978,357 2.37%
-------- -------------- ------- --------- -------------- ------- -------- -------------- -------
Total
Portfolio 52,452 $3,687,785,047 100.00% 50,616 $3,191,396,734 100.00% 35,363 $1,690,365,926 100.00%
-------- -------------- ------- --------- -------------- ------- -------- -------------- -------
</TABLE>
- --------------
(1) The table shows mortgage loans which were delinquent or for which
foreclosure proceedings had been instituted as of the date indicated.
(2) For the Real Estate Owned properties, the principal balance is at the time
of foreclosure.
(3) No mortgage loan is included in this section of the table as until it is
30 days past due.
(4) Exclusive of the number of loans and principal balance shown in Period of
Delinquency.
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<PAGE>
It is unlikely that the delinquency experience of the Mortgage Loans
comprising the Mortgage Pool will correspond to the delinquency experience of
the Servicer's mortgage portfolio set forth in the foregoing tables. The
statistics shown above represent the delinquency experience for the Servicer's
mortgage servicing portfolio (which may differ substantially from the Mortgage
Pool with respect to credit underwriting standards and other factors) only for
the periods presented, whereas the aggregate delinquency experience on the
Mortgage Loans comprising the Mortgage Pool will depend on the results obtained
over the life of the Mortgage Pool. The Servicer does not have significant
historical delinquency, bankruptcy, foreclosure or default experience that may
be referred to for purposes of estimating the future delinquency and loss
experience of the Mortgage Loans. There can be no assurance that the Mortgage
Loans comprising the Mortgage Pool will perform in a manner consistent with the
delinquency or foreclosure experience described herein. It should be noted that
if the residential real estate market should experience an overall decline in
property values, the actual rates of delinquencies and foreclosures could be
higher than those previously experienced by the Servicer. In addition, adverse
economic conditions may affect the timely payment by Mortgagors of scheduled
payments of principal and interest on the Mortgage Loans and, accordingly, the
actual rates of delinquencies and foreclosures with respect to the Mortgage
Pool.
The Trustee
The Chase Manhattan Bank, a New York banking corporation, will act as
trustee (the "Trustee") for the Certificates pursuant to the Agreement. The
Trustee's offices for notices under the Agreement are located at 450 West 33rd
Street, New York, New York 10001, Attention: Capital Markets Fiduciary Services,
First Franklin Mortgage Loan Asset Backed Certificates, Series 2000-FF1 and its
telephone number is (212) 946-3246. The principal compensation to be paid to the
Trustee in respect of its obligations under the Agreement will be equal to
accrued interest at the Trustee Fee Rate of .0115% per annum on the Stated
Principal Balance of each Mortgage Loan. The 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, including the compensation and the expenses and
disbursements of its agents and counsel, in the ordinary course of the Trustee's
performance in accordance with the provisions of the Agreement) incurred by the
Trustee arising out of or in connection with the acceptance or administration of
its obligations and duties under the Agreement, other than any loss, liability
or expense (i) that constitutes a specific liability of the Trustee under the
Agreement or (ii) incurred by reason of willful misfeasance, bad faith or
negligence in the performance of the Trustee's duties under the Agreement or as
a result of a breach, or by reason of reckless disregard, of the Trustee's
obligations and duties under the Agreement.
Servicing and Other Compensation and Payment of Expenses
The principal compensation to be paid to the Servicer in respect of it
servicing activities for the Certificates will be equal to accrued interest at
the Servicing Fee Rate of 0.50% per annum, in each case with respect to each
Mortgage Loan on the Stated Principal Balance of each Mortgage Loan. As
additional servicing compensation, the Servicer is entitled to retain all
assumption fees, late payment charges and other fees and charges (other than
prepayment penalties) to the extent collected from mortgagors, together with any
interest or other income earned on funds held in the Certificate Account and any
escrow accounts. The Servicer will be obligated to offset any Prepayment
Interest Shortfall on any Distribution Date (payments made by the Servicer in
satisfaction of such obligation, "Compensating Interest") to the extent of 50%
the 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 with respect to the Mortgage Loans and is entitled to
reimbursement therefor as provided in the Agreement. The Servicer will also be
entitled to a special servicing fee (the "Special Servicing Fee") with respect
to Mortgage Loans which are delinquent for more than 90 days. The Special
Servicing Fee for each such Mortgage Loan will be equal to $125 for each month
such Mortgage Loan is delinquent, to a maximum of 18 consecutive months.
Pledge and Assignment of Servicer's Rights
On the Closing Date, the Servicer will pledge and assign all of its right,
title and interest in, to and under the Agreement to First Union National Bank
("First Union"), as the representative of certain lenders. In the event that a
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<PAGE>
Servicing Termination Event (as defined in the Agreement) occurs, the Trustee
and the Depositor have agreed to the appointment of First Union National Bank or
its designee as the successor servicer, provided that at the time of such
appointment First Union or such designee meets the requirements of a successor
servicer described in the Agreement (including being acceptable to the Rating
Agencies) and that First Union or such designee agrees to be subject to the
terms of the Agreement.
Voting Rights
Certain actions specified in the Prospectus that may be taken by holders
of Certificates evidencing a specified percentage of all undivided interests in
the Trust Fund may be taken by holders of Certificates entitled in the aggregate
to such percentage of Voting Rights. The percentage of the Voting Rights
allocated among Holders of the Offered Certificates (other than the Class X
Certificates) will be 97%; the percentage of the Voting Rights allocated to the
Holders of the Class X Certificates will be 2%; and the percentage of the Voting
Rights allocated among Holders of the Class R Certificates will be 1%. The
Voting Rights allocated to each Class of Certificates will be allocated among
all Holders of each such Class in proportion to the outstanding Certificate
Principal Balance of such Certificates.
Termination
The circumstances under which the obligations created by the Agreement
will terminate in respect of the Certificates are described in "Description of
the Certificates--Termination" in the Prospectus. The owner of the Class X
Certificate will have the right (or if the owner of the Class X Certificate does
not exercise such right, the servicer will have the right) to purchase all
remaining Mortgage Loans and any properties acquired in respect thereof and
thereby effect early retirement of the Certificates on any Distribution Date
following the Collection Period during which the aggregate principal balance of
the Mortgage Loans and such properties at the time of purchase is 10% or less of
the Cut-off Date Pool Principal Balance. In the event the owner of the Class X
Certificate or the Servicer, as the case may be, exercises such option, the
purchase price payable in connection therewith generally will be equal to par
plus accrued interest for each Mortgage Loan at the related Mortgage Rate to but
not including the first day of the month in which such repurchase price is
distributed. In the event the owner of the Class X Certificate or the Servicer,
as the case may be, exercises such option, the portion of the purchase price
allocable to the each Class of Offered Certificates will be, to the extent of
available funds (i) 100% of the then outstanding Class Certificate Balance
thereof, plus (ii) one month's interest on the then outstanding Class
Certificate Balance thereof at the then applicable Pass-Through Rate, plus (iii)
any previously accrued but unpaid interest thereon, plus (iv) any related LIBOR
Carryover Amount. In no event will the trust created by the Agreement continue
beyond the expiration of 21 years from the death of the survivor of the persons
named in the Agreement. See "Description of the Certificates--Termination" in
the Prospectus.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
General
The Trust Agreement provides that the Trust Fund, exclusive of the rights
of the Offered Certificates to receive interest payments in excess of the
weighted average interest rate that accrued on the Mortgage Loans in respect of
the related Collection Period (the "Cap Contract") which is held by the Trust
Fund in the Basis Risk Reserve Fund, will comprise two REMICs organized in a
tiered REMIC structure. The Lower Tier REMIC will issue uncertificated regular
interests and those interests will be held entirely by the Upper-Tier REMIC
immediately above it in the tiered structure. The Lower Tier REMICs and the
Upper Tier REMIC will designate a single class of interests as the residual
interest in that REMIC. The Class R Certificate will represent beneficial
ownership of the residual interests in each REMIC. Elections will be made to
treat the Lower Tier REMIC and the Upper Tier REMIC as a REMIC for federal
income tax purposes.
Each Class of Offered Certificates and the Class X Certificates will
represent beneficial ownership of a corresponding class of regular interests
issued by the Upper Tier REMIC. In addition, each of the Offered Certificates
will represent a beneficial interest in the right to receive payments from the
Basis Risk Reserve Fund pursuant to the Pooling and Servicing Agreement.
S-49
<PAGE>
Upon the issuance of the Offered Certificates, Brown & Wood LLP ("Tax
Counsel") will deliver its opinion to the effect that, assuming compliance with
the Trust Agreement, for federal income tax purposes, 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"). In addition, Tax
Counsel will deliver an opinion to the effect that the Basis Risk Reserve Fund
is an "outside reserve fund" that is beneficially owned by the holders of the
Class X Certificates. Moreover, Tax Counsel will deliver an opinion to the
effect that the rights of the holders of the Offered Certificates to receive
payments from the Basis Risk Reserve Fund represent, for federal income tax
purposes, contractual rights coupled with a regular interest within the meaning
of Treasury regulation ss.1.860G-2(i).
Taxation of Regular Interests
The following discussion assumes that the right of the Offered
Certificates to receive payments from the Basis Risk Reserve Fund will be
treated as an interest rate cap contract for federal income tax purposes. A
holder of a Class of Offered Certificates will be treated for federal income tax
purposes as owning an interest in the corresponding Class of Regular Interest in
the Upper Tier REMIC and an interest in the Cap Contract. A holder of an Offered
Certificate must allocate its purchase price for the Offered Certificate between
its two components - the REMIC Regular Interest component and the Cap Contract
component. For information reporting purposes, the Trustee will assume that,
with respect to any Offered Certificate, the Cap Contract component will have
only nominal value relative to the value of the Regular Interest component. The
Internal Revenue Service (the "IRS") could, however, argue that the Cap Contract
component has a greater value than that allocated, and if that argument were to
be sustained, the Regular Interest component could be viewed as having been
issued with an additional amount of original issue discount ("OID") (which could
cause the total amount of OID to exceed a statutorily defined de minimis
amount). See "Certain Federal Income Tax Consequences - Taxation of Owners REMIC
Regular Certificates - Original Issue Discount and Premium" in the Prospectus.
For federal income tax reporting purposes, it is expected that the Offered
Certificates will not be treated as having been issued with original issue
discount. The prepayment assumption that will be used in determining the rate of
accrual of original issue discount, premium and market discount, if any, for
federal income tax purposes will be based on the assumption that subsequent to
the date of any determination the Mortgage Loans will prepay at a constant rate
of 25% CPR. No representation is made that the Mortgage Loans will prepay at
such rate or at any other rate. See "Certain Federal Income Tax
Consequences--REMICs--Taxation of Owners of REMIC Regular Certificates--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 relating to debt instruments having an adjustable rate of interest
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.
It appears that a reasonable method of reporting original issue discount
with respect to the Offered Certificates if such Certificates are required to be
treated as issued with original issue discount generally would be to report all
income with respect to such Certificates as original issue discount for each
period, computing such original issue discount (i) by assuming that the value of
the applicable Index will remain constant for purposes of determining the
original yield to maturity of, and projecting future distributions on such
Certificates, thereby treating such Certificates as fixed rate instruments to
which the original issue discount computation rules described in the Prospectus
can be applied, and (ii) by accounting for any positive or negative variation in
the actual value of the applicable Index in any period from its assumed value as
a current adjustment to original issue discount with respect to such period. See
"Certain Federal Income Tax Consequences--REMICs--Taxation of Owners of REMIC
Regular Certificates--Original Issue Discount" in the Prospectus.
S-50
<PAGE>
Upon the sale, exchange, or other disposition of an Offered Certificate,
the holder must allocate the amount realized between the two components of the
Offered Certificate based on the relative fair market values of those components
at the time of sale. Assuming that an Offered Certificate is held as a "capital
asset" within the meaning of Section 1221 of the Code, gain or loss on the
disposition of an interest in the Cap Contract component should be capital gain
or loss, and gain or loss on the disposition of the Regular Interest component
should, subject to the limitation described below, be capital gain or loss. Gain
attributable to the Regular Interest component of an Offered Certificate will be
treated as ordinary income, however, to the extent such gain does not exceed the
excess, if any, of (i) the amount that would have been includible in the
holder's gross income with respect to the Regular Interest component had income
thereon accrued at a rate equal to 110% of the applicable federal rate as
defined in Section 1274(d) of the Code determined as of the date of purchase of
the Offered Certificate over (ii) the amount actually included in such holder's
income.
The Offered Certificates will be treated as assets described in Section
7701(a)(19)(C) of the Code and "real estate assets" under Section 856(c)(4)(A)
of the Code, generally in the same proportion that the assets in the Trust Fund
would be so treated. In addition, interest on the Offered Certificates will be
treated as "interest on obligations secured by mortgages on real property" under
Section 856(c)(3)(B) of the Code, generally to the extent that the Offered
Certificates are treated as "real estate assets" under Section 856(c)(4)(A) of
the Code. Investors are cautioned that since the Offered Certificates comprise
rights in addition to the rights under the Offered Regular Interests, the
Offered Certificates will not in their entirety constitute assets described in
Section 7701(a)(19) of the Code or real estate assets described in Section
856(c)(4)(A) of the Code, and income earned on the Offered Regular Certificates
will qualify as "interest on obligations secured by mortgages on real property"
under Section 856(c)(3)(B) of the Code only to the extent that the income
reflects the income so qualifying earned by the Offered Regular Interests. The
Offered Certificates also will not be treated as "qualified mortgages" under
Section 860G(a)(3) of the Code in their entirety and may not be appropriate
investments for REMICs. See "Certain Federal Income Tax Consequences--REMICs--
Characterization of Investments in REMIC Certificates" in the Prospectus.
As indicated above, a portion of the purchase price paid by a holder to
acquire an Offered Certificate will be attributable to the Cap Contract
component of such Offered Certificate. The portion of the overall purchase price
attributable to the Cap Contract component must be amortized over the life of an
Offered Certificate, taking into account the declining balance of the related
Regular Interest component. Treasury regulations concerning notional principal
contracts provide alternative methods for amortizing the purchase price of an
interest rate cap contract. Under one method - the level yield constant interest
method - the price paid for an interest rate cap is amortized over the life of
the cap as though it were the principal amount of a loan bearing interest at a
reasonable rate. Holders are urged to consult their tax advisors concerning the
methods that can be employed to amortize the portion of the purchase price paid
for the Cap Contract component of an Offered Certificate.
Any payments made to a holder from the Basis Risk Reserve Fund will be
treated as periodic payments on an interest rate cap contract. To the extent the
sum of such periodic payments for a year exceeds that year's amortized costs of
the Cap Contract components, such excess is ordinary income. If for any year the
amount of that year's amortized cost exceeds the sum of the periodic payments,
such excess is allowable as an ordinary deduction.
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 Certificates--General" and
"Certain Federal Income Tax Consequences--REMICs--Prohibited Transactions Tax
and Other Taxes" in the Prospectus.
The responsibility for filing annual federal information returns and other
reports will be borne by the Trustee and/or the Servicer. See "Certain Federal
Income Tax Consequences--REMICs--Reporting and Other Administrative Matters" in
the Prospectus.
S-51
<PAGE>
For further information regarding the federal income tax consequences of
investing in the Offered Certificates, see "Certain Federal Income Tax
Consequences--REMICs" in the Prospectus.
USE OF PROCEEDS
Substantially all of the net proceeds to be received from the sale of the
Offered Certificates will be applied by the Depositor to the purchase price of
the Mortgage Loans and expenses connected with pooling the Mortgage Loans and
issuing the Certificates.
UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting
Agreement relating to the Offered Certificates (the "Underwriting Agreement"),
the Depositor has agreed to sell to Merrill Lynch, Pierce, Fenner & Smith
Incorporated (the "Underwriter") and the Underwriter has agreed to purchase the
Offered Certificates.
In the Underwriting Agreement, the Underwriter has agreed, subject to the
terms and conditions set forth therein, to purchase all of the Offered
Certificates offered hereby, if any are purchased.
The distribution of the Offered Certificates by the Underwriter will be
effected from time to time in one or more negotiated transactions, or otherwise,
at varying prices to be determined, in each case, at the time of sale. The
Underwriter may effect such transactions by selling the Offered Certificates to
or through dealers, and such dealers may receive from the Underwriter, for whom
they act as agent, compensation in the form of underwriting discounts,
concessions or commissions. The Underwriter and any dealers that participate
with the Underwriter in the distribution of the Offered Certificates may be
deemed to be underwriters, and any discounts, concessions or commissions
received by them, and any profit on the resale of the Offered Certificates
positioned by them, may be deemed to be underwriting discounts and commissions
under the Act.
The Depositor has agreed to indemnify the Underwriter against, or make
contributions to the Underwriter with respect to, certain liabilities, including
liabilities under the Securities Act of 1933, as amended.
All of the Mortgage Loans evidenced by the Certificates have been acquired
by the Depositor from Merrill Lynch Mortgage Capital Inc., an affiliate, which
acquired them in a privately negotiated transaction with the Mortgage Loan
Originator.
The Depositor is an affiliate of Merrill Lynch, Pierce, Fenner & Smith
Incorporated.
LEGAL MATTERS
Certain legal matters relating to the Offered Certificates will be passed
upon for the Depositor and the Underwriter by Brown & Wood LLP, New York, New
York.
RATINGS
It is a condition to the issuance of the Offered Certificates that they
receive the respective ratings set forth below from Standard & Poor's Ratings
Services, a division of The McGraw-Hill Companies, Inc. ("Standard & Poor's")
and Fitch IBCA, Inc. ("Fitch," and together with Standard & Poor's, the "Rating
Agencies"):
Class Standard & Poor's Fitch
----- ----------------- -----
A AAA AAA
M-1 AA AA
M-2 A A
B BBB BBB
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<PAGE>
The ratings of the Rating Agencies assigned to mortgage pass-through
certificates address the likelihood of the receipt by Certificateholders of all
distributions to which such Certificateholders are entitled. The rating process
addresses structural and legal aspects associated with the Certificates,
including the nature of the underlying mortgage loans. The ratings assigned to
mortgage pass-through certificates do not represent any assessment of the
likelihood that principal prepayments will be made by the mortgagors or the
degree to which such prepayments will differ from that originally anticipated.
The ratings do not address the likelihood of the payment of any LIBOR Carryover
Amount.
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 the
Offered Certificates are subsequently lowered for any reason, no person or
entity is obligated to provide any additional credit support or credit
enhancement with respect to the Offered Certificates.
The Depositor has not requested that any rating agency rate the Offered
Certificates other than as stated above. However, there can be no assurance as
to whether any other rating agency will rate the Offered Certificates, or, if it
does, what rating would be assigned by any such other rating agency. A rating on
the Offered Certificates by another rating agency, if assigned at all, may be
lower than the ratings assigned to the Offered Certificates as stated above.
LEGAL INVESTMENT
The Class A and Class M-1 Certificates will constitute "mortgage related
securities" for purposes of the Secondary Mortgage Market Enhancement Act of
1984 ("SMMEA") so long as they are rated in one of the two highest rating
categories by at least one nationally recognized statistical rating
organization, and, as such, are legal investments for certain entities to the
extent provided in SMMEA. SMMEA provided the states could override its
provisions on legal investment and restrict or condition investment in mortgage
related securities by taking statutory action on or prior to October 3, 1991.
Certain states have enacted legislation which overrides the preemption
provisions of SMMEA. The Class M-2 and Class B Certificates will not be
"mortgage related securities" for purposes of SMMEA.
The Depositor makes no representation as to the proper characterization of
the Offered Certificates for legal investment or other purposes, or as to the
ability of particular investors to purchase the Offered Certificates under
applicable legal investment restrictions. The uncertainties may adversely affect
the liquidity of the Offered Certificates. Accordingly, all institutions whose
investment activities are subject to legal investment laws and regulations,
regulatory capital requirements or review by regulatory authorities should
consult with their own legal advisors in determining whether and the extent to
which the Offered Certificates constitute a legal investment under SMMEA or are
subject to investment, capital or other restrictions. See "Legal Investment" in
the Prospectus.
ERISA CONSIDERATIONS
A fiduciary of any employee benefit plan or other retirement plans or
arrangements (including individual retirement accounts and annuities, Keogh
plans and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested) that is subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of
the Code should carefully review with its legal advisors whether the purchase or
holding of Offered Certificates could give rise to a transaction that is
prohibited or is not otherwise permitted either under ERISA or Section 4975 of
the Code.
The U.S. Department of Labor issued an individual exemption, Prohibited
Transaction Exemption 90-29 (the "Exemption"), on May 24, 1990 to the
Underwriter which generally exempts from the application of the prohibited
transaction provisions of Section 406 of ERISA, and the excise taxes imposed on
such prohibited transactions pursuant to Sections 4975(a) and (b) of the Code
and Section 502(i) of ERISA, certain transactions, among others, relating to the
servicing and operation of mortgage pools and the purchase, sale and holding of
S-53
<PAGE>
mortgage pass-through certificates underwritten by an Underwriter (as
hereinafter defined), provided that certain conditions set forth in the
Exemption are satisfied. For purposes of this discussion, the term "Underwriter"
shall include (a) Merrill Lynch, Pierce, Fenner & Smith Incorporated, (b) any
person directly or indirectly, through one or more intermediaries, controlling,
controlled by or under common control with Merrill Lynch, Pierce, Fenner & Smith
Incorporated 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 the Class A Certificates.
The Exemption sets forth seven general conditions which must be satisfied
for a transaction involving the purchase, sale and holding of the Class A
Certificates to be eligible for exemptive relief thereunder. First, the
acquisition of the Class A Certificates by certain employee benefit plans
subject to Section 4975 of the Code (each, 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 rights and interests evidenced
by the Class A Certificates must not be subordinate to the rights and interests
evidenced by the other certificates of the same trust. Third, the Class A
Certificates at the time of acquisition by the Plan must be rated in one of the
three highest generic rating categories by Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc., Moody's Investors Service, Inc.,
Duff & Phelps Credit Rating Company or Fitch IBCA, Inc. ("National Credit
Ratings Agencies"). Fourth, the Trustee cannot be an affiliate of any member of
the "Restricted Group," which consists of any Underwriter, the Depositor, the
Servicer, each sub-servicer and any mortgagor with respect to the Mortgage Loans
constituting more than 5% of the aggregate unamortized principal balance of the
Mortgage Loans as of the date of initial issuance of the Class A Certificates.
Fifth, the sum of all payments made to and retained by the Underwriter must
represent not more than reasonable compensation for underwriting the Class A
Certificates; the sum of all payments made to and retained by the Depositor
pursuant to the assignment of the Mortgage Loans to the Trust Fund must
represent not more than the fair market value of such obligations; the sum of
all payments made to and retained by the Servicer and any sub-servicer must
represent not more than reasonable compensation for such person's services under
the Agreement and reimbursement of such person's reasonable compensation for
such person's services under the Agreement and reimbursement of such person's
reasonable expenses in connection therewith. Sixth, 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.
Seventh, (i) the investment pool consists only of assets of the type enumerated
in the Exemption and which have been included in other investment pools; (ii)
certificates evidencing interests in such other investment pools have been rated
in one of the three highest generic rating categories by one of the National
Credit Rating Agencies for at least one year prior to a Plan's acquisition of
certificates; and (iii) certificates evidencing interests in such other
investment pools have been purchased by investors other than Plans for at least
one year prior to a Plan's acquisition of certificates. See "ERISA
Considerations" in the Prospectus.
In addition, the Exemption will not apply to a Plan's investment in Class
A Certificates if the plan fiduciary responsible for the decision to invest in
the Class A Certificates is a mortgagor or obligor with respect to more than 5%
of the fair market value of the obligations constituting the Mortgage Loans or
an affiliate of such person, unless: (1) in the case of an acquisition in
connection with the initial issuance of any Certificates, at least 50% of each
Class of Certificates in which Plans have invested is acquired by persons
independent of the Restricted Group and at least 50% of the aggregate interest
in the Trust is acquired by persons independent of the Restricted Group; (2) the
Plan's investment in any Class of Certificates does not exceed 25% of the
outstanding Certificates of that Class at the time of acquisition; (3)
immediately after such acquisition, no more than 25% of the Plan assets with
respect to which the investing fiduciary has discretionary authority or renders
investment advice are invested in Certificates evidencing interest in trusts
sponsored or containing assets sold or serviced by the same entity; and (4) the
Plan is not sponsored by any member of the Restricted Group.
Before purchasing a Class A Certificate, a fiduciary of a Plan should
itself confirm (a) that such Certificates constitute "certificates" for purposes
of the Exemption and (b) that the specific and general conditions of the
Exemption and the other requirements set forth in the Exemption would be
satisfied.
Because the characteristics of the Class M-1, Class M-2 and Class B
Certificates may not meet the requirements of the Exemption or any other issued
exemption under ERISA, the purchase and holding of the Class M-1, Class M-2 and
Class B Certificates by a Plan or by individual retirement accounts or other
plans subject to Section 4975 of the Code may result in prohibited transactions
or the imposition of excise taxes or civil penalties. Consequently, transfers of
the Class M-1, Class M-2 and Class B Certificates will not be
S-54
<PAGE>
registered by the Trustee unless the Trustee receives: (i) a representation from
the transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or a plan or arrangement
subject to Section 4975 of the Code, nor a person acting on behalf of any such
plan or arrangement nor using the assets of any such plan or arrangement to
effect such transfer; (ii) if the purchaser is an insurance company, a
representation that the purchaser is an insurance company which is purchasing
such Certificates with funds contained in an "insurance company general account"
(as such term is defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of such
Certificates are covered under PTCE 95-60; or (iii) an opinion of counsel
satisfactory to the Trustee that the purchase or holding of such Certificate by
a Plan, any person acting on behalf of a Plan or using such Plan's assets, will
not result in the assets of the Trust Fund being deemed to be "plan assets" and
subject to the prohibited transaction requirements of ERISA and the Code and
will not subject the Trustee to any obligation in addition to those undertaken
in the Agreement. Such representation as described above shall be deemed to have
been made to the Trustee by a beneficial owner's acceptance of a Class M-1,
Class M-2 or Class B Certificate in book-entry form. In the event that such
representation is violated, or any attempt to transfer to a Plan or person
acting on behalf of a Plan or using such Plan's assets is attempted without such
opinion of counsel, such attempted transfer or acquisition shall be void and of
no effect.
Any Plan fiduciary considering whether to purchase an Offered Certificate
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.
S-55
<PAGE>
INDEX OF PRINCIPAL DEFINITIONS
Page
Accrued Certificate Interest...................................... S-37
Adjustment Date................................................... S-12
Agreement......................................................... S-44
AIV............................................................... S-18
Applied Realized Loss Amount...................................... S-42
Available Funds Pass-Through Rate................................. S-37
Basis Risk Reserve Fund........................................... S-50
Cap Contract...................................................... S-49
CEDE.............................................................. S-33
Certificate Owners................................................ S-33
Certificateholder................................................. S-34
Certificates...................................................... S-4, S-54
Class A Certificates.............................................. S-32
Class A Principal Distribution Amount............................. S-39
Class B Applied Realized Loss Amount.............................. S-43
Class BB Certificates............................................. S-32
Class B Principal Distribution Amount............................. S-40
Class B Realized Loss Amortization Amount......................... S-43
Class Certificate Balance......................................... S-32
Class M-1 Applied Realized Loss Amount............................ S-44
Class M-1 Principal Distribution Amount........................... S-39
Class M-1 Realized Loss Amortization Amount....................... S-44
Class M-2 Applied Realized Loss Amount............................ S-44
Class M-2 Principal Distribution Amount........................... S-39
Class M-2 Realized Loss Amortization Amount....................... S-44
Class R Certificates.............................................. S-32
Class X Certificates.............................................. S-32
Clearing Agency................................................... S-33
Clearing Corporation.............................................. S-33
Clearstream....................................................... S-33
Clearstream Participants.......................................... S-34
Closing Date...................................................... S-4
Code.............................................................. S-50
Collection Period................................................. S-7
Compensating Interest............................................. S-48
Cooperative....................................................... S-35
CPR............................................................... S-26
Credit Bureau Risk Score.......................................... S-18
Cut-off Date...................................................... S-4
Cut-off Date Pool Principal Balance............................... S-37
DCR............................................................... S-46
Debt Ratio........................................................ S-17
Definitive Certificates........................................... S-33
Depositaries...................................................... S-33
Depositary........................................................ S-33
Depositor......................................................... S-4
Distribution Date................................................. S-7
DTC............................................................... S-33
Due Date.......................................................... S-12
EFSG.............................................................. S-45
S-56
<PAGE>
ERISA............................................................. S-53
Euroclear......................................................... S-33
Euroclear Operator................................................ S-35
Euroclear Participants............................................ S-34
Exemption......................................................... S-53
Expense Adjusted Maximum Mortgage Rate............................ S-38
Expense Fee Rate.................................................. S-38
Extra Principal Distribution Amount............................... S-40
Fair, Isaac....................................................... S-18
Final Scheduled Distribution Dates................................ S-5
First Union....................................................... S-48
Fitch............................................................. S-46, S-52
Gross Margin...................................................... S-13
Indirect Participants............................................. S-33
Interest Accrual Period........................................... S-37
Interest Carry Forward Amount..................................... S-37
Interest Determination Date....................................... S-36
Interest Remittance Amount........................................ S-37
IRS............................................................... S-50
LIBOR Business Day................................................ S-36
LIBOR Carryover Amount............................................ S-38
LIBOR Rate........................................................ S-37
LIBOR Shortfall................................................... S-37
Limited Income Verification Program............................... S-36
Liquidated Mortgage Loan.......................................... S-40
Litton............................................................ S-45
LIV............................................................... S-18
Maximum Mortgage Rate............................................. S-13
Mezzanine Certificates............................................ S-32
Minimum Mortgage Rate............................................. S-13
Modeling Assumptions.............................................. S-26
Monthly Advance................................................... S-44
Monthly Excess Cashflow Amount.................................... S-43
Monthly Excess Interest Amount.................................... S-37, S-42
Mortgage Loan Originator.......................................... S-4, S-11
Mortgage Loans.................................................... S-32
Mortgage Pool..................................................... S-32
Mortgage Related Securities....................................... S-9, S-53
Mortgaged Properties.............................................. S-12
National Credit Ratings Agencies.................................. S-54
NIV............................................................... S-18
No Income Verification Program.................................... S-18
Non-Offered Certificates.......................................... S-32
Offered Certificates.............................................. S-32
OID............................................................... S-50
OID Regulations................................................... S-50
One-Month LIBOR .................................................. S-36
One Year Delayed First Adjustment Date Mortgage Loan.............. S-12
Overcollateralization Amount...................................... S-40
Overcollateralization Deficiency.................................. S-40
Overcollateralization Release Amount.............................. S-40, S-43
Participants...................................................... S-33
Pass-Through Margin............................................... S-37
Pass-Through Rate................................................. S-7
S-57
<PAGE>
Periodic Rate Cap................................................. S-13
Plan.............................................................. S-54
Plan Assets....................................................... S-54
Prepayment Assumption............................................. S-26
Prepayment Interest Shortfalls.................................... S-23
Prepayment Premium................................................ S-40
Principal Distribution Amount..................................... S-40
Principal Remittance Amount....................................... S-40
PTCE 95-60........................................................ S-55
Rating Agencies................................................... S-52
Realized Loss..................................................... S-42
Reference Banks................................................... S-47
Relief Act........................................................ S-23
REMIC............................................................. S-48
Reserve Interest Rate............................................. S-36
Residual Certificates............................................. S-32
Restricted Group.................................................. S-54
Rolling 30-Day Period............................................. S-20
Senior Certificates............................................... S-37
Senior Enhancement Percentage..................................... S-41
Senior Specified Enhancement Percentage........................... S-41
Servicer.......................................................... S-4, S-45
Six-Month LIBOR................................................... S-17
SMMEA............................................................. S-53
Special Servicing Fee............................................. S-48
Standard & Poor's................................................. S-52
Stated Principal Balance.......................................... S-37
Stepdown.......................................................... S-42
Stepdown Date..................................................... S-41
Subordinated Certificates......................................... S-32
Targeted Overcollateralization Amount............................. S-41
Tax Counsel....................................................... S-50
Telerate Page 3750................................................ S-36
Terms and Conditions.............................................. S-35
Transition Cost................................................... S-44
Three Year Delayed First Adjustment Date Mortgage Loan............ S-13
Trigger Event..................................................... S-41
Trust Fund........................................................ S-32
Trustee........................................................... S-4, S-48
Trustee Fee....................................................... S-47
Two Year Delayed First Adjustment Date Mortgage Loan.............. S-12
Underwriter ...................................................... S-52, S-54
Underwriting Agreement............................................ S-52
Unpaid Realized Loss Amount....................................... S-44
Upper Tier REMIC.................................................. S-48
Voting Rights..................................................... S-48
60+ Day Delinquent Loan........................................... S-41
S-58
<PAGE>
PROSPECTUS
ASSET BACKED CERTIFICATES
ASSET BACKED NOTES
(ISSUABLE IN SERIES)
Consider carefully the risk factors beginning on page 3 of this prospectus.
The securities of each series will not represent an obligation of or interest in
the depositor, Merrill Lynch, Pierce, Fenner & Smith Incorporated, any master
servicer, any sub-servicer or any of their respective affiliates, except to the
limited extent described herein and in the related prospectus supplement.
This prospectus may be used to offer and sell the securities only if accompanied
by a prospectus supplement.
MERRILL LYNCH MORTGAGE INVESTORS, INC.
DEPOSITOR
The Securities
Merrill Lynch Mortgage Investors, Inc., as depositor, will sell the
securities, which may be in the form of asset backed certificates or asset
backed notes. Each issue of securities will have its own series designation and
will evidence either:
o ownership interests in certain assets in a trust fund or
o debt obligations secured by certain assets in a trust fund.
o Each series of securities will consist of one or more classes. Each
class of securities will represent the entitlement to a specified portion
of future interest payments and a specified portion of future principal
payments on the assets in the related trust fund. In each case, the
specified portion may equal from 0% to 100%. A series may include one or
more classes of securities that are senior in right of payment to one or
more other classes. One or more classes of securities may be entitled to
receive distributions of principal, interest or both prior to one or more
other classes, or before or after certain specified events have occurred.
The related prospectus supplement will specify each of these features.
The Trust Fund and Its Assets
As specified in the related prospectus supplement, each trust fund will
consist primarily of assets from one of the following categories:
o one or more segregated pools of various types of mortgage loans and/or
closed-end and/or revolving home equity loans (or certain balances of
these loans), in each case secured by first and/or junior liens on one-
to five-family residential properties, or security interests in shares
issued by cooperative housing corporations, including mixed residential
and commercial structures;
o home improvement installment sales contracts or installment loan
agreements 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; and
o mortgage pass-through certificates or mortgage-backed securities
evidencing interests in mortgage loans or secured thereby or certain
direct obligations of the United States, agencies thereof or agencies
created thereby.
Each trust fund may be subject to early termination in certain
circumstances.
Market for the Securities
No market will exist for the securities of any series before they are
issued. In addition, even after the securities of a series have been issued and
sold, there can be no assurance that a resale market will develop.
Offers of the Securities
Offers of the securities are made through Merrill Lynch, Pierce, Fenner &
Smith Incorporated and the other underwriters listed in the related prospectus
supplement.
Neither the Securities and Exchange Commission nor any state securities
commission has approved these securities or determined that this prospectus is
accurate or complete. Any representation to the contrary is a criminal offense.
MERRILL LYNCH & CO.
The date of this Prospectus is January 27, 2000.
<PAGE>
IMPORTANT NOTICE ABOUT INFORMATION IN THIS PROSPECTUS
AND EACH ACCOMPANYING PROSPECTUS SUPPLEMENT
Information about each series of securities is contained in the
following documents:
o this prospectus, which provides general information, some of which may
not apply to a particular series; and
o the accompanying prospectus supplement for a particular series, which
describes the specific terms of the securities of that series. If the
prospectus supplement contains information about a particular series
that differs from the information contained in this prospectus, you
should rely on the information in the prospectus supplement.
You should rely only on the information contained in this prospectus and
the accompanying prospectus supplement. We have not authorized anyone to provide
you with information that is different from that contained in this prospectus
and the accompanying prospectus supplement. The information in this prospectus
is accurate only as of the date of this prospectus.
Each prospectus supplement generally will include the following
information with respect to the related series of securities:
o the principal amount, interest rate and authorized denominations of
each class of securities;
o information concerning the mortgage loans, home improvement contracts
and/or securities in the related trust fund;
o information concerning the seller or sellers of the mortgage loans,
home improvement contracts and/or securities and information
concerning any servicer;
o the terms of any credit enhancement with respect to particular classes
of the securities;
o information concerning other trust fund assets, including any reserve
fund;
o the final scheduled distribution date for each class of securities;
o the method for calculating the amount of principal to be paid to each
class of securities, and the timing and order of priority of
principal payments;
o information about any REMIC or FASIT tax elections for some or all of
the trust fund assets; and
o particulars of the plan of distribution for the securities.
If you require additional information, the mailing address of our
principal executive offices is Merrill Lynch Mortgage Investors, Inc., 250 Vesey
Street, World Financial Center-North Tower, 10th Floor, New York, New York
10281-1310, Attention: Secretary, and our telephone number is (212) 449-0357.
For other means of acquiring additional information about us or a series of
securities, see "Incorporation of Certain Information by Reference" beginning on
page 93 of this prospectus.
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RISK FACTORS
You should consider the following information carefully, since it identifies
certain significant sources of risk associated with an investment in the
securities.
There is a risk that the securities will have limited liquidity.
At the time a series of securities is issued, there will not be a
secondary market for them. Merrill Lynch, Pierce, Fenner & Smith Incorporated
currently expects to make a secondary market in the offered securities, but it
is not required to. We cannot assure you that a secondary market for the
securities of any series will develop or, if it does develop, that it will
provide holders of those securities with liquidity of investment or will
continue while those securities remain outstanding.
There is a risk associated with limited assets and that those assets will not be
sufficient to pay the securities in full.
o The securities will not represent an interest in or obligation of the
depositor, the master servicer or any of their affiliates.
o The only obligations with respect to the securities or the assets
securing them will be the obligations (if any) of any "warranting
party" (as further described in this prospectus) pursuant to certain
limited representations and warranties made with respect to the
mortgage loans, the master servicer's and any sub-servicer's servicing
obligations under the related agreements (including the limited
obligation to make certain advances in the event of delinquencies on
the mortgage loans, but only to the extent they deem such advances
recoverable) and, if described in the related prospectus supplement,
certain limited obligations of the master servicer in connection with
an agreement to purchase or act as remarketing agent with respect to a
convertible adjustable-rate mortgage loan (as more fully described in
this prospectus) upon conversion to a fixed rate or a different index.
o Since certain representations and warranties with respect to the mortgage
assets may have been made and/or assigned in connection with transfers of
the mortgage assets prior to the closing date, the rights of the trustee
and the securityholders with respect to such representations or warranties
will be limited to their rights as an assignee thereof.
o Unless otherwise specified in the related prospectus supplement, none of
the depositor, the master servicer or any affiliate thereof will have any
obligation with respect to representations or warranties made by any other
entity.
o Unless otherwise specified in the related prospectus supplement, neither
the securities nor the underlying assets will be guaranteed or insured by
any governmental agency or instrumentality, or by the depositor, the
master servicer, any sub-servicer or any of their affiliates.
o Proceeds of the assets included in the related trust fund for each series
of securities (including the assets and any form of credit enhancement)
will be the sole source of payments on the securities, and there will be
no recourse to the depositor or any other entity in the event that these
proceeds are insufficient or otherwise unavailable to make all payments
provided for under the securities.
o Unless otherwise specified in the related prospectus supplement, a
series of securities will not have any claim against or security
interest in the trust funds for any other series. If the related trust
fund is insufficient to make payments on these securities, no other
assets will be available for payment of the deficiency. Additionally,
certain amounts remaining in certain funds or accounts, including the
collection account and any accounts maintained as credit support, may
be withdrawn under certain conditions, as described in the related
prospectus supplement. In the event of such withdrawal, such amounts
will not be available for future payment of principal of or interest on
the securities.
o If provided in the prospectus supplement for a series of securities
consisting of one or more classes of subordinate securities, on
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<PAGE>
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 one or more classes of the
subordinate securities, and, thereafter, by the remaining classes of
securities in the priority and manner and subject to the limitations
specified in that prospectus supplement.
We refer you to "Description of the Trust Funds" for further information.
There is a risk that prepayments on the assets in a trust fund will adversely
affect the average life and yields of the related securities.
o Prepayments (including those caused by defaults) on the assets in any
trust fund generally will result in a faster rate of principal payments
on one or more classes of the related securities than if payments on
these assets were made as scheduled. Thus, the prepayment experience on
the assets may affect the average life of each class of related
securities. The rate of principal payments on pools of mortgage loans
varies between pools and from time to time is influenced by a variety
of economic, demographic, geographic, social, tax, legal and other
factors. We can't assure you as to the rate of prepayment on the assets
in any trust fund or that the rate of payments will conform to any
model we describe here or in any prospectus supplement. If prevailing
interest rates fall significantly below the applicable mortgage
interest rates, principal prepayments are likely to be higher than if
prevailing rates remain at or above the rates borne by the mortgage
loans underlying or comprising the mortgage assets in any trust fund.
As a result, the actual maturity of any class of securities evidencing
an interest in a trust fund containing mortgage assets could occur
significantly earlier than expected.
o A series of securities may include one or more classes of securities
with priorities of payment and, as a result, yields on other classes of
securities, including classes of offered securities, of such series may
be more sensitive to prepayments on assets. A series of securities may
include one or more classes offered at a significant premium or
discount. Yields on these classes of securities will be sensitive, and
in some cases extremely sensitive, to prepayments on mortgage assets
and, where the amount of interest payable with respect to a class is
disproportionately high, as compared to the amount of principal, as
with certain classes of stripped interest securities, a holder might,
in some prepayment scenarios, fail to recoup its original investment. A
series of securities may include one or more classes of securities,
including classes of offered securities, that provide for distribution
of principal thereof from amounts attributable to interest accrued but
not currently distributable on one or more classes of accrual
securities and, as a result, yields on such securities will be
sensitive to (a) the provisions of such accrual securities relating to
the timing of distributions of interest thereon and (b) if such accrual
securities accrue interest at a variable or adjustable pass-through
rate or interest rate, changes in such rate.
We refer you to "Yield Considerations" in the prospectus and, if applicable, in
the related prospectus supplement for further information.
There is a risk that defaults by obligors or declines in the values of mortgaged
properties will result in losses to investors.
o An investment in securities such as the securities which generally
represent interests in mortgage loans may be affected by, among other
things, a decline in real estate values and changes in the mortgagors'
financial condition. No assurance can be given that values of the
mortgaged properties have remained or will remain at their levels on
the dates of origination of the related mortgage loans. If the relevant
residential real estate market should experience an overall decline in
property values such that the outstanding balances of the related
mortgage loans, and any secondary financing on the mortgaged
properties, become equal to or greater than the value of the mortgaged
properties, the actual rates of delinquencies, foreclosures and losses
could be higher than those now generally experienced in the mortgage
lending industry in that market. In addition, in the case of mortgage
loans that are subject to negative amortization, due to the addition to
principal balance of deferred interest, the principal balances of such
mortgage loans
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<PAGE>
could be increased to an amount equal to or in excess of the value of the
underlying mortgaged properties, thereby increasing the likelihood of
default.
o To the extent that these losses are not covered by the applicable
credit support, if any, holders of securities of the series evidencing
interests in the related mortgage loans will bear all risk of loss
resulting from default by mortgagors and will have to look primarily to
the value of the mortgaged properties for recovery of the outstanding
principal and unpaid interest on the defaulted mortgage loans. Certain
of the types of mortgage loans may involve additional uncertainties not
present in traditional types of loans.
o For example, certain of the mortgage loans provide for escalating or
variable payments by the mortgagor under the mortgage loan, as to which
the mortgagor is generally qualified on the basis of the initial payment
amount. In some cases the mortgagor's income may not be sufficient to
enable them to continue to make their loan payments as such payments
increase and thus the likelihood of default will increase.
o In addition to the foregoing, certain geographic regions of the United
States from time to time will experience weaker regional economic
conditions and housing markets, and will thus experience higher rates
of loss and delinquency than the mortgage loans generally will
experience. The mortgage loans underlying certain series of securities
may be concentrated in these regions, and this concentration may
present risk considerations in addition to those generally present for
similar mortgage-backed securities without this concentration.
o Further, the rate of default on mortgage loans that 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. Additionally, a decline in the value of the mortgaged properties
will increase the risk of loss particularly with respect to any related
junior mortgage loans.
We refer you to "--There is a risk that there will be reduced or no proceeds
available when junior lien mortgage loans are liquidated." in this prospectus
for further information.
o In addition, a prospectus supplement may specify that the loan-to-value
ratios for the mortgage loans in the related trust will exceed 100%.
The related mortgaged properties will thus be highly unlikely to
provide adequate security for these mortgage loans. To the extent
specified in that prospectus supplement, the assessment of the credit
history of a borrower and that borrower's capacity to make payments on
the related mortgage loan will have been the primary considerations in
underwriting the mortgage loans included in that trust. The evaluation
of the adequacy of the loan-to-value ratio, if so specified in the
related prospectus supplement, will have been given less consideration,
and in certain cases no consideration, in underwriting those mortgage
loans.
There is a risk that there will be reduced or no proceeds available when junior
lien mortgage loans are liquidated.
o Certain mortgage loans may be secured by junior liens and the related
first and other senior liens, if any, may not be included in the mortgage
pool.
o The primary risk to holders of mortgage loans secured by junior liens
is the possibility that adequate funds will not be received in
connection with a foreclosure of the related senior lien to satisfy
fully both the senior lien and the mortgage loan. If a holder of the
senior lien forecloses on a mortgaged property, the proceeds of the
foreclosure or similar sale will be applied first to the payment of
court costs and fees in connection with the foreclosure, second to real
estate taxes, third in satisfaction of all principal, interest,
prepayment or acceleration penalties, if any, and any other sums due
and owing to the holder of the senior lien. The claims of the holder of
the senior lien will be satisfied in full out of proceeds of the
liquidation of the mortgage loan, if these proceeds are sufficient,
before the trust fund as holder of the junior lien
5
<PAGE>
receives any payments in respect of the mortgage loan.
o If the master servicer were to foreclose on any mortgage loan, it would
do so subject to any related senior lien. In order for the debt related
to the mortgage loan to be paid in full at such sale, a bidder at the
foreclosure sale of that mortgage loan would have to bid an amount
sufficient to pay off all sums due under the mortgage loan and the
senior lien or purchase the mortgaged property subject to the senior
lien. In the event that such proceeds from a foreclosure or similar
sale of the related mortgaged property were insufficient to satisfy
both loans in the aggregate, the trust fund, as the holder of the
junior lien, and, accordingly, holders of the certificates, would bear
the risk of delay in distributions while a deficiency judgment against
the borrower was being obtained and the risk of loss if the deficiency
judgment were 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 senior mortgage.
We refer you to "Certain Legal Aspects of the Mortgage Loans -- Junior
Mortgages" in this prospectus for further information.
There is a risk that any applicable credit support will not cover all losses.
o The prospectus supplement for a series of certificates will describe
any credit support in the related trust fund, which may include letters
of credit, insurance policies, guarantees, reserve funds or other types
of credit support, or combinations of these. Any credit support will
be subject to the conditions and limitations described here and in the
related prospectus supplement. Moreover, this credit support may not
cover all potential losses or risks; for example, credit support may or
may not cover fraud or negligence by a mortgage loan or other parties.
o A series of securities may include one or more classes of subordinate
securities (which may include offered securities), if we provide for
that in the related prospectus supplement. Although subordination is
designed to reduce the risk to holders of senior securities of
delinquent distributions or ultimate losses, the amount of
subordination will be limited and may decline under certain
circumstances. In addition, if principal payments on one or more
classes of securities of a series are made in a specified order of
priority, any limits with respect to the aggregate amount of claims
under any related credit support may be exhausted before the principal
of the lower priority classes of securities of this series has been
repaid. As a result, the impact of significant losses and shortfalls on
the assets may fall primarily upon those classes of securities having a
lower priority of payment. Moreover, if a form of credit support covers
more than one series of securities (we refer to this as a "covered
trust"), holders of securities evidencing an interest in a covered
trust will be subject to the risk that this credit support will be
exhausted by the claims of other covered trusts.
o The amount of any applicable credit support supporting one or more classes
of offered securities, including the subordination of one or more classes
of securities, will be determined on the basis of criteria established by
each rating agency rating such classes of securities based on an assumed
level of defaults, delinquencies, other losses or other factors. We can't
assure you, however, that the loss experience on the related assets will
not exceed these assumed levels.
o Regardless of the form of credit enhancement, 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. The master servicer
will generally be permitted to reduce, terminate or substitute all or a
portion of the credit enhancement for any series of securities, if the
applicable rating agency indicates that the then-current rating of those
securities will not be adversely affected.
o The rating agency rating a series of securities may lower their rating
following the initial issuance of the securities if the obligations of
any applicable credit support
6
<PAGE>
provider have been downgraded, or as a result of losses on the related
assets substantially in excess of the levels contemplated by that rating
agency when they performed their initial rating analysis. None of the
depositor, the master servicer or any of their affiliates will have any
obligation to replace or supplement any credit support or to take any
other action to maintain any rating of any series of securities.
We refer you to "--There are risks in relying on the limited nature of
ratings.", "Description of the Securities" and "Description of Credit Support"
for further information.
There is a risk to holders of subordinate securities that losses will have a
greater impact on them.
o The rights of subordinate securityholders to receive distributions to
which they would otherwise be entitled with respect to the assets will
be subordinate to the rights of the master servicer (to the extent that
the master servicer is paid its servicing fee, including any unpaid
servicing fees with respect to one or more prior due periods, and is
reimbursed for certain unreimbursed advances and unreimbursed
liquidation expenses) and the senior securityholders 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 subordinate securities.
We refer you to "Description of the Securities -- General" and "-- Allocation of
Losses and Shortfalls" in this prospectus for further information.
o The yields on the subordinate securities may be extremely sensitive to the
loss experience of the 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 yields to maturity
on the subordinate securities may be lower than you anticipated.
There is a risk that obligors on balloon loans will not be able to make balloon
payments.
Some of the mortgage loans as of the cut-off date may not be fully
amortizing over their terms to maturity (we call these "balloon loans") and,
thus, will require substantial principal payments (i.e., balloon payments) at
their stated maturity. Mortgage loans with balloon payments involve a greater
degree of risk because the ability of a mortgagor to make a balloon payment
typically will depend upon its ability either to timely refinance the loan or to
timely sell the related mortgaged property. The ability of a mortgagor to
accomplish either of these goals will be affected by a number of factors,
including the level of available mortgage interest rates at the time of sale or
refinancing, the mortgagor's equity in the related mortgaged property, the
financial condition of the mortgagor, the value of the mortgaged property, tax
laws, prevailing general economic conditions and the availability of credit for
single family or multifamily real properties generally.
There is a possibility, if the related prospectus supplement provides for it,
that upon an optional termination of a trust fund, the proceeds may be less than
the outstanding principal amount of the securities plus accrued interest.
o If 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 provided in the related prospectus supplement, upon the
reduction of the security balance of a specified class or classes of
securities to a specified percentage or amount, 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.
o In either such case, if the related prospectus supplement provides for it,
the proceeds available for distribution to securityholders may be less
than the outstanding principal balance of their securities plus accrued
interest. If this happens, these
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<PAGE>
securityholders could incur a loss on their investment.
There are risks relating to certain federal income tax considerations regarding
REMIC residual certificates.
o Holders of REMIC residual certificates must report on their federal
income tax returns as ordinary income their pro rata share of the
taxable income of the REMIC, regardless of the amount or timing of
their receipt of cash payments, as described in "Material Federal
Income Tax Consequences -- REMICs." Under certain circumstances,
holders of offered securities that are REMIC residual certificates may
have taxable income and tax liabilities arising from such investment
during a taxable year in excess of the cash received during such
period. Individual holders of REMIC residual certificates may be
limited in their ability to deduct servicing fees and other expenses of
the REMIC.
o In addition, REMIC residual certificates are subject to certain
restrictions on transfer. Because of the special tax treatment of REMIC
residual certificates, the taxable income arising in a given year on a
REMIC residual certificate will not be equal to the taxable income
associated with investment in a corporate bond or stripped instrument
having similar cash flow characteristics and pre-tax yield. Therefore,
the after-tax yield on the REMIC residual certificate may be
significantly less than that of a corporate bond or stripped instrument
having similar cash flow characteristics. Additionally, prospective
purchasers of a REMIC residual certificate should be aware that
recently issued temporary regulations provide restrictions on the
ability to mark-to-market certain "negative value" REMIC residual
interests.
We refer you to "Material Federal Income Tax Consequences -- REMICs" in this
prospectus for further information. There are risks in relying on the limited
nature of ratings.
Any rating assigned by a rating agency to a class of securities will
reflect that rating agency's assessment solely of the likelihood that holders of
securities of that class will receive payments to which those securityholders
are entitled under the related agreement. This rating will not be an assessment
of the likelihood that principal prepayments (including those caused by
defaults) on the related mortgage assets will be made, the degree to which the
rate of such prepayments might differ from that you originally anticipated or
the likelihood of early optional termination of the series of securities. This
rating will not address the possibility that prepayment at higher or lower rates
than you anticipated may cause you to experience a yield lower than you
anticipated or that an investor purchasing a security at a significant premium
might fail to recoup its initial investment under certain prepayment scenarios.
Each prospectus supplement will identify any payment to which holders of offered
securities of the related series are entitled that is not covered by the
applicable rating.
We refer you to "Rating" in this prospectus for further information.
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DESCRIPTION OF THE TRUST FUNDS
Assets
The primary assets of each Trust Fund (the "Assets") will include:
(i) one- to five-family mortgage loans (or certain balances thereof)
(collectively, the "Mortgage Loans"), including without limitation, Home Equity
Loans and Home Improvement Contracts,
(ii) pass-through certificates or other mortgage-backed securities (such
as debt obligations or participation interests or certificates) evidencing
interests in or secured by one or more Mortgage Loans or other similar
participations, certificates or securities ("MBS") or
(iii) direct obligations of the United States, agencies thereof or
agencies created thereby which are:
(a) interest-bearing securities,
(b) non-interest-bearing securities,
(c) originally interest-bearing securities from which coupons
representing the right to payment of interest have been removed, or
(d) interest-bearing securities from which the right to payment of
principal has been removed (the "Government Securities").
As used herein, "Mortgage Loans" refers to both whole Mortgage Loans (or
certain balances thereof) and Mortgage Loans underlying MBS. Mortgage Loans that
secure, or interests in which are evidenced by, MBS are herein sometimes
referred to as "Underlying Mortgage Loans." Mortgage Loans (or certain balances
thereof) that are not Underlying Mortgage Loans are sometimes referred to as
"Whole Loans." Any pass-through certificates or other asset-backed certificates
in which an MBS evidences an interest or which secure an MBS are sometimes
referred to herein also as MBS or as "Underlying MBS." Mortgage Loans and MBS
are sometimes referred to herein as "Mortgage Assets." The Mortgage Assets will
not be guaranteed or insured by Merrill Lynch Mortgage Investors, Inc. (the
"Depositor") or any of its affiliates or, unless otherwise provided in the
Prospectus Supplement, by any governmental agency or instrumentality or by any
other person. 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, with respect to Assets, which prior holder may or may not be the
originator of such Mortgage Loan or the issuer of such MBS.
Unless otherwise specified in the related Prospectus Supplement, 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
Unless otherwise specified in the related Prospectus Supplement, each
Mortgage Loan will be secured by:
(i) a lien on a Mortgaged Property consisting of a one- to five-family
residential property (a "Single Family Property" and the related Mortgage Loan a
"Single Family Mortgage Loan") or
(ii) a security interest in shares issued by private cooperative housing
corporations ("Cooperatives"). If so specified in the related Prospectus
Supplement, a Mortgaged Property may include some commercial use.
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Mortgaged Properties will be located, unless otherwise specified in the
related Prospectus Supplement, in any one of the fifty states, the District of
Columbia, the Commonwealth of Puerto Rico or any U.S. possession. To the extent
specified in the related Prospectus Supplement, the Mortgage Loans will be
secured by first and/or junior mortgages or deeds of trust or other similar
security instruments creating a first or junior lien on Mortgaged Property. The
Mortgaged Properties may include apartments owned by Cooperatives and leasehold
interests in properties, the title to which is held by third party lessors.
Unless otherwise specified in the Prospectus Supplement, the term of any such
leasehold shall exceed the term of the related mortgage note by at least five
years. Each Mortgage Loan will have been originated by a person (the
"Originator") other than the Depositor. The related Prospectus Supplement will
indicate if any 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. No more than 20% of the Mortgage
Loans (by principal balance) in a Trust Fund will be, as of the related Cut-off
Date, 30 days or more past their most recent contractually scheduled payment
date.
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 plus the principal balance of any senior 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 Certificates 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,
(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,
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(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 and
(x) information regarding the payment characteristics of the
Mortgage Loans, including without limitation balloon payment and
other amortization provisions.
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 within fifteen days after such initial issuance.
The related Prospectus Supplement may specify whether the Mortgage Loans
include closed-end and/or revolving home equity loans or certain balances
thereof ("Home Equity Loans"), which may be secured by Mortgages that are junior
to other liens on the related Mortgaged Property and/or home improvement
installment sales contracts or installment loan agreements (the "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. Except as otherwise described in the related Prospectus
Supplement, the home improvements purchased with the Home Improvement Contracts
will generally be replacement windows, house siding, roofs, swimming pools,
satellite dishes, kitchen and bathroom remodeling goods and solar heating
panels. The related Prospectus Supplement will specify whether the Home
Improvement Contracts are partially insured under Title I of the National
Housing Act and, if so, the limitations on such insurance.
If specified in the related Prospectus Supplement, new draws by borrowers
under the revolving Home Equity Loans will, during a specified period of time,
automatically become part of the Trust Fund for a series. As a result, the
aggregate balance of the revolving Home Equity Loans will fluctuate from day to
day as new draws by borrowers are added to the Trust Fund and principal
collections are applied to purchase such balances. Such amounts will usually
differ each day, as more specifically described in the related Prospectus
Supplement.
If specified in the related Prospectus Supplement, principal collections
received on the Mortgage Loans may be applied to purchase additional Mortgage
Loans which will become part of the Trust Fund for a series. Such additions may
be made to the extent that such additions could be made in connection with a
Trust Fund with respect to which a REMIC election has been made. The related
Prospectus Supplement will set forth the characteristics that such additional
Mortgage Loans will be required to meet. Such characteristics will be specified
in terms of the categories described in the second preceding paragraph.
Payment Provisions of the Mortgage Loans
Unless otherwise specified in the related Prospectus Supplement, all of
the Mortgage Loans will:
(i) have individual principal balances at origination of not less than
$25,000,
(ii) have original terms to maturity of not more than 40 years and
(iii) 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.
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
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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.
MBS
Any MBS will have been issued pursuant to a pooling and servicing
agreement, a participation agreement, a trust agreement, an indenture or similar
agreement (an "MBS Agreement"). A seller (the "MBS Issuer") and/or servicer (the
"MBS Servicer") of the underlying Mortgage Loans (or Underlying MBS) will have
entered into the MBS Agreement with a trustee or a custodian under the MBS
Agreement (the "MBS Trustee"), if any, or with the original purchaser of the
interest in the underlying Mortgage Loans or MBS evidenced by the MBS.
Distributions of any principal or interest, as applicable, will be made on
MBS on the dates specified in the related Prospectus Supplement. The MBS may be
issued in one or more classes with characteristics similar to the classes of
Securities described in this Prospectus. Any principal or interest distributions
will be made on the MBS by the MBS Trustee or the MBS Servicer. The MBS Issuer
or the MBS Servicer or another person specified in the related Prospectus
Supplement may have the right or obligation to repurchase or substitute assets
underlying the MBS after a certain date or under other circumstances specified
in the related Prospectus Supplement.
Enhancement in the form of reserve funds, subordination or other forms of
credit support similar to that described for the Securities under "Description
of Credit Support" may be provided with respect to the MBS. The type,
characteristics and amount of such credit support, if any, will be a function of
certain characteristics of the Underlying Mortgage Loans or Underlying MBS
evidenced by or securing such MBS and other factors and generally will have been
established for the MBS on the basis of requirements of either any Rating Agency
that may have assigned a rating to the MBS or the initial purchasers of the MBS.
The Prospectus Supplement for a series of Securities evidencing interests
in Mortgage Assets that include MBS will specify, to the extent available to the
Depositor:
(i) the aggregate approximate initial and outstanding principal amount
or notional amount, as applicable, and type of the MBS to be
included in the Trust Fund,
(ii) the original and remaining term to stated maturity of the MBS, if
applicable,
(iii) whether such MBS is entitled only to interest payments, only to
principal payments or to both,
(iv) the pass-through or bond rate of the MBS or formula for determining
such rates, if any,
(v) the applicable payment provisions for the MBS, including, but not
limited to, any priorities, payment schedules and subordination
features,
(vi) the MBS Issuer, MBS Servicer and MBS Trustee, as applicable,
(vii) certain characteristics of the credit support, if any, such as
subordination, reserve funds, insurance policies, letters of credit
or guarantees relating to the related Underlying Mortgage Loans,
the Underlying MBS or directly to such MBS,
(viii) the terms on which the related Underlying Mortgage Loans or
Underlying MBS for such MBS or the MBS may, or are required to, be
purchased prior to their maturity,
(ix) the terms on which Mortgage Loans or Underlying MBS may be
substituted for those originally underlying the MBS,
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(x) the servicing fees payable under the MBS Agreement,
(xi) the type of information in respect of the Underlying Mortgage Loans
described under "--Mortgage Loans--Mortgage Loan Information in
Prospectus Supplements" above, and the type of information in
respect of the Underlying MBS described in this paragraph,
(xii) the characteristics of any cash flow agreements that are included
as part of the trust fund evidenced or secured by the MBS and
(xiii) whether the MBS is in certificated form or held through a
depository such as The Depository Trust Company or the Participants
Trust Company.
Each MBS will be either:
(i) a security exempted from the registration requirements of the
Securities Act,
(ii) a security that has been previously registered under the Securities
Act or
(iii) a security that is eligible for sale under Rule 144(k) under the
Securities Act.
In the case of clause (iii), such security will be acquired in a secondary
market transaction not from the issuer thereof or an affiliate of such issuer.
Government Securities
The Prospectus Supplement for a series of Securities evidencing interests
in Assets of a Trust Fund that include Government Securities will specify, to
the extent available,
(i) the aggregate approximate initial and outstanding principal amounts
or notional amounts, as applicable, and types of the Government
Securities to be included in the Trust Fund,
(ii) the original and remaining terms to stated maturity of the
Government Securities,
(iii) whether such Government Securities are entitled only to interest
payments, only to principal payments or to both,
(iv) the interest rates of the Government Securities or the formula to
determine such rates, if any,
(v) the applicable payment provisions for the Government Securities and
(vi) to what extent, if any, the obligation evidenced thereby is backed
by the full faith and credit of the United States.
Pre-Funding Account
To the extent provided in a Prospectus Supplement, 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 satisfaction of certain conditions described in the
applicable Agreement), additional Assets (the "Subsequent Assets") from time to
time (as frequently as daily) within the number of months specified in the
related Prospectus Supplement 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
date of such issuance.
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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 Agreement--Collection
Account and Related Accounts."
Credit Support
If so provided in the related Prospectus Supplement, partial or full
protection against certain defaults and losses on the Assets in the related
Trust Fund may be provided to one or more classes of Securities in the related
series in the form of subordination of one or more other classes of Securities
in such series and/or by one or more other types of credit support, such as a
letter of credit, insurance policy, guarantee, reserve fund or other type of
credit support consistent with the foregoing, 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--Credit Support Limitations" 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 one or more of the following
agreements: interest rate exchange agreements, interest rate cap or floor
agreements, currency exchange agreements, other swaps and derivative instruments
or other agreements consistent with the foregoing. The principal terms of any
such 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 payment 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
Securityholder, the Pass-Through Rate or interest 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."
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Pass-Through Rate and Interest Rate
Securities of any class within a series may have fixed, variable or
adjustable Pass-Through Rates or interest rates, which may or may not be based
upon the interest rates borne by the Assets in the related Trust Fund. The
Prospectus Supplement with respect to any series of Securities will specify the
Pass-Through Rate or interest rate for each class of such Securities or, in the
case of a variable or adjustable Pass-Through Rate or interest rate, the method
of determining the Pass-Through Rate or interest rate; the effect, if any, of
the prepayment of any Asset on the Pass-Through Rate or interest rate of one or
more classes of Securities; and whether the distributions of interest on the
Securities of any class will be dependent, in whole or in part, on the
performance of any obligor under a Cash Flow Agreement.
If so specified in the related Prospectus Supplement, the effective yield
to maturity to each holder of Securities entitled to payments of interest will
be below that otherwise produced by the applicable Pass-Through Rate or interest
rate and purchase price of such Security because, while interest may accrue on
each Asset during a certain period, 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 a Distribution Date will include
interest accrued during the Interest Accrual Period for such Distribution Date.
As indicated above under "--Pass-Through Rate and Interest Rate," if the
Interest 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 Interest 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 resulting from both voluntary prepayments by the borrowers and involuntary
liquidations). The rate at which principal prepayments occur on the Mortgage
Loans will be affected by a variety of factors, including, without limitation,
the terms of the Mortgage Loans, 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 and the stated pass-through or pay-through interest rate of
certain MBS may be a number of percentage points higher or lower than certain of
the Underlying Mortgage Loans. 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. Mortgage Loans with 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 or with lower Prepayment
Premiums.
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.
Unless otherwise specified in the related Prospectus Supplement, when a
full prepayment is made on a Mortgage Loan, the obligor is charged interest on
the principal amount of the Mortgage Loan so prepaid for the number of days in
the month actually elapsed up to the date of the prepayment. Unless otherwise
specified in the
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related Prospectus Supplement, 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 so prepaid will be paid only to the date of
prepayment rather than for a full month. Unless otherwise specified in the
related Prospectus Supplement, a partial prepayment of principal is applied so
as to reduce the outstanding principal balance of the related Mortgage Loan as
of the Due Date in the month in which such partial prepayment is received.
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 Assets
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 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 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 Mortgage Loans comprising or underlying 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 Mortgage Loans comprising or underlying the
Assets in a Trust Fund. If any Mortgage Loans comprising or underlying the
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 and maturities
of the Mortgage Loans 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.
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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 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 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 Mortgage Asset
If so specified in the related Prospectus Supplement, a number of Mortgage
Loans may have balloon payments due at maturity, 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 Mortgage Loans having balloon payments may default at
maturity. 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 imminent. 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, thereby
lengthening 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. Under the applicable
underwriting standards, the mortgagor under each Mortgage Loan generally will be
qualified on the basis of the Mortgage Rate in effect at origination. The
repayment of any such Mortgage Loan 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. In addition, certain Mortgage Loans may be
subject to temporary buydown plans ("Buydown Mortgage Loans") pursuant to which
the monthly payments made by the mortgagor during the early years of the
Mortgage Loan will be less than the scheduled monthly payments thereon (the
"Buydown Period"). The periodic increase in the amount paid by the mortgagor of
a Buydown Mortgage Loan during or at the end of the applicable Buydown Period
may create a greater financial burden for the mortgagor, who might not have
otherwise qualified for a mortgage, and may accordingly increase the risk of
default with respect to the related Mortgage Loan.
The Mortgage Rates on certain ARM Loans subject to negative amortization
generally adjust monthly and their amortization schedules adjust less
frequently. During a period of rising interest rates as well as immediately
after origination (initial Mortgage Rates are generally lower than the sum of
the applicable index at origination and the related margin over such index at
which interest accrues), the amount of interest accruing on the principal
balance of such Mortgage Loans may exceed the amount of the minimum scheduled
monthly payment thereon. As a result, a portion of the accrued interest on
negatively amortizing Mortgage Loans may be added to the principal balance
thereof and will bear interest at the applicable Mortgage Rate. The addition of
any such deferred interest to the principal balance of any related class or
classes of Securities will lengthen the weighted average life thereof and may
adversely affect yield to holders thereof, depending upon the price at which
such Securities were purchased. In addition, with respect to certain ARM Loans
subject to negative amortization, during a period of declining interest rates,
it might be expected that each minimum scheduled monthly payment on such a
Mortgage Loan would exceed the amount of scheduled principal and accrued
interest on the principal balance thereof, and since such excess will be applied
to reduce the principal balance of the related class or classes of Securities,
the weighted average life of
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such Securities will be reduced and may adversely affect yield to holders
thereof, depending upon the price at which such Securities were purchased.
Defaults
The rate of defaults on the Mortgage Loans 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 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 will be affected by the general economic
condition of the region of the country in which the related Mortgage Properties
are located. The risk of delinquencies and loss is greater and prepayments are
less likely in regions where a weak or deteriorating economy exists, as may be
evidenced by, among other factors, increasing unemployment or falling property
values.
Foreclosures
The number of foreclosures or repossessions and the principal amount of
the Mortgage Loans comprising or underlying the Assets that are foreclosed or
repossessed in relation to the number and principal amount of Mortgage Loans
that are repaid in accordance with their terms will affect the weighted average
life of the Mortgage Loans comprising or underlying the Assets and that of the
related series of Securities.
Refinancing
At the request of a mortgagor, the Master Servicer or a Sub-Servicer may
allow the refinancing of a Mortgage Loan 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. A Sub-Servicer or
the Master 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, Sub-Servicers may encourage the
refinancing of Mortgage Loans, including defaulted Mortgage Loans, that would
permit creditworthy borrowers to assume the outstanding indebtedness of such
Mortgage Loans.
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 Whole Loans, unless otherwise provided in the
related Prospectus Supplement, the Master 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 Master 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--Due-on-Sale Provisions."
THE DEPOSITOR
Merrill Lynch Mortgage Investors, Inc., the Depositor, is a direct
wholly-owned subsidiary of Merrill Lynch Mortgage Capital Inc. and was
incorporated in the State of Delaware on June 13, 1986. The principal
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executive offices of the Depositor are located at 250 Vesey Street, World
Financial Center, North Tower, 10th Floor, New York, New York 10218-1310. Its
telephone number is (212) 449-0357.
The Depositor's principal business is to acquire, hold and/or sell or
otherwise dispose of cash flow assets, usually in connection with the
securitization of that asset. The Depositor does not have, nor is it expected in
the future to have, any significant assets.
DESCRIPTION OF THE SECURITIES
General
The Certificates of each series (including any class of Certificates not
offered hereby) will represent the entire beneficial ownership interest in the
Trust Fund created pursuant to the related Agreement. If a series of Securities
includes Notes, such Notes will represent indebtedness of the related Trust Fund
and will be issued and secured pursuant to an indenture (an "Indenture"). Each
series of Securities will consist of one or more classes of Securities that may:
(i) provide for the accrual of interest thereon based on fixed,
variable or adjustable rates;
(ii) be senior (collectively, "Senior Securities") or subordinate
(collectively, "Subordinate Securities") to one or more other
classes of Securities in respect of certain distributions on the
Securities;
(iii) be entitled to principal distributions, with disproportionately
low, nominal or no interest distributions (collectively, "Stripped
Principal Securities");
(iv) be entitled to interest distributions, with disproportionately low,
nominal or no principal distributions (collectively, "Stripped
Interest Securities");
(v) 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");
(vi) 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
(vii) 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 Stripped Principal Security
component and a Stripped Interest Security component.
If so specified in the related Prospectus Supplement, a Trust Fund may
include additional Mortgage Loans (or certain balances thereof) that will be
transferred to the Trust from time to time and/or, in the case of revolving Home
Equity loans or certain balances thereof, any additional balances advanced to
the borrowers under the revolving Home Equity loans during certain periods. 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 Whole Loans in the related Mortgage Pool (each such
portion of Whole Loans, a "Mortgage Loan Group"). Any such classes may include
classes of Offered Securities.
Each class of Offered Securities of a series will be issued in minimum
denominations corresponding to the Security Balances or, in case of Stripped
Interest 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 definitive form
("Definitive Securities") or in book-entry form ("Book-Entry Securities"), as
provided in the related Prospectus
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Supplement. See "Risk Factors--Book-Entry Registration" 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--Limited
Liquidity" and "--Limited Assets."
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. Except as otherwise specified in the related Prospectus
Supplement, 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 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 Securities in such class or by
random selection, as described in the related Prospectus Supplement or otherwise
established by the related Trustee. Payments will be made either by wire
transfer in immediately available funds to the account of a Securityholder at a
bank or other entity having appropriate facilities therefor, if such
Securityholder has so notified the Trustee or other person required to make such
payments no later than the date specified in the related Prospectus Supplement
(and, if so provided in the related Prospectus Supplement, holds Securities in
the requisite amount specified therein), or by check mailed to the address of
the person entitled thereto as it appears on the Security Register; provided,
however, that the final distribution in retirement of the Securities (whether
Definitive Securities or Book-Entry 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. Unless
provided otherwise in the related Prospectus Supplement, 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 the
related Prospectus Supplement provides otherwise, 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) unless the related Prospectus Supplement provides
otherwise, all prepayments, together with related payments of the
interest thereon and related Prepayment Premiums, Liquidation
Proceeds, Insurance Proceeds and other unscheduled recoveries
received subsequent to the related Due Period, and
(c) all amounts in the Collection Account that are due or
reimbursable to the Depositor, the Trustee, an Asset Seller, a
Sub-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;
(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;
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(iii) all advances made by a 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 Master 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) unless the related Prospectus Supplement provides otherwise,
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.
Distributions of Interest on the Securities
Each class of Securities (other than classes of Stripped Principal
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. Unless otherwise specified in the related Prospectus Supplement,
interest on the Securities will be calculated on the basis of a 360-day year
consisting of twelve 30-day months.
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 Stripped Principal 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 Stripped Interest Securities),
"Accrued Security Interest" will be equal to interest accrued for a specified
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. Unless otherwise provided in the Prospectus Supplement,
Accrued Security Interest on Stripped Interest Securities will be equal to
interest accrued for a specified 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. The method of
determining the notional amount for any class of Stripped Interest 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 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 Certificate 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 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 comprising or underlying the Assets
in the related Trust Fund will result in a corresponding increase in the
Security
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Balance of such class. See "Risk Factors--Average Life of Securities;
Prepayments; Yields" and "Yield Considerations."
Distributions of Principal of the Securities
The Securities of each series, other than certain classes of Stripped
Interest Securities, will have a "Security Balance" which, at any time, will
equal the then maximum amount that the holder will be entitled to receive in
respect of principal out of the future cash flow on the Assets and other assets
included in the related Trust Fund. The outstanding Security Balance of a
Security will be reduced to the extent of distributions of principal thereon
from time to time and, if and to the extent so provided in the related
Prospectus Supplement, by the amount of losses incurred in respect of the
related Assets, may be increased in respect of deferred interest on the related
Mortgage Loans to the extent provided in the related Prospectus Supplement and,
in the case of Accrual Securities prior to the Distribution Date on which
distributions of interest are required to commence, will be increased by any
related Accrued Security Interest. Unless otherwise provided in the related
Prospectus Supplement, the initial aggregate Security Balance of all classes of
Securities of a series will not 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. Unless otherwise provided in the
related Prospectus Supplement, distributions of principal will be made on each
Distribution Date to the class or classes of Securities entitled thereto in
accordance with the provisions described in such Prospectus Supplement until the
Security Balance of such class has been reduced to zero. Stripped Interest
Securities with no Security Balance are not entitled to any distributions of
principal.
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 Interests on the Securities"
and "--Distributions of Principal of the Securities" above also relate to
components of such a class of Securities. In such case, reference in such
sections to Security Balance and Pass-Through Rate or interest rate refer to the
principal balance, if any, of any such component and the Pass-Through Rate or
interest rate, if any, on any such component, respectively.
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, unless otherwise provided in the related Prospectus Supplement, the Master
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 Whole Loans in such Trust Fund during the related Due Period and were
delinquent on the related Determination Date, subject to the Master 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 Master 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 Master 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
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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 Certificates entitled
thereto, rather than to guarantee or insure against losses. Unless otherwise
provided in the related Prospectus Supplement, advances of the Master Servicer's
(or another entity's) funds will be reimbursable only out of related recoveries
on the Mortgage Loans (including amounts received under any form of Credit
Support) respecting which such advances were made (as to any Mortgage Loan,
"Related Proceeds") and, if so provided in the Prospectus Supplement, 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 Master 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 Master Servicer from excess funds
in the Collection Account, the Master 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 Master 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
Master Servicer (or another entity) will be entitled to receive interest at the
rate specified therein on its outstanding advances and will be entitled to pay
itself such interest periodically from general collections on the Assets prior
to any payment to Securityholders or as otherwise provided in the related
Agreement and described in such Prospectus Supplement.
The Prospectus Supplement for any series of Securities evidencing an
interest in a Trust Fund that includes MBS will describe any corresponding
advancing obligation of any person in connection with such MBS.
Reports to Securityholders
Unless otherwise provided in the Prospectus Supplement, with each
distribution to holders of any class of Securities of a series, 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 related Agreement, a statement
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 received by a
Master Servicer (and, if payable directly out of the related Trust Fund,
by any Sub-Servicer) and such other customary information as any such
Master Servicer or the Trustee deems necessary or desirable, or that a
Securityholder reasonably requests, 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;
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(vii) the number and aggregate principal balance of Whole Loans
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 Whole Loan liquidated during the related
Due Period, the portion of such liquidation proceeds payable or
reimbursable to the Master Servicer (or any other entity) in respect of
such Mortgage Loan, and the amount of any loss to Securityholders;
(ix) with respect to each REO Property relating to a Whole Loan and
included in the Trust Fund as of the end of the related Due Period, the
loan number of the related Mortgage Loan and the date of acquisition;
(x) with respect to each REO Property relating to a Whole Loan 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
immediately following such Distribution Date
(calculated as if such Mortgage Loan were still
outstanding taking into account certain limited
modifications to the terms thereof specified in the
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 and
(c) the amount of any loss to Securityholders in respect of
the related Mortgage Loan;
(xii) the aggregate Security Balance or notional amount, as the case
may be, of each class of Securities (including any class of Securities not
offered hereby) at the close of business on such Distribution Date,
separately identifying any reduction in such Security Balance due to the
allocation of any loss and increase in the Security Balance of a class of
Accrual Securities in the event that Accrued Security Interest has been
added to such balance;
(xiii) the aggregate amount of principal prepayments made
during the related Due Period;
(xiv) the amount deposited in the reserve fund, if any, on such
Distribution Date;
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(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; and
(xx) the aggregate amount of payments by the obligors of default
interest, late charges and assumption and modification fees collected
during the related Due Period.
In the case of information furnished pursuant to subclauses (i)-(iv)
above, the amounts shall be expressed as a dollar amount per minimum
denomination of Securities or for such other specified portion thereof. In
addition, in the case of information furnished pursuant to subclauses (i), (ii),
(xii), (xvi) and (xvii) above, such amounts shall also be provided with respect
to each component, if any, of a class of Securities. The Master Servicer or the
Trustee, as specified in the related Prospectus Supplement, will forward or
cause to be forwarded to each holder, to the Depositor and to such other parties
as may be specified in the Agreement, a copy of any statements or reports
received by the Master Servicer or the Trustee, as applicable, with respect to
any MBS. The Prospectus Supplement for each series of Offered Securities will
describe any additional information to be included in reports to the holders of
such Securities.
Within a reasonable period of time after the end of each calendar year,
the Master Servicer or the Trustee, as provided in the related Prospectus
Supplement, shall furnish to each person who at any time during the calendar
year was a holder of a Security a statement containing the information set forth
in subclauses (i)-(iv) above, aggregated for such calendar year or the
applicable portion thereof during which such person was a Securityholder. Such
obligation of the Master Servicer or the Trustee shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Master Servicer or the Trustee pursuant to any requirements of
the Code as are from time to time in force. See "Description of the
Securities--Registration and Definitive Securities."
Termination
The obligations created by the related Agreement for each series of
Certificates will terminate upon the payment to Certificateholders of that
series of all amounts held in the Collection Account or by 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 Whole Loan 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 created by the Agreement
continue beyond the date specified in the related Prospectus Supplement. Written
notice of termination of the Agreement will be given to each Securityholder, and
the final distribution will be made only upon presentation and surrender of the
Securities at the location to be specified in the notice of termination.
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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 or amount,
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.
Book-Entry Registration and Definitive Securities
If so provided in the related Prospectus Supplement, one or more classes
of the Offered Securities of any series will be issued as Book-Entry Securities,
and each such class will be represented by one or more single Securities
registered in the name of a nominee for the depository, The Depository Trust
Company ("DTC").
DTC is a limited-purpose trust company organized under the laws of the
State of New York, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the Uniform Commercial Code ("UCC") and a
"clearing agency" registered pursuant to the provisions of Section 17A of the
Securities Exchange Act of 1934, as amended. DTC was created to hold securities
for its participating organizations ("Participants") and facilitate the
clearance and settlement of securities transactions between Participants through
electronic book-entry changes in their accounts, thereby eliminating the need
for physical movement of certificates. Participants include Merrill Lynch,
Pierce, Fenner & Smith Incorporated, securities brokers and dealers, banks,
trust companies and clearing corporations and may include certain other
organizations. Indirect access to the DTC system also is available to others
such as banks, brokers, dealers and trust companies that clear through or
maintain a custodial relationship with a Participant, either directly or
indirectly ("Indirect Participants").
Unless otherwise provided in the related Prospectus Supplement, investors
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. In addition, such
investors ("Security Owners") will receive all distributions on the Book-Entry
Securities through DTC and its Participants. Under a book-entry format, Security
Owners will receive payments after the related Distribution Date because, while
payments are required to be forwarded to Cede & Co., as nominee for DTC
("Cede"), on each such date, DTC will forward such payments to its Participants
which thereafter will be required to forward them to Indirect Participants or
Security Owners. Unless otherwise provided in the related Prospectus Supplement,
the only "Securityholder" (as such term is used in the Agreement) will be Cede,
as nominee of DTC, and the Security Owners will not be recognized by the Trustee
as Securityholders under the Agreement. Security Owners will be permitted to
exercise the rights of Securityholders under the related Agreement, Trust
Agreement or Indenture, as applicable, only indirectly through the Participants
who in turn will exercise their rights through DTC.
Under the rules, regulations and procedures creating and affecting DTC and
its operations, DTC is required to make book-entry transfers among Participants
on whose behalf it acts with respect to the 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 Security Owners.
Because DTC can act only on behalf of Participants, who in turn act on
behalf of Indirect Participants and certain banks, the ability of a Security
Owner to pledge its interest in the Book-Entry Securities to persons or entities
that do not participate in the DTC system, or otherwise take actions in respect
of its interest in the Book-Entry Securities, may be limited due to the lack of
a physical certificate evidencing such interest.
DTC has advised the Depositor that it will take any action permitted to be
taken by a Securityholder under an Agreement only at the direction of one or
more Participants to whose account with DTC interests in the Book-Entry
Securities are credited.
Cedelbank ("CEDEL") is incorporated under the laws of Luxembourg as a
professional depository. CEDEL holds securities for its participating
organizations ("CEDEL Participants") and facilitates the clearance and
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settlement of securities transactions between CEDEL Participants through
electronic book-entry changes in accounts of CEDEL Participants, thereby
eliminating the need for physical movement of certificates. Transactions may be
settled in CEDEL in any of 28 currencies, including United States dollars. CEDEL
provides to its CEDEL Participants, among other things, services for
safekeeping, administration, clearance and settlement of internationally traded
securities and securities lending and borrowing. CEDEL interfaces with domestic
markets in several countries. As a professional depository, CEDEL is subject to
regulation by the Luxembourg Monetary Institute. CEDEL Participants are
recognized financial institutions around the world, including underwriters,
securities brokers and dealers, banks, trust companies, clearing corporations
and certain other organizations and may include the Underwriters. Indirect
access to CEDEL is also available to others, such as banks, brokers, dealers and
trust companies that clear through or maintain a custodial relationship with a
CEDEL Participant, either directly or indirectly.
The Euroclear System was created in 1968 to hold securities for
participants of the Euroclear System ("Euroclear Participants") and to clear and
settle transactions between Euroclear Participants through simultaneous
electronic book-entry delivery against payment, thereby eliminating the need for
physical movement of certificates and any risk from lack of simultaneous
transfers of securities and cash. Transactions may now be settled in Euroclear
in any of 32 currencies, including United States dollars. The Euroclear System
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. The Euroclear System is
operated by Morgan Guaranty Trust Company of New York, Brussels, Belgium office
(the "Euroclear Operator" or "Euroclear"), under contract with Euroclear
Clearance System, S.C., a Belgian cooperative corporation (the "Cooperative").
All operations are conducted by the Euroclear Operator, and all Euroclear
securities clearance accounts and Euroclear cash accounts are accounts with the
Euroclear Operator, not the Cooperative. The Cooperative establishes policy for
the Euroclear System on behalf of Euroclear Participants. Euroclear Participants
include banks (including central banks), securities brokers and dealers and
other professional financial intermediaries and may include the Underwriters.
Indirect access to the Euroclear System is also available to other firms that
clear through or maintain a custodial relationship with a Euroclear Participant,
either directly or indirectly.
The Euroclear Operator is the Belgian branch of a New York banking
corporation which is a member bank of the Federal Reserve System. As such, it is
regulated and examined by the Board of Governors of the Federal Reserve System
and the New York State Banking Department, as well as the Belgian Banking
Commission.
Securities clearance accounts and cash accounts with the Euroclear
Operator are governed by the Terms and Conditions Governing Use of Euroclear and
the related Operating Procedures of the Euroclear System and applicable Belgian
law (collectively, the "Terms and Conditions"). The Terms and Conditions govern
transfers of securities and cash within the Euroclear System, withdrawal of
securities and cash from the Euroclear System, and receipts of payments with
respect to securities in the Euroclear System. All securities in the Euroclear
System are held on a fungible basis without attribution of specific 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 with respect to Securities held through CEDEL or Euroclear
will be credited to the cash accounts of CEDEL Participants or Euroclear
Participants in accordance with the relevant system's rules and procedures, to
the extent received by its Depositary. Such distributions will be subject to tax
reporting in accordance with relevant United States tax laws and regulations.
See "Material Federal Income Tax Consequences" in this Prospectus and "Global
Clearance, Settlement and Tax Documentation Procedures" in Annex I to the
related Prospectus Supplement. CEDEL or the Euroclear Operator, as the case may
be, will take any other action permitted to be taken by a Security under the
Indenture, Trust Agreement or Pooling and Servicing Agreement, as applicable, on
behalf of a CEDEL 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.
Cede, as nominee for DTC, will hold the Securities. CEDEL and Euroclear
will hold omnibus positions in the Securities on behalf of the CEDEL
Participants and the Euroclear Participants, respectively, through customers'
securities accounts in CEDEL's and Euroclear's names on the books of their
respective depositaries (collectively, the "Depositaries"), which in turn will
hold such positions in customers' securities accounts in the Depositaries' names
on the books of DTC.
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Transfers between DTC's participating organizations (the "Participants")
will occur in accordance with DTC rules. Transfers between CEDEL Participants
and Euroclear Participants will occur in the ordinary way 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 CEDEL
Participants or Euroclear Participants, on the other, will be effected in DTC in
accordance with DTC rules on behalf of the relevant European international
clearing system by its Depositary; however, such cross-market transactions will
require delivery of instructions to the relevant European international clearing
system by the counterparty in such system in accordance with its rules and
procedures and within its established deadlines (European time). The relevant
European international clearing system will, if the transaction meets its
settlement requirements, deliver instructions to its Depositary to take action
to effect final settlement on its behalf by delivering or receiving securities
in DTC, and making or receiving payment in accordance with normal procedures for
same-day funds settlement applicable to DTC. CEDEL Participants and Euroclear
Participants may not deliver instructions directly to the Depositaries.
Because of time zone differences, credits of securities in CEDEL or
Euroclear as a result of a transaction with a Participant will be made during
the subsequent securities settlement processing, dated the business day
following the DTC settlement date, and such credits or any transactions in such
securities settled during such processing will be reported to the relevant CEDEL
Participant or Euroclear Participant on such business day. Cash received in
CEDEL or Euroclear as a result of sales of securities by or through a CEDEL
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 CEDEL or
Euroclear cash account only as of the business day following settlement in DTC.
Although DTC, CEDEL and Euroclear have agreed to the foregoing procedures
in order to facilitate transfers of Securities among participants of DTC, CEDEL
and Euroclear, they are under no obligation to perform or continue to perform
such procedures and such procedures may be discontinued at any time.
In the event that any of DTC, CEDEL or Euroclear should discontinue its
services, the Administrator would seek an alternative depository (if available)
or cause the issuance of Definitive Securities to the owners thereof or their
nominees in the manner described in the Prospectus under "Description of the
Securities--Book Entry Registration and Definitive Securities".
Unless otherwise specified in the related Prospectus Supplement,
Securities initially issued in book-entry form will be issued in fully
registered, certificated form to Security Owners or their nominees ("Definitive
Securities"), rather than to DTC or its nominee only if (i) the Depositor
advises the Trustee in writing that DTC is no longer willing or able to properly
discharge its responsibilities as depository with respect to the Securities and
the Depositor is unable to locate a qualified successor or (ii) the Depositor,
at its option, elects to terminate the book-entry system through DTC.
Upon the occurrence of either of the events described in the immediately
preceding paragraph, DTC is required to notify all Participants of the
availability through DTC of Definitive Securities for the Security Owners. Upon
surrender by DTC of the certificate or certificates representing the Book-Entry
Securities, together with instructions for reregistration, the Trustee will
issue (or cause to be issued) to the Security Owners identified in such
instructions the Definitive Securities to which they are entitled, and
thereafter the Trustee will recognize the holders of such Definitive Securities
as Securityholders under the Agreement.
DESCRIPTION OF THE AGREEMENTS
Agreements Applicable to a Series
REMIC Certificates, Grantor Trust Certificates. Certificates that are
REMIC Certificates, Grantor Trust Certificates or indebtedness for tax purposes
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 Master Servicer and the Trustee. 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 context of the
conveyance and servicing
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of the related Assets, the Pooling and Servicing Agreement may be referred to
herein as the "Agreement". Notwithstanding the foregoing, if the Assets of the
Trust Fund for such a series consists only of Government Securities or MBS, such
Assets will be conveyed to the Trust Fund and administered pursuant to a trust
agreement between the Depositor and the Trustee (a "Trust Agreement"), which may
also be referred to herein as the "Agreement".
Certificates That Are Partnership Interests for Tax Purposes and Notes.
Certificates that are partnership interests for tax purposes will be issued, and
the related Trust Fund will be created, pursuant to a Trust Agreement between
the Depositor and the Trustee. The Assets of the related Trust Fund will be
transferred to the Trust Fund and thereafter serviced in accordance with a
servicing agreement (a "Servicing Agreement") between the Depositor, the
Servicer and the Trustee. In the context of the conveyance and servicing of the
related Assets, a Servicing may be referred to herein as the "Agreement".
A series of Notes issued by a Trust Fund will be issued pursuant to the
indenture (the "Indenture") between the related Trust Fund and an indenture
trustee (the "Indenture Trustee") named in the related Prospectus Supplement.
Notwithstanding the foregoing, if the Assets of a Trust Fund consist only
of MBS or Government Securities, such Assets will be conveyed to the Trust Fund
and administered in accordance with the terms of the Trust Agreement, which in
such context may be referred to herein as the Agreement.
General. Any Master Servicer and the Trustee with respect to any series of
Securities will be named in the related Prospectus Supplement. In any series of
Securities for which there are multiple Master Servicers, there may also be
multiple Mortgage Loan Groups, each corresponding to a particular Master
Servicer; and, if the related Prospectus Supplement so specifies, the servicing
obligations of each such Master Servicer will be limited to the Whole Loans in
such corresponding Mortgage Loan Group. In lieu of appointing a Master Servicer,
a servicer may be appointed pursuant to the Agreement for any Trust Fund. Such
servicer will service all or a significant number of Whole Loans directly
without a Sub-Servicer. Unless otherwise specified in the related Prospectus
Supplement, the obligations of any such servicer shall be commensurate with
those of the Master Servicer described herein. References in this Prospectus to
Master Servicer and its rights and obligations, unless otherwise specified in
the related Prospectus Supplement, shall be deemed to also be references to any
servicer servicing Whole Loans directly. A manager or administrator may be
appointed pursuant to the Trust Agreement for any Trust Fund to administer such
Trust Fund. 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. Forms of a Pooling and Servicing Agreement, a Sale and Servicing Agreement
and a Trust Agreement have been filed as exhibits to the Registration Statement
of which this Prospectus is a part.
The following summaries describe certain provisions that may appear in
each Agreement. The Prospectus Supplement for a series of Securities will
describe any provision of the Agreement relating to such series that materially
differs from the description thereof contained in this Prospectus. The summaries
do not purport to be complete and are subject to, and are qualified in their
entirety by reference to, all of the provisions of the Agreement for each Trust
Fund and the description of such provisions in the related Prospectus
Supplement. 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.
The Depositor will provide a copy of the Agreement (without exhibits) relating
to any series of Securities without charge upon written request of a holder of a
Security of such series addressed to Merrill Lynch Mortgage Investors, Inc., 250
Vesey Street, World Financial Center, North Tower, 10th Floor, New York, New
York 10281-1310. Attention: Jack Ross.
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 related Agreement. Unless
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otherwise provided in the related Prospectus Supplement, such schedule will
include detailed information (i) in respect of each Whole Loan included in the
related Trust Fund, including without limitation, the address 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 Value and
Loan-to-Value Ratio as of the date indicated and payment and prepayment
provisions, if applicable; and (ii) in respect of each MBS included in the
related Trust Fund, including without limitation, the MBS Issuer, MBS Servicer
and MBS Trustee, the pass-through or bond rate or formula for determining such
rate, the issue date and original and remaining term to maturity, if applicable,
the original and outstanding principal amount and payment provisions, if
applicable.
With respect to each Whole 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 unless otherwise specified in the related Prospectus
Supplement will 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. Unless otherwise
specified in the related Prospectus Supplement, the Asset Seller 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.
Unless otherwise provided in the related Prospectus Supplement, the related
Agreement will require the Depositor or another party specified therein to
promptly cause each such assignment of Mortgage to be recorded in the
appropriate public office for real property records, except in the State of
California or in other states where, in the opinion of counsel acceptable to the
Trustee, such recording is not required to protect the Trustee's interest in the
related Whole Loan against the claim of any subsequent transferee or any
successor to or creditor of the Depositor, the Master Servicer, the relevant
Asset Seller or any other prior holder of the Whole Loan.
The Trustee (or a custodian) will review such Whole 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
Certificateholders. Unless otherwise specified in the related Prospectus
Supplement, if any such document is found to be missing or defective in any
material respect, the Trustee (or such custodian) shall immediately notify the
Master Servicer and the Depositor, and the Master Servicer shall immediately
notify the relevant Asset Seller. 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 will be obligated, within a specified number of days of receipt of such
notice, to repurchase the related Whole Loan from the Trustee at the Purchase
Price or substitute for such Mortgage Loan. There can be no assurance that an
Asset Seller will fulfill this repurchase or substitution obligation, and
neither the Master Servicer nor the Depositor will be obligated to repurchase or
substitute for such Mortgage Loan if the Asset Seller defaults on its
obligation. Unless otherwise specified in the related Prospectus Supplement,
this repurchase or substitution obligation constitutes the sole remedy available
to the Certificateholders 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.
Notwithstanding the preceding two paragraphs, unless otherwise specified
in the related Prospectus Supplement, the documents with respect to Home Equity
Loans and Home Improvement Contracts will not be delivered to the Trustee (or a
custodian), but will be retained by the Master Servicer, which may also be the
Asset Seller. In addition, assignments of the related Mortgages to the Trustee
will not be recorded, unless otherwise provided in the related Prospectus
Supplement.
With respect to each Government Security or MBS in certificated form, the
Depositor will deliver or cause to be delivered to the Trustee (or the
custodian) the original certificate or other definitive evidence of such
Government Security or MBS, as applicable, together with bond power or other
instruments, certifications or
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documents required to transfer fully such Government Security or MBS, as
applicable, to the Trustee for the benefit of the Certificateholders. With
respect to each Government Security or MBS in uncertificated or book-entry form
or held through a "clearing corporation" within the meaning of the UCC, the
Depositor and the Trustee will cause such Government Security or MBS to be
registered directly or on the books of such clearing corporation or of one or
more securities intermediaries in the name of the Trustee for the benefit of the
Securityholders. Unless otherwise provided in the related Prospectus Supplement,
the related Agreement will require that either the Depositor or the Trustee
promptly cause any MBS and Government Securities in certificated form not
registered in the name of the Trustee to be re-registered, with the applicable
persons, in the name of the Trustee.
Representations and Warranties; Repurchases
Unless otherwise provided in the related Prospectus Supplement the
Depositor will, with respect to each Whole Loan, assign certain representations
and warranties, as of a specified date (the person making such representations
and warranties, the "Warranting Party") covering, by way of example, the
following types of matters:
(i) the accuracy of the information set forth for such Whole Loan on the
schedule of Assets appearing as an exhibit to the related Agreement;
(ii) the existence of title insurance insuring the lien priority of the
Whole Loan;
(iii) the authority of the Warranting Party to sell the Whole Loan;
(iv) the payment status of the Whole Loan;
(v) in the case of a Whole 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.
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 a Whole Loan 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 Certificates evidencing an interest in such
Whole Loan. Unless otherwise specified in the related Prospectus Supplement, 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
Whole Loan 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.
Unless otherwise provided in the related Prospectus Supplement, each
Agreement will provide that the Master Servicer and/or Trustee will be required
to notify promptly the relevant Warranting Party of any breach of any
representation or warranty made by it in respect of a Whole Loan that materially
and adversely affects the value of such Whole Loan 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 Whole
Loan 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. As
to any Whole Loan, unless otherwise specified in the related Prospectus
Supplement, the "Purchase Price" is equal to the sum of the unpaid principal
balance thereof, plus unpaid accrued interest thereon at the Mortgage Rate from
the date as to which interest was last paid to the due date in the Due Period in
which the relevant purchase is to occur, plus certain
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servicing expenses that are reimbursable to the Master Servicer. If so provided
in the Prospectus Supplement for a series, a Warranting Party, rather than
repurchase a Whole Loan as to which a breach has occurred, will have the option,
within a specified period after initial issuance of such series of Certificates,
to cause the removal of such Whole Loan from the Trust Fund and substitute in
its place one or more other Whole Loans 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 a Whole Loan 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. Unless otherwise specified in the related Prospectus Supplement, this
reimbursement, repurchase or substitution obligation will constitute the sole
remedy available to holders of Securities 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 Master Servicer will be obligated to purchase or substitute for a
Whole Loan 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 Whole Loans.
Unless otherwise provided in the related Prospectus Supplement the
Warranting Party will, with respect to a Trust Fund that includes Government
Securities or MBS, make or assign certain representations or warranties, as of a
specified date, with respect to such Government Securities or MBS, covering the
accuracy of the information set forth therefor on the schedule of Assets
appearing as an exhibit to the related Agreement and covering the authority of
the Warranting Party to sell such Assets. The related Prospectus Supplement will
describe the remedies for a breach thereof.
A Master Servicer will make certain representations and warranties
regarding its authority to enter into, and its ability to perform its
obligations under, the related Agreement. A breach of any such representation of
the Master Servicer which materially and adversely affects the interests of the
Certificateholders and which continues unremedied for the number of days
specified in the Agreement after the giving of written notice of such breach to
the Master Servicer by the Trustee or the Depositor, or to the Master Servicer,
the Depositor and the Trustee by the holders of Certificates evidencing not less
than 25% of the Voting Rights (unless otherwise specified in the related
Prospectus Supplement), will constitute an Event of Default under such Pooling
and Servicing Agreement. See "Events of Default" and "Rights Upon Event of
Default."
Collection Account and Related Accounts
General
The Master 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
Federal Deposit Insurance Corporation ("FDIC") (to the limits
established by the FDIC) and, if so specified in the related
Prospectus Supplement, the uninsured deposits in which are otherwise
secured such that the Trustee 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 Agreement ("Permitted Investments"). A Collection Account may
be maintained as an interest bearing or a non-interest bearing account and the
funds held therein may be invested pending each succeeding Distribution Date in
certain short-term Permitted Investments. Unless otherwise provided in the
related Prospectus Supplement, any interest or other income earned on funds in
the Collection
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Account will be paid to a Master Servicer or its designee as additional
servicing compensation. The Collection Account may be maintained with an
institution that is an affiliate of the Master 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 and so specified in the
related Prospectus Supplement, 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 Master
Servicer or serviced or master serviced by it on behalf of others.
Deposits
A Master 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, unless
otherwise provided in the related Agreement, the following payments and
collections received, or advances made, by the Master 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 Master Servicer or a Sub-Servicer as its servicing
compensation and net of any Retained Interest;
(iii) all proceeds of the hazard insurance policies to be maintained
in respect of each Mortgaged Property securing a Whole Loan in the Trust
Fund (to the extent such proceeds are not applied to the restoration of
the property or released to the mortgagor in accordance with the normal
servicing procedures of a Master Servicer or the related Sub-Servicer,
subject to the terms and conditions of the related Mortgage and Mortgage
Note) (collectively, "Insurance Proceeds") and all other amounts received
and retained in connection with the liquidation of defaulted Mortgage
Loans in the Trust Fund, by foreclosure or otherwise ("Liquidation
Proceeds"), together with the net proceeds on a monthly basis with respect
to any Mortgaged Properties acquired for the benefit of Securityholders by
foreclosure or by deed in lieu of foreclosure or otherwise;
(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 Whole 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 Whole Loans," and all proceeds of any Asset
purchased as described under "Description of the Securities--Termination"
(also, "Liquidation Proceeds");
(viii) any amounts paid by a Master Servicer to cover certain
interest shortfalls arising out of the prepayment of Whole Loans 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 Master Servicer, any payments on account of
modification or assumption fees, late payment charges or prepayment
premiums on the Mortgage Assets;
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(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 Master Servicer or the
Trustee in connection with losses realized on investments for the benefit
of the Master Servicer or the Trustee, as the case may be, of funds held
in the Collection Account; and
(xii) any other amounts required to be deposited in the Collection
Account as provided in the related Agreement and described in the related
Prospectus Supplement.
Withdrawals
A Master Servicer or the Trustee may, from time to time, unless otherwise
specified in the related Prospectus Supplement or the related Agreement, make
withdrawals from the Collection Account for each Trust Fund for any of the
following purposes:
(i) to make distributions to the Securityholders on each
Distribution Date;
(ii) to reimburse a Master 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 Master Servicer as late
collections of interest (net of related servicing fees and Retained
Interest) on and principal of the particular Whole Loans with respect to
which the advances were made or out of amounts drawn under any form of
Credit Support with respect to such Whole Loans;
(iii) to reimburse a Master Servicer for unpaid servicing fees
earned and certain unreimbursed servicing expenses incurred with respect
to Whole Loans 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 Whole Loans
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 Whole Loans and properties;
(iv) to reimburse a Master Servicer for any advances described in
clause (ii) above and any servicing expenses described in clause (iii)
above which, in the Master 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 related 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;
(v) if and to the extent described in the related Prospectus
Supplement, to pay a Master Servicer interest accrued on the advances
described in clause (ii) above and the servicing expenses described in
clause (iii) above while such remain outstanding and unreimbursed;
(vi) to reimburse a Master 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 a Master Servicer
and the Depositor";
(vii) 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;
(viii) 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";
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(ix) unless otherwise provided in the related Prospectus Supplement,
to pay a Master Servicer, as additional servicing compensation, interest
and investment income earned in respect of amounts held in the Collection
Account;
(x) to pay the person entitled thereto any amounts deposited in the
Collection Account that were identified and applied by the Master Servicer
as recoveries of Retained Interest;
(xi) to pay for costs reasonably incurred in connection with the
proper management and maintenance of any Mortgaged Property acquired for
the benefit of Securityholders by foreclosure or by deed in lieu of
foreclosure or otherwise, such payments to be made out of income received
on such property;
(xii) if one or more elections have been made to treat the Trust
Fund or designated portions thereof as a REMIC, 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 "Material Federal Income Tax
Consequences--REMICS--Prohibited Transactions Tax and Other Taxes";
(xiii) 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 Whole Loan or a property acquired in respect thereof in
connection with the liquidation of such Whole Loan or property;
(xiv) to pay for the cost of various opinions of counsel obtained
pursuant to the related Agreement for the benefit of Securityholders;
(xv) to pay for the costs of recording the related 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 Agreement;
(xvi) 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;
(xvii) to make any other withdrawals permitted by the
related Agreement; and
(xviii) 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 Agreement for any series of Securities may provide for the
establishment and maintenance of a separate collection account into which the
Master Servicer or any related Sub-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 Master Servicer, directly or through Sub-Servicers, is required to
make reasonable efforts to collect all scheduled payments under the Whole Loans
and will follow or cause to be followed such collection procedures as it
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would follow with respect to mortgage loans that are comparable to the Whole
Loans and held for its own account, provided such procedures are consistent
with:
(i) the terms of the related 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 Master Servicer will be permitted in its discretion
to waive any late payment charge or penalty interest in respect of a late
payment on a Whole Loan.
Each Master Servicer will also be required to perform other customary
functions of a servicer of comparable loans, including maintaining hazard
insurance policies as described herein and in any related Prospectus Supplement,
and filing and settling claims thereunder; maintaining escrow or impoundment
accounts of mortgagors for payment of taxes, insurance and other items required
to be paid by any mortgagor pursuant to a Whole Loan; processing assumptions or
substitutions in those cases where the Master 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 under certain circumstances; and maintaining accounting records
relating to the Whole Loans. Unless otherwise specified in the related
Prospectus Supplement, the Master Servicer will be responsible for filing and
settling claims in respect of particular Whole Loans under any applicable
instrument of Credit Support. See "Description of Credit Support."
The Master Servicer may agree to modify, waive or amend any term of any
Whole Loan in a manner consistent with the Servicing Standard so long as the
modification, waiver or amendment will not affect the amount or timing of any
scheduled payments of principal or interest on the Whole Loan or, in its
judgment, materially impair the security for the Whole Loan or reduce the
likelihood of timely payment of amounts due thereon. The Master Servicer also
may agree to any modification, waiver or amendment that would so affect or
impair the payments on, or the security for, a Whole Loan if, unless otherwise
provided in the related Prospectus Supplement, in its judgment, a material
default on the Whole Loan has occurred or a payment default is imminent, and in
its judgment, such modification, waiver or amendment is reasonably likely to
produce a greater recovery with respect to the Whole Loan on a present value
basis than would liquidation. The Master Servicer is required to notify the
Trustee in the event of any modification, waiver or amendment of any Whole Loan.
Sub-Servicers
A Master Servicer may delegate its servicing obligations in respect of the
Whole Loans to third-party servicers (each, a "Sub-Servicer"), but such Master
Servicer will remain obligated under the related Agreement. Each sub-servicing
agreement between a Master Servicer and a Sub-Servicer (a "Sub-Servicing
Agreement") must be consistent with the terms of the related Agreement and must
provide that, if for any reason the Master Servicer for the related series of
Securities is no longer acting in such capacity, the Trustee or any successor
Master Servicer may assume the Master Servicer's rights and obligations under
such Sub-Servicing Agreement.
Unless otherwise provided in the related Prospectus Supplement, the Master
Servicer will be solely liable for all fees owed by it to any Sub-Servicer,
irrespective of whether the Master Servicer's compensation pursuant to the
related Agreement is sufficient to pay such fees. However, a Sub-Servicer may be
entitled to a Retained Interest in certain Whole Loans. Each Sub-Servicer will
be reimbursed by the Master Servicer for certain expenditures which it makes,
generally to the same extent the Master Servicer would be reimbursed under an
Agreement. See "Retained Interest; Servicing Compensation and Payment of
Expenses."
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Realization Upon Defaulted Whole Loans
Unless otherwise provided in the related Prospectus Supplement, the Master
Servicer is required to monitor any Whole Loan which is in default, initiate
corrective action in cooperation with the mortgagor or obligor if cure is
likely, inspect the Mortgaged Property and take such other actions as are
consistent with the Servicing Standard. A significant period of time may elapse
before the Master 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 Whole Loans may grant
to the Master 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 Whole Loan 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 Master Servicer
may offer to sell any defaulted Whole Loan 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 Master 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 related Agreement will provide that any such offering
be made in a commercially reasonable manner for a specified period and that the
Master Servicer accept the highest cash bid received from any person (including
itself, an affiliate of the Master Servicer or any Securityholder) that
constitutes a fair price for such defaulted Whole Loan. In the absence of any
bid determined in accordance with the related Agreement to be fair, the Master
Servicer shall proceed with respect to such defaulted Mortgage Loan 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 Master 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 Whole Loan by operation of law or otherwise, if such action
is consistent with the Servicing Standard and a default on such Whole Loan has
occurred or, in the Master Servicer's judgment, is imminent.
Unless otherwise provided in the related Prospectus Supplement, if title
to any Mortgaged Property is acquired by a Trust Fund as to which a REMIC
election has been made, the Master Servicer, on behalf of the Trust Fund, will
be required to sell the Mortgaged Property within three years of acquisition,
unless the Internal Revenue Service grants an extension of time to sell such
property, or unless the Trustee receives an opinion of independent counsel to
the effect that the holding of the property by the Trust Fund subsequent to
three years after its acquisition will not result in the imposition of a tax on
the Trust Fund or cause the Trust Fund to fail to qualify as a REMIC under the
Code at any time that any Security is outstanding. Subject to the foregoing, the
Master Servicer will be required to 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 accept the first (and, if multiple bids are
contemporaneously received, the highest) cash bid received from any person that
constitutes a fair price.
The limitations imposed by the related Agreement and the REMIC provisions
of the Code (if a REMIC election 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 Whole Loan under any related instrument of
Credit Support is not available, the Master 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 Whole Loan. If
the proceeds of any liquidation of the property securing the defaulted Whole
Loan are less than the outstanding principal balance of the defaulted Whole Loan
plus interest accrued thereon at the Mortgage Rate, as applicable, plus the
aggregate amount of expenses incurred by the Master Servicer in connection with
such proceedings and which are reimbursable under
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the Agreement, the Trust Fund will realize a loss in the amount of such
difference. The Master Servicer will be entitled to withdraw or cause to be
withdrawn from the Collection Account out of the Liquidation Proceeds recovered
on any defaulted Whole Loan, prior to the distribution of such Liquidation
Proceeds to Securityholders, amounts representing its normal servicing
compensation on the Whole Loan, unreimbursed servicing expenses incurred with
respect to the Whole Loan and any unreimbursed advances of delinquent payments
made with respect to the Whole Loan.
If any property securing a defaulted Whole Loan is damaged the Master
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 Whole Loan after reimbursement of the
Master 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 Whole Loans, a Master 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 Whole Loans.
If a Master Servicer or its designee recovers payments under any
instrument of Credit Support with respect to any defaulted Whole Loan, the
Master Servicer will be entitled to withdraw or cause to be withdrawn from the
Collection Account out of such proceeds, prior to distribution thereof to
Certificateholders, amounts representing its normal servicing compensation on
such Whole Loan, unreimbursed servicing expenses incurred with respect to the
Whole Loan and any unreimbursed advances of delinquent payments made with
respect to the Whole Loan. See "Hazard Insurance Policies" and "Description of
Credit Support."
Hazard Insurance Policies
Unless otherwise specified in the related Prospectus Supplement, each
Agreement for a Trust Fund comprised of Whole Loans will require the Master
Servicer to cause the mortgagor on each Whole 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.
Unless otherwise specified in the related Prospectus Supplement, such coverage
will be in general in an amount equal to the lesser of the principal balance
owing on such Whole Loan and the amount necessary to fully compensate for any
damage or loss to the improvements on the Mortgaged Property on a replacement
cost basis, but in either case not less than the amount necessary to avoid the
application of any co-insurance clause contained in the hazard insurance policy.
The ability of the Master 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 Master 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
Master 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 Agreement will provide that the Master Servicer may
satisfy its obligation to cause each mortgagor to maintain such a hazard
insurance policy by the Master Servicer's maintaining a blanket policy insuring
against hazard losses on the Whole Loans. If such blanket policy contains a
deductible clause, the Master 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 Whole 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.
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The hazard insurance policies covering the Mortgaged Properties securing
the Whole Loans will typically contain a co-insurance 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 Whole Loans will require the
Master Servicer to cause the mortgagor on each Whole 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 Master 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 Certificateholders. Such costs may be recovered by the Master
Servicer or Sub-Servicer, as the case may be, from the Collection Account, with
interest thereon, as provided by the Agreement.
Under the terms of the Whole Loans, mortgagors will generally be required
to present claims to insurers under hazard insurance policies maintained on the
related Mortgaged Properties. The Master Servicer, on behalf of the Trustee and
Certificateholders, is obligated to present or cause to be presented claims
under any blanket insurance policy insuring against hazard losses on Mortgaged
Properties securing the Whole Loans. However, the ability of the Master 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 Master Servicer by
mortgagors.
Fidelity Bonds and Errors and Omissions Insurance
Unless otherwise specified in the related Prospectus Supplement, each
Agreement will require that the Master 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 Master Servicer. The related Agreement will allow the Master Servicer to
self-insure against loss occasioned by the errors and omissions of the officers,
employees and agents of the Master Servicer so long as certain criteria set
forth in the Agreement are met.
Due-on-Sale Provisions
The Whole 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 Whole Loan upon any
sale, transfer or conveyance of the related Mortgaged Property. Unless otherwise
provided in the related Prospectus Supplement, the Master 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 Master
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. Unless otherwise specified in the related
Prospectus Supplement, any fee collected by or on behalf of the Master Servicer
for entering into an assumption agreement will be retained by or on behalf of
the Master Servicer as additional servicing compensation.
Retained Interest; Servicing Compensation and Payment of Expenses
The Prospectus Supplement for a series of Certificates 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 related Agreement.
A "Retained Interest" in an Asset
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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.
Unless otherwise specified in the related Prospectus Supplement, the
Master Servicer's and a Sub-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. Since any Retained Interest and a
Master 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 Whole Loans may provide that,
as additional compensation, the Master Servicer or the Sub-Servicers 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 Sub-Servicer pursuant to the Agreement.
The Master 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 Whole Loans 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
Master 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 Whole Loans 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 Whole Loans will provide
that on or before a specified date in each year, beginning with the first such
date at least six months after the related Cut-off Date, a firm of independent
public accountants will furnish a statement to the Trustee to the effect that,
on the basis of the examination by such firm conducted substantially in
compliance with either the Uniform Single Attestation Program for Mortgage
Bankers, the Audit Program for Mortgages serviced for the Federal Home Loan
Mortgage Corporation ("FHLMC") or such other audit or attestation program used
by the Master Servicer, the servicing by or on behalf of the Master Servicer of
mortgage loans under agreements substantially similar to each other (including
the related 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 FHLMC, or paragraph 4 of the Uniform Single Attestation Program for
Mortgage Bankers, or such other audit or attestation program requires it to
report. In rendering its statement such firm may rely, as to matters relating to
the direct servicing of mortgage loans by Sub-Servicers, upon comparable
statements for examinations conducted substantially in compliance with the
Uniform Single Attestation Program for Mortgage Bankers or the Audit Program for
Mortgages serviced for FHLMC or such other audit or attestation program used by
such Sub-Servicer (rendered within one year of such statement) of firms of
independent public accountants with respect to the related Sub-Servicer.
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 Master Servicer to the effect that the Master Servicer has
fulfilled its obligations under the Agreement throughout the preceding calendar
year or other specified twelve-month period.
Unless otherwise provided in the related Prospectus Supplement, copies of
such annual accountants' statement and such statements of officers will be
obtainable by Securityholders without charge upon written request to the Master
Servicer at the address set forth in the related Prospectus Supplement.
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Certain Matters Regarding a Master Servicer and the Depositor
The Master Servicer, if any, or a servicer for substantially all the Whole
Loans under each Agreement will be named in the related Prospectus Supplement.
The entity serving as Master Servicer (or as such servicer) may be an affiliate
of the Depositor and may have other normal business relationships with the
Depositor or the Depositor's affiliates. Reference herein to the Master Servicer
shall be deemed to be to the servicer of substantially all of the Whole Loans.
Unless otherwise specified in the related Prospectus Supplement, the
related Agreement will provide that the Master Servicer may resign from its
obligations and duties thereunder only upon a determination that its duties
under the 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 Master Servicer so causing such a conflict
being of a type and nature carried on by the Master Servicer at the date of the
Agreement. No such resignation will become effective until the Trustee or a
successor servicer has assumed the Master Servicer's obligations and duties
under the Agreement.
Unless otherwise specified in the related Prospectus Supplement, each
Agreement will further provide that neither any Master Servicer, the Depositor
nor any director, officer, employee, or agent of a Master Servicer or the
Depositor will be under any liability to the related Trust Fund or Security
holders for any action taken, or for refraining from the taking of any action,
in good faith pursuant to the Agreement; provided, however, that neither a
Master Servicer, the Depositor nor any such person will be protected against any
breach of a representation, warranty or covenant made in such Agreement, or
against any liability specifically imposed thereby, or against any liability
which would otherwise be imposed by reason of willful misfeasance, bad faith or
gross negligence in the performance of obligations or duties thereunder or by
reason of reckless disregard of obligations and duties thereunder.
Unless otherwise specified in the related Prospectus Supplement, each
Agreement will further provide that any Master Servicer, the Depositor and any
director, officer, employee or agent of a Master 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 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 Master Servicer, the prosecution of an enforcement action in
respect of any specific Whole Loan or Whole Loans (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 related
Agreement.
In addition, each Agreement will provide that neither any Master 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 Agreement and which in its opinion may involve it in any expense or
liability. Any such Master Servicer or the Depositor may, however, in its
discretion undertake any such action which it may deem necessary or desirable
with respect to the 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
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expenses, costs and liabilities of the Securityholders, and the Master 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 Master Servicer or the Depositor may be merged
or consolidated, or any person resulting from any merger or consolidation to
which the Master Servicer or the Depositor is a party, or any person succeeding
to the business of the Master Servicer or the Depositor, will be the successor
of the Master Servicer or the Depositor, as the case may be, under the related
Agreement.
Events of Default Under the Agreement
Unless otherwise provided in the related Prospectus Supplement, Events of
Default under the related Agreement will include:
(i) any failure by the Master Servicer to distribute or cause to be
distributed to Securityholders, or to remit to the Trustee or
Indenture Trustee, as applicable, for distribution to Securityholders,
any required payment that continues after a grace period, if any;
(ii) any failure by the Master Servicer duly to observe or perform in any
material respect any of its other covenants or obligations under the
Agreement which continues unremedied for thirty days (or such other
period specified in the related Prospectus Supplement) after written
notice of such failure has been given to the Master Servicer by the
Trustee or the Depositor, or to the Master Servicer, the Depositor and
the Trustee by the holders of Securities evidencing not less than 25%
of the Voting Rights;
(iii) any breach of a representation or warranty made by the Master
Servicer under the Agreement which materially and adversely affects
the interests of Securityholders and which continues unremedied for
thirty days (or such longer period specified in the related Prospectus
Supplement) after written notice of such breach has been given to the
Master Servicer by the Trustee or the Depositor, or to the Master
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, marshalling of
assets and liabilities or similar proceedings and certain actions by
or on behalf of the Master 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. Unless otherwise specified in the related Prospectus
Supplement, the Trustee shall, not later than the later of 60 days 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 Agreement
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 Master Servicer under the 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 Master Servicer under the
Agreement (except that if the Trustee is prohibited by law from obligating
itself to make advances regarding delinquent Mortgage Loans, or if the related
Prospectus Supplement so
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specifies, then the Trustee will not be obligated to make such advances) and
will be entitled to similar compensation arrangements. Unless otherwise
specified in the related Prospectus Supplement, 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 Master Servicer
under the 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 Master Servicer under the Agreement.
Unless otherwise described in the related Prospectus Supplement, the
holders of Securities representing at least 66% (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" 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 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 Trustee thereunder and
have offered to the Trustee reasonable indemnity, and the Trustee for sixty 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 holders of Securities 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 of the holders of Securities covered by the Agreement:
(i) to cure any ambiguity or correct any 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 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 (as evidenced by an
opinion of counsel to such effect or a letter from the applicable
Rating Agency that such amendment will not result in a reduction or
withdrawal of its rating of the related Security) adversely affect in
any material respect the interests of any holder of Securities covered
by the Agreement.
Unless otherwise specified in the related Prospectus Supplement, each Agreement
may also be amended by the Depositor, the Master Servicer, if any, and the
Trustee, with the consent of the holders of Securities 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,
that unless otherwise specified in the related Prospectus Supplement, no such
amendment may:
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(i) reduce in any manner the amount of or delay the timing of, payments
received or advanced on Mortgage Loans which are required to be
distributed on any Security without the consent of the holder of such
Security or
(ii) reduce the consent percentages described in this paragraph without the
consent of the holders of all Securities covered by such Agreement
then outstanding.
However, with respect to any series of Securities as to which a REMIC election
is to be made, the Trustee will not consent to any amendment of the 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 at any time
that the related Securities are outstanding.
The Trustee
The Trustee under each Agreement or Trust 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 and with any Master
Servicer and its affiliates.
Duties of the Trustee
The Trustee will make no representations as to the validity or sufficiency
of any Agreement or Trust Agreement, the Securities or any Asset or related
document and is not accountable for the use or application by or on behalf of
any Master 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 Master Servicer.
If no Event of Default has occurred and is continuing, the Trustee is required
to perform only those duties specifically required under the related Agreement
or Trust 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 Agreement or Trust Agreement, as applicable.
Certain Matters Regarding the Trustee
Unless otherwise specified in the related Prospectus Supplement, 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 related
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 related 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 related 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
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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 Master
Servicer, if any, and all Securityholders. Upon receiving such notice of
resignation, the Depositor is required promptly to appoint a successor trustee
acceptable to the Master Servicer, if any. If no successor trustee shall have
been so appointed and have accepted appointment within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible to continue as such
under the related Agreement, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, or if a change in
the financial condition of the Trustee has adversely affected or will adversely
affect the rating on any class of the Securities, then the Depositor may remove
the Trustee and appoint a successor trustee acceptable to the Master Servicer,
if any. Holders of the Securities 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.
Certain Terms of the Indenture
Events of Default. Unless otherwise specified in the related Prospectus
Supplement, Events of Default under the Indenture for each Series of Notes
include:
(i) a default for thirty (30) days (or such other number of days specified
in such Prospectus Supplement) or more in the payment of any principal
of or interest on any Note of such series;
(ii) failure to perform any other covenant of the Depositor or the Trust
Fund in the Indenture which continues for a period of sixty (60) days
(or such other number of days specified in such Prospectus Supplement)
after notice thereof is given in accordance with the procedures
described in the related Prospectus Supplement;
(iii) any representation or warranty made by the Depositor or the Trust
Fund in the Indenture or in any certificate or other writing delivered
pursuant thereto or in connection therewith with respect to or
affecting such series having been incorrect in a material respect as
of the time made, and such breach is not cured within sixty (60) days
(or such other number of days specified in such Prospectus Supplement)
after notice thereof is given in accordance with the procedures
described in the related Prospectus Supplement;
(iv) certain events of bankruptcy, insolvency, receivership or liquidation
of the Depositor or the Trust Fund; or
(v) any other Event of Default provided with respect to Notes of that
series.
If an Event of Default with respect to the Notes of any series at the time
outstanding occurs and is continuing, either the Indenture Trustee or the
holders 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
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circumstances, be rescinded and annulled by the holders of a majority in
aggregate outstanding amount of the Notes of such series.
If, following an Event of Default with respect to any series of Notes, the
Notes of such series have been declared to be due and payable, the 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 holders 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 holders of 66% (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 Noteholders 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 Noteholders
after the occurrence of such an Event of Default.
Unless otherwise specified in the related Prospectus Supplement, in the
event the principal of the Notes of a series is declared due and payable, as
described above, the holders of any such Notes issued at a discount from par may
be entitled to receive no more than an amount equal to the unpaid principal
amount thereof less the amount of such discount which is unamortized.
Subject to the provisions of the Indenture relating to the duties of the
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 holders of Notes of such series, unless such
holders offered to the Indenture Trustee security or indemnity satisfactory to
it against the costs, expenses and liabilities which might be incurred by it in
complying with such request or direction. Subject to such provisions for
indemnification and certain limitations contained in the Indenture, the holders
of a majority of the then aggregate outstanding amount of the Notes of such
series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Indenture Trustee or exercising
any trust or power conferred on the Indenture Trustee with respect to the Notes
of such series, and the holders of a majority of the then aggregate outstanding
amount of the Notes of such series may, in certain cases, waive any default with
respect thereto, except a default in the payment of principal or interest or a
default in respect of a covenant or provision of the Indenture that cannot be
modified without the waiver or consent of all the holders of the outstanding
Notes of such series affected thereby.
Discharge of the 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
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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 Noteholders 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 or the Master Servicer
or any of its affiliates.
DESCRIPTION OF CREDIT SUPPORT
General
For any series of Securities Credit Support may be provided with respect
to one or more classes thereof or the related Assets. Credit Support may be in
the form of the subordination of one or more classes of Securities, letters of
credit, insurance policies, guarantees, the establishment of one or more reserve
funds or another method of Credit Support described in the related Prospectus
Supplement, or any combination of the foregoing. If so provided in the related
Prospectus Supplement, any form of Credit Support may be structured so as to be
drawn upon by more than one series to the extent described therein.
Unless otherwise provided in the related Prospectus Supplement for a
series of Securities the Credit Support 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"), holders of Securities 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.
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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--Credit Support Limitations--Risk That Credit Support Will Not
Cover All Losses."
Subordinate Securities
If so specified in the related Prospectus Supplement, one or more classes
of Securities of a series may be Subordinate Securities. To the extent specified
in the related Prospectus Supplement, the rights of the holders of Subordinate
Securities to receive distributions of principal and interest from the
Collection Account on any Distribution Date will be subordinated to such rights
of the holders of Senior Securities. If so provided in the related Prospectus
Supplement, the subordination of a class may apply only in the event of (or may
be limited to) certain types of losses or shortfalls. The related Prospectus
Supplement will set forth information concerning the amount of subordination of
a class or classes of Subordinate Securities in a series, the circumstances in
which such subordination will be applicable and the manner, if any, in which the
amount of subordination will be effected.
Cross-Support Provisions
If the Assets for a series are divided into separate groups, each
supporting a separate class or classes of Securities of a series, credit support
may be provided by cross-support provisions requiring that distributions be made
on Senior Securities evidencing interests in one group of 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.
Insurance or Guarantees
If so provided in the Prospectus Supplement for a series of Securities,
the Whole Loans in the related Trust Fund will be covered for various default
risks by insurance policies or guarantees.
Letter of Credit
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 letters of credit, issued by a
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bank or financial institution specified in such Prospectus Supplement (the "L/C
Bank"). Under a letter of credit, the L/C Bank will be obligated to honor draws
thereunder in an aggregate fixed dollar amount, net of unreimbursed payments
thereunder, generally equal to a percentage specified in the related Prospectus
Supplement of the aggregate principal balance of the Assets on the related
Cut-off Date or of the initial aggregate Security Balance of one or more classes
of Securities. If so specified in the related Prospectus Supplement, the letter
of credit may permit draws in the event of only certain types of losses and
shortfalls. The amount available under the letter of credit will, in all cases,
be reduced to the extent of the unreimbursed payments thereunder and may
otherwise be reduced as described in the related Prospectus Supplement. The
obligations of the L/C Bank under the letter of credit for each series of
Securities will expire at the earlier of the date specified in the related
Prospectus Supplement or the termination of the Trust Fund.
Insurance Policies and Surety Bonds
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 insurance policies and/or surety bonds provided by
one or more insurance companies or sureties. Such instruments may cover, with
respect to one or more classes of Securities of the related series, timely
distributions of interest and/or full distributions of principal on the basis of
a schedule of principal distributions set forth in or determined in the manner
specified in the related 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 Certificates. 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, except as otherwise specified in the related Prospectus Supplement.
Unless otherwise 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 Master Servicer or another service provider as additional
compensation. The Reserve Fund, if any, for a series will not be a part of the
Trust Fund unless otherwise specified in the related Prospectus Supplement.
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.
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Credit Support With Respect to MBS
If so provided in the Prospectus Supplement for a series of Securities,
the MBS in the related Trust Fund and/or the Mortgage Loans underlying such MBS
may be covered by one or more of the types of Credit Support described herein.
The related Prospectus Supplement will specify as to each such form of Credit
Support the information indicated above with respect thereto, to the extent such
information is material and available.
CERTAIN LEGAL ASPECTS OF MORTGAGE LOANS
The following discussion contains summaries, which are general in nature,
of certain state law legal aspects of loans secured by single-family or
multi-family residential properties. Because such legal aspects are governed
primarily by the applicable laws of the state in which the related Mortgaged
Property is located (which laws may differ substantially), the summaries do not
purport to be complete nor to reflect the laws of any particular state, nor to
encompass the laws of all states in which the security for the Mortgage Loans is
situated. The summaries are qualified in their entirety by reference to the
applicable federal and state laws governing the Mortgage Loans. See "Description
of the Trust Funds--Assets."
General
All of the Mortgage Loans are loans evidenced by a note or bond and
secured by instruments granting a security interest in real property which may
be mortgages, deeds of trust, security deeds or deeds to secure debt, depending
upon the prevailing practice and law in the state in which the Mortgaged
Property is located. Mortgages, deeds of trust and deeds to secure debt are
herein collectively referred to as "mortgages." Any of the foregoing types of
mortgages will create a lien upon, or grant a title interest in, the subject
property, the priority of which will depend on the terms of the particular
security instrument, as well as separate, recorded, contractual arrangements
with others holding interests in the mortgaged property, the knowledge of the
parties to such instrument as well as the order of recordation of the instrument
in the appropriate public recording office. However, recording does not
generally establish priority over governmental claims for real estate taxes and
assessments and other charges imposed under governmental police powers.
Types of Mortgage Instruments
A mortgage either creates a lien against or constitutes a conveyance of
real property between two parties--a mortgagor (the borrower and usually the
owner of the subject property) and a mortgagee (the lender). In contrast, a deed
of trust is a three-party instrument, among a trustor (the equivalent of a
mortgagor), a trustee to whom the mortgaged property is conveyed, and a
beneficiary (the lender) for whose benefit the conveyance is made. As used in
this Prospectus, unless the context otherwise requires, "mortgagor" includes the
trustor under a deed of trust and a grantor under a security deed or a deed to
secure debt. Under a deed of trust, the mortgagor grants the property,
irrevocably until the debt is paid, in trust, generally with a power of sale as
security for the indebtedness evidenced by the related note. A deed to secure
debt typically has two parties. By executing a deed to secure debt, the grantor
conveys title to, as opposed to merely creating a lien upon, the subject
property to the grantee until such time as the underlying debt is repaid,
generally with a power of sale as security for the indebtedness evidenced by the
related mortgage note. In case the mortgagor under a mortgage is a land trust,
there would be an additional party because legal title to the property is held
by a land trustee under a land trust agreement for the benefit of the mortgagor.
At origination of a mortgage loan involving a land trust, the mortgagor executes
a separate undertaking to make payments on the mortgage note. The mortgagee's
authority under a mortgage, the trustee's authority under a deed of trust and
the grantee's authority under a deed to secure debt are governed by the express
provisions of the mortgage, the law of the state in which the real property is
located, certain federal laws (including, without limitation, the Soldiers' and
Sailors' Civil Relief Act of 1940) and, in some cases, in deed of trust
transactions, the directions of the beneficiary.
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
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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. Unless otherwise specified in the Prospectus Supplement,
the Depositor or the Asset Seller will make certain representations and
warranties in the Agreement with respect to any Mortgage Loans that are secured
by an interest in a leasehold estate. Such representation and warranties, if
applicable, will be set forth in the Prospectus Supplement.
Cooperative Loans
If specified in the Prospectus Supplement relating to a series of Offered
Securities, the Mortgage Loans may also consist of cooperative apartment loans
("Cooperative Loans") secured by security interests in shares issued by a
cooperative housing corporation (a "Cooperative") and in the related proprietary
leases or occupancy agreements granting exclusive rights to occupy specific
dwelling units in the cooperatives' buildings. The security agreement will
create a lien upon, or grant a title interest in, the property which it covers,
the priority of which will depend on the terms of the particular security
agreement as well as the order of recordation of the agreement in the
appropriate recording office. Such a lien or title interest is not prior to the
lien for real estate taxes and assessments and other charges imposed under
governmental police powers.
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
cooperatives'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 share 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
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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--Cooperatives" below.
Foreclosure
General
Foreclosure is a legal procedure that allows the mortgagee to recover its
mortgage debt by enforcing its rights and available legal remedies under the
mortgage. If the mortgagor defaults in payment or performance of its obligations
under the note or mortgage, the mortgagee has the right to institute foreclosure
proceedings to sell the mortgaged property at public auction to satisfy the
indebtedness.
Foreclosure procedures with respect to the enforcement of a mortgage vary
from state to state. Two primary methods of foreclosing a mortgage are judicial
foreclosure and non-judicial foreclosure pursuant to a power of sale granted in
the mortgage instrument. There are several other foreclosure procedures
available in some states that are either infrequently used or available only in
certain limited circumstances, such as strict foreclosure.
Judicial Foreclosure
A judicial foreclosure proceeding is conducted in a court having
jurisdiction over the mortgaged property. Generally, the action is initiated by
the service of legal pleadings upon all parties having an interest of record in
the real property. Delays in completion of the foreclosure may occasionally
result from difficulties in locating defendants. When the lender's right to
foreclose is contested, the legal proceedings can be time-consuming. Upon
successful completion of a judicial foreclosure proceeding, the court generally
issues a judgment of foreclosure and appoints a referee or other officer to
conduct a public sale of the mortgaged property, the proceeds of which are used
to satisfy the judgment. Such sales are made in accordance with procedures that
vary from state to state.
Equitable Limitations on Enforceability of Certain Provisions
United States courts have traditionally imposed general equitable
principles to limit the remedies available to a mortgagee in connection with
foreclosure. These equitable principles are generally designed to relieve the
mortgagor from the legal effect of mortgage defaults, to the extent that such
effect is perceived as harsh or unfair. Relying on such principles, a court may
alter the specific terms of a loan to the extent it considers necessary to
prevent or remedy an injustice, undue oppression or overreaching, or may require
the lender to undertake affirmative and expensive actions to determine the cause
of the mortgagor's default and the likelihood that the mortgagor will be able to
reinstate the loan. In some cases, courts have substituted their judgment for
the lender's and have required that lenders reinstate loans or recast payment
schedules in order to accommodate mortgagors who are suffering from a temporary
financial disability. In other cases, courts have limited the right of the
lender to foreclose if the default under the mortgage is not monetary, e.g., the
mortgagor failed to maintain the mortgaged property adequately or the mortgagor
executed a junior mortgage on the mortgaged property. The exercise by the court
of its equity powers will depend on the individual circumstances of each case
presented to it. Finally, some courts have been faced with the issue of whether
federal or state constitutional provisions reflecting due process concerns for
adequate notice require that a mortgagor receive notice in addition to
statutorily-prescribed minimum notice. For the most part, these cases have
upheld the reasonableness of the notice provisions or have found that a public
sale under a mortgage providing for a power of sale does not involve sufficient
state action to afford constitutional protections to the mortgagor.
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
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to such sale, the trustee under a deed of trust must record a notice of default
and notice of sale and send a copy to the mortgagor and to any other party who
has recorded a request for a copy of a notice of default and notice of sale. In
addition, in some states the trustee must provide notice to any other party
having an interest of record in the real property, including junior lienholders.
A notice of sale must be posted in a public place and, in most states, published
for a specified period of time in one or more newspapers. The mortgagor or
junior lienholder may then have the right, during a reinstatement period
required in some states, to cure the default by paying the entire actual amount
in arrears (without acceleration) plus the expenses incurred in enforcing the
obligation. In other states, the mortgagor or the junior lienholder is not
provided a period to reinstate the loan, but has only the right to pay off the
entire debt to prevent the foreclosure sale. Generally, the procedure for public
sale, the parties entitled to notice, the method of giving notice and the
applicable time periods are governed by state law and vary among the states.
Foreclosure of a deed to secure debt is also generally accomplished by a
non-judicial sale similar to that required by a deed of trust, except that the
lender or its agent, rather than a trustee, is typically empowered to perform
the sale in accordance with the terms of the deed to secure debt and applicable
law.
Public Sale
A third party may be unwilling to purchase a mortgaged property at a
public sale because of the difficulty in determining the value of such property
at the time of sale, due to, among other things, redemption rights which may
exist and the possibility of physical deterioration of the property during the
foreclosure proceedings. For these reasons, it is common for the lender to
purchase the mortgaged property for an amount equal to or less than the
underlying debt and accrued and unpaid interest plus the expenses of
foreclosure. Generally, state law controls the amount of foreclosure costs and
expenses which may be recovered by a lender. Thereafter, subject to the
mortgagor's right in some states to remain in possession during a redemption
period, if applicable, the lender will become the owner of the property and have
both the benefits and burdens of ownership of the mortgaged property. For
example, the lender will become obligated to pay taxes, obtain casualty
insurance and to make such repairs at its own expense as are necessary to render
the property suitable for sale. The lender will commonly obtain the services of
a real estate broker and pay the broker's commission in connection with the sale
of the property. Depending upon market conditions, the ultimate proceeds of the
sale of the property may not equal the lender's investment in the property.
Moreover, a lender commonly incurs substantial legal fees and court costs in
acquiring a mortgaged property through contested foreclosure and/or bankruptcy
proceedings. Generally, state law controls the amount of foreclosure expenses
and costs, including attorneys' fees, that may be recovered by a lender.
A junior mortgagee may not foreclose on the property securing the junior
mortgage unless it forecloses subject to senior mortgages and any other prior
liens, in which case it may be obliged to make payments on the senior mortgages
to avoid their foreclosure. In addition, in the event that the foreclosure of a
junior mortgage triggers the enforcement of a "due-on-sale" clause contained in
a senior mortgage, the junior mortgagee may be required to pay the full amount
of the senior mortgage to avoid its foreclosure. Accordingly, with respect to
those Mortgage Loans, if any, that are junior mortgage loans, if the lender
purchases the property the lender's title will be subject to all senior
mortgages, prior liens and certain governmental liens.
The proceeds received by the referee or trustee from the sale are applied
first to the costs, fees and expenses of sale and then in satisfaction of the
indebtedness secured by the mortgage under which the sale was conducted. Any
proceeds remaining after satisfaction of senior mortgage debt are generally
payable to the holders of junior mortgages and other liens and claims in order
of their priority, whether or not the mortgagor is in default. Any additional
proceeds are generally payable to the mortgagor. The payment of the proceeds to
the holders of junior mortgages may occur in the foreclosure action of the
senior mortgage or a subsequent ancillary proceeding or may require the
institution of separate legal proceedings by such holders.
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
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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 years. Unless
otherwise provided in the related Prospectus Supplement, 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 Agreement will permit foreclosed property to be
held for more than three years if the Internal Revenue Service 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.
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 cancelled by the
cooperative for failure by the tenant-stockholder to pay rent or other
obligations or charges owed by such tenant-stockholder, including mechanics'
liens against the cooperative apartment building incurred by such
tenant-stockholder. The proprietary lease or occupancy agreement generally
permit the Cooperative to terminate such lease or agreement in the event an
obligor fails to make payments or defaults in the performance of covenants
required thereunder. Typically, the lender and the Cooperative enter into a
recognition agreement which establishes the rights and obligations of both
parties in the event of a default by the tenant-stockholder under the
proprietary lease or occupancy agreement will usually constitute a default under
the security agreement between the lender and the tenant-stockholder.
The recognition agreement generally provides that, in the event that the
tenant-stockholder has defaulted under the proprietary lease or occupancy
agreement, the Cooperative will take no action to terminate such lease or
agreement until the lender has been provided with an opportunity to cure the
default. The recognition agreement typically provides that if the proprietary
lease or occupancy agreement is terminated, the Cooperative will recognize the
lender's lien against proceeds from the sale of the Cooperative apartment,
subject, however, to the Cooperative's right to sums due under such proprietary
lease or occupancy agreement. The total amount owed to the Cooperative by the
tenant-stockholder, which the lender generally cannot restrict and does not
monitor, could reduce the value of the collateral below the outstanding
principal balance of the Cooperative Loan and accrued and unpaid interest
thereon.
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
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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 the building was 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.
Anti-Deficiency Legislation and Other Limitations on Lenders
Statutes in some states limit the right of a beneficiary under a deed of
trust or a mortgagee under a mortgage to obtain a deficiency judgment against
the mortgagor following foreclosure or sale under a deed of trust. A deficiency
judgment would be a personal judgment against the former mortgagor equal to the
difference between the net amount realized upon the public sale of the real
property and the amount due to the lender. Some states require the lender to
exhaust the security afforded under a mortgage by foreclosure in an attempt to
satisfy the full debt before bringing a personal action against the mortgagor.
In certain other states, the lender has the option of bringing a personal action
against the mortgagor on the debt without first exhausting such security;
however, in some of these states, the lender, following judgment on such
personal action, may be deemed to have elected a remedy and may be precluded
from exercising remedies with respect to the security. In some cases, a lender
will be precluded from exercising any additional rights under the note or
mortgage if it has taken any prior enforcement action. Consequently, the
practical effect of the election requirement, in those states permitting such
election, is that lenders will usually proceed against the security first rather
than bringing a personal action against the mortgagor. Finally, other statutory
provisions limit any deficiency judgment against the former mortgagor 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 lender from obtaining a large deficiency judgment against
the former mortgagor as a result of low or no bids at the judicial sale.
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In addition to laws limiting or prohibiting deficiency judgments, numerous
other federal and state statutory provisions, including the federal bankruptcy
laws and state laws affording relief to debtors, may interfere with or affect
the ability of the secured mortgage lender to realize upon collateral or enforce
a deficiency judgment. For example, with respect to federal bankruptcy law, a
court with federal bankruptcy jurisdiction may permit a debtor through his or
her Chapter 11 or Chapter 13 rehabilitative plan to cure a monetary default in
respect of a mortgage loan on a debtor's residence by paying arrearages within a
reasonable time period and reinstating the original mortgage loan payment
schedule even though the lender accelerated the mortgage loan and final judgment
of foreclosure had been entered in state court (provided no sale of the
residence had yet occurred) prior to the filing of the debtor's petition. Some
courts with federal bankruptcy jurisdiction have approved plans, based on the
particular facts of the reorganization case, that effected the curing of a
mortgage loan default by paying arrearages over a number of years.
Courts with federal bankruptcy jurisdiction have also indicated that the
terms of a mortgage loan secured by property of the debtor may be modified.
These courts have allowed modifications that include reducing the amount of each
monthly payment, changing the rate of interest, altering the repayment schedule,
forgiving all or a portion of the debt and reducing the lender's security
interest to the value of the residence, thus leaving the lender a general
unsecured creditor for the difference between the value of the residence and the
outstanding balance of the loan. Generally, however, the terms of a mortgage
loan secured only by a mortgage on real property that is the debtor's principal
residence may not be modified pursuant to a plan confirmed pursuant to Chapter
11 or Chapter 13 except with respect to mortgage payment arrearages, which may
be cured within a reasonable time period.
Certain tax liens arising under the Internal Revenue Code of 1986, as
amended, may in certain circumstances provide priority over the lien of a
mortgage or deed of trust. In addition, substantive requirements are imposed
upon mortgage lenders in connection with the origination and the servicing of
mortgage loans by numerous federal and some state consumer protection laws.
These laws include the federal Truth-in-Lending Act, Real Estate Settlement
Procedures Act, Equal Credit Opportunity Act, Fair Credit Billing Act, Fair
Credit Reporting Act and related statutes. These federal laws impose specific
statutory liabilities upon lenders who originate mortgage loans and who fail to
comply with the provisions of the law. In some cases this liability may affect
assignees of the mortgage loans.
Generally, Article 9 of the UCC governs foreclosure on Cooperative shares
and the related proprietary lease or occupancy agreement. Some courts have
interpreted section 9-504 of the UCC to prohibit a deficiency award unless the
creditor establishes that the sale of the collateral (which, in the case of a
Cooperative Loan, would be the shares of the Cooperative and the related
proprietary lease or occupancy agreement) was conducted in a commercially
reasonable manner.
Environmental Legislation
Certain states impose a statutory lien for associated costs on property
that is the subject of a cleanup action by the state on account of hazardous
wastes or hazardous substances released or disposed of on the property. Such a
lien will generally have priority over all subsequent liens on the property and,
in certain of these states, will have priority over prior recorded liens
including the lien of a mortgage. In addition, under federal environmental
legislation and under state law in a number of states, a secured party that
takes a deed in lieu of foreclosure or acquires a mortgaged property at a
foreclosure sale or becomes involved in the operation or management of a
property so as to be deemed an "owner" or "operator" of the property may be
liable for the costs of cleaning up a contaminated site. Although such costs
could be substantial, it is unclear whether they would be imposed on a lender
(such as a Trust Fund) secured by residential real property. In the event that
title to a Mortgaged Property securing a Mortgage Loan in a Trust Fund was
acquired by the Trust Fund and cleanup costs were incurred in respect of the
Mortgaged Property, the holders of the related series of Securities might
realize a loss if such costs were required to be paid by the Trust Fund.
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
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subject of legislation or litigation in many states and, in some cases, the
enforceability of these clauses was limited or denied. However, with respect to
certain loans the Garn-St Germain Depository Institutions Act of 1982 preempts
state constitutional, statutory and case law that prohibits the enforcement of
due-on-sale clauses and permits lenders to enforce these clauses in accordance
with their terms, subject to certain limited exceptions. Due-on-sale clauses
contained in mortgage loans originated by federal savings and loan associations
of federal savings banks are fully enforceable pursuant to regulations of the
United States Federal Home Loan Bank Board, as succeeded by the Office of Thrift
Supervision, which preempt state law restrictions on the enforcement of such
clauses. Similarly, "due-on-sale" clauses in mortgage loans made by national
banks and federal credit unions are now fully enforceable pursuant to preemptive
regulations of the Comptroller of the Currency and the National Credit Union
Administration, respectively.
The Garn-St Germain Act also sets forth nine specific instances in which a
mortgage lender covered by the act (including federal savings and loan
associations and federal savings banks) may not exercise a "due-on-sale" clause,
notwithstanding the fact that a transfer of the property may have occurred.
These include intra-family transfers, certain transfers by operation of law,
leases of fewer than three years and the creation of a junior encumbrance.
Regulations promulgated under the Garn-St Germain Act also prohibit the
imposition of a prepayment penalty upon the acceleration of a loan pursuant to a
due-on-sale clause. The inability to enforce a "due-on-sale" clause may result
in a mortgage that bears an interest rate below the current market rate being
assumed by a new home buyer rather than being paid off, which may affect the
average life of the Mortgage Loans and the number of Mortgage Loans which may
extend to maturity.
Subordinate Financing
Where a mortgagor encumbers mortgaged property with one or more junior
liens, the senior lender is subjected to additional risk. First, the mortgagor
may have difficulty servicing and repaying multiple loans. In addition, if the
junior loan permits recourse to the mortgagor (as junior loans often do) and the
senior loan does not, a mortgagor may be more likely to repay sums due on the
junior loan than those on the senior loan. Second, acts of the senior lender
that prejudice the junior lender or impair the junior lender's security may
create a superior equity in favor of the junior lender. For example, if the
mortgagor and the senior lender agree to an increase in the principal amount of
or the interest rate payable on the senior loan, the senior lender may lose its
priority to the extent any existing junior lender is harmed or the mortgagor is
additionally burdened. Third, if the mortgagor defaults on the senior loan
and/or any junior loan or loans, the existence of junior loans and actions taken
by junior lenders can impair the security available to the senior lender and can
interfere with or delay the taking of action by the senior lender. Moreover, the
bankruptcy of a junior lender may operate to stay foreclosure or similar
proceedings by the senior lender.
Applicability of Usury Laws
Title V of the Depository Institutions Deregulation and Monetary Control
Act of 1980, enacted in March 1980 ("Title V"), provides that state usury
limitations shall not apply to certain types of residential first mortgage loans
originated by certain lenders after March 31, 1980. A similar federal statute
was in effect with respect to mortgage loans made during the first three months
of 1980. The Office of Thrift Supervision is authorized to issue rules and
regulations and to publish interpretations governing implementation of Title V.
The statute authorized any state to reimpose interest rate limits by adopting,
before April 1, 1983, a law or constitutional provision that expressly rejects
application of the federal law. In addition, even where Title V is not so
rejected, any state is authorized by the law to adopt a provision limiting
discount points or other charges on mortgage loans covered by Title V. Certain
states have taken action to reimpose interest rate limits and/or to limit
discount points or other charges.
The Depositor believes that a court interpreting Title V would hold that
residential first mortgage loans that are originated on or after January 1, 1980
are subject to federal preemption. Therefore, in a state that has not taken the
requisite action to reject application of Title V or to adopt a provision
limiting discount points or other charges prior to origination of such mortgage
loans, any such limitation under such state's usury law would not apply to such
mortgage loans.
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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.
Soldiers' and Sailors' Civil Relief Act of 1940
Under the terms of the Soldiers' and Sailors' Civil Relief Act of 1940, as
amended (the "Relief Act"), a mortgagor who enters military service after the
origination of such mortgagor's Mortgage Loan (including a mortgagor who was in
reserve status and is called to active duty after origination of the Mortgage
Loan), may not be charged interest (including fees and charges) above an annual
rate of 6% during the period of such mortgagor's active duty status, unless a
court orders otherwise upon application of the lender. The Relief Act applies to
mortgagors who are members of the Army, Navy, Air Force, Marines, National
Guard, Reserves, Coast Guard and officers of the U.S. Public Health Service
assigned to duty with the military. Because the Relief Act applies to mortgagors
who enter military service (including reservists who are called to active duty)
after origination of the related Mortgage Loan, no information can be provided
as to the number of loans that may be affected by the Relief Act. Application of
the Relief Act would adversely affect, for an indeterminate period of time, the
ability of any servicer to collect full amounts of interest on certain of the
Mortgage Loans. Any shortfalls in interest collections resulting from the
application of the Relief Act would result in a reduction of the amounts
distributable to the holders of the related series of Certificates, and would
not be covered by advances or, unless otherwise specified in the related
Prospectus Supplement, any form of Credit Support provided in connection with
such Certificates. In addition, the Relief Act imposes limitations that would
impair the ability of the servicer to foreclose on an affected Mortgage Loan
during the mortgagor's period of active duty status, and, under certain
circumstances, during an additional three month period thereafter. Thus, in the
event that such a Mortgage Loan goes into default, there may be delays and
losses occasioned thereby.
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Forfeitures in Drug and RICO Proceedings
Federal law provides that property owned by persons convicted of
drug-related crimes or of criminal violations of the Racketeer Influenced and
Corrupt Organizations ("RICO") statute can be seized by the government if the
property was used in, or purchased with the proceeds of, such crimes. Under
procedures contained in the Comprehensive Crime Control Act of 1984 (the "Crime
Control Act"), the government may seize the property even before conviction. The
government must publish notice of the forfeiture proceeding and may give notice
to all parties "known to have an alleged interest in the property," including
the holders of mortgage loans.
A lender may avoid forfeiture of its interest in the property if it
establishes that: (i) its mortgage was executed and recorded before commission
of the crime upon which the forfeiture is based, or (ii) the lender was, at the
time of execution of the mortgage, "reasonably without cause to believe" that
the property was used in, or purchased with the proceeds of, illegal drug or
RICO activities.
MATERIAL FEDERAL INCOME TAX CONSEQUENCES
The following summary of the anticipated material federal income tax
consequences of the purchase, ownership and disposition of Offered Certificates
represents the opinion of Brown & Wood LLP, counsel to the Depositor, as of the
date of this Prospectus. This summary is based on the Internal Revenue Code of
1986, as amended (the "Code"), laws, regulations, including the REMIC
regulations promulgated by the Treasury Department (the "REMIC Regulations"),
rulings and decisions now in effect or (with respect to regulations) proposed,
all of which are subject to change either prospectively or retroactively. This
summary does not address the federal income tax consequences of an investment in
Securities applicable to all categories of investors, some of which (for
example, banks and insurance companies) may be subject to special rules.
Prospective investors should consult their tax advisors regarding the federal,
state, local and any other tax consequences to them of the purchase, ownership
and disposition of Securities.
The term "U.S. Person" means a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or under the
laws of the United States or any state thereof or the District of Columbia
(other than a partnership that is not treated as a United States person under
any applicable Treasury regulations), an estate whose income is subject to U.S.
federal income tax regardless of its source, or a trust if a court within the
United States is able to exercise primary supervision of the administration of
the trust and one or more United States persons have the authority to control
all substantial decisions of the trust. Notwithstanding the preceding sentence,
to the extent provided in 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 shall be considered U.S. Persons
as well.
General
The federal income tax consequences to Securityholders will vary depending
on whether an election is made to treat the Trust Fund relating to a particular
Series of Securities as a REMIC under the Code. The Prospectus Supplement for
each Series of Securities will specify whether a REMIC election will be made.
Grantor Trust Funds
If the related Prospectus Supplement indicates that the Trust Fund will be
treated as a grantor trust, then Brown & Wood LLP will deliver its opinion that
the Trust Fund will not be classified as an association taxable as a corporation
and that each such Trust Fund will be classified as a grantor trust under
subpart E, Part I of subchapter J of the Code. In this case, owners of
Certificates will be treated for federal income tax purposes as owners of a
portion of the Trust Fund's assets as described below.
A. Single Class of Grantor Trust Certificates
Characterization. The Trust Fund may be created with one class of Grantor
Trust Certificates. In this case, each Grantor Trust Certificateholder will be
treated as the owner of a pro rata undivided interest in the interest and
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principal portions of the Trust Fund represented by the Grantor Trust
Certificates and will be considered the equitable owner of a pro rata undivided
interest in each of the Mortgage Assets in the Pool. Any amounts received by a
Grantor Trust Certificateholder in lieu of amounts due with respect to any
Mortgage Asset because of a default or delinquency in payment will be treated
for federal income tax purposes as having the same character as the payments
they replace.
Each Grantor Trust Certificateholder will be required to report on its
federal income tax return in accordance with such Grantor Trust
Certificateholder's method of accounting its pro rata share of the entire income
from the Mortgage Loans in the Trust Fund represented by Grantor Trust
Certificates, including interest, original issue discount ("OID"), if any,
prepayment fees, assumption fees, any gain recognized upon an assumption and
late payment charges received by the Master Servicer. Under Code Sections 162 or
212 each Grantor Trust Certificateholder will be entitled to deduct its pro rata
share of servicing fees, prepayment fees, assumption fees, any loss recognized
upon an assumption and late payment charges retained by the Master Servicer,
provided that such amounts are reasonable compensation for services rendered to
the Trust Fund. Grantor Trust Certificateholders that are individuals, estates
or trusts will be entitled to deduct their share of expenses as itemized
deductions only to the extent such expenses plus all other Code Section 212
expenses exceed two percent of its adjusted gross income. In addition, the
amount of itemized deductions otherwise allowable for the taxable year for an
individual whose adjusted gross income exceeds the applicable amount (which
amount will be adjusted for inflation) will be reduced by the lesser of (i) 3%
of the excess of adjusted gross income over the applicable amount and (ii) 80%
of the amount of itemized deductions otherwise allowable for such taxable year.
A Grantor Trust Certificateholder using the cash method of accounting must take
into account its pro rata share of income and deductions as and when collected
by or paid to the Master Servicer. A Grantor Trust Certificateholder using an
accrual method of accounting must take into account its pro rata share of income
and deductions as they become due or are paid to the Master Servicer, whichever
is earlier. If the servicing fees paid to the Master Servicer are deemed to
exceed reasonable servicing compensation, the amount of such excess could be
considered as an ownership interest retained by the Master Servicer (or any
person to whom the Master Servicer assigned for value all or a portion of the
servicing fees) in a portion of the interest payments on the Mortgage Assets.
The Mortgage Assets would then be subject to the "coupon stripping" rules of the
Code discussed below.
Unless otherwise specified in the related Prospectus Supplement, as to
each Series of Certificates evidencing an interest in a Trust Fund comprised of
Mortgage Loans, Brown & Wood LLP will have advised the Depositor that:
(i) a Grantor Trust Certificate owned by a "domestic building and
loan association" within the meaning of Code Section 7701(a)(19)
representing principal and interest payments on Mortgage Assets will be
considered to represent "loans . . . secured by an interest in real
property which is . . . residential property" within the meaning of Code
Section 7701(a)(19)(C)(v), to the extent that the Mortgage Assets
represented by that Grantor Trust Certificate are of a type described in
such Code section;
(ii) a Grantor Trust Certificate owned by a real estate investment
trust representing an interest in Mortgage Assets will be considered to
represent "real estate assets" within the meaning of Code Section
856(c)(4)(A), and interest income on the Mortgage Assets will be
considered "interest on obligations secured by mortgages on real property"
within the meaning of Code Section 856(c)(3)(B), to the extent that the
Mortgage Assets represented by that Grantor Trust Certificate are of a
type described in such Code section; and
(iii) a Grantor Trust Certificate owned by a REMIC will represent
"obligation[s] . . . which [are] principally secured by an interest in
real property" within the meaning of Code Section 860G(a)(3).
The Small Business Job Protection Act of 1996, as part of the repeal of
the bad debt reserve method for thrift institutions, repealed the application of
Code Section 593(d) to any taxable year beginning after December 31, 1995.
Stripped Bonds and Coupons. Certain Trust Funds may consist of Government
Securities which constitute "stripped bonds" or "stripped coupons" as those
terms are defined in section 1286 of the Code, and, as a result, such assets
would be subject to the stripped bond provisions of the Code. Under these rules,
such Government Securities
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are treated as having OID based on the purchase price and the stated redemption
price at maturity of each Security. As such, Grantor Trust Certificateholders
would be required to include in income their pro rata share of the OID on each
Government Security recognized in any given year on an economic accrual basis
even if the Grantor Trust Certificateholder is a cash method taxpayer.
Accordingly, the sum of the income includible to the Grantor Trust
Certificateholder in any taxable year may exceed amounts actually received
during such year.
Buydown Loans. The assets constituting certain Trust Funds may include
Buydown Loans. The characterization of any investment in Buydown Loans will
depend upon the precise terms of the related buydown agreement, but to the
extent that such Buydown Loans are secured in part by a bank account or other
personal property, they may not be treated in their entirety as assets described
in the foregoing sections of the Code. There are no directly applicable
precedents with respect to the federal income tax treatment or the
characterization of investments in Buydown Loans. Accordingly, Grantor Trust
Certificateholders should consult their own tax advisors with respect to the
characterization of investments in Grantor Trust Certificates representing an
interest in a Trust Fund that includes Buydown Loans.
Premium. The price paid for a Grantor Trust Certificate by a holder will
be allocated to such holder's undivided interest in each Mortgage Asset based on
each Mortgage Asset's relative fair market value, so that such holder's
undivided interest in each Mortgage Asset will have its own tax basis. A Grantor
Trust Certificateholder that acquires an interest in Mortgage Assets at a
premium may elect to amortize such premium under a constant interest method,
provided that the underlying mortgage loans with respect to such Mortgage Assets
were originated after September 27, 1985. Premium allocable to mortgage loans
originated on or before September 27, 1985 should be allocated among the
principal payments on such mortgage loans and allowed as an ordinary deduction
as principal payments are made. Amortizable bond premium will be treated as an
offset to interest income on such Grantor Trust Certificate. The basis for such
Grantor Trust Certificate will be reduced to the extent that amortizable premium
is applied to offset interest payments. It is not clear whether a reasonable
prepayment assumption should be used in computing amortization of premium
allowable under Code Section 171. A Certificateholder that makes this election
for a Certificate that is acquired at a premium will be deemed to have made an
election to amortize bond premium with respect to all debt instruments having
amortizable bond premium that such Certificateholder acquires during the year of
the election or thereafter.
If a premium is not subject to amortization using a reasonable prepayment
assumption, the holder of a Grantor Trust Certificate acquired at a premium
should recognize a loss if a Mortgage Loan (or an underlying mortgage loan with
respect to a Mortgage Asset) prepays in full, equal to the difference between
the portion of the prepaid principal amount of such Mortgage Loan (or underlying
mortgage loan) that is allocable to the Certificate and the portion of the
adjusted basis of the Certificate that is allocable to such Mortgage Loan (or
underlying mortgage loan). If a reasonable prepayment assumption is used to
amortize such premium, it appears that such a loss would be available, if at
all, only if prepayments have occurred at a rate faster than the reasonable
assumed prepayment rate. It is not clear whether any other adjustments would be
required to reflect differences between an assumed prepayment rate and the
actual rate of prepayments.
On December 30, 1997 the IRS issued final regulations (the "Amortizable
Bond Premium Regulations") dealing with amortizable bond premium. These
regulations specifically do not apply to prepayable debt instruments subject to
Code Section 1272(a)(6) such as the Certificates. Absent further guidance from
the IRS, the Trustee intends to account for amortizable bond premium in the
manner described above. Prospective Certificateholders should consult their tax
advisors regarding the possible application of the amortizable Bond Premium
Regulations.
Original Issue Discount. The IRS has stated in published rulings that, in
circumstances similar to those described herein, the special rules of the Code
relating to original issue discount ("OID") (currently Code Sections 1271
through 1273 and 1275) and Treasury regulations issued on January 27, 1994, as
amended on June 11, 1996, under such Sections (the "OID Regulations"), will be
applicable to a Grantor Trust Certificateholder's interest in those Mortgage
Assets meeting the conditions necessary for these Sections to apply. Rules
regarding periodic inclusion of OID income are applicable to mortgages of
corporations originated after May 27, 1969, mortgages of noncorporate mortgagors
(other than individuals) originated after July 1, 1982, and mortgages of
individuals originated after March 2, 1984. Such OID could arise by the
financing of points or other charges by the originator of the mortgages in an
amount greater than a statutory de minimis exception to the extent that the
points are not currently deductible under applicable Code provisions or are not
for services provided by the
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lender. OID generally must be reported as ordinary gross income as it accrues
under a constant interest method. See "--Multiple Classes of Grantor Trust
Certificates--Accrual of Original Issue Discount" below.
Market Discount. A Grantor Trust Certificateholder that acquires an
undivided interest in Mortgage Assets may be subject to the market discount
rules of Code Sections 1276 through 1278 to the extent an undivided interest in
a Mortgage Asset is considered to have been purchased at a "market discount."
Generally, the amount of market discount is equal to the excess of the portion
of the principal amount of such Mortgage Asset allocable to such holder's
undivided interest over such holder's tax basis in such interest. Market
discount with respect to a Grantor Trust Certificate will be considered to be
zero if the amount allocable to the Grantor Trust Certificate is less than 0.25%
of the Grantor Trust Certificate's stated redemption price at maturity
multiplied by the weighted average maturity remaining after the date of
purchase. Treasury regulations implementing the market discount rules have not
yet been issued; therefore, investors should consult their own tax advisors
regarding the application of these rules and the advisability of making any of
the elections allowed under Code Sections 1276 through 1278.
The Code provides that any principal payment (whether a scheduled payment
or a prepayment) or any gain on disposition of a market discount bond acquired
by the taxpayer after October 22, 1986 shall be treated as ordinary income to
the extent that it does not exceed the accrued market discount at the time of
such payment. The amount of accrued market discount for purposes of determining
the tax treatment of subsequent principal payments or dispositions of the market
discount bond is to be reduced by the amount so treated as ordinary income.
The Code also grants the Treasury Department authority to issue
regulations providing for the computation of accrued market discount on debt
instruments, the principal of which is payable in more than one installment.
While the Treasury Department has not yet issued regulations, rules described in
the relevant legislative history will apply. Under those rules, the holder of a
market discount bond may elect to accrue market discount either on the basis of
a constant interest rate or according to one of the following methods. If a
Grantor Trust Certificate is issued with OID, the amount of market discount that
accrues during any accrual period would be equal to the product of:
(i) the total remaining market discount and
(ii) a fraction, the numerator of which is the OID accruing during the
period and the denominator of which is the total remaining OID at the
beginning of the accrual period.
For Grantor Trust Certificates issued without OID, the amount of market discount
that accrues during a period is equal to the product of:
(i) the total remaining market discount and
(ii) a fraction, the numerator of which is the amount of stated interest
paid during the accrual period and the denominator of which is the
total amount of stated interest remaining to be paid at the beginning
of the accrual period.
For purposes of calculating market discount under any of the above methods in
the case of instruments (such as the Grantor Trust Certificates) that provide
for payments that may be accelerated by reason of prepayments of other
obligations securing such instruments, the same prepayment assumption applicable
to calculating the accrual of OID will apply. Because the regulations described
above have not been issued, it is impossible to predict what effect those
regulations might have on the tax treatment of a Grantor Trust Certificate
purchased at a discount or premium in the secondary market.
A holder who acquired a Grantor Trust Certificate at a market discount
also may be required to defer a portion of its interest deductions for the
taxable year attributable to any indebtedness incurred or continued to purchase
or carry such Grantor Trust Certificate purchased with market discount. For
these purposes, the de minimis rule referred above applies. Any such deferred
interest expense would not exceed the market discount that accrues during such
taxable year and is, in general, allowed as a deduction not later than the year
in which such market discount is includible in income. If such holder elects to
include market discount in income currently as it accrues on
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all market discount instruments acquired by such holder in that taxable year or
thereafter, the interest deferral rule described above will not apply.
Election to Treat All Interest as OID. The OID Regulations permit a
Certificateholder to elect to accrue all interest, discount (including de
minimis market or original issue discount) and premium in income as interest,
based on a constant yield method for Certificates acquired on or after April 4,
1994. If such an election were to be made with respect to a Grantor Trust
Certificate with market discount, the Certificateholder would be deemed to have
made an election to include in income currently market discount with respect to
all other debt instruments having market discount that such Certificateholder
acquires during the year of the election or thereafter. Similarly, a
Certificateholder that makes this election for a Certificate that is acquired at
a premium will be deemed to have made an election to amortize bond premium with
respect to all debt instruments having amortizable bond premium that such
Certificateholder owns or acquires. See "--Regular Certificates--Premium"
herein. The election to accrue interest, discount and premium on a constant
yield method with respect to a Certificate is irrevocable.
B. Multiple Classes of Grantor Trust Certificates
1. Stripped Bonds and Stripped Coupons
Pursuant to Code Section 1286, the separation of ownership of the right to
receive some or all of the interest payments on an obligation from ownership of
the right to receive some or all of the principal payments results in the
creation of "stripped bonds" with respect to principal payments and "stripped
coupons" with respect to interest payments. For purposes of Code Sections 1271
through 1288, Code Section 1286 treats a stripped bond or a stripped coupon as
an obligation issued on the date that such stripped interest is created. If a
Trust Fund is created with two classes of Grantor Trust Certificates, one class
of Grantor Trust Certificates may represent the right to principal and interest,
or principal only, on all or a portion of the Mortgage Assets (the "Stripped
Bond Certificates"), while the second class of Grantor Trust Certificates may
represent the right to some or all of the interest on such portion (the
"Stripped Coupon Certificates").
Servicing fees in excess of reasonable servicing fees ("excess servicing")
will be treated under the stripped bond rules. If the excess servicing fee is
less than 100 basis points (i.e., 1% interest on the Mortgage Asset principal
balance) or the Certificates are initially sold with a de minimis discount
(assuming no prepayment assumption is required), any non-de minimis discount
arising from a subsequent transfer of the Certificates should be treated as
market discount. The IRS appears to require that reasonable servicing fees be
calculated on a Mortgage Asset by Mortgage Asset basis, which could result in
some Mortgage Assets being treated as having more than 100 basis points of
interest stripped off. See "--Non-REMIC Certificates" and "Multiple Classes of
Grantor Trust Certificates --Stripped Bonds and Stripped Coupons" herein.
Although not entirely clear, a Stripped Bond Certificate generally should
be treated as an in interest in Mortgage Assets issued on the day such
Certificate is purchased for purposes of calculating any OID. Generally, if the
discount on a Mortgage Asset is larger than a de minimis amount (as calculated
for purposes of the OID rules) a purchaser of such a Certificate will be
required to accrue the discount under the OID rules of the Code. See
"--Non-REMIC Certificates" and "--Single Class of Grantor Trust
Certificates--Original Issue Discount" herein. However, a purchaser of a
Stripped Bond Certificate will be required to account for any discount on the
Mortgage Assets as market discount rather than OID if either:
(i) the amount of OID with respect to the Mortgage Assets is treated as
zero under the OID de minimis rule when the Certificate was stripped
or
(ii) no more than 100 basis points (including any amount of servicing fees
in excess of reasonable servicing fees) is stripped off of the Trust
Fund's Mortgage Assets.
Pursuant to Revenue Procedure 91-49, issued on August 8, 1991, purchasers of
Stripped Bond Certificates using an inconsistent method of accounting must
change their method of accounting and request the consent of the IRS to the
change in their accounting method on a statement attached to their first timely
tax return filed after August 8, 1991.
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The precise tax treatment of Stripped Coupon Certificates is substantially
uncertain. The Code could be read literally to require that OID computations be
made for each payment from each Mortgage Asset. However, based on the recent IRS
guidance, it appears that all payments from a Mortgage Asset underlying a
Stripped Coupon Certificate should be treated as a single installment obligation
subject to the OID rules of the Code, in which case, all payments from such
Mortgage Asset would be included in the Mortgage Asset's stated redemption price
at maturity for purposes of calculating income on such certificate under the OID
rules of the Code.
It is unclear under what circumstances, if any, the prepayment of Mortgage
Assets will give rise to a loss to the holder of a Stripped Bond Certificate
purchased at a premium or a Stripped Coupon Certificate. If such Certificate is
treated as a single instrument (rather than an interest in discrete mortgage
loans) and the effect of prepayments is taken into account in computing yield
with respect to such Grantor Trust Certificate, it appears that no loss will be
available as a result of any particular prepayment unless prepayments occur at a
rate faster than the assumed prepayment rate. However, if such Certificate is
treated as an interest in discrete Mortgage Assets, or if no prepayment
assumption is used, then when a Mortgage Asset is prepaid, the holder of such
Certificate should be able to recognize a loss equal to the portion of the
adjusted issue price of such Certificate that is allocable to such Mortgage
Asset.
Holders of Stripped Bond Certificates and Stripped Coupon Certificates are
urged to consult with their own tax advisors regarding the proper treatment of
these Certificates for federal income tax purposes.
Treatment of Certain Owners. Several Code sections provide beneficial
treatment to certain taxpayers that invest in Mortgage Assets of the type that
make up the Trust Fund. With respect to these Code sections, no specific legal
authority exists regarding whether the character of the Grantor Trust
Certificates, for federal income tax purposes, will be the same as that of the
underlying Mortgage Assets. While Code Section 1286 treats a stripped obligation
as a separate obligation for purposes of the Code provisions addressing OID, it
is not clear whether such characterization would apply with regard to these
other Code sections. Although the issue is not free from doubt, based on policy
considerations, each class of Grantor Trust Certificates, unless otherwise
specified in the related Prospectus Supplement, should be considered to
represent "real estate assets" within the meaning of Code Section 856(c)(4)(A)
and "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 interest income attributable to Grantor Trust Certificates 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 underlying Mortgage Assets and interest on such Mortgage Assets qualify
for such treatment. Prospective purchasers to which such characterization of an
investment in Certificates is material should consult their own tax advisors
regarding the characterization of the Grantor Trust Certificates and the income
therefrom. Grantor Trust Certificates will be "obligation[s] . . . which [are]
principally secured, directly or indirectly, by an interest in real property"
within the meaning of Code Section 860G(a)(3).
2. Grantor Trust Certificates Representing Interests in Loans
Other Than ARM Loans
The OID rules of Code Sections 1271 through 1275 will be applicable to a
Certificateholder's interest in those Mortgage Assets as to which the conditions
for the application of those sections are met. Rules regarding periodic
inclusion of OID in income are applicable to mortgages of corporations
originated after May 27, 1969, mortgages of noncorporate mortgagors (other than
individuals) originated after July 1, 1982, and mortgages of individuals
originated after March 2, 1984. Under the OID Regulations, such OID could arise
by the charging of points by the originator of the mortgage 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 Assets.
OID on each Grantor Trust Certificate must be included in the owner's ordinary
income for federal income tax purposes as it accrues, in accordance with a
constant interest method that takes into account the compounding of interest, in
advance of receipt of the cash attributable to such income. The amount of OID
required to be included in an owner's income in any taxable year with respect to
a Grantor Trust Certificate representing an interest in Mortgage Assets other
than Mortgage Assets with interest rates that adjust periodically ("ARM Loans")
likely will be computed as described below under "--Accrual of Original Issue
Discount." The following discussion is based in part on the OID Regulations and
in part on the provisions of the Tax Reform Act of 1986 (the "1986 Act"). The
OID Regulations generally are effective for
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debt instruments issued on or after April 4, 1994, but may be relied upon as
authority with respect to debt instruments, such as the Grantor Trust
Certificates, issued after December 21, 1992. Alternatively, proposed Treasury
regulations issued December 21, 1992 may be treated as authority for debt
instruments issued after December 21, 1992 and prior to April 4, 1994, and
proposed Treasury regulations issued in 1986 and 1991 may be treated as
authority for instruments issued before December 21, 1992. In applying these
dates, the issued date of the Mortgage Assets should be used, or, in the case of
Stripped Bond Certificates or Stripped Coupon Certificates, the date such
Certificates are acquired. The holder of a Certificate should be aware, however,
that neither the proposed OID Regulations nor the OID Regulations adequately
address certain issues relevant to prepayable securities.
Under the Code, the Mortgage Assets underlying the Grantor Trust
Certificate will be treated as having been issued on the date they were
originated with an amount of OID equal to the excess of such Mortgage Asset's
stated redemption price at maturity over its issue price. The issue price of a
Mortgage Asset is generally the amount lent to the mortgagee, which may be
adjusted to take into account certain loan origination fees. The stated
redemption price at maturity of a Mortgage Asset is the sum of all payments to
be made on such Mortgage Asset other than payments that are treated as qualified
stated interest payments. The accrual of this OID, as described below under
"--Accrual of Original Issue Discount," will, unless otherwise specified in the
related Prospectus Supplement, utilize the original yield to maturity of the
Grantor Trust Certificate calculated based on a reasonable assumed prepayment
rate for the mortgage loans underlying the Grantor Trust Certificates (the
"Prepayment Assumption"), and will take into account events that occur during
the calculation period. The Prepayment Assumption will be determined in the
manner prescribed by regulations that have not yet been issued. The legislative
history of the 1986 Act (the "Legislative History") provides, however, that the
regulations will require that the Prepayment Assumption be the prepayment
assumption that is used in determining the offering price of such Certificate.
No representation is made that any Certificate will prepay at the Prepayment
Assumption or at any other rate. The prepayment assumption contained in the Code
literally only applies to debt instruments collateralized by other debt
instruments that are subject to prepayment rather than direct ownership
interests in such debt instruments, such as the Certificates represent. However,
no other legal authority provides guidance with regard to the proper method for
accruing OID on obligations that are subject to prepayment, and, until further
guidance is issued, the Master Servicer intends to calculate and report OID
under the method described below.
Accrual of Original Issue Discount. Generally, the owner of a Grantor
Trust Certificate must include in gross income the sum of the "daily portions,"
as defined below, of the OID on such Grantor Trust Certificate for each day on
which it owns such Certificate, including the date of purchase but excluding the
date of disposition. In the case of an original owner, the daily portions of OID
with respect to each component generally will be determined as set forth under
the OID Regulations. A calculation will be made by the Master Servicer or such
other entity specified in the related Prospectus Supplement of the portion of
OID that accrues during each successive monthly accrual period (or shorter
period from the date of original issue) that ends on the day in the calendar
year corresponding to each of the Distribution Dates on the Grantor Trust
Certificates (or the day prior to each such date). This will be done, in the
case of each full month accrual period, by:
(i) adding
(a) the present value at the end of the accrual period (determined by
using as a discount factor the original yield to maturity of the
respective component under the Prepayment Assumption) of all
remaining payments to be received under the Prepayment Assumption
on the respective component and
(b) any payments included in the state redemption price at maturity
received during such accrual period, and
(ii) subtracting from that total the "adjusted issue price" of the
respective component at the beginning of such accrual period.
The adjusted issue price of a Grantor Trust Certificate at the beginning of the
first accrual period is its issue price; the adjusted issue price of a Grantor
Trust Certificate at the beginning of a subsequent accrual period is the
adjusted issue price at the beginning of the immediately preceding accrual
period plus the amount of OID allocable to that accrual period reduced by the
amount of any payment other than a payment of qualified stated interest made at
the
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end of or during that accrual period. The OID accruing during such accrual
period will then be divided by the number of days in the period to determine the
daily portion of OID for each day in the period. With respect to an initial
accrual period shorter than a full monthly accrual period, the daily portions of
OID must be determined according to an appropriate allocation under any
reasonable method.
OID generally must be reported as ordinary gross income as it accrues
under a constant interest method that takes into account the compounding of
interest as it accrues rather than when received. However, the amount of OID
includible in the income of a holder of an obligation is reduced when the
obligation is acquired after its initial issuance at a price greater than the
sum of the original issue price and the previously accrued OID, less prior
payments of principal. Accordingly, if such Mortgage Assets acquired by a
Certificateholder are purchased at a price equal to the then unpaid principal
amount of such Mortgage Asset, no OID attributable to the difference between the
issue price and the original principal amount of such Mortgage Asset (i.e.
points) will be includible by such holder. Other OID on the Mortgage Assets
(e.g., that arising from a "teaser" rate) would still need to be accrued.
3. Grantor Trust Certificates Representing Interests in ARM
Loans
The OID Regulations do not address the treatment of instruments, such as
the Grantor Trust Certificates, which represent interests in ARM Loans.
Additionally, the IRS has not issued guidance under the Code's coupon stripping
rules with respect to such instruments. In the absence of any authority, the
Master Servicer will report OID on Grantor Trust Certificates attributable to
ARM Loans ("Stripped ARM Obligations") to holders in a manner it believes is
consistent with the rules described above under the heading "--Grantor Trust
Certificates Representing Interests in Loans Other Than ARM Loans" and with the
OID Regulations. In general, application of these rules may require inclusion of
income on a Stripped ARM Obligation in advance of the receipt of cash
attributable to such income. Further, the addition of interest deferred by
reason of negative amortization ("Deferred Interest") to the principal balance
of an ARM Loan may require the inclusion of such amount in the income of the
Grantor Trust Certificateholder when such amount accrues. Furthermore, the
addition of Deferred Interest to the Grantor Trust Certificate's principal
balance will result in additional income (including possibly OID income) to the
Grantor Trust Certificateholder over the remaining life of such Grantor Trust
Certificates.
Because the treatment of Stripped ARM Obligations is uncertain, investors
are urged to consult their tax advisors regarding how income will be includible
with respect to such Certificates.
C. Sale or Exchange of a Grantor Trust Certificate
Sale or exchange of a Grantor Trust Certificate prior to its maturity will
result in gain or loss equal to the difference, if any, between the amount
received and the owner's adjusted basis in the Grantor Trust Certificate. Such
adjusted basis generally will equal the seller's purchase price for the Grantor
Trust Certificate, increased by the OID included in the seller's gross income
with respect to the Grantor Trust Certificate, and reduced by principal payments
on the Grantor Trust Certificate previously received by the seller. Such gain or
loss will be capital gain or loss to an owner for which a Grantor Trust
Certificate is a "capital asset" within the meaning of Code Section 1221, and
will be long-term or short-term depending on whether the Grantor Trust
Certificate has been owned for the long-term capital gain holding period
(generally more than one year). Long-term capital gains of non-corporate
taxpayers are subject to reduced maximum rates while short-term capital gains
are taxable at ordinary rates. The use of capital losses is subject to
limitations.
Prospective investors should consult their own tax advisors concerning the
treatment of capital gains.
Grantor Trust Certificates will be "evidences of indebtedness" within the
meaning of Code Section 582(c)(1), so that gain or loss recognized from the sale
of a Grantor Trust Certificate by a bank or a thrift institution to which such
section applies will be treated as ordinary income or loss.
D. Non-U.S. Persons
Generally, to the extent that a Grantor Trust Certificate evidences
ownership in underlying Mortgage Assets that were issued on or before July 18,
1984, interest or OID paid by the person required to withhold tax under
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Code Section 1441 or 1442 to (i) an owner that is not a U.S. Person or (ii) a
Grantor Trust Certificateholder holding on behalf of an owner that is not a U.S.
Person will be subject to federal income tax, collected by withholding, at a
rate of 30% or such lower rate as may be provided for interest by an applicable
tax treaty. Accrued OID recognized by the owner on the sale or exchange of such
a Grantor Trust Certificate also will be subject to federal income tax at the
same rate. Generally, such payments would not be subject to withholding to the
extent that a Grantor Trust Certificate evidences ownership in Mortgage Assets
issued after July 18, 1984, by natural persons if such Grantor Trust
Certificateholder complies with certain identification requirements (including
delivery of a statement, signed by the Grantor Trust Certificateholder under
penalties of perjury, certifying that such Grantor Trust Certificateholder is
not a U.S. Person and providing the name and address of such Grantor Trust
Certificateholder). Additional restrictions apply to Mortgage Assets of where
the mortgagor is not a natural person in order to qualify for the exemption from
withholding.
E. Information Reporting and Backup Withholding
The Master Servicer will furnish or make available, within a reasonable
time after the end of each calendar year, to each person who was a
Certificateholder at any time during such year, such information as may be
deemed necessary or desirable to assist Certificateholders in preparing their
federal income tax returns, or to enable holders to make such information
available to beneficial owners or financial intermediaries that hold such
Certificates as nominees on behalf of beneficial owners. If a holder, beneficial
owner, financial intermediary or other recipient of a payment on behalf of a
beneficial owner fails to supply a certified taxpayer identification number or
if the Secretary of the Treasury determines that such person has not reported
all interest and dividend income required to be shown on its federal income tax
return, 31% backup withholding may be required with respect to any payments. Any
amounts deducted and withheld from a distribution to a recipient would be
allowed as a credit against such recipient's federal income tax liability.
New Withholding Regulations
On October 6, 1997, the Treasury Department issued new regulations (the
"New Regulations") which make certain modifications to the withholding, backup
withholding and information reporting rules described above. The New Regulations
attempt to unify certification requirements and modify reliance standards. The
New Regulations will generally be effective for payments made after December 31,
1999, subject to certain transition rules. Prospective investors are urged to
consult their own tax advisors regarding the New Regulations.
REMICs
The Trust Fund relating to a Series of Certificates may elect to be
treated as a REMIC. Qualification as a REMIC requires ongoing compliance with
certain conditions. Although a REMIC is not generally subject to federal income
tax (see, however "--Taxation of Owners of REMIC Residual Certificates" and
"--Prohibited Transactions" below), if a Trust Fund with respect to which a
REMIC election is made fails to comply with one or more of the ongoing
requirements of the Code for REMIC status during any taxable year, including the
implementation of restrictions on the purchase and transfer of the residual
interests in a REMIC as described below under "Taxation of Owners of REMIC
Residual Certificates," the Code provides that a Trust Fund will not be treated
as a REMIC for such year and thereafter. In that event, such entity may be
taxable as a separate corporation, and the related Certificates (the "REMIC
Certificates") may not be accorded the status or given the tax treatment
described below. While the Code authorizes the Treasury Department to issue
regulations providing relief in the event of an inadvertent termination of the
status of a trust fund as a REMIC, 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 REMIC's income for the period in
which the requirements for such status are not satisfied. With respect to each
Trust Fund that elects REMIC status, Brown & Wood LLP will deliver its opinion
generally to the effect that, under then existing law and assuming compliance
with all provisions of the related Pooling and Servicing Agreement, such Trust
Fund will qualify as a REMIC, and the related Certificates will be considered to
be regular interests ("REMIC Regular Certificates") or a sole class of residual
interests ("REMIC Residual Certificates") in the REMIC. The related Prospectus
Supplement for each Series of Certificates will indicate whether the Trust Fund
will make a REMIC election and whether a class of Certificates will be treated
as a regular or residual interest in the REMIC.
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In general, with respect to each Series of Certificates for which a REMIC
election is made, (i) such Certificates held by a thrift institution taxed as a
"domestic building and loan association" will constitute assets described in
Code Section 7701(a)(19)(C); (ii) such Certificates held by a real estate
investment trust will constitute "real estate assets" within the meaning of Code
Section 856(c)(4)(A); and (iii) interest on such Certificates held by a real
estate investment trust will be considered "interest on obligations secured by
mortgages on real property" within the meaning of Code Section 856(c)(3)(B). If
less than 95% of the REMIC's assets are assets qualifying under any of the
foregoing Code sections, the Certificates will be qualifying assets only to the
extent that the REMIC's assets are qualifying assets. In addition, payments on
Mortgage Assets held pending distribution on the REMIC Certificates will be
considered to be real estate assets for purposes of Code Section 856(c). The
Small Business Job Protection Act of 1996, as part of the repeal of the bad debt
reserve method for thrift institutions, repealed the application of Code Section
593(d) to any taxable year beginning after December 31, 1995.
In some instances the Mortgage Assets may not be treated entirely as
assets described in the foregoing sections. See, in this regard, the discussion
of Buydown Loans contained in "--Non-REMIC Certificates--Single Class of Grantor
Trust Certificates" above. REMIC Certificates held by a real estate investment
trust will not constitute "Government Securities" within the meaning of Code
Section 856(c)(4)(A), and REMIC Certificates held by a regulated investment
company will not constitute "Government Securities" within the meaning of Code
Section 851(b)(4)(A)(ii). REMIC Certificates held by certain financial
institutions will constitute "evidences of indebtedness" within the meaning of
Code Section 582(c)(1).
A "qualified mortgage" for REMIC purposes is any obligation (including
certificates of participation in such an obligation) that is principally secured
by an interest in real property and that is transferred to the REMIC within a
prescribed time period in exchange for regular or residual interests in the
REMIC. The REMIC Regulations provide that manufactured housing or mobile homes
(not including recreational vehicles, campers or similar vehicles) that are
"single family residences" under Code Section 25(e)(10) will qualify as real
property without regard to state law classifications. Under Code Section
25(e)(10), a single family residence includes any manufactured home that has a
minimum of 400 square feet of living space and a minimum width in excess of 102
inches and that is of a kind customarily used at a fixed location.
Tiered REMIC Structures. For certain Series of Certificates, two separate
elections may be made to treat designated portions of the related Trust Fund as
REMICs (respectively, the "Subsidiary REMIC" and the "Master REMIC") for federal
income tax purposes. Upon the issuance of any such Series of Certificates, Brown
& Wood LLP, counsel to the Depositor, will deliver its opinion generally to the
effect that, assuming compliance with all provisions of the related Agreement,
the Master REMIC as well as any Subsidiary REMIC will each qualify as a REMIC,
and the REMIC Certificates issued by the Master REMIC and the Subsidiary REMIC,
respectively, will be considered to evidence ownership of REMIC Regular
Certificates or REMIC Residual Certificates in the related REMIC within the
meaning of the REMIC provisions.
Only REMIC Certificates, other than the residual interest in the
Subsidiary REMIC, issued by the Master REMIC will be offered hereunder. The
Subsidiary REMIC and the Master REMIC will be treated as one REMIC solely for
purposes of determining whether the REMIC Certificates will be (i) "real estate
assets" within the meaning of Section 856(c)(4)(A) of the Code; (ii) "loans
secured by an interest in real property" under Section 7701(a)(19)(C) of the
Code; and (iii) whether the income on such Certificates is interest described in
Section 856(c)(3)(B) of the Code.
A. Taxation of Owners of REMIC Regular Certificates
General. Except as otherwise stated in this discussion, REMIC Regular
Certificates will be treated for federal income tax purposes as debt instruments
issued by the REMIC and not as ownership interests in the REMIC or its assets.
Moreover, holders of REMIC Regular Certificates that otherwise report income
under a cash method of accounting will be required to report income with respect
to REMIC Regular Certificates under an accrual method.
Original Issue Discount and Premium. The REMIC Regular Certificates may be
issued with OID. Generally, such OID, if any, will equal the difference between
the "stated redemption price at maturity" of a REMIC Regular Certificate and its
"issue price." Holders of any class of Certificates issued with OID will be
required to include such OID in gross income for federal income tax purposes as
it accrues, in accordance with a constant
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interest method based on the compounding of interest as it accrues rather than
in accordance with receipt of the interest payments. The following discussion is
based in part on the OID Regulations and in part on the provisions of the Tax
Reform Act of 1986 (the "1986 Act"). Holders of REMIC Regular Certificates (the
"REMIC Regular Certificateholders") should be aware, however, that the OID
Regulations do not adequately address certain issues relevant to prepayable
securities, such as the REMIC Regular Certificates.
Rules governing OID are set forth in Code Sections 1271 through 1273 and
1275. These rules require that the amount and rate of accrual of OID be
calculated based on the Prepayment Assumption and the anticipated reinvestment
rate, if any, relating to the REMIC Regular Certificates and prescribe a method
for adjusting the amount and rate of accrual of such discount where the actual
prepayment rate differs from the Prepayment Assumption. Under the Code, the
Prepayment Assumption must be determined in the manner prescribed by
regulations, which regulations have not yet been issued. The Legislative History
provides, however, that Congress intended the regulations to require that the
Prepayment Assumption be the prepayment assumption that is used in determining
the initial offering price of such REMIC Regular Certificates. The Prospectus
Supplement for each Series of REMIC Regular Certificates will specify the
Prepayment Assumption to be used for the purpose of determining the amount and
rate of accrual of OID. No representation is made that the REMIC Regular
Certificates will prepay at the Prepayment Assumption or at any other rate.
In general, each REMIC Regular Certificate will be treated as a single
installment obligation issued with an amount of OID equal to the excess of its
"stated redemption price at maturity" over its "issue price." The issue price of
a REMIC Regular Certificate is the first price at which a substantial amount of
REMIC Regular Certificates of that class are first sold to the public (excluding
bond houses, brokers, underwriters or wholesalers). If less than a substantial
amount of a particular class of REMIC Regular Certificates is sold for cash on
or prior to the date of their initial issuance (the "Closing Date"), the issue
price for such class will be treated as the fair market value of such class on
the Closing Date. The issue price of a REMIC Regular Certificate also includes
the amount paid by an initial Certificateholder for accrued interest that
relates to a period prior to the issue date of the REMIC Regular Certificate.
The stated redemption price at maturity of a REMIC Regular Certificate includes
the original principal amount of the REMIC Regular Certificate, but generally
will not include distributions of interest if such distributions constitute
"qualified stated interest." Qualified stated interest generally means interest
payable at a single fixed rate or 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 REMIC Regular Certificate.
Interest is payable at a single fixed rate only if the rate appropriately takes
into account the length of the interval between payments. Distributions of
interest on REMIC Regular Certificates with respect to which Deferred Interest
will accrue will not constitute qualified stated interest payments, and the
stated redemption price at maturity of such REMIC Regular Certificates includes
all distributions of interest as well as principal thereon.
Where the interval between the issue date and the first Distribution Date
on a REMIC Regular Certificate is longer than the interval between subsequent
Distribution Dates, the greater of any original issue discount (disregarding the
rate in the first period) and any interest foregone during the first period is
treated as the amount by which the stated redemption price at maturity of the
Certificate exceeds its issue price for purposes of the de minimis rule
described below. The OID Regulations suggest that all interest on a long first
period REMIC Regular Certificate that is issued with non-de minimis OID, as
determined under the foregoing rule, will be treated as OID. Where the interval
between the issue date and the first Distribution Date on a REMIC Regular
Certificate is shorter than the interval between subsequent Distribution Dates,
interest due on the first Distribution Date in excess of the amount that accrued
during the first period would be added to the Certificates stated redemption
price at maturity. REMIC Regular Certificateholders should consult their own tax
advisors to determine the issue price and stated redemption price at maturity of
a REMIC Regular Certificate.
Under the de minimis rule, OID on a REMIC Regular Certificate will be
considered to be zero if such OID is less than 0.25% of the stated redemption
price at maturity of the REMIC Regular Certificate multiplied by the weighted
average maturity of the REMIC Regular Certificate. For this purpose, the
weighted average maturity of the REMIC Regular Certificate 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 REMIC Regular Certificate and the
denominator of which is the stated redemption price at maturity of the REMIC
Regular Certificate. Although currently unclear, it appears
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that the schedule of such distributions should be determined in accordance with
the Prepayment Assumption. The Prepayment Assumption with respect to a Series of
REMIC Regular Certificates will be set forth in the related Prospectus
Supplement. Holders generally must report de minimis OID pro rata as principal
payments are received, and such income will be capital gain if the REMIC Regular
Certificate is held as a capital asset. However, accrual method holders may
elect to accrue all de minimis OID as well as market discount under a constant
interest method.
The Prospectus Supplement with respect to a Trust Fund may provide for
certain REMIC Regular Certificates to be issued at prices significantly
exceeding their principal amounts or based on notional principal balances (the
"Super-Premium Certificates"). The income tax treatment of such REMIC Regular
Certificates is not entirely certain. For information reporting purposes, the
Trust Fund intends to take the position that the stated redemption price at
maturity of such REMIC Regular Certificates is the sum of all payments to be
made on such REMIC Regular Certificates determined under the Prepayment
Assumption, with the result that such REMIC Regular Certificates would be issued
with OID. The calculation of income in this manner could result in negative
original issue discount (which delays future accruals of OID rather than being
immediately deductible) when prepayments on the Mortgage Assets exceed those
estimated under the Prepayment Assumption. The IRS might contend, however, that
certain proposed contingent payment rules contained in regulations issued on
December 15, 1994, with respect to OID, should apply to such Certificates.
Although such rules are not applicable to instruments governed by Code Section
1272(a)(6), they represent the only guidance regarding the current views of the
IRS with respect to contingent payment instruments. In the alternative, the IRS
could assert that the stated redemption price at maturity of such REMIC Regular
Certificates should be limited to their principal amount (subject to the
discussion below under "--Accrued Interest Certificates"), so that such REMIC
Regular Certificates would be considered for federal income tax purposes to be
issued at a premium. If such a position were to prevail, the rules described
below under "--Taxation of Owners of REMIC Regular Certificates--Premium" would
apply. It is unclear when a loss may be claimed for any unrecovered basis for a
Super-Premium Certificate. It is possible that a holder of a Super-Premium
Certificate may only claim a loss when its remaining basis exceeds the maximum
amount of future payments, assuming no further prepayments or when the final
payment is received with respect to such Super-Premium Certificate.
Under the REMIC Regulations, if the issue price of a REMIC Regular
Certificate (other than REMIC Regular Certificate based on a notional amount)
does not exceed 125% of its actual principal amount, the interest rate is not
considered disproportionately high. Accordingly, such REMIC Regular Certificate
generally should not be treated as a Super-Premium Certificate and the rules
described below under "--REMIC Regular Certificates --Premium" should apply.
However, it is possible that holders of REMIC Regular Certificates issued at a
premium, even if the premium is less than 25% of such Certificate's actual
principal balance, will be required to amortize the premium under an original
issue discount method or contingent interest method even though no election
under Code Section 171 is made to amortize such premium.
Generally, a REMIC Regular Certificateholder must include in gross income
the "daily portions," as determined below, of the OID that accrues on a REMIC
Regular Certificate for each day a Certificateholder holds the REMIC Regular
Certificate, including the purchase date but excluding the disposition date. In
the case of an original holder of a REMIC Regular Certificate, a calculation
will be made of the portion of the OID that accrues during each successive
period ("an accrual period") that ends on the day in the calendar year
corresponding to a Distribution Date (or if Distribution Dates are on the first
day or first business day of the immediately preceding month, interest may be
treated as payable on the last day of the immediately preceding month) and
begins on the day after the end of the immediately preceding accrual period (or
on the issue date in the case of the first accrual period). This will be done,
in the case of each full accrual period, by:
(i) adding
(a) the present value at the end of the accrual period (determined by
using as a discount factor the original yield to maturity of the
REMIC Regular Certificates as calculated under the Prepayment
Assumption) of all remaining payments to be received on the REMIC
Regular Certificates under the Prepayment Assumption and
(b) any payments included in the stated redemption price at maturity
received during such accrual period, and
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(iii) subtracting from that total the adjusted issue price of the REMIC
Regular Certificates at the beginning of such accrual period.
The adjusted issue price of a REMIC Regular Certificate at the beginning of the
first accrual period is its issue price; the adjusted issue price of a REMIC
Regular Certificate at the beginning of a subsequent accrual period is the
adjusted issue price at the beginning of the immediately preceding accrual
period plus the amount of OID allocable to that accrual period and reduced by
the amount of any payment other than a payment of qualified stated interest made
at the end of or during that accrual period. The OID accrued during an accrual
period will then be divided by the number of days in the period to determine the
daily portion of OID for each day in the accrual period. The calculation of OID
under the method described above will cause the accrual of OID to either
increase or decrease (but never below zero) in a given accrual period to reflect
the fact that prepayments are occurring faster or slower than under the
Prepayment Assumption. With respect to an initial accrual period shorter than a
full accrual period, the daily portions of OID may be determined according to an
appropriate allocation under any reasonable method.
A subsequent purchaser of a REMIC Regular Certificate issued with OID who
purchases the REMIC Regular Certificate at a cost less than the remaining stated
redemption price at maturity will also be required to include in gross income
the sum of the daily portions of OID on that REMIC Regular Certificate. In
computing the daily portions of OID for such a purchaser (as well as an initial
purchaser that purchases at a price higher than the adjusted issue price but
less than the stated redemption price at maturity), however, the daily portion
is reduced by the amount that would be the daily portion for such day (computed
in accordance with the rules set forth above) multiplied by a fraction, the
numerator of which is the amount, if any, by which the price paid by such holder
for that REMIC Regular Certificate exceeds the following amount:
(a) the sum of the issue price plus the aggregate amount of OID that would
have been includible in the gross income of an original REMIC Regular
Certificateholder (who purchased the REMIC Regular Certificate at its
issue price), less
(b) any prior payments included in the stated redemption price at
maturity,
and the denominator of which is the sum of the daily portions for that REMIC
Regular Certificate for all days beginning on the date after the purchase date
and ending on the maturity date computed under the Prepayment Assumption. A
holder who pays an acquisition premium instead may elect to accrue OID by
treating the purchase as a purchase at original issue.
Variable Rate REMIC Regular Certificates. REMIC Regular Certificates
may provide for interest based on a variable rate. Interest based on a
variable rate will constitute qualified stated interest and not contingent
interest if, generally,
(i) such interest is unconditionally payable at least annually,
(ii) the issue price of the debt instrument does not exceed the total
noncontingent principal payments, and
(iii) interest is based on a "qualified floating rate," an "objective
rate," a combination of a single fixed rate and one or more "qualified
floating rates," one "qualified inverse floating rate," or a
combination of "qualified floating rates" that do not operate in a
manner that significantly accelerates or defers interest payments on
such REMIC Regular Certificate.
The amount of OID with respect to a REMIC Regular Certificate bearing a
variable rate of interest will accrue in the manner described above under
"--Original Issue Discount and Premium" by assuming generally that the index
used for the variable rate will remain fixed throughout the term of the
Certificate. Appropriate adjustments are made for the actual variable rate.
Although unclear at present, the Depositor intends to treat interest on a
REMIC Regular Certificate that is a weighted average of the net interest rates
on Mortgage Loans as qualified stated interest. In such case, the weighted
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average rate used to compute the initial pass-through rate on the REMIC Regular
Certificates will be deemed to be the index in effect through the life of the
REMIC Regular Certificates. It is possible, however, that the IRS may treat some
or all of the interest on REMIC Regular Certificates with a weighted average
rate as taxable under the rules relating to obligations providing for contingent
payments. Such treatment may effect the timing of income accruals on such REMIC
Regular Certificates.
Election to Treat All Interest as OID. The OID Regulations permit a
Certificateholder to elect to accrue all interest, discount (including de
minimis market or original issue discount) and premium in income as interest,
based on a constant yield method. If such an election were to be made with
respect to a REMIC Regular Certificate with market discount, the
Certificateholder would be deemed to have made an election to include in income
currently market discount with respect to all other debt instruments having
market discount that such Certificateholder acquires during the year of the
election and thereafter. Similarly, a Certificateholder that makes this election
for a Certificate that is acquired at a premium will be deemed to have made an
election to amortize bond premium with respect to all debt instruments having
amortizable bond premium that such Certificateholder owns or acquires. See
"--REMIC Regular Certificates--Premium" herein. The election to accrue interest,
discount and premium on a constant yield method with respect to a Certificate is
irrevocable.
Market Discount. A purchaser of a REMIC Regular Certificate may also
be subject to the market discount provisions of Code Sections 1276 through
1278. Under these provisions and the OID Regulations, "market discount"
equals the excess, if any, of
(i) the REMIC Regular Certificate's stated principal amount or, in the
case of a REMIC Regular Certificate with OID, the adjusted issue price
(determined for this purpose as if the purchaser had purchased such
REMIC Regular Certificate from an original holder) over
(ii) the price for such REMIC Regular Certificate paid by the purchaser.
A Certificateholder that purchases a REMIC Regular Certificate at a market
discount will recognize income upon receipt of each distribution representing
amounts included in such certificate's stated redemption price at maturity. In
particular, under Section 1276 of the Code such a holder generally will be
required to allocate each such distribution first to accrued market discount not
previously included in income, and to recognize ordinary income to that extent.
A Certificateholder may elect to include market discount in income currently as
it accrues rather than including it on a deferred basis in accordance with the
foregoing. If made, such election will apply to all market discount bonds
acquired by such Certificateholder on or after the first day of the first
taxable year to which such election applies.
Market discount with respect to a REMIC Regular Certificate will be
considered to be zero if the amount allocable to the REMIC Regular Certificate
is less than 0.25% of such REMIC Regular Certificate's stated redemption price
at maturity multiplied by such REMIC Regular Certificate's weighted average
maturity remaining after the date of purchase. If market discount on a REMIC
Regular Certificate is considered to be zero under this rule, the actual amount
of market discount must be allocated to the remaining principal payments on the
REMIC Regular Certificate, and gain equal to such allocated amount will be
recognized when the corresponding principal payment is made. Treasury
regulations implementing the market discount rules have not yet been issued;
therefore, investors should consult their own tax advisors regarding the
application of these rules and the advisability of making any of the elections
allowed under Code Sections 1276 through 1278.
The Code provides that any principal payment (whether a scheduled payment
or a prepayment) or any gain on disposition of a market discount bond acquired
by the taxpayer after October 22, 1986, shall be treated as ordinary income to
the extent that it does not exceed the accrued market discount at the time of
such payment. The amount of accrued market discount for purposes of determining
the tax treatment of subsequent principal payments or dispositions of the market
discount bond is to be reduced by the amount so treated as ordinary income.
The Code also grants authority to the Treasury Department to issue
regulations providing for the computation of accrued market discount on debt
instruments, the principal of which is payable in more than one installment.
Until such time as regulations are issued by the Treasury, rules described in
the Legislative History will apply. Under those rules, the holder of a market
discount bond may elect to accrue market discount either on the
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basis of a constant interest method rate or according to one of the following
methods. For REMIC Regular Certificates issued with OID, the amount of market
discount that accrues during a period is equal to the product of:
(i) the total remaining market discount and
(ii) a fraction, the numerator of which is the OID accruing during the
period and the denominator of which is the total remaining OID at the
beginning of the period.
For REMIC Regular Certificates issued without OID, the amount of market discount
that accrues during a period is equal to the product of:
(a) the total remaining market discount and
(b) a fraction, the numerator of which is the amount of stated interest
paid during the accrual period and the denominator of which is the
total amount of stated interest remaining to be paid at the beginning
of the period.
For purposes of calculating market discount under any of the above methods in
the case of instruments (such as the REMIC Regular Certificates) that provide
for payments that may be accelerated by reason of prepayments of other
obligations securing such instruments, the same Prepayment Assumption applicable
to calculating the accrual of OID will apply.
A holder who acquired a REMIC Regular Certificate at a market discount
also may be required to defer a portion of its interest deductions for the
taxable year attributable to any indebtedness incurred or continued to purchase
or carry such Certificate purchased with market discount. For these purposes,
the de minimis rule referred to above applies. Any such deferred interest
expense would not exceed the market discount that accrues during such taxable
year and is, in general, allowed as a deduction not later than the year in which
such market discount is includible in income. If such holder elects to include
market discount in income currently as it accrues on all market discount
instruments acquired by such holder in that taxable year or thereafter, the
interest deferral rule described above will not apply.
Premium. A purchaser of a REMIC Regular Certificate that purchases the
REMIC Regular Certificate at a cost (not including accrued qualified stated
interest) greater than its remaining stated redemption price at maturity will be
considered to have purchased the REMIC Regular Certificate at a premium and may
elect to amortize such premium under a constant yield method. A
Certificateholder that makes this election for a Certificate that is acquired at
a premium will be deemed to have made an election to amortize bond premium with
respect to all debt instruments having amortizable bond premium that such
Certificateholder acquires during the year of the election or thereafter. It is
not clear whether the Prepayment Assumption would be taken into account in
determining the life of the REMIC Regular Certificate for this purpose. However,
the Legislative History states that the same rules that apply to accrual of
market discount (which rules require use of a Prepayment Assumption in accruing
market discount with respect to REMIC Regular Certificates without regard to
whether such Certificates have OID) will also apply in amortizing bond premium
under Code Section 171. The Code provides that amortizable bond premium will be
allocated among the interest payments on such REMIC Regular Certificates and
will be applied as an offset against such interest payment. On December 30,
1997, the IRS issued final regulations (the "Amortizable Bond Premium
Regulations") dealing with amortizable bond premium. These regulations
specifically do not apply to prepayable debt instruments subject to Code section
1272(a)(6). Absent further guidance from the IRS the Trust intends to account
for amortizable bond premium in the manner described above. Certificateholders
should consult their tax advisors regarding the possibility of making an
election to amortize any such bond premium.
Deferred Interest. Certain classes of REMIC Regular Certificates may
provide for the accrual of Deferred Interest with respect to one or more ARM
Loans. Any Deferred Interest that accrues with respect to a class of REMIC
Regular Certificates will constitute income to the holders of such Certificates
prior to the time distributions of cash with respect to such Deferred Interest
are made. It is unclear, under the OID Regulations, whether any of the interest
on such Certificates will constitute qualified stated interest or whether all or
a portion of the interest payable on such Certificates must be included in the
stated redemption price at maturity of the Certificates and accounted for
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as OID (which could accelerate such inclusion). Interest on REMIC Regular
Certificates must in any event be accounted for under an accrual method by the
holders of such Certificates and, therefore, applying the latter analysis may
result only in a slight difference in the timing of the inclusion in income of
interest on such REMIC Regular Certificates.
Effects of Defaults and Delinquencies. Certain Series of Certificates may
contain one or more classes of Subordinated Certificates, and in the event there
are defaults or delinquencies on the Mortgage Assets, amounts that would
otherwise be distributed on the Subordinated Certificates may instead be
distributed on the Senior Certificates. Subordinated Certificateholders
nevertheless will be required to report income with respect to such Certificates
under an accrual method without giving effect to delays and reductions in
distributions on such Subordinated Certificates attributable to defaults and
delinquencies on the Mortgage Assets, except to the extent that it can be
established that such amounts are uncollectible. As a result, the amount of
income reported by a Subordinated Certificateholder in any period could
significantly exceed the amount of cash distributed to such holder in that
period. The holder will eventually be allowed a loss (or will be allowed to
report a lesser amount of income) to the extent that the aggregate amount of
distributions on the Subordinated Certificate is reduced as a result of defaults
and delinquencies on the Mortgage Assets. Timing and characterization of such
losses is discussed in "--REMIC Regular Certificates--Treatment of Realized
Losses" below.
Sale, Exchange or Redemption. If a REMIC Regular Certificate is sold,
exchanged, redeemed or retired, the seller will recognize gain or loss equal to
the difference between the amount realized on the sale, exchange, redemption, or
retirement and the seller's adjusted basis in the REMIC Regular Certificate.
Such adjusted basis generally will equal the cost of the REMIC Regular
Certificate to the seller, increased by any OID and market discount included in
the seller's gross income with respect to the REMIC Regular Certificate, and
reduced (but not below zero) by payments included in the stated redemption price
at maturity previously received by the seller and by any amortized premium.
Similarly, a holder who receives a payment that is part of the stated redemption
price at maturity of a REMIC Regular Certificate will recognize gain equal to
the excess, if any, of the amount of the payment over the holder's adjusted
basis in the REMIC Regular Certificate. A REMIC Regular Certificateholder who
receives a final payment that is less than the holder's adjusted basis in the
REMIC Regular Certificate will generally recognize a loss. Except as provided in
the following paragraph and as provided under "--Market Discount" above, any
such gain or loss will be capital gain or loss, provided that the REMIC Regular
Certificate is held as a "capital asset" (generally, property held for
investment) within the meaning of Code Section 1221.
Such gain or loss generally will be long-term capital gain or loss if the
Note were held for more than one year. Long-term capital gains of non-corporate
taxpayers are subject to reduced maximum rates while short-term capital gains
are taxable at ordinary rates. The use of capital losses is subject to
limitations. Prospective investors should consult their own tax advisors
concerning the treatment of capital gains.
Gain from the sale or other disposition of a REMIC Regular Certificate
that might otherwise be capital gain will be treated as ordinary income to the
extent that such gain does not exceed the excess, if any, of (i) the amount that
would have been includible in such holder's income with respect to the REMIC
Regular Certificate had income accrued thereon at a rate equal to 110% of the
AFR as defined in Code Section 1274(d) determined as of the date of purchase of
such REMIC Regular Certificate, over (ii) the amount actually includible in such
holder's income.
The Certificates will be "evidences of indebtedness" within the meaning of
Code Section 582(c)(1), so that gain or loss recognized from the sale of a REMIC
Regular Certificate by a bank or a thrift institution to which such section
applies will be ordinary income or loss.
The REMIC Regular Certificate information reports will include a statement
of the adjusted issue price of the REMIC Regular Certificate at the beginning of
each accrual period. In addition, the reports will include information necessary
to compute the accrual of any market discount that may arise upon secondary
trading of REMIC Regular Certificates. Because exact computation of the accrual
of market discount on a constant yield method would require information relating
to the holder's purchase price which the REMIC may not have, it appears that the
information reports will only require information pertaining to the appropriate
proportionate method of accruing market discount.
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Accrued Interest Certificates. Certain of the REMIC Regular Certificates
("Payment Lag Certificates") may provide for payments of interest based on a
period that corresponds to the interval between Distribution Dates but that ends
prior to each such Distribution Date. The period between the Closing Date for
Payment Lag Certificates and their first Distribution Date may or may not exceed
such interval. Purchasers of Payment Lag Certificates for which the period
between the Closing Date and the first Distribution Date does not exceed such
interval could pay upon purchase of the REMIC Regular Certificates accrued
interest in excess of the accrued interest that would be paid if the interest
paid on the Distribution Date were interest accrued from Distribution Date to
Distribution Date. If a portion of the initial purchase price of a REMIC Regular
Certificate is allocable to interest that has accrued prior to the issue date
("pre-issuance accrued interest") and the REMIC Regular Certificate provides for
a payment of stated interest on the first payment date (and the first payment
date is within one year of the issue date) that equals or exceeds the amount of
the pre-issuance accrued interest, then the REMIC Regular Certificates' issue
price may be computed by subtracting from the issue price the amount of
pre-issuance accrued interest, rather than as an amount payable on the REMIC
Regular Certificate. However, it is unclear under this method how the OID
Regulations treat interest on Payment Lag Certificates. Therefore, in the case
of a Payment Lag Certificate, the Trust Fund intends to include accrued interest
in the issue price and report interest payments made on the first Distribution
Date as interest to the extent such payments represent interest for the number
of days that the Certificateholder has held such Payment Lag Certificate during
the first accrual period.
Investors should consult their own tax advisors concerning the treatment
for federal income tax purposes of Payment Lag Certificates.
Non-Interest Expenses of the REMIC. Under temporary Treasury regulations,
if the REMIC is considered to be a "single-class REMIC," a portion of the
REMIC's servicing, administrative and other non-interest expenses will be
allocated as a separate item to those REMIC Regular Certificateholders that are
"pass-through interest holders." Certificateholders that are pass-through
interest holders should consult their own tax advisors about the impact of these
rules on an investment in the REMIC Regular Certificates. See "Pass-Through of
Non-Interest Expenses of the REMIC" under "Taxation of Owners of REMIC Residual
Certificates" below.
Treatment of Realized Losses. Although not entirely clear, it appears that
holders of REMIC Regular Certificates that are corporations should in general be
allowed to deduct as an ordinary loss any loss sustained during the taxable year
on account of any such Certificates becoming wholly or partially worthless, and
that, in general, holders of Certificates that are not corporations should be
allowed to deduct as a short-term capital loss any loss sustained during the
taxable year on account of any such Certificates becoming wholly worthless.
Although the matter is not entirely clear, non-corporate holders of Certificates
may be allowed a bad debt deduction at such time that the principal balance of
any such Certificate is reduced to reflect realized losses resulting from any
liquidated Mortgage Assets. The Internal Revenue Service, however, could take
the position that non-corporate holders will be allowed a bad debt deduction to
reflect realized losses only after all Mortgage Assets remaining in the related
Trust Fund have been liquidated or the Certificates of the related Series have
been otherwise retired. Potential investors and holders of the Certificates are
urged to consult their own tax advisors regarding the appropriate timing, amount
and character of any loss sustained with respect to such Certificates, including
any loss resulting from the failure to recover previously accrued interest or
discount income. 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
Certificates.
Non-U.S. Persons. Generally, payments of interest (including any payment
with respect to accrued OID) on the REMIC Regular Certificates to a REMIC
Regular Certificateholder who is not a U.S. Person and is not engaged in a trade
or business within the United States will not be subject to federal withholding
tax if (i) such REMIC Regular Certificateholder does not actually or
constructively own 10 percent or more of the combined voting power of all
classes of equity in the Issuer; (ii) such REMIC Regular Certificateholder is
not a controlled foreign corporation (within the meaning of Code Section 957)
related to the Issuer; and (iii) such REMIC Regular Certificateholder complies
with certain identification requirements (including delivery of a statement,
signed by the REMIC Regular Certificateholder under penalties of perjury,
certifying that such REMIC Regular Certificateholder is a foreign person and
providing the name and address of such REMIC Regular Certificateholder). If a
REMIC Regular Certificateholder is not exempt from withholding, distributions of
interest to such holder, including distributions in respect of accrued OID, may
be subject to a 30% withholding tax, subject to reduction under any applicable
tax treaty.
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Further, a REMIC Regular Certificate will not be included in the estate of
a non-resident alien individual and will not be subject to United States estate
taxes. However, Certificateholders who are non-resident alien individuals should
consult their tax advisors concerning this question.
REMIC Regular Certificateholders who are not U.S. Persons and persons
related to such holders should not acquire any REMIC Residual Certificates, and
holders of REMIC Residual Certificates (the "REMIC Residual Certificateholder")
and persons related to REMIC Residual Certificateholders should not acquire any
REMIC Regular Certificates without consulting their tax advisors as to the
possible adverse tax consequences of doing so.
Information Reporting and Backup Withholding. The Master Servicer will
furnish or make available, within a reasonable time after the end of each
calendar year, to each person who was a REMIC Regular Certificateholder at any
time during such year, such information as may be deemed necessary or desirable
to assist REMIC Regular Certificateholders in preparing their federal income tax
returns, or to enable holders to make such information available to beneficial
owners or financial intermediaries that hold such REMIC Regular Certificates on
behalf of beneficial owners. If a holder, beneficial owner, financial
intermediary or other recipient of a payment on behalf of a beneficial owner
fails to supply a certified taxpayer identification number or if the Secretary
of the Treasury determines that such person has not reported all interest and
dividend income required to be shown on its federal income tax return, 31%
backup withholding may be required with respect to any payments. Any amounts
deducted and withheld from a distribution to a recipient would be allowed as a
credit against such recipient's federal income tax liability.
New Withholding Regulations. On October 6, 1997, the Treasury Department
issued new regulations (the "New Regulations") which make certain modifications
to the withholding, backup withholding and information reporting rules described
above. The New Regulations attempt to unify certification requirements and
modify reliance standards. The New Regulations will generally be effective for
payments made after December 31, 1999, subject to certain transition rules.
Prospective investors are urged to consult their own tax advisors regarding the
New Regulations.
B. Taxation of Owners of REMIC Residual Certificates
Allocation of the Income of the REMIC to the REMIC Residual Certificates.
The REMIC will not be subject to federal income tax except with respect to
income from prohibited transactions and certain other transactions. See
"--Prohibited Transactions and Other Taxes" below. Instead, each original holder
of a REMIC Residual Certificate will report on its federal income tax return, as
ordinary income, its share of the taxable income of the REMIC for each day
during the taxable year on which such holder owns any REMIC Residual
Certificates. The taxable income of the REMIC for each day will be determined by
allocating the taxable income of the REMIC for each calendar quarter ratably to
each day in the quarter. Such a holder's share of the taxable income of the
REMIC for each day will be based on the portion of the outstanding REMIC
Residual Certificates that such holder owns on that day. The taxable income of
the REMIC will be determined under an accrual method and will be taxable to the
holders of REMIC Residual Certificates without regard to the timing or amounts
of cash distributions by the REMIC. Ordinary income derived from REMIC Residual
Certificates will be "portfolio income" for purposes of the taxation of
taxpayers subject to the limitations on the deductibility of "passive losses."
As residual interests, the REMIC Residual Certificates will be subject to tax
rules, described below, that differ from those that would apply if the REMIC
Residual Certificates were treated for federal income tax purposes as direct
ownership interests in the Certificates or as debt instruments issued by the
REMIC.
A REMIC Residual Certificateholder may be required to include taxable
income from the REMIC Residual Certificate in excess of the cash distributed.
For example, a structure where principal distributions are made serially on
regular interests (that is, a fast-pay, slow-pay structure) may generate such a
mismatching of income and cash distributions (that is, "phantom income"). This
mismatching may be caused by the use of certain required tax accounting methods
by the REMIC, variations in the prepayment rate of the underlying Mortgage
Assets and certain other factors. Depending upon the structure of a particular
transaction, the aforementioned factors may significantly reduce the after-tax
yield of a REMIC Residual Certificate to a REMIC Residual Certificateholder.
Investors should consult their own tax advisors concerning the federal income
tax treatment of a REMIC Residual Certificate and the impact of such tax
treatment on the after-tax yield of a REMIC Residual Certificate.
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A subsequent REMIC Residual Certificateholder also will report on its
federal income tax return amounts representing a daily share of the taxable
income of the REMIC for each day that such REMIC Residual Certificateholder owns
such REMIC Residual Certificate. Those daily amounts generally would equal the
amounts that would have been reported for the same days by an original REMIC
Residual Certificateholder, as described above. The Legislative History
indicates that certain adjustments may be appropriate to reduce (or increase)
the income of a subsequent holder of a REMIC Residual Certificate that purchased
such REMIC Residual Certificate at a price greater than (or less than) the
adjusted basis such REMIC Residual Certificate would have in the hands of an
original REMIC Residual Certificateholder. See "--Sale or Exchange of REMIC
Residual Certificates" below. It is not clear, however, whether such adjustments
will in fact be permitted or required and, if so, how they would be made. The
REMIC Regulations do not provide for any such adjustments.
Taxable Income of the REMIC Attributable to Residual Interests. The
taxable income of the REMIC will reflect a netting of (i) the income from the
Mortgage Assets and the REMIC's other assets and (ii) the deductions allowed to
the REMIC for interest and OID on the REMIC Regular Certificates and, except as
described above under "--Taxation of Owners of REMIC Regular
Certificates--Non-Interest Expenses of the REMIC," other expenses. 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'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 on reinvestment of cash flows
and reserve assets, plus any cancellation of indebtedness income upon allocation
of realized losses to the REMIC Regular Certificates. Note that the timing of
cancellation of indebtedness income recognized by REMIC Residual
Certificateholders resulting from defaults and delinquencies on Mortgage Assets
may differ from the time of the actual loss on the Mortgage Asset. The REMIC's
deductions include interest and original issue discount expense on the REMIC
Regular Certificates, servicing fees on the Mortgage Loans, other administrative
expenses of the REMIC and realized losses on the Mortgage Loans. The requirement
that REMIC Residual Certificateholders report their pro rata share of taxable
income or net loss of the REMIC will continue until there are no Certificates of
any class of the related Series outstanding.
For purposes of determining its taxable income, the REMIC will have an
initial aggregate tax basis in its assets equal to the sum of the issue prices
of the REMIC Regular Certificates and the REMIC Residual Certificates (or, if a
class of Certificates is not sold initially, its fair market value). Such
aggregate basis will be allocated among the Mortgage Assets and other assets of
the REMIC in proportion to their respective fair market value. A Mortgage Asset
will be deemed to have been acquired with discount or premium to the extent that
the REMIC's basis therein is less than or greater than its principal balance,
respectively. Any such discount (whether market discount or OID) will be
includible in the income of the REMIC as it accrues, in advance of receipt of
the cash attributable to such income, under a method similar to the method
described above for accruing OID on the REMIC Regular Certificates. The REMIC
expects to elect under Code Section 171 to amortize any premium on the Mortgage
Assets. Premium on any Mortgage Asset to which such election applies would be
amortized under a constant yield method. It is not clear whether the yield of a
Mortgage Asset would be calculated for this purpose based on scheduled payments
or taking account of the Prepayment Assumption. Additionally, such an election
would not apply to the yield with respect to any underlying mortgage loan
originated on or before September 27, 1985. Instead, premium with respect to
such a mortgage loan would be allocated among the principal payments thereon and
would be deductible by the REMIC as those payments become due.
The REMIC will be allowed a deduction for interest and OID on the REMIC
Regular Certificates. The amount and method of accrual of OID will be calculated
for this purpose in the same manner as described above
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with respect to REMIC Regular Certificates except that the 0.25% per annum de
minimis rule and adjustments for subsequent holders described therein will not
apply.
A REMIC Residual Certificateholder will not be permitted to amortize the
cost of the REMIC Residual Certificate as an offset to its share of the REMIC's
taxable income. However, REMIC taxable income will not include cash received by
the REMIC that represents a recovery of the REMIC's basis in its assets, and, as
described above, the issue price of the REMIC Residual Certificates will be
added to the issue price of the REMIC Regular Certificates in determining the
REMIC's initial basis in its assets. See "--Sale or Exchange of REMIC Residual
Certificates" below. For a discussion of possible adjustments to income of a
subsequent holder of a REMIC Residual Certificate to reflect any difference
between the actual cost of such REMIC Residual Certificate to such holder and
the adjusted basis such REMIC Residual Certificate would have in the hands of an
original REMIC Residual Certificateholder, see "--Allocation of the Income of
the REMIC to the REMIC Residual Certificates" above.
Net Losses of the REMIC. The REMIC will have a net loss for any calendar
quarter in which its deductions exceed its gross income. Such net loss would be
allocated among the REMIC Residual Certificateholders in the same manner as the
REMIC's taxable income. The net loss allocable to any REMIC Residual Certificate
will not be deductible by the holder to the extent that such net loss exceeds
such holder's adjusted basis in such REMIC Residual Certificate. Any net loss
that is not currently deductible by reason of this limitation may only be used
by such REMIC Residual Certificateholder to offset its share of the REMIC's
taxable income in future periods (but not otherwise). The ability of REMIC
Residual Certificateholders that are individuals or closely held corporations to
deduct net losses may be subject to additional limitations under the Code.
Mark to Market Rules. A Residual Certificate acquired after January 3,
1995 cannot be marked to market.
Pass-Through of Non-Interest Expenses of the REMIC. As a general rule, all
of the fees and expenses of a REMIC will be taken into account by holders of the
REMIC Residual Certificates. In the case of a "single class REMIC," however, the
expenses and a matching amount of additional income will be allocated, under
temporary Treasury regulations, among the REMIC Regular Certificateholders and
the REMIC Residual Certificateholders on a daily basis in proportion to the
relative amounts of income accruing to each Certificateholder on that day. In
general terms, a single class REMIC is one that either (i) would qualify, under
existing Treasury regulations, as a grantor trust if it were not a REMIC
(treating all interests as ownership interests, even if they would be classified
as debt for federal income tax purposes) or (ii) is similar to such a trust and
is structured with the principal purpose of avoiding the single class REMIC
rules. Unless otherwise stated in the applicable Prospectus Supplement, the
expenses of the REMIC will be allocated to holders of the related REMIC Residual
Certificates in their entirety and not to holders of the related REMIC Regular
Certificates.
In the case of individuals (or trusts, estates or other persons that
compute their income in the same manner as individuals) who own an interest in a
REMIC Regular Certificate or a REMIC Residual Certificate directly or through a
pass-through interest holder that is required to pass miscellaneous itemized
deductions through to its owners or beneficiaries (e.g. a partnership, an S
corporation or a grantor trust), such expenses will be deductible under Code
Section 67 only to the extent that such expenses, plus other "miscellaneous
itemized deductions" of the individual, exceed 2% of such individual's adjusted
gross income. In addition, Code Section 68 provides that the amount of itemized
deductions otherwise allowable for an individual whose adjusted gross income
exceeds a certain amount (the "Applicable Amount") will be reduced by the lesser
of (i) 3% of the excess of the individual's adjusted gross income over the
Applicable Amount or (ii) 80% of the amount of itemized deductions otherwise
allowable for the taxable year. The amount of additional taxable income
recognized by REMIC Residual Certificateholders who are subject to the
limitations of either Code Section 67 or Code Section 68 may be substantial.
Further, holders (other than corporations) subject to the alternative minimum
tax may not deduct miscellaneous itemized deductions in determining such
holders' alternative minimum taxable income. The REMIC is required to report to
each pass-through interest holder and to the IRS such holder's allocable share,
if any, of the REMIC's non-interest expenses. The term "pass-through interest
holder" generally refers to individuals, entities taxed as individuals and
certain pass-through entities, but does not include real estate investment
trusts. REMIC Residual Certificateholders that are pass-through interest holders
should consult their own tax advisors about the impact of these rules on an
investment in the REMIC Residual Certificates.
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Excess Inclusions. A portion of the income on a REMIC Residual Certificate
(referred to in the Code as an "excess inclusion") for any calendar quarter will
be subject to federal income tax in all events. Thus, for example, an excess
inclusion (i) may not, except as described below, be offset by any unrelated
losses, deductions or loss carryovers of a REMIC Residual Certificateholder;
(ii) will be treated as "unrelated business taxable income" within the meaning
of Code Section 512 if the REMIC Residual Certificateholder is a pension fund or
any other organization that is subject to tax only on its unrelated business
taxable income (see "--Tax-Exempt Investors" below); and (iii) is not eligible
for any reduction in the rate of withholding tax in the case of a REMIC Residual
Certificateholder that is a foreign investor. See "--Non-U.S. Persons" below. An
exception to the excess inclusion rules that applied to thrifts holding certain
residuals was repealed by the Small Business Tax Act of 1996.
Except as discussed in the following paragraph, with respect to any REMIC
Residual Certificateholder, the excess inclusions for any calendar quarter is
the excess, if any, of (i) the income of such REMIC Residual Certificateholder
for that calendar quarter from its REMIC Residual Certificate over (ii) the sum
of the "daily accruals" (as defined below) for all days during the calendar
quarter on which the REMIC Residual Certificateholder holds such REMIC Residual
Certificate. For this purpose, the daily accruals with respect to a REMIC
Residual Certificate are determined by allocating to each day in the calendar
quarter its ratable portion of the product of the "adjusted issue price" (as
defined below) of the REMIC Residual Certificate at the beginning of the
calendar quarter and 120 percent of the "Federal long-term rate" in effect at
the time the REMIC Residual Certificate is issued. For this purpose, the
"adjusted issue price" of a REMIC Residual Certificate at the beginning of any
calendar quarter equals the issue price of the REMIC Residual Certificate,
increased by the amount of daily accruals for all prior quarters, and decreased
(but not below zero) by the aggregate amount of payments made on the REMIC
Residual Certificate before the beginning of such quarter. The "federal
long-term rate" is an average of current yields on Treasury securities with a
remaining term of greater than nine years, computed and published monthly by the
IRS.
In the case of any REMIC Residual Certificates held by a real estate
investment trust, the aggregate excess inclusions with respect to such REMIC
Residual Certificates, reduced (but not below zero) by the real estate
investment trust taxable income (within the meaning of Code Section 857(b)(2),
excluding any net capital gain), will be allocated among the shareholders of
such trust in proportion to the dividends received by such shareholders from
such trust, and any amount so allocated will be treated as an excess inclusion
with respect to a REMIC Residual Certificate as if held directly by such
shareholder. Regulated investment companies, common trust funds and certain
cooperatives are subject to similar rules.
Payments. Any distribution made on a REMIC Residual Certificate to a REMIC
Residual Certificateholder will be treated as a non-taxable return of capital to
the extent it does not exceed the REMIC Residual Certificateholder's adjusted
basis in such REMIC Residual Certificate. To the extent a distribution exceeds
such adjusted basis, it will be treated as gain from the sale of the REMIC
Residual Certificate.
Sale or Exchange of REMIC Residual Certificates. If a REMIC Residual
Certificate is sold or exchanged, the seller will generally recognize gain or
loss equal to the difference between the amount realized on the sale or exchange
and its adjusted basis in the REMIC Residual Certificate (except that the
recognition of loss may be limited under the "wash sale" rules described below).
A holder's adjusted basis in a REMIC Residual Certificate generally equals the
cost of such REMIC Residual Certificate to such REMIC Residual
Certificateholder, increased by the taxable income of the REMIC that was
included in the income of such REMIC Residual Certificateholder with respect to
such REMIC Residual Certificate, and decreased (but not below zero) by the net
losses that have been allowed as deductions to such REMIC Residual
Certificateholder with respect to such REMIC Residual Certificate and by the
distributions received thereon by such REMIC Residual Certificateholder. In
general, any such gain or loss will be capital gain or loss provided the REMIC
Residual Certificate is held as a capital asset. However, REMIC Residual
Certificates will be "evidences of indebtedness" within the meaning of Code
Section 582(c)(1), so that gain or loss recognized from sale of a REMIC Residual
Certificate by a bank or thrift institution to which such section applies would
be ordinary income or loss.
Except as provided in Treasury regulations yet to be issued, if the seller
of a REMIC Residual Certificate reacquires such REMIC Residual Certificate, or
acquires any other REMIC Residual Certificate, any residual interest in another
REMIC or similar interest in a "taxable mortgage pool" (as defined in Code
Section 7701(i)) during the period beginning six months before, and ending six
months after, the date of such sale, such sale will be
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subject to the "wash sale" rules of Code Section 1091. In that event, any loss
realized by the REMIC Residual Certificateholder on the sale will not be
deductible, but, instead, will increase such REMIC Residual Certificateholder's
adjusted basis in the newly acquired asset.
C. Prohibited Transactions and Other Taxes
The Code imposes a tax on REMICs equal to 100% of the net income derived
from "prohibited transactions" (the "Prohibited Transactions Tax"). In general,
subject to certain specified exceptions, a prohibited transaction means the
disposition of a Mortgage Asset, the receipt of income from a source other than
a Mortgage Asset or certain other permitted investments, the receipt of
compensation for services, or gain from the disposition of an asset purchased
with the payments on the Mortgage Assets for temporary investment pending
distribution on the Certificates. It is not anticipated that the Trust Fund for
any Series of Certificates will engage in any prohibited transactions in which
it would recognize a material amount of net income.
In addition, certain contributions to a Trust Fund as to which an election
has been made to treat such Trust Fund as a REMIC made after the day on which
such Trust Fund issues all of its interests could result in the imposition of a
tax on the Trust Fund equal to 100% of the value of the contributed property
(the "Contributions Tax"). No Trust Fund for any Series of Certificates will
accept contributions that would subject it to such tax.
In addition, a Trust Fund as to which an election has been made to treat
such Trust Fund as a REMIC may also be subject to federal income tax at the
highest corporate rate on "net income from foreclosure property," determined by
reference to the rules applicable to real estate investment trusts. "Net income
from foreclosure property" generally means income from foreclosure property
other than qualifying income for a real estate investment trust.
Where any Prohibited Transactions Tax, Contributions Tax, tax on net
income from foreclosure property or state or local income or franchise tax that
may be imposed on a REMIC relating to any Series of Certificates arises out of
or results from (i) a breach of the related Master Servicer's, Trustee's or
Asset Seller's obligations, as the case may be, under the related Agreement for
such Series, such tax will be borne by such Master Servicer, Trustee or Asset
Seller, as the case may be, out of its own funds or (ii) the Asset Seller's
obligation to repurchase a Mortgage Loan, such tax will be borne by the Asset
Seller. In the event that such Master Servicer, Trustee or Asset Seller, as the
case may be, fails to pay or is not required to pay any such tax as provided
above, such tax will be payable out of the Trust Fund for such Series and will
result in a reduction in amounts available to be distributed to the
Certificateholders of such Series.
D. Liquidation and Termination
If the REMIC 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'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 will not be subject to any Prohibited Transaction Tax,
provided that the REMIC credits or distributes in liquidation all of the sale
proceeds plus its cash (other than the amounts retained to meet claims) to
holders of Regular and REMIC Residual Certificates within the 90-day period.
The REMIC will terminate shortly following the retirement of the REMIC
Regular Certificates. If a REMIC Residual Certificateholder's adjusted basis in
the REMIC Residual Certificate exceeds the amount of cash distributed to such
REMIC Residual Certificateholder in final liquidation of its interest, then it
would appear that the REMIC Residual Certificateholder would be entitled to a
loss equal to the amount of such excess. It is unclear whether such a loss, if
allowed, will be a capital loss or an ordinary loss.
E. Administrative Matters
Solely for the purpose of the administrative provisions of the Code, the
REMIC generally will be treated as a partnership and the REMIC Residual
Certificateholders will be treated as the partners. Certain information will be
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furnished quarterly to each REMIC Residual Certificateholder who held a REMIC
Residual Certificate on any day in the previous calendar quarter.
Each REMIC Residual Certificateholder is required to treat items on its
return consistently with their treatment on the REMIC's return, unless the REMIC
Residual Certificateholder either files a statement identifying the
inconsistency or establishes that the inconsistency resulted from incorrect
information received from the REMIC. The IRS may assert a deficiency resulting
from a failure to comply with the consistency requirement without instituting an
administrative proceeding at the REMIC level. The REMIC does not intend to
register as a tax shelter pursuant to Code Section 6111 because it is not
anticipated that the REMIC will have a net loss for any of the first five
taxable years of its existence. Any person that holds a REMIC Residual
Certificate as a nominee for another person may be required to furnish the
REMIC, in a manner to be provided in Treasury regulations, with the name and
address of such person and other information.
F. Tax-Exempt Investors
Any REMIC Residual Certificateholder that is a pension fund or other
entity that is subject to federal income taxation only on its "unrelated
business taxable income" within the meaning of Code Section 512 will be subject
to such tax on that portion of the distributions received on a REMIC Residual
Certificate that is considered an excess inclusion. See "--Taxation of Owners of
REMIC Residual Certificates--Excess Inclusions" above.
G. Residual Certificate Payments--Non-U.S. Persons
Amounts paid to REMIC Residual Certificateholders who are not U.S. Persons
(see "--Taxation of Owners of REMIC Regular Certificates--Non-U.S. Persons"
above) are treated as interest for purposes of the 30% (or lower treaty rate)
United States withholding tax. Amounts distributed to holders of REMIC Residual
Certificates should qualify as "portfolio interest," subject to the conditions
described in "--Taxation of Owners of REMIC Regular Certificates" above, but
only to the extent that the underlying mortgage loans were originated after July
18, 1984. Furthermore, the rate of withholding on any income on a REMIC Residual
Certificate that is excess inclusion income will not be subject to reduction
under any applicable tax treaties. See "--Taxation of Owners of REMIC Residual
Certificates--Excess Inclusions" above. If the portfolio interest exemption is
unavailable, such amount will be subject to United States withholding tax when
paid or otherwise distributed (or when the REMIC Residual Certificate is
disposed of) under rules similar to those for withholding upon disposition of
debt instruments that have OID. The Code, however, grants the Treasury
Department authority to issue regulations requiring that those amounts be taken
into account earlier than otherwise provided where necessary to prevent
avoidance of tax (for example, where the REMIC Residual Certificates do not have
significant value). See "--Taxation of Owners of REMIC Residual
Certificates--Excess Inclusions" above. If the amounts paid to REMIC Residual
Certificateholders that are not U.S. Persons are effectively connected with
their conduct of a trade or business within the United States, the 30% (or lower
treaty rate) withholding will not apply. Instead, the amounts paid to such
non-U.S. Person will be subject to U.S. federal income taxation at regular
graduated rates. For special restrictions on the transfer of REMIC Residual
Certificates, see "--Tax-Related Restrictions on Transfers of REMIC Residual
Certificates" below.
REMIC Regular Certificateholders and persons related to such holders
should not acquire any REMIC Residual Certificates, and REMIC Residual
Certificateholders and persons related to REMIC Residual Certificateholders
should not acquire any REMIC Regular Certificates, without consulting their tax
advisors as to the possible adverse tax consequences of such acquisition.
Tax-Related Restrictions on Transfers of REMIC Residual Certificates
Disqualified Organizations. An entity may not qualify as a REMIC unless
there are reasonable arrangements designed to ensure that residual interests in
such entity are not held by "disqualified organizations" (as defined below).
Further, a tax is imposed on the transfer of a residual interest in a REMIC to a
"disqualified organization." The amount of the tax equals the product of (i) an
amount (as determined under the REMIC Regulations) equal to the present value of
the total anticipated "excess inclusions" with respect to such interest for
periods after the transfer and (ii) the highest marginal federal income tax rate
applicable to corporations. The tax is imposed on the transferor unless the
transfer is through an agent (including a broker or other middleman) for a
disqualified organization, in which event the tax is imposed on the agent. The
person otherwise liable for the tax
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shall be relieved of liability for the tax if the transferee furnished to such
person an affidavit that the transferee is not a disqualified organization and,
at the time of the transfer, such person does not have actual knowledge that the
affidavit is false. A "disqualified organization" means (A) the United States,
any State, possession or political subdivision thereof, any foreign government,
any international organization or any agency or instrumentality of any of the
foregoing (provided that such term does not include an instrumentality if all
its activities are subject to tax and, except for FHLMC, a majority of its board
of directors is not selected by any such governmental agency), (B) any
organization (other than certain farmers' cooperatives) generally exempt from
federal income taxes unless such organization is subject to the tax on
"unrelated business taxable income" and (C) a rural electric or telephone
cooperative.
A tax is imposed on a "pass-through entity" (as defined below) holding a
residual interest in a REMIC if at any time during the taxable year of the
pass-through entity a disqualified organization is the record holder of an
interest in such entity. The amount of the tax is equal to the product of (A)
the amount of excess inclusions for the taxable year allocable to the interest
held by the disqualified organization and (B) the highest marginal federal
income tax rate applicable to corporations. The pass-through entity otherwise
liable for the tax, for any period during which the disqualified organization is
the record holder of an interest in such entity, will be relieved of liability
for the tax if such record holder furnishes to such entity an affidavit that
such record holder is not a disqualified organization and, for such period, the
pass-through entity does not have actual knowledge that the affidavit is false.
For this purpose, a "pass-through entity" means (i) a regulated investment
company, real estate investment trust or common trust fund, (ii) a partnership,
trust or estate and (iii) certain cooperatives. Except as may be provided in
Treasury regulations not yet issued, any person holding an interest in a
pass-through entity as a nominee for another will, with respect to such
interest, be treated as a pass-through entity. The tax on pass-through entities
is generally effective for periods after March 31, 1988, except that in the case
of regulated investment companies, real estate investment trusts, common trust
funds and publicly-traded partnerships the tax shall apply only to taxable years
of such entities beginning after December 31, 1988. Under the Taxpayer Relief
Act of 1997, large partnerships (generally with 250 or more partners) will be
taxable on excess inclusion income as if all partners were disqualified
organizations.
In order to comply with these rules, the Agreement will provide that no
record or beneficial ownership interest in a REMIC Residual Certificate may be
purchased, transferred or sold, directly or indirectly, without the express
written consent of the Master Servicer. The Master Servicer will grant such
consent to a proposed transfer only if it receives the following: (i) an
affidavit from the proposed transferee to the effect that it is not a
disqualified organization and is not acquiring the REMIC Residual Certificate as
a nominee or agent for a disqualified organization and (ii) a covenant by the
proposed transferee to the effect that the proposed transferee agrees to be
bound by and to abide by the transfer restrictions applicable to the REMIC
Residual Certificate.
Noneconomic REMIC Residual Certificates. The REMIC Regulations disregard,
for federal income tax purposes, any transfer of a Noneconomic REMIC Residual
Certificate to a "U.S. Person," as defined above, unless no significant purpose
of the transfer is to enable the transferor to impede the assessment or
collection of tax. A Noneconomic REMIC Residual Certificate is any REMIC
Residual Certificate (including a REMIC Residual Certificate with a positive
value at issuance) unless, at the time of transfer, taking into account the
Prepayment Assumption and any required or permitted clean up calls or required
liquidation provided for in the REMIC's organizational documents, (i) the
present value of the expected future distributions on the REMIC Residual
Certificate 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. 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. A transferor is presumed not to have such knowledge if (i) the transferor
conducted a reasonable investigation of the transferee and (ii) the transferee
acknowledges to the transferor that the residual interest may generate tax
liabilities in excess of the cash flow and the transferee represents that it
intends to pay such taxes associated with the residual interest as they become
due. If a transfer of a Noneconomic REMIC Residual Certificate is disregarded,
the transferor would continue to be treated as the owner of the REMIC Residual
Certificate and would continue to be subject to tax on its allocable portion of
the net income of the REMIC.
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Foreign Investors. The REMIC Regulations provide that the transfer of a
REMIC Residual Certificate that has a "tax avoidance potential" to a "foreign
person" will be disregarded for federal income tax purposes. This rule appears
to apply to a transferee who is not a U.S. Person unless such transferee's
income in respect of the REMIC Residual Certificate is effectively connected
with the conduct of a United Sates trade or business. A REMIC Residual
Certificate is deemed to have a tax avoidance potential unless, at the time of
transfer, the transferor reasonably expect that the REMIC will distribute to the
transferee amounts that will equal at least 30 percent of each excess inclusion,
and that such amounts will be distributed at or after the time the excess
inclusion accrues and not later than the end of the calendar year following the
year of accrual. If the non-U.S. Person transfers the REMIC Residual Certificate
to a U.S. Person, the transfer will be disregarded, and the foreign transferor
will continue to be treated as the owner, if the transfer has the effect of
allowing the transferor to avoid tax on accrued excess inclusions. The
provisions in the REMIC Regulations regarding transfers of REMIC Residual
Certificates that have tax avoidance potential to foreign persons are effective
for all transfers after June 30, 1992. The Agreement will provide that no record
or beneficial ownership interest in a REMIC Residual Certificate may be
transferred, directly or indirectly, to a non-U.S. Person unless such person
provides the Trustee with a duly completed IRS Form 4224 and the Trustee
consents to such transfer in writing.
Any attempted transfer or pledge in violation of the transfer restrictions
shall be absolutely null and void and shall vest no rights in any purported
transferee. Investors in REMIC Residual Certificates are advised to consult
their own tax advisors with respect to transfers of the REMIC Residual
Certificates and, in addition, pass-through entities are advised to consult
their own tax advisors with respect to any tax which may be imposed on a
pass-through entity.
Tax Characterization of a Trust Fund as a Partnership
Brown & Wood LLP, special counsel to the Depositor, will deliver its
opinion that a Trust Fund for which a partnership election is made will not be
an association (or publicly traded partnership) taxable as a corporation for
federal income tax purposes. This opinion will be based on the assumption that
the terms of the Trust Agreement and related documents will be complied with,
and on counsel's conclusions that (1) the nature of the income of the Trust Fund
will exempt it from the rule that certain publicly traded partnerships are
taxable as corporations or (2) the issuance of the Certificates has been
structured as a private placement under an IRS safe harbor, so that the Trust
Fund will not be characterized as a publicly traded partnership taxable as a
corporation.
If the Trust Fund were taxable as a corporation for federal income tax
purposes, the Trust Fund would be subject to corporate income tax on its taxable
income. The Trust Fund's taxable income would include all its income, possibly
reduced by its interest expense on the Notes. Any such corporate income tax
could materially reduce cash available to make payments on the Notes and
distributions on the Certificates, and Certificateholders could be liable for
any such tax that is unpaid by the Trust Fund.
A. Tax Consequences to Holders of the Notes
Treatment of the Notes as Indebtedness. The Trust Fund will agree, and the
Noteholders will agree by their purchase of Notes, to treat the Notes as debt
for federal income tax purposes. Special counsel to the Depositor will, except
as otherwise provided in the related Prospectus Supplement, advise the Depositor
that the Notes will be classified as debt for federal income tax purposes. The
discussion below assumes this characterization of the Notes is correct.
OID, etc. The discussion below assumes that all payments on the Notes are
denominated in U.S. dollars. Moreover, the discussion assumes that the interest
formula for the Notes meets the requirements for "qualified stated interest"
under the OID regulations, and that any OID on the Notes (i.e., any excess of
the principal amount of the Notes over their issue price) does not exceed a de
minimis amount (i.e., 1/4% of their principal amount multiplied by the number of
full years included in their term), all within the meaning of the OID
regulations. If these conditions are not satisfied with respect to any given
series of Notes, additional tax considerations with respect to such Notes will
be disclosed in the applicable Prospectus Supplement.
Interest Income on the Notes. Based on the above assumptions, except as
discussed in the following paragraph, the Notes will not be considered issued
with OID. The stated interest thereon will be taxable to a
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Noteholder as ordinary interest income when received or accrued in accordance
with such Noteholder's method of tax accounting. Under the OID regulations, a
holder of a Note issued with a de minimis amount of OID must include such OID in
income, on a pro rata basis, as principal payments are made on the Note. It is
believed that any prepayment premium paid as a result of a mandatory redemption
will be taxable as contingent interest when it becomes fixed and unconditionally
payable. A purchaser who buys a Note for more or less than its principal amount
will generally be subject, respectively, to the premium amortization or market
discount rules of the Code.
A holder of a Note that has a fixed maturity date of not more than one
year from the issue date of such Note (a "Short-Term Note") may be subject to
special rules. An accrual basis holder of a Short-Term Note (and certain cash
method holders, including regulated investment companies, as set forth in
Section 1281 of the Code) generally would be required to report interest income
as interest accrues on a straight-line basis over the term of each interest
period. Other cash basis holders of a Short-Term Note would, in general, be
required to report interest income as interest is paid (or, if earlier, upon the
taxable disposition of the Short-Term Note). However, a cash basis holder of a
Short-Term Note reporting interest income as it is paid may be required to defer
a portion of any interest expense otherwise deductible on indebtedness incurred
to purchase or carry the Short-Term Note until the taxable disposition of the
Short-Term Note. A cash basis taxpayer may elect under Section 1281 of the Code
to accrue interest income on all nongovernment debt obligations with a term of
one year or less, in which case the taxpayer would include interest on the
Short-Term Note in income as it accrues, but would not be subject to the
interest expense deferral rule referred to in the preceding sentence. Certain
special rules apply if a Short-Term Note is purchased for more or less than its
principal amount.
Sale or Other Disposition. If a Noteholder sells a Note, the holder will
recognize gain or loss in an amount equal to the difference between the amount
realized on the sale and the holder's adjusted tax basis in the Note.
The adjusted tax basis of a Note to a particular Noteholder will equal the
holder's cost for the Note, increased by any market discount, acquisition
discount, OID and gain previously included by such Noteholder in income with
respect to the Note and decreased by the amount of bond premium (if any)
previously amortized and by the amount of principal payments previously received
by such Noteholder with respect to such Note. Any such gain or loss will be
capital gain or loss if the Note was held as a capital asset, except for gain
representing accrued interest and accrued market discount not previously
included in income. Capital losses generally may be used only to offset capital
gains.
Such gain or loss generally will be long-term capital gain or loss if the
Note were held for more than one year. Long-term capital gains of non-corporate
taxpayers are subject to reduced maximum rates while short-term capital gains
are taxable at ordinary rates. The use of capital losses is subject to
limitations. Prospective investors should consult their own tax advisors
concerning the treatment of capital gains.
Foreign Holders. Interest payments made (or accrued) to a Noteholder who
is a nonresident alien, foreign corporation or other non-United States person (a
"foreign person") generally will be considered "portfolio interest", and
generally will not be subject to United States federal income tax and
withholding tax, if the interest is not effectively connected with the conduct
of a trade or business within the United States by the foreign person and the
foreign person (i) is not actually or constructively a "10 percent shareholder"
of the Trust or the Depositor (including a holder of 10% of the outstanding
Certificates) or a "controlled foreign corporation" with respect to which the
Trust Fund or the Asset Seller is a "related person" within the meaning of the
Code and (ii) provides the Owner Trustee or other person who is otherwise
required to withhold U.S. tax with respect to the Notes with an appropriate
statement (on Form W-8 or a similar form), signed under penalties of perjury,
certifying that the beneficial owner of the Note is a foreign person and
providing the foreign person's name and address. If a Note is held through a
securities clearing organization or certain other financial institutions, the
organization or institution may provide the relevant signed statement to the
withholding agent; in that case, however, the signed statement must be
accompanied by a Form W-8 or substitute form provided by the foreign person that
owns the Note. If such interest is not portfolio interest, then it will be
subject to United States federal income and withholding tax at a rate of 30
percent, unless reduced or eliminated pursuant to an applicable tax treaty.
Any capital gain realized on the sale, redemption, retirement or other
taxable disposition of a Note by a foreign person will be exempt from United
States federal income and withholding tax, provided that (i) such gain is not
effectively connected with the conduct of a trade or business in the United
States by the foreign person and
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(ii) in the case of an individual foreign person, the foreign person is not
present in the United States for 183 days or more in the taxable year.
Backup Withholding. Each holder of a Note (other than an exempt holder
such as a corporation, tax-exempt organization, qualified pension and
profit-sharing trust, individual retirement account or nonresident alien who
provides certification as to status as a nonresident) will be required to
provide, under penalties of perjury, a certificate containing the holder's name,
address, correct federal taxpayer identification number and a statement that the
holder is not subject to backup withholding. Should a nonexempt Noteholder fail
to provide the required certification, the Trust Fund will be required to
withhold 31 percent of the amount otherwise payable to the holder, and remit the
withheld amount to the IRS as a credit against the holder's federal income tax
liability.
Possible Alternative Treatments of the Notes. If, contrary to the opinion
of special counsel to the Depositor, the IRS successfully asserted that one or
more of the Notes did not represent debt for federal income tax purposes, the
Notes might be treated as equity interests in the Trust Fund. If so treated, the
Trust Fund would likely be treated as a publicly traded partnership that would
not be taxable as a corporation because it would meet certain qualifying income
tests. Nonetheless, treatment of the Notes as equity interests in such a
publicly traded partnership could have adverse tax consequences to certain
holders. For example, income to certain tax-exempt entities (including pension
funds) would be "unrelated business taxable income", income to foreign holders
generally would be subject to U.S. tax and U.S. tax return filing and
withholding requirements, and individual holders might be subject to certain
limitations on their ability to deduct their share of the Trust Fund's expenses.
B. Tax Consequences to Holder of the Certificates
Treatment of the Trust Fund as a Partnership. The Depositor will agree,
and the Certificateholders will agree by their purchase of Certificates, to
treat the 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 Trust Fund, the
partners of the partnership being the Certificateholders, and the Notes being
debt of the partnership. However, the proper characterization of the arrangement
involving the Trust Fund, the Certificates, the Notes, the Trust Fund and the
Master Servicer is not clear because there is no authority on transactions
closely comparable to that contemplated herein.
A variety of alternative characterizations are possible. For example,
because the Certificates have certain features characteristic of debt, the
Certificates might be considered debt of the Trust Fund. Any such
characterization would not result in materially adverse tax consequences to
Certificateholders as compared to the consequences from treatment of the
Certificates as equity in a partnership, described below. The following
discussion assumes that the Certificates represent equity interests in a
partnership.
Indexed Securities, etc. The following discussion assumes that all
payments on the Certificates are denominated in U.S. dollars, none of the
Certificates are Indexed Securities or Strip Certificates, and that a Series of
Securities includes a single class of Certificates. If these conditions are not
satisfied with respect to any given Series of Certificates, additional tax
considerations with respect to such Certificates will be disclosed in the
applicable Prospectus Supplement.
Partnership Taxation. As a partnership, the Trust Fund will not be subject
to federal income tax. Rather, each Certificateholder will be required to
separately take into account such holder's allocated share of income, gains,
losses, deductions and credits of the Trust Fund. The Trust Fund's income will
consist primarily of interest and finance charges earned on the Mortgage Loans
(including appropriate adjustments for market discount, OID and bond premium)
and any gain upon collection or disposition of Mortgage Loans. The Trust Fund's
deductions will consist primarily of interest accruing with respect to the
Notes, servicing and other fees, and losses or deductions upon collection or
disposition of Mortgage Loans.
The tax items of a partnership are allocable to the partners in accordance
with the Code, Treasury regulations and the partnership agreement (here, the
Trust Agreement and related documents). The Trust Agreement will provide, in
general, that the Certificateholders will be allocated taxable income of the
Trust Fund for each month equal to the sum of (i) the interest that accrues on
the Certificates in accordance with their terms for such month, including
interest accruing at the Pass-Through Rate for such month and interest on
amounts previously due
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on the Certificates but not yet distributed; (ii) any Trust Fund income
attributable to discount on the Mortgage Loans that corresponds to any excess of
the principal amount of the Certificates over their initial issue price; (iii)
prepayment premium payable to the Certificateholders for such month; and (iv)
any other amounts of income payable to the Certificateholders for such month.
Such allocation will be reduced by any amortization by the Trust Fund of premium
on Mortgage Loans that corresponds to any excess of the issue price of
Certificates over their principal amount. All remaining taxable income of the
Trust Fund will be allocated to the Company. Based on the economic arrangement
of the parties, this approach for allocating 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 Certificateholders. Moreover, even under the foregoing method of allocation,
Certificateholders may be allocated income equal to the entire Pass-Through Rate
plus the other items described above even though the Trust 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 Certificates
on the accrual basis and Certificateholders may become liable for taxes on Trust
Fund income even if they have not received cash from the Trust Fund to pay such
taxes. In addition, because tax allocations and tax reporting will be done on a
uniform basis for all Certificateholders but Certificateholders may be
purchasing Certificates at different times and at different prices
Certificateholders may be required to report on their tax returns taxable income
that is greater or less than the amount reported to them by the Trust Fund.
All of the taxable income allocated to a Certificateholder that is a
pension, profit sharing or employee benefit plan or other tax-exempt entity
(including an individual retirement account) will constitute "unrelated business
taxable income" generally taxable to such a holder under the Code.
An individual taxpayer's share of expenses of the Trust Fund (including
fees to the Master Servicer but not interest expense) would be miscellaneous
itemized deductions. Such deductions might be disallowed to the individual in
whole or in part and might result in such holder being taxed on an amount of
income that exceeds the amount of cash actually distributed to such holder over
the life of the Trust Fund.
The Trust Fund intends to make all tax calculations relating to income and
allocations to Certificateholders on an aggregate basis. If the IRS were to
require that such calculations be made separately for each Mortgage Loan, the
Trust Fund might be required to incur additional expense but it is believed that
there would not be a material adverse effect on Certificateholders.
Discount and Premium. It is believed that the Loans were not issued with
OID, and, therefore, the Trust should not have OID income. However, the purchase
price paid by the Trust Fund for the Mortgage Loans may be greater or less than
the remaining principal balance of the Loans at the time of purchase. If so, the
Loan will have been acquired at a premium or discount, as the case may be. (As
indicated above, the 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 Trust Fund acquires the Mortgage Loans at a market discount or
premium, the 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 Certificateholders.
Section 708 Termination. Under Section 708 of the Code, the Trust Fund
will be deemed to terminate for federal income tax purposes if 50% or more of
the capital and profits interests in the Trust Fund are sold or exchanged within
a 12-month period. Pursuant to formal Treasury regulations issued May 8, 1997
under section 708 of the Code, if such a termination occurs, the Trust Fund (the
"old partnership") would be deemed to contribute its assets to a new partnership
(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.
Disposition of Certificates. Generally, capital gain or loss will be
recognized on a sale of Certificates in an amount equal to the difference
between the amount realized and the seller's tax basis in the Certificates sold.
A Certificateholder's tax basis in a Certificate will generally equal the
holder's cost increased by the holder's share of Trust Fund income (includible
in income) and decreased by any distributions received with respect to such
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Certificate. In addition, both the tax basis in the Certificates and the amount
realized on a sale of a Certificate would include the holder's share of the
Notes and other liabilities of the Trust Fund. A holder acquiring Certificates
at different prices may be required to maintain a single aggregate adjusted tax
basis in such Certificates, and, upon sale or other disposition of some of the
Certificates, allocate a portion of such aggregate tax basis to the Certificates
sold (rather than maintaining a separate tax basis in each Certificate for
purposes of computing gain or loss on a sale of that Certificate).
Any gain on the sale of a Certificate attributable to the holder's share
of unrecognized accrued market discount on the Mortgage Loans would generally be
treated as ordinary income to the holder and would give rise to special tax
reporting requirements. The Trust Fund does not expect to have any other assets
that would give rise to such special reporting requirements. Thus, to avoid
those special reporting requirements, the Trust Fund will elect to include
market discount in income as it accrues.
If a Certificateholder is required to recognize an aggregate amount of
income (not including income attributable to disallowed itemized deductions
described above) over the life of the Certificates that exceeds the aggregate
cash distributions with respect thereto, such excess will generally give rise to
a capital loss upon the retirement of the Certificates.
Allocations Between Transferors and Transferees. In general, the Trust
Fund's taxable income and losses will be determined monthly and the tax items
for a particular calendar month will be apportioned among the Certificateholders
in proportion to the principal amount of Certificates owned by them as of the
close of the last day of such month. As a result, a holder purchasing
Certificates may be allocated tax items (which will affect its tax liability and
tax basis) attributable to periods before the actual transaction.
The use of such a monthly convention may not be permitted by existing
regulations. If a monthly convention is not allowed (or only applies to
transfers of less than all of the partner's interest), taxable income or losses
of the Trust Fund might be reallocated among the Certificateholders. The Trust
Fund's method of allocation between transferors and transferees may be revised
to conform to a method permitted by future regulations.
Section 754 Election. In the event that a Certificateholder sells its
Certificates at a profit (loss), the purchasing Certificateholder will have a
higher (lower) basis in the Certificates than the selling Certificateholder had.
The tax basis of the Trust Fund's assets will not be adjusted to reflect that
higher (or lower) basis unless the 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 Trust Fund will not make such
election. As a result, Certificateholders might be allocated a greater or lesser
amount of Trust Fund income than would be appropriate based on their own
purchase price for Certificates.
Administrative Matters. The Trustee is required to keep or have kept
complete and accurate books of the Trust Fund. Such books will be maintained for
financial reporting and tax purposes on an accrual basis and the fiscal year of
the Trust will be the calendar year. The Trustee will file a partnership
information return (IRS Form 1065) with the IRS for each taxable year of the
Trust Fund and will report each Certificateholder's allocable share of items of
Trust Fund income and expense to holders and the IRS on Schedule K-1. The Trust
Fund will provide the Schedule K-1 information to nominees that fail to provide
the Trust Fund with the information statement described below and such nominees
will be required to forward such information to the beneficial owners of the
Certificates. Generally, holders must file tax returns that are consistent with
the information return filed by the Trust 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 Certificates as a
nominee at any time during a calendar year is required to furnish the Trust Fund
with a statement containing certain information on the nominee, the beneficial
owners and the Certificates so held. Such information includes (i) the name,
address and taxpayer identification number of the nominee and (ii) as to each
beneficial owner (x) the name, address and identification number of such person,
(y) whether such person is a United States person, a tax-exempt entity or a
foreign government, an international organization, or any wholly owned agency or
instrumentality of either of the foregoing, and (z) certain information on
Certificates that were held, bought or sold on behalf of such person throughout
the year. In addition, brokers and financial institutions that hold Certificates
through a nominee are required to furnish directly to the Trust Fund information
as to themselves and their ownership of Certificates. A clearing agency
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registered under Section 17A of the Exchange Act is not required to furnish any
such information statement to the Trust Fund. The information referred to above
for any calendar year must be furnished to the Trust Fund on or before the
following January 31. Nominees, brokers and financial institutions that fail to
provide the Trust Fund with the information described above may be subject to
penalties.
The Company will be designated as the tax matters partner in the related
Trust Agreement and, as such, will be responsible for representing the
Certificateholders in any dispute with the IRS. The Code provides for
administrative examination of a partnership as if the partnership were a
separate and distinct taxpayer. Generally, the statute of limitations for
partnership items does not expire before three years after the date on which the
partnership information return is filed. Any adverse determination following an
audit of the return of the Trust Fund by the appropriate taxing authorities
could result in an adjustment of the returns of the Certificateholders, and,
under certain circumstances, a Certificateholder may be precluded from
separately litigating a proposed adjustment to the items of the Trust Fund. An
adjustment could also result in an audit of a Certificateholder's returns and
adjustments of items not related to the income and losses of the Trust Fund.
Tax Consequences to Foreign Certificateholders. It is not clear whether
the 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 Trust Fund would be engaged in a trade or business in the United States
for such purposes, the Trust Fund will withhold as if it were so engaged in
order to protect the Trust Fund from possible adverse consequences of a failure
to withhold. The Trust Fund expects to withhold on the portion of its taxable
income that is allocable to foreign Certificateholders pursuant to Section 1446
of the Code, as if such income were effectively connected to a U.S. trade or
business, at a rate of 35% for foreign holders that are taxable as corporations
and 39.6% for all other foreign holders. Subsequent adoption of Treasury
regulations or the issuance of other administrative pronouncements may require
the Trust Fund to change its withholding procedures. In determining a holder's
withholding status, the Trust Fund may rely on IRS Form W-8, IRS Form W-9 or the
holder's certification of nonforeign status signed under penalties of perjury.
Each foreign 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 Trust Fund's income. Each foreign holder must
obtain a taxpayer identification number from the IRS and submit that number to
the Trust Fund on Form W-8 in order to assure appropriate crediting of the taxes
withheld. A foreign holder generally would be entitled to file with the IRS a
claim for refund with respect to taxes withheld by the Trust Fund taking the
position that no taxes were due because the Trust Fund was not engaged in a U.S.
trade or business. However, interest payments made (or accrued) to a
Certificateholder who is a foreign person generally will be considered
guaranteed payments to the extent such payments are determined without regard to
the income of the Trust Fund. If these interest payments are properly
characterized as guaranteed payments, then the interest will not be considered
"portfolio interest." As a result, Certificateholders will 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 foreign
holder would only be enticed 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 Certificates and proceeds
from the sale of the Certificates will be subject to a "backup" withholding tax
of 31% if, in general, the Certificateholder fails to comply with certain
identification procedures, unless the holder is an exempt recipient under
applicable provisions of the Code.
New Withholding Regulations. On October 6, 1997, the Treasury Department
issued new regulations (the "New Regulations") which make certain modifications
to the withholding, backup withholding and information reporting rules described
above. The New Regulations attempt to unify certification requirements and
modify reliance standards. The New regulations will generally be effective for
payments made after December 31, 1999, subject to certain transition rules.
Prospective investors are urged to consult their own tax advisors regarding the
New Regulations.
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Tax Treatment of Certificates as Debt for Tax Purposes
A. Characterization of the Certificates as Indebtedness
If the related Prospectus Supplement indicates that the Certificates will
be treated as indebtedness for federal income tax purposes, then based on the
application of existing law to the facts as set forth in the Trust Agreement and
other relevant documents and assuming compliance with the terms of the Trust
Agreement as in effect on the date of issuance of the Certificates, Brown & Wood
LLP, special tax counsel to the Depositor ("Tax Counsel"), will deliver its
opinion that the Certificates will be treated as debt instruments for federal
income tax purposes as of such date.
The Depositor and the Certificateholders will express in the related Trust
Agreement their intent that, for applicable tax purposes, the Certificates will
be indebtedness secured by the related Assets. The Depositor and the
Certificateholders, by accepting the Certificates, and each Certificate Owner by
its acquisition of a beneficial interest in a Certificate, have agreed to treat
the Certificates as indebtedness for U.S. federal income tax purposes. However,
because different criteria are used to determine the non-tax accounting
characterization of the transaction, the Depositor may treat this transaction as
a sale of an interest in the related Assets for financial accounting and certain
regulatory purposes.
In general, whether for U.S. federal income tax purposes a transaction
constitutes a sale of property or a loan, the repayment of which is secured by
property, is a question of fact, the resolution of which is based upon the
economic substance of the transaction rather than its form or the manner in
which it is labeled. While the IRS and the courts have set forth several factors
to be take into account in determining whether the substance of a transaction is
a sale of property or a secured loan, the primary factor in making this
determination is whether the transferee has assumed the risk of loss or other
economic burdens relating to the property and has obtained the benefits of
ownership thereof. Tax Counsel will analyze and rely on several factors in
reaching its opinion that the weight of the benefits and burdens of ownership of
the Mortgage Loans will be retained by the Depositor and not transferred to the
Certificate Owners.
In some instances, courts have held that a taxpayer is bound by the
particular form it has chosen for a transaction, even if the substance of the
transaction does not accord with its form. Tax Counsel will advise that the
rationale of those cases will not apply to this transaction, because the form of
the transaction as reflected in the operative provisions of the documents either
accords with the characterization of the Certificates as debt or otherwise makes
the rationale of those cases inapplicable to this situation.
B. Taxation of Interest Income of Certificate Owners
Assuming that the Certificate Owners are holders of debt obligations for
U.S. federal tax purposes, the Certificates generally will be taxable in the
following manner. While it is not anticipated that the Certificates will be
issued at a greater than de minimus discount, under the OID Regulations it is
possible that the Certificates could nevertheless be deemed to have been issued
with OID if the interest were not treated as "unconditionally payable" under the
OID Regulations. If such regulations were to apply, all of the taxable income to
be recognized with respect to the Certificates would be includible in income of
Certificate owners as OID, but would not be includible again when the interest
is actually received.
C. Possible Classification of the Trust Fund as a Partnership or
Association Taxable as a Corporation
Based on application of existing laws to the facts as set forth in the
Trust Agreement and other relevant documents and assuming compliance with the
terms of the Trust Agreement, Tax Counsel will deliver its opinion that the
transaction will not be treated as a partnership or an association taxable as a
corporation. The opinion of Tax Counsel is not binding on the courts or the IRS.
It is possible that the IRS could assert that, for purposes of the Code, the
transaction contemplated by this Prospectus Supplement with respect to the
Certificates constitutes a sale of the Mortgage Loans (or an interest therein)
to the Certificate Owners and that the proper classification of the legal
relationship between the Depositor and the Certificate Owners resulting form
this transaction is that of a partnership
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(including a publicly traded partnership treated as a corporation), or an
association taxable as a corporation. Since Tax Counsel will advise that the
Certificates will be treated as indebtedness in the hands of the
Certificateholders for U.S. federal income tax purposes and that the entity
constituted by the Trust will not be a publicly traded partnership treated as a
corporation or an association taxable as a corporation, the Depositor will not
attempt to comply with U.S. federal income tax reporting requirements applicable
to partnerships or corporations as such requirements would apply if the
Certificates were treated as indebtedness.
If it were determined that this transaction created an entity classified
as a corporation (including a publicly traded partnership taxable as a
corporation), the Trust Fund would be subject to U.S. federal income tax at
corporate income tax rates on the income it derives form the Mortgage Loans,
which would reduce the amounts available for distribution to the Certificate
Owners. Cash distributions to the Certificate Owners generally would be treated
as dividends for tax purposes to the extent of such corporation's earnings and
profits.
If the transaction were treated as creating a partnership between the
Certificate Owners and the Transferor, the partnership itself would not be
subject to U.S. federal income tax (unless it were to be characterized as a
publicly traded partnership taxable as a corporation); rather, the Depositor and
each Certificate Owner would be taxed individually on their respective
distributive shares of the partnership's income, gain, loss, deductions and
credits. The amount and timing of items of income and deductions of the
Certificate Owner could differ if the Certificates were held to constitute
partnership interests rather than indebtedness.
D. Possible Classification as a Taxable Mortgage Pool
In relevant part, Section 7701(i) of the Code provides that any entity (or
portion of an entity) that is a "taxable mortgage pool" will be classified as a
taxable corporation and will not be permitted to file a consolidated U.S.
federal income tax return with another corporation. Any entity (or portion of
any entity) will be a taxable mortgage pool if (i) substantially all of its
assets consist of debt instruments, more than 50% of which are real estate
mortgages, (ii) the entity is the obligor under debt obligations with two or
more maturities, and (iii) under the terms of the entity's debt obligations (or
an underlying arrangement), payments on such debt obligations bear a
relationship to the debt instruments held by the entity.
In the case of a Trust Fund containing Mortgage Assets, assuming that all
of the provisions of the Trust Agreement, as in effect on the date of issuance,
will be complied with, Tax Counsel will deliver its opinion that the arrangement
created by the Agreement will not be a taxable mortgage pool under Section
7701(i) of the Code because only one class of indebtedness secured by the
Mortgage Loans will be issued.
The opinion of Tax Counsel is not binding on the IRS or the courts. If the
IRS were to contend successfully (or future regulations were to provide) that
the arrangement created by the Trust Agreement is a taxable mortgage pool, such
arrangement would be subject to U.S. federal corporate income tax on its taxable
income generated by ownership of the Mortgage Loans. Such a tax might reduce
amounts available for distributions to Certificate Owners. The amount of such a
tax would depend upon whether distributions to Certificate Owners would be
deductible as interest expense in computing the taxable income of such an
arrangement as a taxable mortgage pool.
E. Foreign Investors
In general, subject to certain exception, interest (including OID) paid on
a Certificate to a nonresident alien individual, foreign corporation or other
non-United States person is not subject to U.S. federal income tax, provided
that such interest is not effectively connected with a trade or business of the
recipient in the United sates and the Certificate Owner provides the required
foreign person information certification.
If the interest of the Certificate Owners were deemed to be partnership
interest, the partnership would be required, on a quarterly basis, to pay
withholding tax equal to the product, for each foreign partner, of such foreign
partner's distributive share of "effectively connected" income of the
partnership multiplied by the highest rate of tax applicable to that foreign
partner. In addition, such foreign partner would be subject to branch profits
tax. Each non-foreign partner would be required to certify to the partnership
that it is not a foreign person. The tax withheld from each foreign partner
would be credited against such foreign partner's U.S. income tax liability.
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If the Trust were taxable as a corporation, distributions to foreign
persons, to the extent treated as dividends, would generally be subject to
withholding at the rate of 30%, unless such rate were reduced by an applicable
tax treaty.
F. Backup Withholding
Certain Certificate owners may be subject to backup withholding at the
rate of 31% with respect to interest paid on the Certificates if the Certificate
Owners, upon issuance of the Certificates, fail to supply the Trustee or the
Certificate Owners' brokers with their respective taxpayer identification
numbers, furnish an incorrect taxpayer identification number, fail to report
interest, dividends, or other "reportable payments" (as defined in the Code)
properly, or, under certain circumstances, fail to provide the Trustee of the
Certificate Owners' brokers with certified statements, under penalty of perjury,
that they are not subject to backup withholding.
The Trustee will be required to report annually to the IRS, and to each
Certificateholder of record, the amount of interest paid (and OID accrued, if
any) on the Certificates (and the amount of interest withheld for U.S. federal
income taxes, if any) for each calendar year, except as to exempt holders
(generally, holders that are corporations, certain tax-exempt organizations or
nonresident aliens who provide certification as to their status as
nonresidents). As long as the only "Certificateholder" of record is Cede, as
nominee for DTC, Certificate Owners and the IRS will receive tax and other
information including the amount of interest paid on the Certificates owned from
Participants and Indirect Participants rather than from the Trustee. (The
Trustee, however, will respond to requests for necessary information to enable
Participants, Indirect Participants and certain other persons to complete their
reports.) Each non-exempt Certificate Owner will be required to provide, under
penalty of perjury, a certificate on IRS Form W-9 containing his or her name,
address, correct federal taxpayer identification number and a statement that he
or she is not to subject to backup withholding. Should a non-exempt Certificate
Owner fail to provide the required certification, the Participants or Indirect
Participants (or the Paying Agent) will be required to withhold 31% of the
interest (and principal) otherwise payable to the holder, and remit the withheld
amount to the IRS as a credit against the holder's federal income tax liability.
G. New Withholding Regulations
On October 6, 1997, the Treasury Department issued new regulations (the
"New Regulations") which make certain modifications to the withholding, backup
withholding and information reporting rules described above. The New Regulations
attempt to unify certification requirements and modify reliance standards. The
New regulations will generally be effective for payments made after December 31,
1999, subject to certain transition rules. Prospective investors are urged to
consult their own tax advisors regarding the New Regulations.
FASIT Securities
General. The FASIT provisions of the Code were enacted by the Small
Business Job Protection Act of 1996 and create a new elective statutory vehicle
for the issuance of mortgage-backed and asset-backed securities. Although the
FASIT provisions of the Code became effective on September 1, 1997, no Treasury
regulations or other administrative guidance has been issued with respect to
those provisions. Accordingly, definitive guidance cannot be provided with
respect to many aspects of the tax treatment of FASIT Securityholders. Investors
also should note that the FASIT discussions contained herein constitutes only a
summary of the federal income tax consequences to holders of FASIT Securities.
With respect to each Series of FASIT Securities, the related Prospectus
Supplement will provide a detailed discussion regarding the federal income tax
consequences associated with the particular transaction.
FASIT Securities will be classified as either FASIT Regular Securities,
which generally will be treated as debt for federal income tax purposes, or
FASIT Ownership Securities, which generally are not treated as debt for such
purposes, but rather as representing rights and responsibilities with respect to
the taxable income or loss of the related Series. The Prospectus Supplement for
each Series of Securities will indicate whether one or more FASIT elections will
be made for that Series and which Securities of such Series will be designated
as Regular Securities, and which, if any, will be designated as Ownership
Securities.
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Qualification as a FASIT. The Trust Fund underlying a Series (or one or
more designated pools of assets held in the Trust Fund) will qualify under the
Code as a FASIT in which the FASIT Regular Securities and the FASIT Ownership
Securities will constitute the "regular interests" and the "ownership
interests," respectively, if (i) a FASIT election is in effect, (ii) certain
tests concerning (A) the composition of the FASIT's assets and (B) the nature of
the Securityholders' interest in the FASIT are met on a continuing basis, and
(iii) the Trust Fund is not a regulated investment company as defined in Section
851(a) of the Code.
Asset Composition. In order for a Trust Fund (or one or more designated
pools of assets held by a Trust Fund) to be eligible for FASIT status,
substantially all of the assets of the Trust Fund (or the designated pool) must
consist of "permitted assets" as of the close of the third month beginning after
the closing date and at all times thereafter (the "FASIT Qualification Test").
Permitted assets include:
(i) cash or cash equivalents,
(ii) debt instruments with fixed terms that would qualify as REMIC regular
interests if issued by a REMIC (generally, instruments that provide
for interest at a fixed rate, a qualifying variable rate, or a
qualifying interest-only ("IO") type rate,
(iii) foreclosure property,
(iv) certain hedging instruments (generally, interest and currency rate
swaps and credit enhancement contracts) that are reasonably required
to guarantee or hedge against the FASIT's risks associated with being
the obligor on FASIT interests,
(v) contract rights to acquire qualifying debt instruments or qualifying
hedging instruments,
(vi) FASIT regular interests, and
(vii) REMIC regular interests. Permitted assets do not include any debt
instruments issued by the holder of the FASIT's ownership interest or
by any person related to such holder.
Interests in a FASIT. In addition to the foregoing asset qualification
requirements, the interests in a FASIT also must meet certain requirements. All
of the interests in a FASIT must belong to either of the following: (i) one or
more classes of regular interests or (ii) a single class of ownership interest
that is held by a fully taxable domestic corporation. In the case of Series that
include FASIT Ownership Securities, the ownership interest will be represented
by the FASIT Ownership Securities.
A FASIT interest generally qualifies as a regular interest if:
(i) it is designated as a regular interest,
(ii) it has a stated maturity no greater than thirty years,
(iii) it entitles its holder to a specified principal amount,
(iv) the issue price of the interest does not exceed 125% of its stated
principal amount,
(v) the yield to maturity of the interest is less than the applicable
Treasury rate published by the IRS plus 5%, and
(vi) if it pays interest, such interest is payable at either
(a) a fixed rate with respect to the principal amount of the
regular interest or
(b) a permissible variable rate with respect to such principal
amount.
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Permissible variable rates for FASIT regular interests are the same as those for
REMIC regular interest (i.e., certain qualified floating rates and weighted
average rates). See "Material Federal Income Tax Consequences--REMICs--Taxation
of Owners of REMIC Regular Certificates --Variable Rate REMIC Regulation
Certificate.
If a FASIT Security fails to meet one or more of the requirements set out
in clauses (iii), (iv) or (v) above, but otherwise meets the above requirements,
it may still qualify as a type of regular interest known as a "High-Yield
Interest." In addition, if a FASIT Security fails to meet the requirements of
clause (vi), but the interest payable on the Security consists of a specified
portion of the interest payments on permitted assets and that portion does not
vary over the life of the Security, the Security also will qualify as a
High-Yield Interest. A High-Yield Interest may be held only by domestic
corporations that are fully subject to corporate income tax ("Eligible
Corporations"), other FASITs and dealers in securities who acquire such
interests as inventory, rather than for investment. In addition, holders of
High-Yield Interests are subject to limitations on offset of income derived from
such interest. See "Material Federal Income Tax Consequences--FASIT
Securities--Tax Treatment of FASIT Regular Securities --Treatment of High-Yield
Interests."
Consequences of Disqualification. If a Series of FASIT Securities fails to
comply with one or more of the Code's ongoing requirements for FASIT status
during any taxable year, the Code provides that its FASIT status may be lost for
that year and thereafter. If FASIT status is lost, the treatment of the former
FASIT and the interests therein for federal income tax purposes is uncertain.
The former FASIT might be treated as a grantor trust, as a separate association
taxed as a corporation, or as a partnership. The FASIT Regular Securities could
be treated as debt instruments for federal income tax purposes or as equity
interests. Although the Code authorizes the Treasury to issue regulations that
address situations where a failure to meet the requirements for FASIT status
occurs inadvertently and in good faith, such regulations have not yet been
issued. It is possible that disqualification relief might be accompanied by
sanctions, such as the imposition of a corporate tax on all or a portion of the
FASIT's income for a period of time in which the requirements for FASIT status
are not satisfied.
Tax Treatment of FASIT Regular Securities. Payments received by holders of
FASIT Regular Securities generally should be accorded the same tax treatment
under the Code as payments received on other taxable corporate debt instruments
and on REMIC Regular Securities. As in the case of holders of REMIC Regular
Securities, holders of FASIT Regular Securities must report income from such
Securities under an accrual method of accounting, even if they otherwise would
have used the case receipts and disbursements method. Except in the case of
FASIT Regular Securities issued with original issue discount or acquired with
market discount or premium, interest paid or accrued on a FASIT Regular Security
generally will be treated as ordinary income to the Securityholder and a
principal payment on such Security will be treated as a return of capital to the
extent that the Securityholder's basis is allocable to that payment. FASIT
Regular Securities issued with original issue discount or acquired with market
discount or premium generally will treat interest and principal payments on such
Securities in the same manner described for REMIC Regular Securities. See
"Material Federal Income Tax Consequences--REMICs--Taxation of Owners of REMIC
Regular Certificates" "--Original Issue Discount and Premium" and "--Market
Discount" and "--Premium" above. High-Yield Securities may be held only by fully
taxable domestic corporations, other FASITs, and certain securities dealers.
Holders of High-Yield Securities are subject to limitations on their ability to
use current losses or net operating loss carryforwards or carrybacks to offset
any income derived from those Securities.
If a FASIT Regular Security is sold or exchanged, the Securityholder
generally will recognize gain or loss upon the sale in the manner described
above for REMIC Regular Securities. See "Material Federal Income Tax
Consequences--REMICs--Taxation of Owners of REMIC Regular Certificates--Sale,
Exchange or Redemption." In addition, if a FASIT Regular Security becomes wholly
or partially worthless as a result of Default and Delinquencies of the
underlying Assets, the holder of such Security should be allowed to deduct the
loss sustained (or alternatively be able to report a lesser amount of income).
See "Material Federal Income Tax Consequences --REMICs--Taxation of Owners of
REMIC Regular Certificates", "--Effects of Default and Delinquencies" and
"--Treatment of Realized Losses."
FASIT Regular Securities held by a REIT will qualify as "real estate
assets" within the meaning of section 856(c)(4)(A) of the Code, and interest on
such Securities will be considered Qualifying REIT Interest to the same extent
that REMIC Securities would be so considered. FASIT Regular Securities held by a
Thrift Institution
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taxed as a "domestic building and loan association" will represent qualifying
assets for purposes of the qualification requirements set forth in Code Section
7701(a)(19) to the same extent that REMIC Securities would be so considered. See
"Material Federal Income Tax Consequences--REMICs." In addition, FASIT Regular
Securities held by a financial institution to which Section 585 of the Code
applies will be treated as evidences of indebtedness for purposes of Section
582(c)(1) of the Code. FASIT Securities will not qualify as "Government
Securities" for either REIT or RIC qualification purposes.
Treatment of High-Yield Interests. High-Yield Interests are subject to
special rules regarding the eligibility of holders of such interests, and the
ability of such holders to offset income derived from their FASIT Security with
losses. High-Yield Interests may be held only by Eligible Corporations other
FASITs, and dealers in securities who acquire such interests as inventory. If a
securities dealer (other than an Eligible Corporation) initially acquires a
High-Yield Interest as inventory, but later begins to hold it for investment,
the dealer will be subject to an excise tax equal to the income from the
High-Yield Interest multiplied by the highest corporate income tax rate. In
addition, transfers of High-Yield Interests to disqualified holders will be
disregarded for federal income tax purposes, and the transferor still will be
treated as the holder of the High-Yield Interest.
The holder of a High-Yield Interest may not use non-FASIT current losses
or net operating loss carryforwards or carrybacks to offset any income derived
from the High-Yield Interest, for either regular Federal income tax purposes or
for alternative minimum tax purposes. In addition, the FASIT provisions contain
an anti-abuse rule that imposes corporate income tax on income derived from a
FASIT Regular Security that is held by a pass-through entity (other than another
FASIT) that issues debt or equity securities backed by the FASIT Regular
Security and that have the same features as High-Yield Interests.
Tax Treatment of FASIT Ownership Securities. A FASIT Ownership Security
represents the residual equity interest in a FASIT. As such, the holder of a
FASIT Ownership Security determines its taxable income by taking into account
all assets, liabilities and items of income, gain, deduction, loss and credit of
a FASIT. In general, the character of the income to the holder of a FASIT
Ownership Interest will be the same as the character of such income of the
FASIT, except that any tax-exempt interest income taken into account by the
holder of a FASIT Ownership Interest is treated as ordinary income. In
determining that taxable income, the holder of a FASIT Ownership Security must
determine the amount of interest, original issue discount, market discount and
premium recognized with respect to the FASIT's assets and the FASIT Regular
Securities issued by the FASIT according to a constant yield methodology and
under an accrual method of accounting. In addition, holders of FASIT Ownership
Securities are subject to the same limitations on their ability to use losses to
offset income from their FASIT Security as are the holders of High-Yield
Interests. See "Material Federal Income Tax Consequences--Treatment of
High-Yield Interests."
Rules similar to the wash sale rules applicable to REMIC Residual
Securities also will apply to FASIT Ownership Securities. Accordingly, losses on
dispositions of a FASIT Ownership Security generally will be disallowed where,
within six months before or after the disposition, the seller of such Security
acquires any other FASIT Ownership Security or, in the case of a FASIT holding
mortgage assets, any interest in a Taxable Mortgage Pool that is economically
comparable to a FASIT Ownership Security. In addition, if any security that is
sold or contributed to a FASIT by the holder of the related FASIT Ownership
Security was required to be marked-to-market under Code section 475 by such
holder, then section 475 will continue to apply to such securities, except that
the amount realized under the mark-to-market rules will be a greater of the
securities' value under present law or the securities' value after applying
special valuation rules contained in the FASIT provisions. Those special
valuation rules generally require that the value of debt instruments that are
not traded on an established securities market be determined by calculating the
present value of the reasonably expected payments under the instrument using a
discount rate of 120% of the applicable Federal rate, compounded semiannually.
The holder of a FASIT Ownership Security will be subject to a tax equal to
100% of the net income derived by the FASIT from any "prohibited transactions."
Prohibited transactions include (i) the receipt of income derived from assets
that are not permitted assets, (ii) certain dispositions of permitted assets,
(iii) the receipt of any income derived from any loan originated by a FASIT, and
(iv) in certain cases, the receipt of income representing a servicing fee or
other compensation. Any Series for which a FASIT election is made generally will
be structured in order to avoid application of the prohibited transaction tax.
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Backup Withholding, Reporting and Tax Administration. Holders of FASIT
Securities will be subject to backup withholding to the same extent holders of
REMIC Securities would be subject. See "Material Federal Income Tax
Consequences--REMICs--Taxation of Owners of REMIC Regular
Certificates--Information Reporting and Backup Withholding." For purposes of
reporting and tax administration, holders of record of FASIT Securities
generally will be treated in the same manner as holders of REMIC Securities.
DUE TO THE COMPLEXITY OF THE FEDERAL INCOME TAX RULES APPLICABLE TO
SECURITYHOLDERS AND THE CONSIDERABLE UNCERTAINTY THAT EXISTS WITH RESPECT TO
MANY ASPECTS OF THOSE RULES, POTENTIAL INVESTORS SHOULD CONSULT THEIR OWN TAX
ADVISORS REGARDING THE TAX TREATMENT OF THE ACQUISITION, OWNERSHIP, AND
DISPOSITION OF THE SECURITIES.
STATE TAX CONSIDERATIONS
In addition to the federal income tax consequences described in "Material
Federal Income Tax Considerations," potential investors should consider the
state and local income tax consequences of the acquisition, ownership, and
disposition of the Offered Securities. State and local income tax law may differ
substantially from the corresponding federal law, and this discussion does not
purport to describe any aspect of the income tax laws of any state or locality.
Therefore, potential investors should consult their own tax advisors with
respect to the various state and local tax consequences of an investment in the
Offered Securities.
ERISA CONSIDERATIONS
General
The Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
and Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"),
impose certain restrictions on employee benefit plans, individual retirement
accounts and annuities, Keogh plans and collective investment funds and separate
accounts in which those plans, accounts or arrangements are invested
(collectively, "Plans"), and on persons who are parties in interest or
disqualified persons ("parties in interest") with respect to such Plans. Certain
employee benefit plans, such as governmental plans and church plans (if no
election has been made under Section 410(d) of the Code), are not subject to the
restrictions of ERISA and Section 4975 of the Code, and assets of such plans may
be invested in the Securities without regard to the considerations described
below, subject to other applicable federal and state law. However, any such
governmental or church plan which is qualified under Section 401(a) of the Code
and exempt from taxation under Section 501(a) of the Code is subject to the
prohibited transaction rules set forth in Section 503 of the Code.
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.
Prohibited Transactions
General
Section 406 of ERISA prohibits parties in interest with respect to a Plan
from engaging in certain transactions involving a Plan and its assets unless a
statutory, regulatory or administrative exemption applies to the transaction.
Section 4975 of the Code imposes certain excise taxes (or, in some cases, a
civil penalty may be assessed pursuant to Section 502(i) of ERISA) on parties in
interest which engage in non-exempt prohibited transactions.
The United States Department of Labor ("Labor") has issued a final
regulation (29 C.F.R. Section 2510.3-101) containing rules for determining what
constitutes the assets of a Plan. This regulation provides that, as a general
rule, the underlying assets and properties of corporations, partnerships, trusts
and certain other
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entities in which a Plan makes an "equity investment" will be deemed for
purposes of ERISA to be assets of the Plan unless certain exceptions apply.
Under the terms of the regulation, the Trust Fund may be deemed to hold
plan assets by reason of a Plan's investment in a Security; such plan assets
would include an undivided interest in the Mortgage Assets and any other assets
held by the Trust Fund. In such an event, the Asset Seller, the Master Servicer,
the Trustee, any insurer of the Assets and other persons, in providing services
with respect to the assets of the Trust Fund, may be parties in interest,
subject to the fiduciary responsibility provisions of Title I of ERISA,
including the prohibited transaction provisions of Section 406 of ERISA (and of
Section 4975 of the Code), with respect to transactions involving such assets
unless such transactions are subject to a statutory, regulatory or
administrative exemption.
The regulations contain a de minimis safe-harbor rule that exempts any
entity from plan assets status as long as the aggregate equity investment in
such entity by plans is not significant. For this purpose, equity participation
in the entity will be significant if immediately after any acquisition of any
equity interest in the entity, "benefit plan investors" in the aggregate, own at
least 25% of the value of any class of equity interest. "Benefit plan investors"
are defined as Plans as well as employee benefit plans not subject to ERISA
(e.g., governmental plans). The 25% limitation must be met with respect to each
class of certificates, regardless of the portion of total equity value
represented by such class, on an ongoing basis.
An exception applies if the interest described is treated as indebtedness
under applicable local law and has no substantial equity features. Generally, a
profits interest in a partnership, an undivided ownership interest in property
and a beneficial ownership interest in a trust are deemed to be "equity
interest" under the final regulation. If Notes of a particular Series were
deemed to be indebtedness under applicable local law without any substantial
equity features, an investing Plan's assets would include such Notes, but not,
by reason of such purchase, the underlying assets of the Trust Fund.
Availability of Underwriter's Exemption for Certificates
Labor has granted to Merrill Lynch, Pierce, Fenner & Smith Incorporated
Prohibited Transaction Exemption 90-29, Exemption Application No. D-8012, 55
Fed. Reg. 21459 (1990) (the "Exemption") which exempts from the application of
the prohibited transaction rules transactions relating to: (1) the acquisition,
sale and holding by Plans of certain certificates representing an undivided
interest in certain asset-backed pass-through trusts, with respect to which
Merrill Lynch, Pierce, Fenner & Smith Incorporated or any of its affiliates is
the sole underwriter or the manager or co-manager of the underwriting syndicate;
and (2) the servicing, operation and management of such asset-backed
pass-through trusts, provided that the general conditions and certain other
conditions set forth in the Exemption are satisfied. With respect to a series of
Notes, the related Prospectus Supplement will discuss whether the Exemption may
be applicable to such Notes.
General Conditions of the Exemption. Section II of the Exemption sets
forth the following general conditions which must be satisfied before a
transaction involving the acquisition, sale and holding of the Certificates or a
transaction in connection with the servicing, operation and management of the
Trust may be eligible for exemptive relief thereunder:
(1) The acquisition of the Certificates by a Plan is on terms
(including the price for such Certificates) that are at least as favorable
to the investing Plan as they would be in an arm's-length transaction with
an unrelated party;
(2) The rights and interests evidenced by the Certificates acquired
by the Plan are not subordinated to the rights and interests evidenced by
other certificates of the Trust;
(3) The Certificates acquired by the Plan have received a rating
at the time of such acquisition that is in one of the three highest
generic rating categories from any of Duff & Phelps Credit Rating Co.,
Fitch IBCA, Inc., Moody's Investors Service, Inc. and Standard & Poor's
Ratings Services, a division of The McGraw-Hill Companies, Inc.
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(4) The Trustee is not an affiliate of the Underwriter, the Asset
Seller, the Master Servicer, any insurer of the Mortgage Assets, any
borrower whose obligations under one or more Assets constitute more than
5% of the aggregate unamortized principal balance of the assets in the
Trust Fund, or any of their respective affiliates (including the Trustee,
the "Restricted Group");
(5) The sum of all payments made to and retained by the Underwriter
in connection with the distribution of the Certificates represents not
more than reasonable compensation for underwriting such Certificates; the
sum of all payments made to and retained by the Asset Seller pursuant to
the sale of the Assets to the Trust Fund represents not more than the fair
market value of such Assets; the sum of all payments made to and retained
by the Master Servicer represent not more than reasonable compensation for
the Master Servicer's services under the Agreement and reimbursement of
the Master Servicer's reasonable expenses in connection therewith; and
(6) The Plan investing in the Certificates is an "accredited
investor" as defined in Rule 501(a)(1) of Regulation D of the Securities
and Exchange Commission under the Securities Act of 1933 as amended.
Before purchasing a Certificate, a fiduciary of a Plan should itself
confirm (a) that the Certificates constitute "certificates" for purposes of the
Exemption and (b) that the specific and general conditions set forth in the
Exemption and the other requirements set forth in the Exemption would be
satisfied.
Review by Plan Fiduciaries
Any Plan fiduciary considering whether to purchase any Securities 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. Among other things, before purchasing any
Securities, a fiduciary of a Plan subject to the fiduciary responsibility
provisions of ERISA or an employee benefit plan subject to the prohibited
transaction provisions of the Code should make its own determination as to the
availability of the exemptive relief provided in the Exemption, and also
consider the availability of any other prohibited transaction exemptions. In
particular, in connection with a contemplated purchase of Securities
representing a beneficial ownership interest in a pool of single family
residential first mortgage loans, such Plan fiduciary should consider the
availability of the Exemption or Prohibited Transaction Class Exemption 83-1
("PTCE 83-1") 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.
PTCE 83-1 is not applicable to manufactured housing contract pool investment
trusts or multifamily mortgage pool investment trusts.
Purchasers that are insurance companies should consult with their counsel
with respect to the United States Supreme Court case interpreting the fiduciary
responsibility rules of ERISA, John Hancock Mutual Life Insurance Co. v. Harris
Trust & Savings Bank (decided December 13, 1993). In John Hancock, the Supreme
Court ruled that assets held in an insurance company's general account may be
deemed to be "plan assets" for ERISA purposes under certain circumstances.
Prospective purchasers should determine whether the decision affects their
ability to make purchases of the Securities. In particular, such an insurance
company should consider the exemptive relief granted by Labor for transactions
involving insurance company general accounts in Prohibited Transactions
Exemption 95-60, 60 Fed. Reg. 35925 (July 12, 1995).
LEGAL INVESTMENT
Each class of Offered Securities will be rated at the date of issuance in
one of the four highest rating categories by at least one Rating Agency. The
related Prospectus Supplement will specify which classes of the Securities, if
any, will constitute "mortgage related securities" ("SMMEA Securities") for
purposes of the Secondary Mortgage Market Enhancement Act of 1984 ("SMMEA").
SMMEA Securities will constitute legal investments for persons, trusts,
corporations, partnerships, associations, business trusts and business entities
(including, but not limited to, state chartered savings banks, commercial banks,
savings and loan associations and insurance companies, as well as trustees and
state government employee retirement systems) created pursuant to or existing
under the laws of the United States or of any state (including the District of
Columbia and Puerto Rico) whose authorized
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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. Alaska, Arkansas, Colorado, Connecticut,
Delaware, Florida, Georgia, Illinois, Kansas, Maryland, Michigan, Missouri,
Nebraska, New Hampshire, New York, North Carolina, Ohio, South Dakota, Utah,
Virginia and West Virginia enacted legislation before the October 4, 1991 cutoff
established by SMMEA for such enactments, limiting to varying extents the
ability of certain entities (in particular, insurance companies) to invest in
mortgage related securities, in most cases by requiring the affected investors
to rely solely upon existing state law, and not SMMEA. Investors affected by
such legislation will be authorized to invest in SMMEA Certificates only to the
extent provided in such legislation. SMMEA provides, however, that in no event
will the enactment of any such legislation affect the validity of any
contractual commitment to purchase, hold or invest in "mortgage related
securities," or require the sale or other disposition of such securities, so
long as such contractual commitment was made or such securities acquired prior
to the enactment of such legislation.
SMMEA also amended the legal investment authority of federally chartered
depository institutions as follows: federal savings and loan associations and
federal savings banks may invest in, sell or otherwise deal with "mortgage
related securities" without limitation as to the percentage of their assets
represented thereby, federal credit unions may invest in such securities, and
national banks may purchase such securities for their own account without regard
to the limitations generally applicable to investment securities set forth in 12
U.S.C. 24 (Seventh), subject in each case to such regulations as the applicable
federal regulatory authority may prescribe. In this connection, federal credit
unions should review the National Credit Union Administration ("NCUA") Letter to
Credit Unions No. 96, as modified by Letter to Credit Unions No. 108, which
includes guidelines to assist federal credit unions in making investment
decisions for mortgage related securities, and the NCUA's regulation "Investment
and Deposit Activities" (12 C.F.R. Part 703), which sets forth certain
restrictions on investment by federal credit unions in mortgage related
securities.
Institutions whose investment activities are subject to legal investment
laws or regulations or review by certain regulatory authorities may be subject
to restrictions on investment in certain classes of Offered Securities. Any
financial institution which is subject to the jurisdiction of the Comptroller of
the Currency, the Board of Governors of the Federal Reserve System, the Federal
Deposit Insurance Corporation ("FDIC"), the Office of Thrift Supervision
("OTS"), the NCUA or other federal or state agencies with similar authority
should review any applicable rules, guidelines and regulations prior to
purchasing any Offered Security. The Federal Financial Institutions Examination
Council, for example, has issued a Supervisory Policy Statement on Securities
Activities effective February 10, 1992 (the "Policy Statement") setting forth
guidelines for and significant restrictions on investments in "high-risk
mortgage securities." The Policy Statement has been adopted by the Comptroller
of the Currency, the Federal Reserve Board, the FDIC, the OTS and the NCUA (with
certain modifications), with respect to the depository institutions that they
regulate. The Policy Statement generally indicates that a mortgage derivative
product will be deemed to be high risk if it exhibits greater price volatility
than a standard fixed rate thirty-year mortgage security. According to the
Policy Statement, prior to purchase, a depository institution will be required
to determine whether a mortgage derivative product that it is considering
acquiring is high-risk, and if so that the proposed acquisition would reduce the
institution's overall interest rate risk. Reliance on analysis and documentation
obtained from a securities dealer or other outside party without internal
analysis by the institution would be unacceptable. There can be no assurance
that any classes of Offered Securities will not be treated as high-risk under
the Policy Statement.
The predecessor to the OTS issued a bulletin, entitled, "Mortgage
Derivative Products and Mortgage Swaps", which is applicable to thrift
institutions regulated by the OTS. The bulletin established guidelines for the
investment by savings institutions in certain "high-risk" mortgage derivative
securities and limitations on the use of such securities by insolvent,
undercapitalized or otherwise "troubled" institutions. According to the
bulletin, such "high-risk" mortgage derivative securities include securities
having certain specified characteristics, which may include certain classes of
Securities. In accordance with Section 402 of the Financial Institutions Reform,
Recovery and Enhancement Act of 1989, the foregoing bulletin will remain in
effect unless and until modified, terminated, set aside or superseded by the
FDIC. Similar policy statements have been issued by regulators having
jurisdiction over the types of depository institutions.
In September 1993 the National Association of Insurance Commissioners
released a draft model investment law (the "Model Law") which sets forth model
investment guidelines for the insurance industry. Institutions subject
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to insurance regulatory authorities may be subject to restrictions on investment
similar to those set forth in the Model Law and other restrictions.
If specified in the related Prospectus Supplement, other classes of
Offered Securities offered pursuant to this Prospectus will not constitute
"mortgage related securities" under SMMEA. The appropriate characterization of
this Offered Security under various legal investment restrictions, and thus the
ability of investors subject to these restrictions to purchase such Offered
Securities, may be subject to significant interpretive uncertainties.
The Depositor will make no representations as to the proper
characterization of the Offered Certificates for legal investment or financial
institution regulatory purposes, or as to the ability of particular investors to
purchase any Offered Certificates 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.
The foregoing does not take into consideration the applicability of
statutes, rules, regulations, orders, guidelines or agreements generally
governing investments made by a particular investor, including, but not limited
to, "prudent investor" provisions, percentage-of-assets limits and provisions
which may restrict or prohibit investment in securities which are not "interest
bearing" or "income paying."
There may be other restrictions on the ability of certain investors,
including depository institutions, either to purchase Offered Securities or to
purchase Offered Securities representing more than a specified percentage of the
investor's assets. 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 Offered Securities
of any class constitute legal investments or are subject to investment, capital
or other restrictions.
PLAN OF DISTRIBUTION
The Offered 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 Offered Securities will be
distributed in a firm commitment underwriting, subject to the terms and
conditions of the underwriting agreement, by Merrill Lynch, Pierce, Fenner &
Smith Incorporated ("Merrill Lynch") acting as underwriter with other
underwriters, if any, named therein. Merrill Lynch is an affiliate of the
Depositor. In such event, the Prospectus Supplement may also specify that the
underwriters will not be obligated to pay for any Offered Securities agreed to
be purchased by purchasers pursuant to purchase agreements acceptable to the
Depositor. In connection with the sale of Offered Certificates, underwriters may
receive compensation from the Depositor or from purchasers of Offered 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 Offered
Securities will be distributed by Merrill Lynch and/or any other person or
persons named therein acting as agent or in some cases as principal with respect
to Offered Securities that it has previously purchased or agreed to purchase. If
Merrill Lynch or such persons act as agents in the sale of Offered Securities,
they will receive a selling commission with respect to such Offered Securities,
depending on market conditions, expressed as a percentage of the aggregate
principal balance or notional amount of such Offered Securities 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 Merrill Lynch
or such persons elect to purchase Offered Securities as principal, they may
realize losses or profits based upon the difference between its purchase price
and the sales price. The Prospectus Supplement with respect to any series
offered other than through underwriters will contain information regarding the
nature of such offering and any agreements to be entered into between the
Depositor and purchasers of Offered Securities of such series.
This Prospectus may be used, to the extent required, by Merrill Lynch or
any other Underwriter in connection with offers and sales related to market
making transactions.
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The Depositor will indemnify Merrill Lynch and any underwriters against
certain civil liabilities, including liabilities under the Securities Act of
1933, or will contribute to payments Merrill Lynch and any underwriters may be
required to make in respect thereof.
In the ordinary course of business, Merrill Lynch and its affiliates may
engage in various securities and financing transactions, including repurchase
agreements to provide interim financing of the Depositor's or Asset Seller's
Assets pending the sale of such Assets or interests therein, including the
Securities.
As to each series of Securities, only those classes rated in an investment
grade rating category by any Rating Agency will be offered hereby. Any
non-investment-grade class may be initially retained by the Depositor or Asset
Seller, and may be sold by the Depositor or Asset Seller at any time.
Upon receipt of a request by an investor who has received an electronic
Prospectus Supplement and Prospectus from the Underwriter or a request by such
investor's representative within the period during which there is an obligation
to deliver a Prospectus Supplement and Prospectus, the Depositor or the
Underwriter will promptly deliver, or cause to be delivered, without charge, a
paper copy of the Prospectus Supplement and Prospectus.
LEGAL MATTERS
Certain legal matters in connection with the Securities, including certain
federal income tax consequences, will be passed upon for the Depositor by Brown
& Wood LLP, New York, New York. Certain matters with respect to Delaware law
will be passed upon for the Depositor by Richards, Layton & Finger, P.A.,
Wilmington, Delaware.
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.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
This Prospectus incorporates by reference all documents and reports filed
on behalf of the Depositor with respect to a Trust Fund pursuant to Section
13(a), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, prior to
the termination of the offering the related Securities. Upon request by any
person to whom this prospectus is delivered in connection with the offering of
one or more Classes of Offered Securities, the Depositor will provide or cause
to be provided without charge a copy of any of the documents and/or reports
incorporated herein by reference, in each case to the extent the documents or
reports relate to such Classes of Offered Securities, other than the exhibits to
such documents (unless those exhibits are specifically incorporated by reference
in such documents). Requests to the Depositor should be directed in writing to:
Merrill Lynch Mortgage Investors, Inc., 250 Vesey Street, World Financial
Center-North Tower, 10th Floor, New York, New York 10281-1310, Attention:
Secretary, telephone number (212) 449-0357. The Depositor has determined that
its financial statements are not material to the offering of any Offered
Securities.
Investors may read and copy the documents and/or reports incorporated
herein by reference at the Public Reference Room of the Securities and Exchange
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. Investors may
obtain information on the operation of the Public Reference Room by calling the
SEC at 1-800-SEC-0330. In addition, the SEC maintains a website at
http://www.sec.gov containing reports, proxy and information statements and
other information regarding issuers, including each Trust Fund, that file
electronically with the SEC.
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 a Rating Agency.
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Ratings on asset backed securities address the likelihood of receipt by
securityholders of all distributions on the underlying assets. These ratings
address the structural, legal and issuer-related aspects associated with such
certificates, the nature of the underlying assets and the credit quality of the
guarantor, if any. Ratings on asset backed securities do not represent any
assessment of the likelihood of principal prepayments by borrowers or of the
degree by which such prepayments might differ from those originally anticipated.
As a result, securityholders might suffer a lower than anticipated yield, and,
in addition, holders of stripped interest certificates in extreme cases might
fail to recoup their initial investments.
A security rating is not a recommendation to buy, sell or hold securities
and may be subject to revision or withdrawal at any time by the assigning rating
organization. Each security rating should be evaluated independently of any
other security rating.
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INDEX OF DEFINED TERMS
1986 Act................................................................64, 68
Accrual Securities..........................................................19
Accrued Security Interest...................................................21
adjusted issue price........................................................79
Agreement...................................................................29
Amortizable Bond Premium Regulations....................................61, 73
an accrual period...........................................................70
Applicable Amount...........................................................78
ARM Loans...............................................................11, 64
Asset Seller.................................................................9
Assets.......................................................................9
balloon loans................................................................7
Book-Entry Securities.......................................................19
Buydown Mortgage Loans......................................................17
Buydown Period..............................................................17
Cash Flow Agreement.........................................................14
Cede........................................................................26
CEDEL.......................................................................26
CEDEL Participants..........................................................26
Closing Date................................................................69
Code....................................................................59, 95
Collection Account..........................................................32
Cooperative.............................................................27, 51
Cooperative Loans...........................................................51
Cooperatives.................................................................9
covered trust................................................................6
Covered Trust...............................................................47
CPR.........................................................................16
Credit Support..............................................................14
Crime Control Act...........................................................59
Deferred Interest...........................................................66
Definitive Securities...................................................19, 28
Depositaries................................................................27
Depositor....................................................................9
Determination Date..........................................................20
disqualified organization...................................................81
DTC.........................................................................26
Due Period..................................................................20
Eligible Corporations.......................................................93
ERISA.......................................................................95
Euroclear...................................................................27
Euroclear Operator..........................................................27
Euroclear Participants......................................................27
excess servicing............................................................63
Exemption...................................................................96
FDIC....................................................................32, 98
FHLMC.......................................................................40
foreign person..............................................................84
Government Securities........................................................9
Home Equity Loans...........................................................11
Home Improvement Contracts..................................................11
Indenture...............................................................19, 29
Indenture Trustee...........................................................29
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PAGE(S) ON WHICH
TERM IS DEFINED
TERMS IN THE PROSPECTUS
- ----- -----------------
Indirect Participants.......................................................26
Insurance Proceeds..........................................................33
IO..........................................................................92
L/C Bank....................................................................48
Labor.......................................................................95
Legislative History.........................................................65
Loan-to-Value Ratio.........................................................10
Master REMIC................................................................68
MBS..........................................................................9
MBS Agreement...............................................................12
MBS Issuer..................................................................12
MBS Servicer................................................................12
MBS Trustee.................................................................12
Merrill Lynch...............................................................99
Model Law...................................................................98
Mortgage Assets..............................................................9
Mortgage Loan Group.........................................................19
Mortgage Loans...............................................................9
Mortgage Notes..............................................................10
Mortgage Rate...............................................................11
Mortgages...................................................................10
NCUA........................................................................98
new partnership.............................................................86
New Regulations.................................................67, 76, 88, 91
Nonrecoverable Advance......................................................23
OID.........................................................................61
OID Regulations.............................................................61
old partnership.............................................................86
Originator..................................................................10
OTS.........................................................................98
Participants............................................................26, 28
parties in interest.........................................................95
pass-through entity.........................................................82
Pass-Through Rate...........................................................21
Payment Lag Certificates....................................................74
Permitted Investments.......................................................32
phantom income..............................................................76
Plans.......................................................................95
Policy Statement............................................................98
Pooling and Servicing Agreement.............................................28
Pre-Funded Amount...........................................................13
pre-issuance accrued interest...............................................75
Prepayment Assumption.......................................................65
Prohibited Transactions Tax.................................................80
PTCE 83-1...................................................................97
Record Date.................................................................20
Refinance Loans.............................................................10
Related Proceeds............................................................23
Relief Act..................................................................58
REMIC Certificates..........................................................67
REMIC Regular Certificateholders............................................68
REMIC Regulations...........................................................59
REMIC Residual Certificateholder............................................76
REMIC Residual Certificates.................................................67
Restricted Group............................................................97
Retained Interest...........................................................39
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PAGE(S) ON WHICH
TERM IS DEFINED
TERMS IN THE PROSPECTUS
- ----- -----------------
RICO........................................................................58
Security Balance............................................................22
Security Owners.............................................................26
Senior Securities...........................................................19
Servicing Agreement.........................................................29
Servicing Standard..........................................................36
Short-Term Note.............................................................84
Single Family Mortgage Loan..................................................9
Single Family Property.......................................................9
SMMEA.......................................................................97
SMMEA Securities............................................................97
SPA.........................................................................16
Stripped ARM Obligations....................................................66
Stripped Bond Certificates..................................................63
Stripped Coupon Certificates................................................63
Stripped Interest Securities................................................19
Stripped Principal Securities...............................................19
Subordinate Securities......................................................19
Subsequent Assets...........................................................13
Sub-Servicer................................................................36
Sub-Servicing Agreement.....................................................36
Subsidiary REMIC............................................................68
Super-Premium Certificates..................................................70
Tax Counsel.................................................................89
Terms and Conditions........................................................27
Title V.....................................................................57
Title VIII..................................................................58
Trust Agreement.............................................................29
U.S. Person.................................................................59
UCC.........................................................................26
Underlying MBS...........................................................9, 12
Underlying Mortgage Loans....................................................9
Value.......................................................................10
Voting Rights...............................................................42
Warranting Party............................................................31
Whole Loans..................................................................9
104
