Distributions; Policy Claims. (a) On each Distribution Date, the Trustee shall cause to be made the following transfers and distributions based solely on the amounts set forth in the Servicer's Certificate for the related Distribution Date: (i) from the Collection Account to the Certificate Account, in immediately available funds, an amount equal to the excess of the sum of (a) all funds that were deposited in the Collection Account, plus (b) earnings on investments of funds in the Collection Account pursuant to Section 4.1(b), for the related Collection Period over all funds transferred from the Collection Account with respect to such Collection Period pursuant to Section 4.1(c); (ii) from the Payahead Account to the Certificate Account, in immediately available funds, the aggregate previous Payaheads to be applied to Scheduled Payments on Precomputed Receivables or prepayments for the related Collection Period pursuant to Sections 4.3 and 4.4, plus earnings on investments of funds in the Payahead Account for the related Collection Period pursuant to Section 4.1(b); (iii) [from the Pre-Funding Account to the Certificate Account, in immediately available funds, earnings on investments of funds in the Pre-Funding Account for the related Collection Period pursuant to Section 4.1(b); and] (iv) [from the Capitalized Interest Account to the Certificate Account, an amount equal to the Negative Carry Amount for the related Collection Period, if any.] (b) Prior to each Distribution Date, the Servicer shall on the related Determination Date calculate the Total Distribution Amount, the Class A Distributable Amount, the Class A Interest Distributable Amount, the Class A Principal Distributable Amount, the Monthly Dealer Participation Fee Distributable Amount, the amount, if any, required to be withdrawn from the Collection Account and paid to the Servicer as additional servicing compensation [or contributed to the Spread Account on behalf of the Servicer], in each case pursuant to Section 4.18 and, based on the Total Distribution Amount and the other amounts available for distribution on such Distribution Date, determine the amount distributable to the Certificateholders. (c) On each Distribution Date, the Trustee shall [(x) distribute all amounts delivered by the Certificate Insurer to the Trustee for deposit into the Collection Account pursuant to Section 4.11 for distribution in the amounts and priority as directed by the Certificate Insurer, and (y)] (based on the information contained in the Servicer's Certificate delivered on the related Determination Date pursuant to Section 3.9) subject to subsection (d) hereof, make the following distributions from the Total Distribution Amount withdrawn from the Certificate Account and from the other sources described below in the following order of priority: (i) first, to LBAC, from the Total Distribution Amount, the Monthly Dealer Participation Fee Distributable Amount and all unpaid Monthly Dealer Participation Fee Distributable Amounts from prior Collection Periods, and second, to the Servicer, from the Total Distribution Amount (as the Total Distribution Amount has been reduced by payments pursuant to subclause first of this clause (i)), the Servicing Fee and all unpaid Servicing Fees from prior Collection Periods [and, if the Total Distribution Amount is insufficient to pay such Servicing Fee and such unpaid Servicing Fees from prior Collection Periods, the Servicer will receive such deficiency from the Deficiency Claim Amount with respect to such Distribution Date, if any, to the extent received by the Trustee from [the Collateral Agent]]; (ii) to the Trustee, the Back-up Servicer and the Custodian, from the Total Distribution Amount (as such Total Distribution Amount has been reduced by payments pursuant to clause (i) above), the Trustee Fee, the Back-up Servicer Fee and all unpaid Trustee Fees and Back-up Servicer Fees from prior Collection Periods and, if the Total Distribution Amount is insufficient, the Trustee and Back-up Servicer will receive such deficiency from the remaining portion of the Deficiency Claim Amount with respect to such Distribution Date, if any, to the extent received by the Trustee from [the Collateral Agent], after application thereof pursuant to clause (i) above; (iii) to the Class A Certificateholders, from the Total Distribution Amount (as such Total Distribution Amount has been reduced by payments pursuant to clauses (i) and (ii) above), an amount equal to the sum of the Class A Interest Distributable Amount and any Class A Interest Carryover Shortfall as of the close of business on the preceding Distribution Date (plus (without duplication) interest on such outstanding Class A Interest Carryover Shortfall, to the extent permitted by applicable law, at the Class A Pass-Through Rate from such preceding Distribution Date through the current Distribution Date (calculated on the basis of a [360-day year consisting of twelve 30-day months])) [and, if the Total Distribution Amount is insufficient, the Class A Certificateholders will receive such deficiency from the following sources in the following order of priority: (A) from the remaining portion of the Deficiency Claim Amount with respect to such Distribution Date, if any, to the extent received by the Trustee from [the Collateral Agent], after application thereof pursuant to clauses (i) and (ii) above and (B) from the Policy Claim Amount with respect to such Distribution Date, if any, received by the Trustee from the Certificate Insurer]; (iv) to the Class A Certificateholders, from the Total Distribution Amount (as such Total Distribution Amount has been reduced by payments pursuant to clauses (i) through (iii) above) and, if such Distribution Date is the Final Funding Period Distribution Date, from any Prepayment Amount, an amount equal to the sum of the Class A Principal Distributable Amount and any Class A Principal Carryover Shortfall as of the close of business on the preceding Distribution Date [and, if the Total Distribution Amount is insufficient, the Class A Certificateholders will receive such deficiency from the following sources in the following order of priority: (A) from the remaining portion of the Deficiency Claim Amount with respect to such Distribution Date, if any, to the extent received by the Trustee from [the Collateral Agent], after application thereof pursuant to clauses (i) through (iii) above, plus (B) the remaining portion of the Policy Claim Amount with respect to such Distribution Date, if any, after application thereof pursuant to clause (iii) above]; (v) [first, to the Certificate Insurer, from the Total Distribution Amount (as such Total Distribution Amount has been reduced by payments pursuant to clauses (i) through (iv) above), an amount equal to the Reimbursement Obligations and, if the Total Distribution Amount is insufficient, the Certificate Insurer shall receive such deficiency from the remaining portion of the Deficiency Claim Amount with respect to such Distribution Date, if any, to the extent received by the Trustee from [the Collateral Agent], after application thereof pursuant to clauses (i) through (iv) above,] second, to the Trustee, the Back-up Servicer and the Custodian, as applicable, from the Total Distribution Amount (as such Total Distribution Amount has been reduced by payments pursuant to clauses (i) through (iv) above [and subclause first of this clause (v)]), all reasonable out-of-pocket expenses of the Trustee, the Back-up Servicer and the Custodian (including reasonable counsel fees and expenses), including, without limitation, costs and expenses required to be paid by the Servicer to the Back-up Servicer under Section 8.2(a), to the extent not paid by the Servicer, and all unpaid reasonable out-of-pocket expenses of the Trustee, the Back-up Servicer and the Custodian (including reasonable counsel fees and expenses) from prior Collection Periods; provided, however, that unless an Event of Default shall have occurred and be continuing, expenses payable to the Trustee, the Back-up Servicer and the Custodian pursuant to this subclause second of clause (v) shall be limited to a combined aggregate amount of $__________ per annum, and third to the Back-up Servicer, from the Total Distribution Amount (as such Total Distribution Amount has been reduced by payments pursuant to clauses (i) through (iv) above and subclauses first and second of this clause (v)), in the event that the Back-up Servicer shall have assumed the obligations of Servicer pursuant to Section 8.2(a) and the Servicer fails to pay the Back-up Servicer for system conversion expenses as required by said section, an aggregate amount not to exceed $100,000 in payment of such system conversion expenses; and (vi) [to [the Collateral Agent] on behalf of the Certificate Insurer, the Trustee (on behalf of the Class A Certificateholders) and the trustees for certain other trusts, if any, to be established by the Depositor, the remaining Total Distribution Amount (as such Total Distribution Amount has been reduced by payments pursuant to clauses (i) through (v) above) for application in accordance with the provisions of the Spread Account Agreement.] In addition, on each Distribution Date, after giving effect to the distributions specified in clauses (i) through [(vi)] above, the Trustee shall distribute to the Excess Cash Flow Certificateholder the amount, if any, to be released to the Excess Cash Flow Certificateholder [pursuant to the terms of the Spread Account Agreement]. (d) Each Certificateholder, by its acceptance of its Certificate, will be deemed to have consented to the provisions of Section 4.6(c) relating to the priority of distributions, and will be further deemed to have acknowledged that no property rights in any amount or the proceeds of any such amount shall vest in such Certificateholder until such amounts have been distributed to such Certificateholder pursuant to such provisions; provided, that the foregoing shall not restrict the right of any Certificateholder, upon compliance with the provisions hereof from seeking to compel the performance of the provisions hereof by the parties hereto. [Each Certificateholder, by its acceptance of the Certificate, will be deemed to have further agreed that withdrawals of funds by [the Collateral Agent] from the Spread Account for application hereunder, shall be made in accordance with the provisions of the Spread Account Agreement.] [In furtherance of and not in limitation of the foregoing, the Excess Cash Flow Certificateholder by acceptance of the Excess Cash Flow Certificate, specifically acknowledges that no amounts shall be received by it, nor shall it have any right to receive any amounts, unless and until such amounts have been distributed pursuant to Section 4.6(c) or released pursuant to priority SEVENTH of Section 3.03(b) of the Spread Account Agreement for distribution to the Excess Cash Flow Certificateholder pursuant to Section 4.6(c). The Excess Cash Flow Certificateholder, by its acceptance of the Excess Cash Flow Certificate, further specifically acknowledges that it has no right to or interest in any moneys at any time held pursuant to the Spread Account Agreement prior to the release of such moneys as aforesaid, such moneys being held in trust for the benefit of the Class A Certificateholders and the Certificate Insurer as their interests may appear prior to such release. Notwithstanding the foregoing, in the event that it is ever determined that any property held in the Spread Account constitute a pledge of collateral, then the provisions of this Agreement and the Spread Account Agreement shall be considered to constitute a security agreement and the Depositor and the Excess Cash Flow Certificateholder hereby grant to [the Collateral Agent] and to the Trustee, respectively, a first priority perfected security interest in such amounts, to be applied as set forth in Section 3.03(b) of the Spread Account Agreement. In addition, the Excess Cash Flow Certificateholder, by acceptance of its Certificate, hereby appoints the Depositor as its agent to pledge a first priority perfected security interest in the Spread Account, and any property held therein from time to time to [the Collateral Agent] for the benefit of the Trustee and the Certificate Insurer pursuant to the Spread Account Agreement and agrees to execute and deliver such instruments of conveyance, assignment, grant, confirmation, etc., as well as any financing statements, in each case as the Certificate Insurer shall consider reasonably necessary in order to perfect [the Collateral Agent]'s Security Interest in the Collateral (as such terms are defined in the Spread Account Agreement).] (e) Subject to Section 10.1 respecting the final payment upon retirement of each Certificate, the Servicer shall on each Distribution Date instruct the Trustee to distribute to each Certificateholder of record on the preceding Record Date either (i) by wire transfer, in immediately available funds to the account of such Holder at a bank or other entity having appropriate facilities therefor, if such Certificateholder is the Clearing Agency or such Holder's Certificates in the aggregate evidence an original principal balance of at least $1,000,000, and if such Certificateholder shall have provided to the Trustee appropriate instructions prior to the Record Date for such Distribution Date, or (ii) by check mailed to such Certificateholder at the address of such Holder appearing in the Certificate Register, such Holder's Fractional Undivided Interest of the Class A Distributable Amount in accordance with the Servicer's Certificate.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Long Beach Acceptance Corp)
Distributions; Policy Claims. (a) On each Distribution Date, the Trustee shall cause to be made the following transfers and distributions based solely on the amounts set forth in the Servicer's Certificate for the related Distribution Date:
(i) from From the Collection Account to the Certificate Account, in immediately available funds, an amount equal to the excess of the sum of (a) all those funds that were deposited in the Collection Account, plus (b) earnings on investments of funds in the Collection Account pursuant to Section 4.1(b4.1(a), for the related Collection Period over all funds transferred from the Collection Account with respect related to such Collection Period pursuant to Section 4.1(c);Distribution Date.
(ii) from From the Payahead Account Account, to the Certificate Account, in immediately available funds, the aggregate previous Payaheads to be applied to Scheduled Payments on Precomputed Rule of 78's Receivables or prepayments for the related Collection Period pursuant to Sections 4.3 and 4.4, plus earnings on investments of funds in the Payahead Account for the related Collection Period pursuant to Section 4.1(b);
(iii) [from the Pre-Funding Account to the Certificate Account, in immediately available funds, earnings on investments of funds in the Pre-Funding Account for the related Collection Period pursuant to Section 4.1(b); and]
(iv) [from the Capitalized Interest Account to the Certificate Account, an amount equal to the Negative Carry Amount for the related Collection Period, if anypursuant to Section 4.1 (a).]
(b) Prior to each Distribution Date, the Servicer shall on the related Determination Date calculate the Total Distribution Amount, the Class A Distributable Amount, the Class A Interest Distributable Amount, the Class A Principal Distributable Amount, the Monthly Dealer Participation Fee Class B Interest Distributable Amount and the Class B Principal Distributable Amount, the amount, if any, required to be withdrawn from the Collection Account and paid to the Servicer as additional servicing compensation [or contributed to the Spread Account on behalf of the Servicer], in each case pursuant to Section 4.18 and, based on the Total Distribution Amount Amount, and the other amounts available for distribution distributions to be made on such Distribution Date, determine the amount distributable to the CertificateholdersCertificateholders of each class.
(c) On each Distribution Date, the Trustee shall [(x) distribute all amounts delivered by the Certificate Insurer to the Trustee for deposit into the Collection Account pursuant to Section 4.11 for distribution in the amounts and priority as directed by the Certificate Insurer, and (y)] (based on the information contained in the Servicer's Certificate delivered on the related Determination Date pursuant to Section 3.9) shall, subject to subsection (d) hereof, make the following distributions from the Total Distribution Amount withdrawn from the Certificate Account and from the other sources described below in the following order of priority:
(i) first, to LBAC, from the Total Distribution Amount, the Monthly Dealer Participation Fee Distributable Amount and all unpaid Monthly Dealer Participation Fee Distributable Amounts from prior Collection Periods, and second, to the Servicer, from the Total Distribution Amount (as Amount, any amount deposited into the Total Distribution Amount has been reduced by payments Collection Account pursuant to subclause first Section 4.7(a), and any amount deposited into the Collection Account pursuant to Section 4.11(i) in respect of this clause (i))Servicing Fees, the Servicing Fee and all unpaid Servicing Fees from prior Collection Periods [andPeriods; provided, if however, that as long as CPS is the Total Distribution Amount Servicer and Norwest Bank Minnesota, National Association, is insufficient the Standby Servicer, the Trustee shall first pay to pay such the Standby Servicer out of the Servicing Fee and such unpaid Servicing Fees from prior Collection Periods, the Servicer will receive such deficiency from the Deficiency Claim Amount with respect otherwise payable to such Distribution Date, if any, CPS an amount equal to the extent received by the Trustee from [the Collateral Agent]]Standby Fee;
(ii) n the event the Standby Servicer becomes the successor Servicer, to the Trustee, the Back-up Servicer and the CustodianStandby Servicer, from the Total Distribution Amount (as such Total Distribution Amount has been reduced by payments pursuant to clause (i) above) and any amount deposited into the Collection Account pursuant to Section 4.7(a), the Trustee Fee, the Back-up Servicer Fee and all unpaid Trustee Fees and Back-up Servicer Fees from prior Collection Periods and, if the Total Distribution Amount is insufficient, the Trustee and Back-up Servicer will receive such deficiency from the remaining portion of the Deficiency Claim Amount with respect to such Distribution Date, if any, to the extent received not previously paid by the Trustee from [the Collateral Agent], after application thereof predecessor Servicer pursuant to clause Section 9.2, reasonable transition expenses (iup to a maximum of $50,000) aboveincurred in making the transition from Standby Servicer to successor Servicer;
(iii) to the Class A CertificateholdersTrustee, from the Total Distribution Amount (as such Total Distribution Amount has been reduced by payments pursuant to clauses (i) and (ii) above), any amount deposited into the Collection Account pursuant to Section 4.7(a), and any amount deposited into the Collection Account pursuant to Section 4.11(i) in respect of Trustee Fees and reasonable out-of-pocket expenses of the Trustee, the Trustee Fee and all reasonable out-of-pocket expenses (including counsel fees and expenses) and all unpaid Trustee Fees and all unpaid reasonable out-of-pocket expenses (including counsel fees and expenses) from prior Collection Periods; provided, however, that unless an amount equal Event of Default shall have occurred and be continuing, expenses payable to the sum of the Class A Interest Distributable Amount Trustee pursuant to this clause (iii) and any Class A Interest Carryover Shortfall as of the close of business on the preceding Distribution Date (plus (without duplication) interest on such outstanding Class A Interest Carryover Shortfall, expenses payable to the extent permitted by applicable lawCollateral Agent pursuant to clause (iv) below, at shall be limited to $50,000 per annum;
(iv) to the Class A Pass-Through Rate Collateral Agent, from such preceding Distribution Date through the current Distribution Date (calculated on the basis of a [360-day year consisting of twelve 30-day months])) [and, if the Total Distribution Amount is insufficient, the Class A Certificateholders will receive (as such deficiency from the following sources in the following order of priority: (A) from the remaining portion of the Deficiency Claim Total Distribution Amount with respect to such Distribution Date, if any, to the extent received has been reduced by the Trustee from [the Collateral Agent], after application thereof payments pursuant to clauses (i) through (iii) above), any amount deposited into the Collection Account pursuant to Section 4.7(a), and (iiany amount deposited into the Collection Account pursuant to Section 4.11(i) above in respect of fees and (B) from expenses of the Policy Claim Amount Collateral Agent, all fees and expenses payable to the Collateral Agent with respect to such Distribution Date, if any, received by Date pursuant to the Trustee from the Certificate Insurer]Spread Account Agreement;
(ivv) to the Class A Certificateholders, from the Total Distribution Amount (as such Total Distribution Amount has been reduced by payments pursuant to clauses (i) through (iiiiv) above) andand any amount deposited into the Collection Account pursuant to Sections 4.7(a) and 4.11(iii), if an amount equal to the sum of (x) the Class A Interest Distributable Amount, (y) any Class A Interest Carryover Shortfall and (z) interest on such outstanding Class A Interest Carryover Shortfall, to the extent permitted by law, at the Class A Pass-Through Rate from such preceding Distribution Date is through the Final Funding Period current Distribution Date (calculated on the basis of a 360-day year consisting of twelve 30-day months) in each case as of the close of business on the preceding Distribution Date;
(vi) to the Class B Certificateholders, from the Total Distribution Amount (as such Total Distribution Amount has been reduced by payments pursuant to clauses (i) through (v) above) and any Prepayment Amountamount deposited into the Collection Account pursuant to Section 4.7(c), an amount equal to the sum of (x) the Class B Interest Distributable Amount (y) any Class B Interest Carryover Shortfall and (z) interest on such outstanding Class B Interest Carryover Shortfall, to the extent permitted by law, at the Class B Pass-Through Rate from such preceding Distribution Date through the current Distribution Date (calculated on the basis of a 360- day year consisting of twelve 30-day months), in each case as of the close of the preceding Distribution Date;
(vii) to the Class A Certificateholders, from the Total Distribution Amount (as such Total Distribution Amount has been reduced by payments pursuant to clauses (i) through (vi) above), any amount deposited into the Collection Account pursuant to Section 4.7(a), and any amount deposited into the Collection Account pursuant to Section 4.11(ii) or (iii), an amount equal to the sum of the Class A Principal Distributable Amount and any Class A Principal Carryover Shortfall as of the close of business on the preceding Distribution Date [and, if the Total Distribution Amount is insufficient, the Class A Certificateholders will receive such deficiency from the following sources in the following order of priority: (A) from the remaining portion of the Deficiency Claim Amount with respect to such each Distribution Date, if any, to the extent received by the Trustee from [the Collateral Agent], after application thereof pursuant to clauses (i) through (iii) above, plus (B) the remaining portion of the Policy Claim Amount with respect to such Distribution Date, if any, after application thereof pursuant to clause (iii) above];
(vviii) [first, to the Certificate Insurer, from the Total Distribution Amount (as such Total Distribution Amount has been reduced by payments made pursuant to clauses (i) through (ivvii) above), and any amount deposited into the Collection Account pursuant to Section 4.7(a), an amount equal to the Reimbursement Obligations andObligations;
(ix) in the event any Person other than the Standby Servicer becomes the successor Servicer, if the Total Distribution Amount is insufficient, the Certificate Insurer shall receive such deficiency from the remaining portion of the Deficiency Claim Amount with respect to such Distribution Date, if any, to the extent received by the Trustee from [the Collateral Agent], after application thereof pursuant to clauses (i) through (iv) above,] second, to the Trustee, the Back-up Servicer and the Custodian, as applicable, from the Total Distribution Amount (as such Total Distribution Amount has been reduced by payments pursuant to clauses (i) through (iv) above [and subclause first of this clause (v)]), all reasonable out-of-pocket expenses of the Trustee, the Back-up Servicer and the Custodian (including reasonable counsel fees and expenses), including, without limitation, costs and expenses required to be paid by the Servicer to the Back-up Servicer under Section 8.2(a), to the extent not paid by the Servicer, and all unpaid reasonable out-of-pocket expenses of the Trustee, the Back-up Servicer and the Custodian (including reasonable counsel fees and expenses) from prior Collection Periods; provided, however, that unless an Event of Default shall have occurred and be continuing, expenses payable to the Trustee, the Back-up Servicer and the Custodian pursuant to this subclause second of clause (v) shall be limited to a combined aggregate amount of $__________ per annum, and third to the Back-up successor Servicer, from the Total Distribution Amount (as such Total Distribution Amount has been reduced by payments pursuant to clauses (i) through (ivviii) above above) and subclauses first and second of this clause (v)any amount deposited into the Collection Account pursuant to Section 4.7(a), in to the event that extent not previously paid by the Back-up Servicer shall have assumed the obligations of predecessor Servicer pursuant to Section 8.2(a9.2, reasonable transition expenses (up to a maximum of $50,000) and incurred in making the transition from the Standby Servicer fails to pay the Back-up Servicer for system conversion expenses as required by said section, an aggregate amount not to exceed $100,000 in payment of such system conversion expenses; andsuccessor Servicer;
(vix) [to [the Collateral Agent] on behalf of the Certificate Insurer, the Trustee (on behalf of the Class A B Certificateholders) and , from the trustees for certain other trusts, if any, to be established by the Depositor, the remaining Total Distribution Amount (as such Total Distribution Amount has been reduced by payments pursuant to clauses (i) through (vix) above) and any amount deposited into the Collection Account pursuant to Sections 4.7(c), an amount equal to the sum of the Class B Principal Distributable Amount and any Class B Principal Carryover Shortfall as of the close of the preceding Distribution Date; and
(xi) to the Collateral Agent, for application deposit into the Spread Account, the remaining Total Distribution Amount, if any.
(d) The rights of the Class B Certificateholders to receive distributions in accordance respect of the Class B Certificates pursuant to Section 4.6(c)(vi) on a Distribution Date shall be and hereby are subordinated to the payment of the amounts distributable pursuant to Sections 4.6(c)(i) through (v). The rights of the Class B Certificateholders to receive distributions in respect of the Class B Certificates pursuant to Section 4.6(c)(x) on a Distribution Date shall be and hereby are subordinated to the payment of the amounts distributable pursuant to Sections 4.6(c)(i) through (ix). At such time as the Class A Certificates are paid in full and the Certificate Insurer has received payment in full for all outstanding Reimbursement Obligations and any other amounts owed to the Certificate Insurer, the Class B Certificateholders shall be entitled to exercise all rights granted to the Class A Certificateholders under this Agreement to the extent that the exercise of such rights does not conflict with the provisions of the Spread Account Agreement.] In addition, on each Distribution Date, after giving effect to the distributions specified in clauses
(i) through [(viIn the event that the Trustee has delivered a Deficiency Notice with respect to any Determination Date pursuant to Section 4.7(a)] above, the Trustee shall distribute to determine on the Excess Cash Flow Certificateholder third Business Day (the amount"Draw Date") preceding the related Distribution Date the Policy Claim Amount, if any, to be released to for such Distribution Date. Amounts paid by the Excess Cash Flow Certificateholder [Certificate Insurer pursuant to a claim submitted under this Section 4.6(e)(i) shall be deposited by the terms Trustee into the Policy Payments Account and thereafter into the Certificate Account for payment to Class A Certificateholders in respect of the Spread Account Agreement]Class A Guaranteed Distribution Amount on the related Distribution Date.
(dii) Each Certificateholder, Any notice delivered by its acceptance of its Certificate, will be deemed to have consented the Trustee to the provisions of Section 4.6(c) relating to the priority of distributions, and will be further deemed to have acknowledged that no property rights in any amount or the proceeds of any such amount shall vest in such Certificateholder until such amounts have been distributed to such Certificateholder Certificate Insurer pursuant to such provisions; provided, that Section 4.6(e)(i) shall specify the foregoing Policy Claim Amount claimed under the Policy and shall not restrict constitute a "Notice of Claim" under the right of any Certificateholder, upon compliance with the provisions hereof from seeking to compel the performance of the provisions hereof by the parties heretoPolicy. [Each Certificateholder, by its acceptance of the Certificate, will be deemed to have further agreed that withdrawals of funds by [the Collateral Agent] from the Spread Account for application hereunder, shall be made in In accordance with the provisions of the Spread Account Agreement.] [In furtherance Policy, the Certificate Insurer is required to pay to the Trustee the Policy Claim Amount properly claimed thereunder by 12:00 noon, New York City time, on the later of and not in limitation (1) the third Business Day following receipt on a Business Day of the foregoingNotice of Claim, and (2) the Excess Cash Flow Certificateholder applicable Distribution Date. Notwithstanding the provisions of Section 4.6(c), any payment made by acceptance the Certificate Insurer under the Policy shall be applied solely to the payment of the Excess Cash Flow Certificate, specifically acknowledges that Class A Certificates and for no amounts other purpose.
(iii) The Trustee shall be received by it, nor shall it have (i) receive as attorney-in-fact of each Class A Certificateholder any right Policy Claim Amount from the Certificate Insurer and (ii) deposit the same in the Certificate Account for disbursement to receive any amounts, unless the Class A Certificateholders as set forth in clauses (v) and until such amounts have been distributed pursuant to Section 4.6(c) or released pursuant to priority SEVENTH of Section 3.03(b(vii) of the Spread Account Agreement for distribution to the Excess Cash Flow Certificateholder pursuant to Section 4.6(c). The Excess Cash Flow Certificateholder, Any and all Policy Claim Amounts disbursed by its acceptance of the Excess Cash Flow Certificate, further specifically acknowledges that it has no right to Trustee from claims made under the Policy shall not be considered payment by the Trustee or interest in any moneys at any time held pursuant to from the Spread Account Agreement prior with respect to such Class A Certificates, and shall not discharge the release obligations of such moneys as aforesaid, such moneys being held in trust for the benefit Trust with respect thereto.
(iv) The Trustee shall be entitled to enforce on behalf of the Class A Certificateholders and the obligations of the Certificate Insurer as their interests may appear prior to such releaseunder the Policy. Notwithstanding the foregoing, in the event that it is ever determined that any property held in the Spread Account constitute a pledge of collateral, then the provisions other provision of this Agreement and the Spread Account Agreement shall be considered to constitute a security agreement and the Depositor and the Excess Cash Flow Certificateholder hereby grant to [the Collateral Agent] and to the Trustee, respectively, a first priority perfected security interest in such amounts, to be applied as set forth in Section 3.03(b) of the Spread Account Agreement. In addition, the Excess Cash Flow Certificateholder, by acceptance of its Certificate, hereby appoints the Depositor as its agent Class A Certificateholders are not entitled to pledge a first priority perfected security interest in the Spread Account, and any property held therein from time to time to [the Collateral Agent] for the benefit of the Trustee and institute proceedings directly against the Certificate Insurer pursuant to the Spread Account Agreement and agrees to execute and deliver such instruments of conveyance, assignment, grant, confirmation, etcInsurer., as well as any financing statements, in each case as the Certificate Insurer shall consider reasonably necessary in order to perfect [the Collateral Agent]'s Security Interest in the Collateral (as such terms are defined in the Spread Account Agreement).]
(ef) Subject to Section
10.1 11.1 respecting the final payment upon retirement of each Certificate, the Servicer shall on each Distribution Date instruct the Trustee to distribute to each Certificateholder of record on the preceding Record Date either (i) by wire transfer, in immediately available funds to the account of such Holder at a bank or other entity having appropriate facilities therefor, if such Certificateholder is the Clearing Agency Depository or such Holder's Certificates in the aggregate evidence an original principal balance of at least $1,000,000, and if such Certificateholder shall have provided to the Trustee appropriate instructions prior to the Record Date for such Distribution Date, or (ii) if not, by check mailed to such Certificateholder at the address of such Holder appearing in the Certificate Register, the amounts to be distributed to such Certificateholder pursuant to such Holder's Fractional Undivided Interest of the Class A Distributable Amount in accordance with the Servicer's CertificateCertificates.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Financial Asset Securities Corp)
Distributions; Policy Claims. (a) On each Distribution Date, the Trustee shall cause to be made the following transfers and distributions based solely on the amounts set forth in the Servicer's Certificate for the related Distribution Date:
(i) from From the Collection Account to the Certificate Account, in immediately available funds, an amount equal to the excess of the sum of (a) all those funds that were deposited in the Collection Account, plus (b) earnings on investments of funds in the Collection Account pursuant to Section 4.1(b4.1(a), for the related Collection Period over all funds transferred from the Collection Account with respect related to such Collection Period pursuant to Section 4.1(c);Distribution Date.
(ii) from From the Payahead Account Account, to the Certificate Account, in immediately available funds, the aggregate previous Payaheads to be applied to Scheduled Payments on Precomputed Rule of 78's Receivables or prepayments for the related Collection Period pursuant to Sections 4.3 and 4.4, plus earnings on investments of funds in the Payahead Account for the related Collection Period pursuant to Section 4.1(b);
(iii) [from the Pre-Funding Account to the Certificate Account, in immediately available funds, earnings on investments of funds in the Pre-Funding Account for the related Collection Period pursuant to Section 4.1(b); and]
(iv) [from the Capitalized Interest Account to the Certificate Account, an amount equal to the Negative Carry Amount for the related Collection Period, if anypursuant to Section 4.1(a).]
(b) Prior to each Distribution Date, the Servicer shall on the related Determination Date calculate the Total Distribution Amount, the Class A Distributable Amount, the Class A Interest Distributable Amount, the Class A Principal Distributable Amount, the Monthly Dealer Participation Fee Class B Interest Distributable Amount and the Class B Principal Distributable Amount, the amount, if any, required to be withdrawn from the Collection Account and paid to the Servicer as additional servicing compensation [or contributed to the Spread Account on behalf of the Servicer], in each case pursuant to Section 4.18 and, based on the Total Distribution Amount Amount, and the other amounts available for distribution distributions to be made on such Distribution Date, determine the amount distributable to the CertificateholdersCertificateholders of each class.
(c) On each Distribution Date, the Trustee shall [(x) distribute all amounts delivered by the Certificate Insurer to the Trustee for deposit into the Collection Account pursuant to Section 4.11 for distribution in the amounts and priority as directed by the Certificate Insurer, and (y)] (based on the information contained in the Servicer's Certificate delivered on the related Determination Date pursuant to Section 3.9) shall, subject to subsection (d) hereof, make the following distributions from the Total Distribution Amount withdrawn from the Certificate Account and from the other sources described below in the following order of priority:
(i) first, to LBAC, from the Total Distribution Amount, the Monthly Dealer Participation Fee Distributable Amount and all unpaid Monthly Dealer Participation Fee Distributable Amounts from prior Collection Periods, and second, to the Servicer, from the Total Distribution Amount (as Amount, any amount deposited into the Total Distribution Amount has been reduced by payments Collection Account pursuant to subclause first Section 4.7(a), and any amount deposited into the Collection Account pursuant to Section 4.11(i) in respect of this clause (i))Servicing Fees, the Servicing Fee and all unpaid Servicing Fees from prior Collection Periods [andPeriods; provided, if however, that as long as CPS is the Total Distribution Amount Servicer and Norwest Bank Minnesota, National Association, is insufficient the Standby Servicer, the Trustee shall first pay to pay such the Standby Servicer out of the Servicing Fee and such unpaid Servicing Fees from prior Collection Periods, the Servicer will receive such deficiency from the Deficiency Claim Amount with respect otherwise payable to such Distribution Date, if any, CPS an amount equal to the extent received by the Trustee from [the Collateral Agent]]Standby Fee;
(ii) in the event the Standby Servicer becomes the successor Servicer, to the Trustee, the Back-up Servicer and the CustodianStandby Servicer, from the Total Distribution Amount (as such Total Distribution Amount has been reduced by payments pursuant to clause (i) above) and any amount deposited into the Collection Account pursuant to Section 4.7(a), the Trustee Fee, the Back-up Servicer Fee and all unpaid Trustee Fees and Back-up Servicer Fees from prior Collection Periods and, if the Total Distribution Amount is insufficient, the Trustee and Back-up Servicer will receive such deficiency from the remaining portion of the Deficiency Claim Amount with respect to such Distribution Date, if any, to the extent received not previously paid by the Trustee from [the Collateral Agent], after application thereof predecessor Servicer pursuant to clause Section 9.2, reasonable transition expenses (iup to a maximum of $50,000) aboveincurred in acting as successor Servicer;
(iii) to the Class A CertificateholdersTrustee, from the Total Distribution Amount (as such Total Distribution Amount has been reduced by payments pursuant to clauses (i) and (ii) above), any amount deposited into the Collection Account pursuant to Section 4.7(a), and any amount deposited into the Collection Account pursuant to Section 4.11(i) in respect of Trustee Fees and reasonable out-of-pocket expenses of the Trustee, the Trustee Fee and all reasonable out-of-pocket expenses (including counsel fees and expenses) and all unpaid Trustee Fees and all unpaid reasonable out-of-pocket expenses (including counsel fees and expenses) from prior Collection Periods; provided, however, that unless an amount equal Event of Default shall have occurred and be continuing, expenses payable to the sum of the Class A Interest Distributable Amount Trustee pursuant to this clause (iii) and any Class A Interest Carryover Shortfall as of the close of business on the preceding Distribution Date (plus (without duplication) interest on such outstanding Class A Interest Carryover Shortfall, expenses payable to the extent permitted by applicable lawCollateral Agent pursuant to clause (iv) below, at shall be limited to $50,000 per annum;
(iv) to the Class A Pass-Through Rate Collateral Agent, from such preceding Distribution Date through the current Distribution Date (calculated on the basis of a [360-day year consisting of twelve 30-day months])) [and, if the Total Distribution Amount is insufficient, the Class A Certificateholders will receive (as such deficiency from the following sources in the following order of priority: (A) from the remaining portion of the Deficiency Claim Total Distribution Amount with respect to such Distribution Date, if any, to the extent received has been reduced by the Trustee from [the Collateral Agent], after application thereof payments pursuant to clauses (i) through (iii) above), any amount deposited into the Collection Account pursuant to Section 4.7(a), and (iiany amount deposited into the Collection Account pursuant to Section 4.11(i) above in respect of fees and (B) from expenses of the Policy Claim Amount Collateral Agent, all fees and expenses payable to the Collateral Agent with respect to such Distribution Date, if any, received by Date pursuant to the Trustee from the Certificate Insurer]Spread Account Agreement;
(ivv) to the Class A Certificateholders, from the Total Distribution Amount (as such Total Distribution Amount has been reduced by payments pursuant to clauses (i) through (iiiiv) above) andand any amount deposited into the Collection Account pursuant to Sections 4.7(a) and 4.11(iii), if such Distribution Date is an amount equal to the Final Funding Period sum of the Class A Interest Distributable Amount and any Class A Interest Carryover Shortfall as of the close of the preceding Distribution Date;
(vi) to the Class B Certificateholders, from the Total Distribution Amount (as such Total Distribution Amount has been reduced by payments pursuant to clauses (i) through (v) above) and any Prepayment Amountamount deposited into the Collection Account pursuant to Section 4.7(c), an amount equal to the sum of the Class B Interest Distributable Amount and any Class B Interest Carryover Shortfall as of the close of the preceding Distribution Date;
(vii) to the Class A Certificateholders, from the Total Distribution Amount (as such Total Distribution Amount has been reduced by payments pursuant to clauses (i) through (vi) above), any amount deposited into the Collection Account pursuant to Section 4.7(a), and any amount deposited into the Collection Account pursuant to Section 4.11(ii) or (iii), an amount equal to the sum of the Class A Principal Distributable Amount and any Class A Principal Carryover Shortfall as of the close of business on the preceding Distribution Date [andwith respect to each Distribution Date;
(viii) to the Certificate Insurer, if from the Total Distribution Amount is insufficient, the Class A Certificateholders will receive (as such deficiency from the following sources in the following order of priority: (A) from the remaining portion of the Deficiency Claim Total Distribution Amount with respect to such Distribution Date, if any, to the extent received has been reduced by the Trustee from [the Collateral Agent], after application thereof payments made pursuant to clauses (i) through (iiivii) above), plus and any amount deposited into the Collection Account pursuant to Section 4.7(a), an amount equal to the Reimbursement Obligations;
(Bix) in the remaining portion of event any Person other than the Policy Claim Amount with respect Standby Servicer becomes the successor Servicer, to such successor Servicer, from the Total Distribution Date, if any, after application thereof Amount (as such Total Distribution Amount has been reduced by payments pursuant to clause (iiii) above]) and any amount deposited into the Collection Account pursuant to Section 4.7(a), to the extent not previously paid by the predecessor Servicer pursuant to Section 9.2, reasonable transition expenses (up to a maximum of $50,000) incurred in acting as successor Servicer;
(vx) [first, to the Certificate InsurerClass B Certificateholders, from the Total Distribution Amount (as such Total Distribution Amount has been reduced by payments pursuant to clauses (i) through (ivviii) above) and any amount deposited into the Collection Account pursuant to Section 4.7(c), an amount equal to the Reimbursement Obligations and, if the Total Distribution Amount is insufficient, the Certificate Insurer shall receive such deficiency from the remaining portion sum of the Deficiency Claim Class B Principal Distributable Amount with respect to such and any Class B Principal Carryover Shortfall as of the close of the preceding Distribution Date, if any, to the extent received by the Trustee from [the Collateral Agent], after application thereof pursuant to clauses (i) through (iv) above,] second, to the Trustee, the Back-up Servicer and the Custodian, as applicable, from the Total Distribution Amount (as such Total Distribution Amount has been reduced by payments pursuant to clauses (i) through (iv) above [and subclause first of this clause (v)]), all reasonable out-of-pocket expenses of the Trustee, the Back-up Servicer and the Custodian (including reasonable counsel fees and expenses), including, without limitation, costs and expenses required to be paid by the Servicer to the Back-up Servicer under Section 8.2(a), to the extent not paid by the Servicer, and all unpaid reasonable out-of-pocket expenses of the Trustee, the Back-up Servicer and the Custodian (including reasonable counsel fees and expenses) from prior Collection Periods; provided, however, that unless an Event of Default shall have occurred and be continuing, expenses payable to the Trustee, the Back-up Servicer and the Custodian pursuant to this subclause second of clause (v) shall be limited to a combined aggregate amount of $__________ per annum, and third to the Back-up Servicer, from the Total Distribution Amount (as such Total Distribution Amount has been reduced by payments pursuant to clauses (i) through (iv) above and subclauses first and second of this clause (v)), in the event that the Back-up Servicer shall have assumed the obligations of Servicer pursuant to Section 8.2(a) and the Servicer fails to pay the Back-up Servicer for system conversion expenses as required by said section, an aggregate amount not to exceed $100,000 in payment of such system conversion expenses; and
(vixi) [to [the Collateral Agent] , for deposit into the Spread Account, the remaining Total Distribution Amount, if any.
(d) The rights of the Class B Certificateholders to receive distributions in respect of the Class B Certificates pursuant to Section 4.6(c)(vi) on behalf a Distribution Date shall be and hereby are subordinated to the payment of the amounts distributable pursuant to Sections 4.6(c)(i) through (v). The rights of the Class B Certificateholders to receive distributions in respect of the Class B Certificates pursuant to Section 4.6(c)(x) on a Distribution Date shall be and hereby are subordinated to the payment of the amounts distributable pursuant to Sections 4.6(c)(i) through (ix). At such time as the Class A Certificates are paid in full and the Certificate Insurer has received payment in full for all outstanding Reimbursement Obligations and any other amounts owed to the Certificate Insurer, the Trustee (on behalf of Class B Certificateholders shall be entitled to exercise all rights granted to the Class A Certificateholders) and Certificateholders under this Agreement to the trustees for certain other trusts, if any, to be established by extent that the Depositor, the remaining Total Distribution Amount (as exercise of such Total Distribution Amount has been reduced by payments pursuant to clauses (i) through (v) above) for application in accordance rights does not conflict with the provisions of the Spread Account Agreement.] In addition, on each Distribution Date, after giving effect to the distributions specified in clauses
(i) through [(viIn the event that the Trustee has delivered a Deficiency Notice with respect to any Determination Date pursuant to Section 4.7(a)] above, the Trustee shall distribute to determine on the Excess Cash Flow Certificateholder third Business Day (the amount"Draw Date") preceding the related Distribution Date the Policy Claim Amount, if any, to be released to for such Distribution Date. Amounts paid by the Excess Cash Flow Certificateholder [Certificate Insurer pursuant to a claim submitted under this Section 4.6(e)(i) shall be deposited by the terms Trustee into the Policy Payments Account and thereafter into the Certificate Account for payment to Class A Certificateholders in respect of the Spread Account Agreement]Class A Guaranteed Distribution Amount on the related Distribution Date.
(dii) Each Certificateholder, Any notice delivered by its acceptance of its Certificate, will be deemed to have consented the Trustee to the provisions of Section 4.6(c) relating to the priority of distributions, and will be further deemed to have acknowledged that no property rights in any amount or the proceeds of any such amount shall vest in such Certificateholder until such amounts have been distributed to such Certificateholder Certificate Insurer pursuant to such provisions; provided, that subsection 4.6(e)(i) shall specify the foregoing Policy Claim Amount claimed under the Policy and shall not restrict constitute a "Notice of Claim" under the right of any Certificateholder, upon compliance with the provisions hereof from seeking to compel the performance of the provisions hereof by the parties heretoPolicy. [Each Certificateholder, by its acceptance of the Certificate, will be deemed to have further agreed that withdrawals of funds by [the Collateral Agent] from the Spread Account for application hereunder, shall be made in In accordance with the provisions of the Spread Account Agreement.] [In furtherance Policy, the Certificate Insurer is required to pay to the Trustee the Policy Claim Amount properly claimed thereunder by 12:00 noon, New York City time, on the later of and not in limitation (1) the third Business Day following receipt on a Business Day of the foregoingNotice of Claim, and (2) the Excess Cash Flow Certificateholder by acceptance applicable Distribution Date. Notwithstanding the provisions of the Excess Cash Flow Certificate, specifically acknowledges that no amounts shall be received by it, nor shall it have any right to receive any amounts, unless and until such amounts have been distributed pursuant to Section 4.6(c) or released pursuant to priority SEVENTH of Section 3.03(b) of the Spread Account Agreement for distribution to the Excess Cash Flow Certificateholder pursuant to Section 4.6(c). The Excess Cash Flow Certificateholder, any payment made by its acceptance of the Excess Cash Flow Certificate, further specifically acknowledges that it has no right to or interest in any moneys at any time held pursuant Certificate Insurer under the Policy shall be applied solely to the Spread Account Agreement prior to the release of such moneys as aforesaid, such moneys being held in trust for the benefit payment of the Class A Certificateholders Certificates and for no other purpose.
(iii) The Trustee shall (i) receive as attorney-in-fact of each Class A Certificateholder any Policy Claim Amount from the Certificate Insurer as their interests may appear prior to such release. Notwithstanding and (ii) deposit the foregoing, same in the event that it is ever determined that any property held in the Spread Certificate Account constitute a pledge of collateral, then the provisions of this Agreement and the Spread Account Agreement shall be considered to constitute a security agreement and the Depositor and the Excess Cash Flow Certificateholder hereby grant to [the Collateral Agent] and for disbursement to the Trustee, respectively, a first priority perfected security interest in such amounts, to be applied Class A Certificateholders as set forth in Section 3.03(bclauses (v) and (vii) of the Spread Account Agreement. In addition, the Excess Cash Flow Certificateholder, by acceptance of its Certificate, hereby appoints the Depositor as its agent to pledge a first priority perfected security interest in the Spread Account, and any property held therein from time to time to [the Collateral Agent] for the benefit of the Trustee and the Certificate Insurer pursuant to the Spread Account Agreement and agrees to execute and deliver such instruments of conveyance, assignment, grant, confirmation, etc., as well as any financing statements, in each case as the Certificate Insurer shall consider reasonably necessary in order to perfect [the Collateral Agent]'s Security Interest in the Collateral (as such terms are defined in the Spread Account Agreement).]
(e) Subject to Section
10.1 respecting the final payment upon retirement of each Certificate, the Servicer shall on each Distribution Date instruct the Trustee to distribute to each Certificateholder of record on the preceding Record Date either (i) by wire transfer, in immediately available funds to the account of such Holder at a bank or other entity having appropriate facilities therefor, if such Certificateholder is the Clearing Agency or such Holder's Certificates in the aggregate evidence an original principal balance of at least $1,000,000, and if such Certificateholder shall have provided to the Trustee appropriate instructions prior to the Record Date for such Distribution Date, or (ii) by check mailed to such Certificateholder at the address of such Holder appearing in the Certificate Register, such Holder's Fractional Undivided Interest of the Class A Distributable Amount in accordance with the Servicer's Certificate.subsection 4.6
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Consumer Portfolio Services Inc)
