Priority and Subordination of Distributions. (a) The rights of the Certificateholders to receive distributions from the proceeds of the Trust Fund, and all ownership interests of the Certificateholders in such distributions, shall be as set forth in this Agreement. In this regard, all rights of the Class X and Class R Certificateholders to receive distributions in respect of the Class X and Class R Certificates, respectively, and all ownership interests of the Class X and Class R Certificateholders in and to such distributions, shall be subject and subordinate to the preferential rights of the Class A, Class M and Class B Certificateholders, to receive distributions in respect of the Class A, Class M and Class B Certificates, respectively, and the ownership interests of the Class A, Class M and Class B Certificateholders, respectively, in such distributions, as described herein. In accordance with the foregoing, the ownership interests of the Class X and Class R Certificateholders in amounts deposited in the applicable Principal and Interest Account or in any Accounts from time to time shall not vest unless and until such amounts are distributed in respect of the Class X and Class R Certificates in accordance with the terms of this Agreement. Notwithstanding anything contained in this Agreement to the contrary, the Class X and Class R Certificateholders shall not be required to refund any amount properly distributed on the Class X and Class R Certificates. (b) [Reserved] (c) As soon as possible, and in no event later than 10:00 a.m. New York time on the Business Day immediately preceding each Remittance Date, the Trustee shall furnish the Certificate Insurer and the Servicer with a completed notice in the form set forth as Exhibit L (the "Notice") hereto, which will be based upon the information set forth in the Servicer's Certificate, in the event that an Event of Nonpayment will occur, or a Guaranteed Supplemental Payment is owing, with respect to such Remittance Date. The Notice shall specify the total amount of the Insured Payment and Guaranteed Supplemental Payment to be paid on the applicable Remittance Date, stated separately for each Class of Pool I or Pool IV Certificates, as applicable, and shall constitute a claim for an Insured Payment or Guaranteed Supplemental Payment, as the case may be, pursuant to the applicable Certificate Insurance Policy. The Certificate Insurer shall remit or cause to be remitted to the Insurance Paying Agent the amount of the Insured Payment or Guaranteed Supplemental Payment, as the case may be; provided, however, if the Certificate Insurer is not in default with regard to payment under the Certificate Insurance Policies (i) the amount of the Guaranteed Supplemental Payment required to be paid by the Certificate Insurer shall be reduced by the Class X Accelerated Distribution Amount and (ii) any remaining Guaranteed Supplemental Payment or Insured Payment may be funded in whole or in part, by amounts transferred to the Certificate Account from TMS-CAP Trust 1997-1. Upon receipt of such Insured Payment or Guaranteed Supplemental Payment by the Insurance Paying Agent on behalf of the Holders of the respective Class of Pool I or Pool IV Certificates under the applicable Certificate Insurance Policy, it shall remit such amounts to the Trustee who shall deposit such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in the applicable Certificate Account and shall distribute such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in accordance with Sections 6.08(d)(X) and (e) hereof. Notwithstanding the foregoing, if an Event of Nonpayment with respect to Pool I or Pool IV will occur with respect to a Remittance Date and funds are on deposit in the Spread Account, the amount of the Insured Payment shall be reduced up to the amount then on deposit in the Spread Account. Pursuant to Section 6.05(b)(ii), the Trustee shall, on such Remittance Date, transfer such amount to the applicable Certificate Account from the Spread Account. The Trustee shall serve as Insurance Paying Agent hereunder for so long as a Certificate Insurance Policy shall remain in effect; PROVIDED, HOWEVER, that the Insurance Paying Agent may be located in another jurisdiction with the written consent of the Certificate Insurer. The Insurance Paying Agent shall act as the agent of the Trustee and shall (i) pay amounts required by Section 6.04(b)(i) hereof to the Certificate Insurer, (ii) pay Insured Payments or Guaranteed Supplemental Payments received from the Certificate Insurer as the Trustee shall direct and (iii) take such other actions with respect to the Certificate Insurer and the Certificate Insurance Policies as the Trustee shall direct. The Trustee shall act initially as the Insurance Paying Agent. The Trustee shall receive through the Insurance Paying Agent, as attorney-in-fact of each Holder of Pool I or Pool IV Certificates, any Insured Payment or Guaranteed Supplemental Payment from the Certificate Insurer and disburse the same to each Holder of Pool I or Pool IV Certificates in accordance with the provisions of this Section 6.08. Insured Payments or Guaranteed Supplemental Payments disbursed by the Trustee from proceeds of the Certificate Insurance Policies shall not be considered payment by the Trust Fund nor shall such payments discharge the obligation of the Trust Fund with respect to such Pool I or Pool IV Certificates, and the Certificate Insurer shall become the owner of such unpaid amounts of Insured Payments and Guaranteed Supplemental Payments due from the Trust Fund in respect of such Certificates. The Trustee hereby agrees on behalf of each Holder of Pool I or Pool IV Certificates for the benefit of the Certificate Insurer that it recognizes that to the extent the Certificate Insurer makes Insured Payments or Guaranteed Supplemental Payments, either directly or indirectly (as by paying through the Insurance Paying Agent), to the Pool I or Pool IV Certificateholders, the Certificate Insurer will be subrogated to the rights of the such Pool I or Pool IV Certificateholders with respect to such Insured Payment or Guaranteed Supplemental Payments, shall be deemed to the extent of the payments so made to be a registered Certificateholder of the related Class, and shall receive the Pool Carry-Forward Amounts of the related Pools in accordance with Section 6.08(d)(X) below until all such Insured Payments and Guaranteed Supplemental Payments by the Certificate Insurer have been fully reimbursed (including reimbursements received from TMS-Cap Trust 1997-1). To evidence such subrogation, the Trustee shall, or shall cause the Certificate Registrar to, note the Certificate Insurer's rights as subrogee on the registration books maintained by the Trustee or the Certificate Registrar upon receipt from the Certificate Insurer of proof of payment of any Insured Payment or Guaranteed Supplemental Payments. Each Pool I or Pool IV Certificateholder shall promptly (i) notify the Trustee in writing upon the receipt of a court order to the effect that any amounts described in Clause (iv) of the definition of Pool Remittance Amount constitute a voidable preference pursuant to the United States Bankruptcy Code and (ii) shall enclose a certified copy of such order with such notice to the Trustee.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (TMS Mortgage Inc), Pooling and Servicing Agreement (Money Store Home Equity Corp)
Priority and Subordination of Distributions. (a) The rights of the Certificateholders to receive distributions from the proceeds of the Trust Fund, and all ownership interests of the Certificateholders in such distributionsdistribu tions, shall be as set forth in this Agreement. In this regard, all The rights of the Class X and Class R Certificateholders to receive distributions in respect of the Class X and Class R Certificates, respectively, and all ownership interests of the Class X and Class R Certificateholders in and to such distributions, Certificates shall be subject and subordinate to the preferential rights of the Class A, Class M and Class B Certificateholders, A Certificateholders to receive distributions in respect of the Class A, Class M and Class B A Certificates, respectivelyto the extent set forth herein, and distributions on the ownership interests Class R Certificates are subject and subordinate to the maintenance of the Class A, Class M and Class B Certificateholders, respectively, in such distributions, Specified Spread Account Requirement as described specified herein. In accordance with the foregoing, the ownership interests of the Class X and Class R Certificateholders in amounts deposited in the applicable Principal and Interest Account or in any Accounts from time to time shall not vest unless and until such amounts are distributed in respect of the Class X and Class R Certificates in accordance with the terms of this Agreement. Notwithstanding anything contained in this Agreement to the contrary, the Class X and Class R Certificateholders no Certificateholder shall not be required to refund any amount properly distributed on the Class X and Class R Certificatesto it pursuant to Section 6.02, 6.05, 6.09(b) or 6.09(d).
(b) [Reserved]No later than 10:00 a.m. New York time on the Business Day immediately following each Determination Date occurring on or prior to the earlier to occur of (x) the Cross-Over Date or (y) the Payment Date on which all amounts due have been paid to the Class A Certificateholders (including the Certificate Insurer as subrogee of the Class A Certificateholders) based exclusively on the computer tape and other information prepared by the Servicer pursuant to Section 6.07, indicating with respect to the immediately succeeding Payment Date:
(i) whether, any withdrawals from the Spread Account would be required pursuant to Section 6.09(b)(iii);
(ii) if so, whether the amount available in cash and from liquidation of Permitted Instruments on deposit in the Spread Account would be insufficient to fund such withdrawal; and
(iii) if so, the amount that is the lesser of (A) the amount of shortfall and (B) the amount then available to be drawn under the Letter(s) of Credit then on deposit in the Spread Account (the "Draw Amount"); the Trustee shall promptly cause to be presented to the Letter of Credit Bank(s) of such Letter(s) of Credit a drawing certificate(s) of proper form for payment thereunder such that the proceeds of such drawing(s) will be available on the Business Day next preceding the next Payment Date and otherwise in conformity with the terms thereof for the aggregate Draw Amount. The Trustee shall draw upon all other Letters of Credit, to the full extent amounts are available thereunder. Proceeds received in payment of any Letter of Credit drawings shall be deposited and held in the Letter of Credit Proceeds Sub-Account of the Spread Account.
(c) As soon as possible, and in no event later than 10:00 a.m. New York time on the Business Day immediately preceding each Remittance Payment Date, the Trustee shall furnish the Certificate Insurer and the Servicer with a completed notice in the form set forth as Exhibit L Q hereto (the "Notice") hereto, which will be based upon the information set forth in the Servicer's Certificate, in the event that an Event of Nonpayment will occur, or a Guaranteed Supplemental Payment is owingpursuant to the definition thereof, with respect to such Remittance Payment Date. The Notice shall specify the total amount of the Insured Payment and Guaranteed Supplemental Payment to be paid on the applicable Remittance Date, stated separately for each Class of Pool I or Pool IV Certificates, as applicable, and shall constitute a claim for an Insured Payment or Guaranteed Supplemental Payment, as the case may be, pursuant to the applicable Certificate Insurance Policy. The Certificate Insurer shall remit or cause to be remitted to Upon receipt of Insured Payments for the Insurance Paying Agent the amount benefit of the Insured Payment or Guaranteed Supplemental Payment, as the case may be; provided, however, if the Certificate Insurer is not in default with regard to payment Class A Certificateholders under the Certificate Insurance Policies (i) the amount of the Guaranteed Supplemental Payment required to be paid by the Certificate Insurer shall be reduced by the Class X Accelerated Distribution Amount and (ii) any remaining Guaranteed Supplemental Payment or Insured Payment may be funded in whole or in part, by amounts transferred to the Certificate Account from TMS-CAP Trust 1997-1. Upon receipt of such Insured Payment or Guaranteed Supplemental Payment by the Insurance Paying Agent on behalf of the Holders of the respective Class of Pool I or Pool IV Certificates under the applicable Certificate Insurance Policy, it shall remit such amounts to the Trustee who shall deposit such Insured Payment or Guaranteed Supplemental Payment, as the case may be, Payments in the applicable Certificate Account and shall distribute such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in accordance with Sections 6.08(d)(X) and (e) hereof. Notwithstanding the foregoing, if an Event of Nonpayment with respect to Pool I or Pool IV will occur with respect to a Remittance Date and funds are on deposit in the Spread Account, the amount of the Insured Payment shall be reduced up to the amount then on deposit in the Spread Account. Pursuant to Section 6.05(b)(ii), the Trustee shall, on such Remittance Date, transfer such amount to the applicable Certificate Account from the Spread Collection Account. The Trustee shall serve as Insurance Paying Agent hereunder for so long as a Certificate Insurance Policy shall remain in effect; PROVIDED, HOWEVER, that the Insurance Paying Agent may be located in another jurisdiction with the written consent of the Certificate Insurer. The Insurance Paying Agent shall act as the agent of the Trustee and shall (i) pay amounts required by Section 6.04(b)(i) hereof to the Certificate Insurer, (ii) pay Insured Payments or Guaranteed Supplemental Payments received from the Certificate Insurer as the Trustee shall direct and (iii) take such other actions with respect to the Certificate Insurer and the Certificate Insurance Policies as the Trustee shall direct. The Trustee shall act initially as the Insurance Paying Agent. The Trustee shall receive through the Insurance Paying Agentreceive, as attorney-in-fact of each Holder of Pool I or Pool IV Certificatesa Class A Certificate, any Insured Payment or Guaranteed Supplemental Payment from the Certificate Insurer and disburse the same to each Holder of Pool I or Pool IV Certificates a Class A Certificate, respectively, in accordance with the provisions of this Section 6.086.05. Insured Payments or Guaranteed Supplemental Payments disbursed by the Trustee from proceeds of the Certificate Insurance Policies Policy shall not be considered payment by the Trust Fund nor shall such payments payment discharge the obligation of the Trust Fund with respect to such Pool I or Pool IV Class A Certificates, and the Certificate Insurer shall become the owner of such unpaid amounts of Insured Payments and Guaranteed Supplemental Payments due from the Trust Fund in respect of such Class A Certificates. The Trustee hereby agrees on behalf of each Holder of Pool I or Pool IV Certificates a Class A Certificate for the benefit of the Certificate Insurer that it recognizes that to the extent the Certificate Insurer makes Insured Payments or Guaranteed Supplemental Payments, either directly or indirectly (as by paying through the Insurance Paying AgentTrustee), to the Pool I or Pool IV Class A Certificateholders, the Certificate Insurer will be subrogated to the rights of the such Pool I or Pool IV Certificateholders Class A Certificateholders, as applicable, with respect to such Insured Payment or Guaranteed Supplemental Payments, and shall be deemed to the extent of the payments so made to be a registered Class A Certificateholder of the related Class, and shall receive all future Class A Remittance Amounts, as the Pool Carry-Forward Amounts of the related Pools in accordance with Section 6.08(d)(X) below case may be, until all such Insured Payments and Guaranteed Supplemental Payments by the Certificate Insurer have been fully reimbursed (including reimbursements received from TMStogether with interest thereon at the applicable Pass-Cap Trust 1997-1)Through Rate, subject to the following paragraph. To evidence such subrogation, the Trustee shall, or shall cause the Certificate Registrar to, note the Certificate Insurer's rights as subrogee on the registration books maintained by the Trustee or the Certificate Registrar upon receipt from the Certificate Insurer of proof of payment of any Insured Payment. Except as otherwise described herein, the Certificate Insurer shall not acquire any voting rights hereunder as a result of such subrogation. It is understood and agreed that the intention of the parties is that the Certificate Insurer shall not be entitled to reimbursement on any Payment or Guaranteed Supplemental Date for amounts previously paid by it unless on such Payment Date the Class A Certificateholders shall also have received the full amount of the Class A Remittance Amount (exclusive of the principal portion of any Class A Carry-Forward Amount representing amounts previously paid to the Class A Certificateholders as Insured Payments. Each Pool I or Pool IV Certificateholder ), for such Payment Date.
(d) Not later than 11:00 a.m. New York time on each Payment Date, with respect to the Fixed Rate Certificates and the Adjustable Rate Certificates, the Trustee shall promptly withdraw from the Collection Account from the amounts available therein as set forth in this Article VI, if any, and shall, to the extent available, distribute (without duplication) such amount in the priority indicated:
(i) notify first, for deposit into the Trustee in writing upon Insurance Account for the receipt benefit of a court order the Certificate Insurer, the Monthly Premium with respect to such Certificates payable to the effect that any amounts described in Clause Certificate Insurer;
(ii) second, for deposit into the Spread Account, the Excess Spread with respect to the related Mortgage Loan Group;
(iii) third, for deposit into the Letter of Credit Fee Account, the Letter of Credit Fee Amount with respect to such Certificates;
(iv) fourth, from amounts attributable to the related Mortgage Loan Group, (A) to each of the definition of Pool Fixed Rate Certificateholders, the Fixed Rate Interest Remittance Amount constitute a voidable preference pursuant Amount; and (B) to the United States Bankruptcy Code Adjustable Rate Certificateholders, the Adjustable Rate Interest Remittance Amount;
(v) fifth, [Reserved]
(vi) sixth, from amounts attributable to the related Mortgage Loan Group, to the Class A Certificates, as follows:
(A) first, to the Class A-6 Certificates, the Class A-6 Lock-Out Remittance Amount; and then, to the Class X-0, Xxxxx X-0, Class A-3, Class A-4, Class A-5 and Class A-6 Certificates (iiwithout regard to the Class A-6 Lockout Remittance Amount), in that order, until the Principal Balance of each such Class has been reduced to zero, the Fixed Rate Principal Remittance Amount; and
(B) shall enclose a certified copy concurrently, to the Class A-7 Certificates, until the Principal Balance of such order with such notice Class has been reduced to zero, the Adjustable Rate Principal Remittance Amount;
(vii) seventh, to the Trustee, any amounts then due and owing representing fees of the Trustee (without regard to amounts attributable to either Mortgage Loan Group); provided, that the Trustee certifies in writing that such amount is due and owing and has not been paid by the Servicer within 30 days after written demand therefor;
(viii) eighth, to the Servicer and/or the Representative, as applicable, any Reimbursable Amount (without regard to amounts attributable to either Mortgage Loan Group);
(ix) ninth, to the Servicer an amount equal to Nonrecoverable Advances previously made by the Servicer and not previously reimbursed (without regard to amounts attributable to either Mortgage Loan Group); and
(x) tenth, to the Class R Certificateholders, the balance, if any.
(e) [Reserved]
(f) All distributions made to the Class A Certificate holders or the Class R Certificateholders as a Class on each Payment Date will be made on a pro rata basis among the Certificateholders of the respective Class of record on the next preceding Record Date based on the Percentage Interest represented by their respective Certificates, and shall be made by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity having appropriate facilities therefor, if such Certificateholder shall own of record Class A Certificates which have denominations aggregating at least $1,000,000 appearing in the Certificate Register, and in all cases with respect to the Class R Certificates, and shall have provided complete wiring instructions at least five Business Days prior to the Record Date, and otherwise by check mailed to the address of such Certificateholder appearing in the Certificate Register.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Eqcc Asset Backed Corp)
Priority and Subordination of Distributions. (a) The rights of the Certificateholders to receive distributions from the proceeds of the Trust Fund, and all ownership interests of the Certificateholders in such distributions, shall be as set forth in this Agreement. In this regard, all rights of the Class X and Class R Certificateholders to receive distributions in respect of the Class X and Class R Certificates, respectively, and all ownership interests of the Class X and Class R Certificateholders in and to such distributions, Certificates shall be subject and subordinate to the preferential rights of the Class A, Class M and Class B Certificateholders, A Certificateholders to receive distributions in respect of the Class A, Class M and Class B A Certificates, respectively, and to the ownership interests of the Class A, Class M and Class B Certificateholders, respectively, in such distributions, as described extent set forth herein. In accordance with the foregoing, the ownership interests of the Class X and Class R Certificateholders in amounts deposited in the applicable Principal and Interest Account or in any Accounts from time to time shall not vest unless and until such amounts are properly distributed in respect of the Class X and Class R Certificates in accordance with the terms of this Agreement. Notwithstanding anything contained in this Agreement to the contrary, the Class X and Class R Certificateholders no Certificateholder shall not be required to refund any amount properly distributed on to it pursuant to the Class X and Class R Certificatesterms of this Agreement.
(b) [Reserved]
(c) As soon as possible, and in no event later than 10:00 a.m. New York Chicago time on the Business Day immediately preceding each Remittance Date, subject to receipt by the Trustee of the Servicer's Certificate, the Trustee shall furnish the Certificate Insurer and the Servicer with a completed notice in the form set forth as Exhibit L A to the Certificate Insurance Policy (the "Notice") hereto, which will be based upon the information set forth in the Servicer's Certificate, in the event indicating that an Event of Nonpayment will occur, or a Guaranteed Supplemental Insured Payment is owing, with respect to such Remittance Datenecessary. The Notice shall specify the total amount of the Insured Payment and Guaranteed Supplemental Payment to be paid on the applicable Remittance Date, stated separately for each Class of Pool I or Pool IV Certificates, as applicable, and shall constitute a claim for an Insured Payment or Guaranteed Supplemental Payment, as the case may be, pursuant to the applicable Certificate Insurance Policy. The Certificate Insurer shall remit or cause to be remitted to the Insurance Paying Agent the amount Upon receipt of Insured Payments on behalf of the Insured Payment or Guaranteed Supplemental Payment, as the case may be; provided, however, if the Certificate Insurer is not in default with regard to payment Class A Certificateholders under the Certificate Insurance Policies (i) the amount of the Guaranteed Supplemental Payment required to be paid by the Certificate Insurer shall be reduced by the Class X Accelerated Distribution Amount and (ii) any remaining Guaranteed Supplemental Payment or Insured Payment may be funded in whole or in part, by amounts transferred to the Certificate Account from TMS-CAP Trust 1997-1. Upon receipt of such Insured Payment or Guaranteed Supplemental Payment by the Insurance Paying Agent on behalf of the Holders of the respective Class of Pool I or Pool IV Certificates under the applicable Certificate Insurance Policy, it shall remit such amounts to the Trustee who shall deposit such Insured Payment or Guaranteed Supplemental Payment, as the case may be, Payments in the applicable related Certificate Account and shall distribute such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in accordance with Sections 6.08(d)(X) and (e) hereof. Notwithstanding the foregoing, if an Event of Nonpayment with respect to Pool I or Pool IV will occur with respect to a Remittance Date and funds are on deposit in the Spread Account, the amount of the Insured Payment shall be reduced up to the amount then on deposit in the Spread Account. Pursuant to Section 6.05(b)(ii), the Trustee shall, on such Remittance Date, transfer such amount to the applicable Certificate Account from the Spread Account. The Trustee shall serve as Insurance Paying Agent hereunder for so long as a Certificate Insurance Policy shall remain in effect; PROVIDED, HOWEVER, that the Insurance Paying Agent may be located in another jurisdiction with the written consent of the Certificate Insurer. The Insurance Paying Agent shall act as the agent of the Trustee and shall (i) pay amounts required by Section 6.04(b)(i) hereof to the Certificate Insurer, (ii) pay Insured Payments or Guaranteed Supplemental Payments received from the Certificate Insurer as the Trustee shall direct and (iii) take such other actions with respect to the Certificate Insurer and the Certificate Insurance Policies as the Trustee shall direct. The Trustee shall act initially as the Insurance Paying Agent. The Trustee shall receive through the Insurance Paying Agent, as attorney-in-fact of each Holder of Pool I or Pool IV Certificates, any Insured Payment or Guaranteed Supplemental Payment from the Certificate Insurer and disburse the same to each Holder of Pool I or Pool IV Certificates in accordance with the provisions of this Section 6.08. Insured Payments or Guaranteed Supplemental Payments disbursed by the Trustee from proceeds of the Certificate Insurance Policies shall not be considered payment by the Trust Fund nor shall such payments discharge the obligation of the Trust Fund with respect to such Pool I or Pool IV Certificates, and the Certificate Insurer shall become the owner of such unpaid amounts of Insured Payments and Guaranteed Supplemental Payments due from the Trust Fund in respect of such Certificates. The Trustee hereby agrees on behalf of each Holder of Pool I or Pool IV Certificates for the benefit of the Certificate Insurer that it recognizes that to the extent the Certificate Insurer makes Insured Payments or Guaranteed Supplemental Payments, either directly or indirectly (as by paying through the Insurance Paying Agent), to the Pool I or Pool IV Certificateholders, the Certificate Insurer will be subrogated to the rights of the such Pool I or Pool IV Certificateholders with respect to such Insured Payment or Guaranteed Supplemental Payments, shall be deemed to the extent of the payments so made to be a registered Certificateholder of the related Class, and shall receive the Pool Carry-Forward Amounts of the related Pools in accordance with Section 6.08(d)(X6.02(ii) below until all such Insured Payments above and Guaranteed Supplemental Payments by the Certificate Insurer have been fully reimbursed Section 6.06(c) and (including reimbursements received from TMS-Cap Trust 1997-1d). To evidence such subrogation, the Trustee shall, or shall cause the Certificate Registrar to, note the Certificate Insurer's rights as subrogee on the registration books maintained by the Trustee or the Certificate Registrar upon receipt from the Certificate Insurer of proof of payment of any Insured Payment or Guaranteed Supplemental Payments. Each Pool I or Pool IV Class A Certificateholder shall promptly (i) notify the Trustee in writing upon the receipt of a court order to the effect that any amounts as described in Clause clause (ivc)(vii) of the definition of Pool Remittance Amount constitute a voidable preference pursuant to the United States Bankruptcy Code and (ii) shall enclose a certified copy of such order with such notice to the Trustee.Class A Principal
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Superior Bank FSB)
Priority and Subordination of Distributions. (a) The rights of the Certificateholders to receive distributions from the proceeds of the Trust Fund, and all ownership interests of the Certificateholders in such distributions, shall be as set forth in this Agreement. In this regard, all The rights of the Class X and Class R Certificateholders to receive distributions in respect of the Class X and Class R Certificates, respectively, and all ownership interests of the Class X and Class R Certificateholders in and to such distributions, Certificates shall be subject and subordinate to the preferential rights of the Class A, Class M and Class B Certificateholders, A Certificateholders to receive distributions in respect of the Class A, Class M and Class B A Certificates, respectivelyto the extent set forth herein, and distributions on the ownership interests Class X Certificates are subject and subordinate to the maintenance of the Class A, Class M and Class B Certificateholders, respectively, in such distributions, Specified Spread Account Requirement as described specified herein. In accordance with the foregoing, the ownership interests of the Class X and Class R Certificateholders in amounts deposited in the applicable Principal and Interest Spread Account or in any Accounts from time to time shall not vest unless and until such amounts are distributed in respect of the Class X and Class R Certificates in accordance with the terms of this Agreement. Notwithstanding anything contained in this Agreement to the contrary, the Class X and Class R Certificateholders no Certificateholder shall not be required to refund any amount properly distributed on the Class X and Class R Certificatesto it pursuant to Section 6.02, 6.05, 6.09(b) or 6.09(d).
(b) [Reserved];
(c) As soon as possible, and in no event later than 10:00 a.m. New York time on the Business Day immediately preceding each Remittance Distribution Date, the Trustee shall furnish the Certificate Insurer and the Servicer with a completed notice in the form set forth as Exhibit L Q hereto (the "Notice") hereto, which will be based upon the information set forth in the Servicer's Certificate, in the event that an Event of Nonpayment will occur, or a Guaranteed Supplemental Payment is owingpursuant to the definition thereof, with respect to such Remittance Distribution Date. The Notice shall specify the total amount of the Insured Payment and Guaranteed Supplemental Payment to be paid on the applicable Remittance Date, stated separately for each Class of Pool I or Pool IV Certificates, as applicable, and shall constitute a claim for an Insured Payment or Guaranteed Supplemental Payment, as the case may be, pursuant to the applicable Certificate Insurance Policy. The Certificate Insurer shall remit or cause to be remitted to Upon receipt of Insured Payments for the Insurance Paying Agent the amount benefit of the Insured Payment or Guaranteed Supplemental Payment, as the case may be; provided, however, if the Certificate Insurer is not in default with regard to payment Class A Certificateholders under the Certificate Insurance Policies (i) the amount of the Guaranteed Supplemental Payment required to be paid by the Certificate Insurer shall be reduced by the Class X Accelerated Distribution Amount and (ii) any remaining Guaranteed Supplemental Payment or Insured Payment may be funded in whole or in part, by amounts transferred to the Certificate Account from TMS-CAP Trust 1997-1. Upon receipt of such Insured Payment or Guaranteed Supplemental Payment by the Insurance Paying Agent on behalf of the Holders of the respective Class of Pool I or Pool IV Certificates under the applicable Certificate Insurance Policy, it shall remit such amounts to the Trustee who shall deposit such Insured Payment or Guaranteed Supplemental Payment, as the case may be, Payments in the applicable Certificate Account and shall distribute such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in accordance with Sections 6.08(d)(X) and (e) hereof. Notwithstanding the foregoing, if an Event of Nonpayment with respect to Pool I or Pool IV will occur with respect to a Remittance Date and funds are on deposit in the Spread Account, the amount of the Insured Payment shall be reduced up to the amount then on deposit in the Spread Account. Pursuant to Section 6.05(b)(ii), the Trustee shall, on such Remittance Date, transfer such amount to the applicable Certificate Account from the Spread Collection Account. The Trustee shall serve as Insurance Paying Agent hereunder for so long as a Certificate Insurance Policy shall remain in effect; PROVIDED, HOWEVER, that the Insurance Paying Agent may be located in another jurisdiction with the written consent of the Certificate Insurer. The Insurance Paying Agent shall act as the agent of the Trustee and shall (i) pay amounts required by Section 6.04(b)(i) hereof to the Certificate Insurer, (ii) pay Insured Payments or Guaranteed Supplemental Payments received from the Certificate Insurer as the Trustee shall direct and (iii) take such other actions with respect to the Certificate Insurer and the Certificate Insurance Policies as the Trustee shall direct. The Trustee shall act initially as the Insurance Paying Agent. The Trustee shall receive through the Insurance Paying Agentreceive, as attorney-in-fact of each Holder of Pool I or Pool IV Certificatesa Class A Certificate, any Insured Payment or Guaranteed Supplemental Payment from the Certificate Insurer and disburse the same to each Holder of Pool I or Pool IV Certificates a Class A Certificate, respectively, in accordance with the provisions of this Section 6.086.05. Insured Payments or Guaranteed Supplemental Payments disbursed by the Trustee from proceeds of the Certificate Insurance Policies Policy shall not be considered payment by the Trust Fund nor shall such payments payment discharge the obligation of the Trust Fund with respect to such Pool I or Pool IV Class A Certificates, and the Certificate Insurer shall become the owner of such unpaid amounts of Insured Payments and Guaranteed Supplemental Payments due from the Trust Fund in respect of such Class A Certificates. The Trustee hereby agrees on behalf of each Holder of Pool I or Pool IV Certificates a Class A Certificate for the benefit of the Certificate Insurer that it recognizes that to the extent the Certificate Insurer makes Insured Payments or Guaranteed Supplemental Payments, either directly or indirectly (as by paying through the Insurance Paying AgentTrustee), to the Pool I or Pool IV Class A Certificateholders, the Certificate Insurer will be subrogated to the rights of the such Pool I or Pool IV Certificateholders Class A Certificateholders, as applicable, with respect to such Insured Payment or Guaranteed Supplemental Payments, and shall be deemed to the extent of the payments so made to be a registered Class A Certificateholder of the related Class, and shall receive all future Class A Remittance Amounts, as the Pool Carry-Forward Amounts of the related Pools in accordance with Section 6.08(d)(X) below case may be, until all such Insured Payments and Guaranteed Supplemental Payments by the Certificate Insurer have been fully reimbursed (including reimbursements received from TMStogether with interest thereon at the applicable Pass-Cap Trust 1997-1)Through Rate, subject to the following paragraph. To evidence such subrogation, the Trustee shall, or shall cause the Certificate Registrar to, note the Certificate Insurer's rights as subrogee on the registration books maintained by the Trustee or the Certificate Registrar upon receipt from the Certificate Insurer of proof of payment of any Insured Payment or Guaranteed Supplemental Payments. Each Pool I or Pool IV Certificateholder shall promptly (i) notify the Trustee in writing upon the receipt of a court order to the effect that any amounts described in Clause (iv) of the definition of Pool Remittance Amount constitute a voidable preference pursuant to the United States Bankruptcy Code and (ii) shall enclose a certified copy of such order with such notice to the Trustee.any
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Eqcc Receivables Corp)
Priority and Subordination of Distributions. (a) The rights of the Certificateholders to receive distributions from the proceeds of the Trust Fund, and all ownership interests of the Certificateholders in such distributions, shall be as set forth in this Agreement. In this regard, all rights of the Class X and Class R Certificateholders to receive distributions in respect of the Class X and Class R Certificates, respectively, and all ownership interests of the Class X and Class R Certificateholders in and to such distributions, Certificates shall be subject and subordinate to the preferential rights of the Class A, Class M and Class B Certificateholders, A Certificateholders to receive distributions in respect of the Class A, Class M and Class B A Certificates, respectively, and to the ownership interests of the Class A, Class M and Class B Certificateholders, respectively, in such distributions, as described extent set forth herein. In accordance with the foregoing, the ownership interests of the Class X and Class R Certificateholders in amounts deposited in the applicable Principal and Interest Account or in any Accounts from time to time shall not vest unless and until such amounts are properly distributed in respect of the Class X and Class R Certificates in accordance with the terms of this Agreement. Notwithstanding anything contained in this Agreement to the contrary, the Class X and Class R Certificateholders no Certificateholder shall not be required to refund any amount properly distributed on to it pursuant to the Class X and Class R Certificatesterms of this Agreement.
(b) [Reserved]
(c) As soon as possible, and in no event later than 10:00 a.m. New York Chicago time on the Business Day immediately preceding each Remittance Date, subject to receipt by the Trustee of the Servicer's Certificate, the Trustee shall furnish the Certificate Insurer and the Servicer with a completed notice in the form set forth as Exhibit L A to the Certificate Insurance Policy (the "Notice") hereto, which will be based upon the information set forth in the Servicer's Certificate, in the event indicating that an Event of Nonpayment will occur, or a Guaranteed Supplemental Insured Payment is owing, with respect to such Remittance Datenecessary. The Notice shall specify the total amount of the Insured Payment and Guaranteed Supplemental Payment to be paid on the applicable Remittance Date, stated separately for each Class of Pool I or Pool IV Certificates, as applicable, and shall constitute a claim for an Insured Payment pursuant to the Certificate Insurance Policy. Upon receipt of Insured Payments on behalf of the Class A Certificateholders under the Certificate Insurance Policy, the Trustee shall deposit such Insured Payments in the related Certificate Account and shall distribute such Insured Payments in accordance with Section 6.02(ii) above and Section 6.06(c) and (d). Each Class A Certificateholder shall promptly notify the Trustee in writing upon the receipt of a court order as described in clause (c)(vii) of the definition of Class A Principal Remittance Amount. The Trustee shall promptly notify the Certificate Insurer upon its receipt from any Certificateholder of any such court order. If the payment of any portion or Guaranteed Supplemental Paymentall of any amount that is insured by the Certificate Insurer under the Certificate Insurance Policy is voided pursuant to a final order of a court exercising proper jurisdiction in an insolvency proceeding to the effect that the Trustee or the Class A Certificateholder, as the case may be, pursuant is required to return any such payment or portion thereof prior to the applicable expiration date of the Certificate Insurance Policy. The Policy because such payment was voided under the U.S. Bankruptcy Code, with respect to which order the appeal period has expired without an appeal having been filed (a "Final Order"), and, as a result, the Trustee or any Class A Certificateholder is required to return such voided payment, or any portion of such voided payment made in respect of the Class A Certificates (a "Preference Amount"), the Certificate Insurer shall remit or cause will pay an amount equal to be remitted each such Preference Amount, on the second Business Day following receipt by the Certificate Insurer of (x) a certified copy of the Final Order, (y) an assignment, in form reasonably satisfactory to the Insurance Paying Agent Certificate Insurer, irrevocably assigning to the amount Certificate Insurer all rights and claims of the Insured Payment Trustee and/or such Class A Certificateholder relating to or Guaranteed Supplemental Paymentarising under such Preference Amount and appointing the Certificate Insurer as the agent of the Trustee and/or such Class A Certificateholder in respect of such Preference Amount, and (z) a Notice appropriately completed and executed by the Trustee or such Class A Certificateholder, as the case may be; provided. Such payment shall be made to the receiver, howeverconservator, if debtor-in-possession or trustee in bankruptcy named in the Final Order and not to the Trustee or Class A Certificateholder directly (unless a Class A Certificateholder has previously paid such amount to such receiver, conservator, debtor-in-possession or trustee named in such Final Order in which case payment shall be made to the Trustee for distribution to the Class A Certificateholder upon proof of such payment reasonably satisfactory to the Certificate Insurer). Notwithstanding the foregoing, in no event shall the Certificate Insurer is not in default with regard be (i) required to make any payment under the Certificate Insurance Policies (i) Policy in respect of any Preference Amount to the amount extent such Preference Amount is comprised of the Guaranteed Supplemental Payment required to be amounts previously paid by the Certificate Insurer shall be reduced by the Class X Accelerated Distribution Amount and thereunder, or (ii) obligated to make any remaining Guaranteed Supplemental Payment or Insured Payment may be funded payment in whole or respect of any Preference Amount, which payment represents a payment of the principal amount of the Class A Certificates, prior to the time the Certificate Insurer otherwise would have been required to make a payment in partrespect of such principal. Each Class A Certificateholder, by amounts transferred to its purchase of the Class A Certificates, the Servicer and the Trustee hereby agree that the Certificate Account from TMS-CAP Trust 1997-1Insurer may at any time during the continuation of any proceeding relating to a preference claim direct all matters relating to such preference claim, including, without limitation, the direction of any appeal of any order relating to such preference claim and the posting of any surety, supersedeas or performance bond pending any such appeal. Upon receipt In addition and without limitation of such Insured Payment or Guaranteed Supplemental Payment by the Insurance Paying Agent on behalf of the Holders of the respective Class of Pool I or Pool IV Certificates under the applicable Certificate Insurance Policy, it shall remit such amounts to the Trustee who shall deposit such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in the applicable Certificate Account and shall distribute such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in accordance with Sections 6.08(d)(X) and (e) hereof. Notwithstanding the foregoing, if the Certificate Insurer shall be subrogated to the rights of the Servicer, the Trustee and each Class A Certificateholder in the conduct of any such preference claim, including, without limitation, all rights of any party to an Event of Nonpayment adversary proceeding action with respect to Pool I or Pool IV will occur any court order issued in connection with respect to a Remittance Date and funds are on deposit in the Spread Account, the amount of the Insured Payment shall be reduced up to the amount then on deposit in the Spread Account. Pursuant to Section 6.05(b)(ii), the Trustee shall, on any such Remittance Date, transfer such amount to the applicable Certificate Account from the Spread Accountpreference claim. The Trustee shall serve as Insurance Paying Agent hereunder for so long as a Certificate Insurance Policy shall remain in effect; PROVIDED, HOWEVER, that the Insurance Paying Agent may be located in another jurisdiction with the written consent of the Certificate Insurer. The Insurance Paying Agent shall act as the agent of the Trustee and shall (i) pay amounts required by Section 6.04(b)(i) hereof to the Certificate Insurer, (ii) pay Insured Payments or Guaranteed Supplemental Payments received from the Certificate Insurer as the Trustee shall direct and (iii) take such other actions with respect to the Certificate Insurer and the Certificate Insurance Policies as the Trustee shall direct. The Trustee shall act initially as the Insurance Paying Agent. The Trustee shall receive through the Insurance Paying Agentreceive, as attorney-in-fact of each Holder of Pool I or Pool IV Certificatesa Class A Certificate, any Insured Payment or Guaranteed Supplemental Payment with respect to the related Sub-Pool from the Certificate Insurer and disburse the same to each Holder of a Class A Certificate with respect to the related Sub-Pool I or Pool IV Certificates in accordance with the provisions of this Section 6.086.06. Insured Payments or Guaranteed Supplemental Payments disbursed by the Trustee from proceeds of the Certificate Insurance Policies Policy shall not be considered payment by the Trust Fund nor shall such payments discharge the obligation of the Trust Fund with respect to such Pool I or Pool IV Class A Certificates, and the Certificate Insurer shall become the owner of such unpaid amounts of Insured Payments and Guaranteed Supplemental Payments due from the Trust Fund in respect of such Class A Certificates. The Trustee hereby agrees on behalf of each Holder of Pool I or Pool IV Certificates a Class A Certificate for the benefit of the Certificate Insurer that it recognizes that to the extent the Certificate Insurer makes Insured Payments or Guaranteed Supplemental Paymentswith respect to a Sub-Pool, either directly or indirectly (as by paying through the Insurance Paying AgentTrustee), to the Pool I or Pool IV related Class A Certificateholders, the Certificate Insurer will be subrogated to the rights of the such Pool I or Pool IV Certificateholders Class A Certificateholders, with respect to such Insured Payment or Guaranteed Supplemental PaymentsPayment, shall be deemed deemed, to the extent of the payments so made made, to be a registered Class A Certificateholder of the related Class, and shall receive the all future related Class A Remittance Amounts with respect to such Sub-Pool Carry-Forward Amounts of the related Pools in accordance with Section 6.08(d)(X) below until all such Insured Payments and Guaranteed Supplemental Payments by the Certificate Insurer have been fully reimbursed (including reimbursements received from TMS-Cap Trust 1997-1)reimbursed, subject to the following paragraph. To evidence such subrogation, the Trustee shall, or shall cause the Certificate Registrar to, note the Certificate Insurer's rights as subrogee on the registration books maintained by the Trustee or the Certificate Registrar upon receipt from the Certificate Insurer of proof of payment of any Insured Payment. Except as otherwise described herein, the Certificate Insurer shall not acquire any voting rights hereunder as a result of such subrogation. The effect of the foregoing provisions is that, to the extent of Insured Payments made by it, the Certificate Insurer shall be paid before payment of the balance of the Class A Remittance Amount with respect to the related Sub-Pool for which an Insured Payment was made, is made to the other Holders of the related Class A Certificates, subject to the following paragraph. It is understood and agreed that the intention of the parties is that the Certificate Insurer shall not be entitled to reimbursement on any Remittance Date for amounts previously paid by it with respect to a Sub-Pool unless on such Remittance Date the related Class A Certificateholders shall also have received the full amount of the related Class A Remittance Amount with respect to the related Class of Class A Certificates (exclusive of any related Class A Carry-Forward Amount, to the extent representing amounts previously paid to such related Class A Certificateholders as Insured Payments or Guaranteed Supplemental representing interest accrued in respect of Insured Payments) for such Remittance Date.
(c) On or before each Remittance Date, the Servicer shall determine the Overcollateralization Amount for each Sub-Pool after giving effect to the distribution of the related Class A Principal Remittance Amount to the Holders of the related Class of Class A Certificates on such Remittance Date and the amount of the related Net Excess Spread. Each Pool I or Pool IV Certificateholder shall promptly (i) notify On each Remittance Date the Trustee in writing shall withdraw from each Certificate Account the related Amount Available, and make distributions thereof, based upon the receipt information set forth in the Servicer's Certificate for such Remittance Date, in the following order of a court order priority to the effect that any amounts described in Clause (iv) of the definition of Pool Remittance Amount constitute a voidable preference pursuant extent available, except to the United States Bankruptcy Code and extent that the priority set forth in Section 6.07 shall be applicable:
(iiA) shall enclose a certified copy of such order with such notice With respect to the Trustee.Class 1A Certificates and Sub-Pool 1:
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Superior Bank FSB)
Priority and Subordination of Distributions. (a) The rights of the Noteholders and Certificateholders to receive distributions from the proceeds of the Trust FundTrust, and all ownership interests of the Noteholders and Certificateholders in such distributions, shall be as set forth in this Agreement and the Trust Agreement. In this regard, all rights of the Class X and Class R Certificateholders to receive distributions in respect of the Class X and Class R Certificates, respectively, and all ownership interests of the Class X and Class R Certificateholders in and to such distributions, shall be subject and subordinate to the preferential rights of the Class A, Class M and Class B Certificateholders, Noteholders to receive distributions in respect of the Class A, Class M and Class B Certificates, respectively, and the ownership interests of the Class A, Class M and Class B Certificateholders, respectively, in such distributionsNotes, as described herein. In accordance with the foregoing, the ownership interests of the Class X and Class R Certificateholders in amounts deposited in the applicable Principal and Interest Account or in any Accounts from time to time shall not vest unless and until such amounts are distributed in respect of the Class X and Class R Certificates in accordance with the terms of this Agreement and the Trust Agreement. Notwithstanding anything contained in this Agreement to the contrary, the Class X and Class R Certificateholders shall not be required to refund any amount properly distributed on the Class X and Class R Certificates.
(b) [Reserved]
(c) As soon as possible, and in no event later than 10:00 a.m. New York time on the Business Day immediately preceding each Remittance Date, the Indenture Trustee shall furnish the Certificate Note Insurer and the Servicer with a completed notice in the form set forth as Exhibit L H or Exhibit I (the "Notice") hereto, as the case may be, which will be based upon the information set forth in the ServicerTrust Administrator's Certificate, in the event that an Event of Nonpayment will occur, or a Guaranteed Supplemental Payment is owing, occur with respect to such Remittance Date. The Notice shall specify the total amount of the Insured Payment and Guaranteed Supplemental Payment to be paid on the applicable Remittance Date, stated separately for each Class of Pool I or Pool IV CertificatesII Notes, as applicable, and shall constitute a claim for an Insured Payment or Guaranteed Supplemental Payment, as the case may be, pursuant to the applicable Certificate Note Insurance Policy. The Certificate Note Insurer shall remit or cause to be remitted to the Insurance Paying Agent the amount of the Insured Payment or Guaranteed Supplemental Payment, as the case may be; provided, however, if the Certificate Insurer is not in default with regard to payment under the Certificate Insurance Policies (i) the amount of the Guaranteed Supplemental Payment required to be paid by the Certificate Insurer shall be reduced by the Class X Accelerated Distribution Amount and (ii) any remaining Guaranteed Supplemental Payment or Insured Payment may be funded in whole or in part, by amounts transferred to the Certificate Account from TMS-CAP Trust 1997-1. Upon receipt of such Insured Payment or Guaranteed Supplemental Payment by the Insurance Paying Agent on behalf of the Holders of the respective Class of Pool I or Pool IV Certificates II Notes under the applicable Certificate Note Insurance Policy, it shall remit such amounts to the Indenture Trustee who shall deposit such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in the applicable Certificate Note Distribution Account and shall distribute such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in accordance with Sections 6.08(d)(X7.08(d) and (e) hereof. Notwithstanding the foregoing, if an Event of Nonpayment with respect to Pool I or Pool IV II will occur with respect to a Remittance Date and funds are on deposit in the Spread Account, the amount of the Insured Payment shall be reduced up to the amount then on deposit in the Spread Account. Pursuant to Section 6.05(b)(ii7.05(b)(ii), the Indenture Trustee shall, on such Remittance Date, transfer such amount to the applicable Certificate Note Distribution Account from the Spread Account. The Indenture Trustee shall serve as Insurance Paying Agent hereunder for so long as a Certificate Note Insurance Policy shall remain in effect; PROVIDED, HOWEVER, that the Insurance Paying Agent may be located in another jurisdiction with the written consent of the Certificate Note Insurer. The Insurance Paying Agent shall act as the agent of the Indenture Trustee and shall (i) pay amounts required by Section 6.04(b)(i7.04(b)(i) hereof to the Certificate Note Insurer, (ii) pay Insured Payments or Guaranteed Supplemental Payments received from the Certificate Note Insurer as the Indenture Trustee shall direct and (iii) take such other actions with respect to the Certificate Note Insurer and the Certificate Note Insurance Policies as the Indenture Trustee shall direct. The Trustee shall act initially as the Insurance Paying Agent. The Indenture Trustee shall receive through the Insurance Paying Agent, as attorney-in-fact of each Holder of Pool I or Pool IV CertificatesII Notes, any Insured Payment or Guaranteed Supplemental Payment from the Certificate Note Insurer and disburse the same to each Holder of Pool I or Pool IV Certificates II Notes in accordance with the provisions of this Section 6.087.08. Insured Payments or Guaranteed Supplemental Payments disbursed by the Indenture Trustee from proceeds of the Certificate Note Insurance Policies shall not be considered payment by the Trust Fund nor shall such payments discharge the obligation of the Trust Fund with respect to such Pool I or Pool IV CertificatesII Notes, and the Certificate Note Insurer shall become the owner of such unpaid amounts of Insured Payments and Guaranteed Supplemental Payments due from the Trust Fund in respect of such CertificatesNotes. The Indenture Trustee hereby agrees on behalf of each Holder of Pool I or Pool IV Certificates II Notes for the benefit of the Certificate Note Insurer that it recognizes that to the extent the Certificate Note Insurer makes Insured Payments or Guaranteed Supplemental Payments, either directly or indirectly (as by paying through the Insurance Paying Agent), to the Pool I or Pool IV CertificateholdersII Noteholders, the Certificate Note Insurer will be subrogated to the rights of the such Pool I or Pool IV Certificateholders II Noteholders with respect to such Insured Payment or Guaranteed Supplemental PaymentsPayment, shall be deemed to the extent of the payments so made to be a registered Certificateholder Noteholder of the related Class, and shall receive the Pool Carry-Forward Amounts of the related Pools in accordance with Section 6.08(d)(X7.08(d)(I)(A) and (B), in the case of Pool I, and Section 7.08(d) (II)(A) and (B), in the case of Pool II, below until all such Insured Payments and Guaranteed Supplemental Payments by the Certificate Note Insurer have been fully reimbursed (including reimbursements received from TMS-Cap Trust 1997-1)reimbursed. To evidence such subrogation, the Indenture Trustee shall, or shall cause the Certificate Note Registrar to, note the Certificate Note Insurer's rights as subrogee on the registration books maintained by the Indenture Trustee or the Certificate Note Registrar upon receipt from the Certificate Note Insurer of proof of payment of any Insured Payment or Guaranteed Supplemental PaymentsPayment. Each Pool I or Pool IV Certificateholder II Noteholder shall promptly (i) notify the Indenture Trustee in writing upon the receipt of a court order to the effect that any amounts described in Clause (iv) of the definition of Pool Remittance Amount constitute a voidable preference pursuant to the United States Bankruptcy Code and (ii) shall enclose a certified copy of such order with such notice to the Indenture Trustee.
(d) On each Remittance Date, and after making the allocations set forth in Section 7.14, the Indenture Trustee shall withdraw from the applicable Note Distribution Account the Pool Available Amount for each such Pool and make distributions thereof in the following order of priority (based solely upon information received from the Trust Administrator):
(i) to the Expense Account relating to Pool I or Pool II, an amount equal to one-twelfth of the Annual Expense Escrow Amount with respect to the Loans of the related Pool, plus any amount required to be paid to the Indenture Trustee, the Owner Trustee, the Remarketing Agent or the Trust Administrator pursuant to Section 7.03(a) resulting from insufficiencies in the applicable Expense Account;
(ii) then to the Noteholders of each such Pool, the lesser of the Pool Available Amount for the related Pool less the amount applied under clause (i) with respect to such Pool and the Pool Remittance Amount for the related Pool first in payment of the applicable Current Interest Requirements and then in reduction of the applicable Class Principal Balances of the applicable Notes;
(iii) then to the Servicer and/or the Representative, an amount, if any, equal to the Reimbursable Amounts with respect to the applicable Pool to the extent the Servicer has not previously netted such amounts from Monthly Payments;
(iv) [Reserved]; and
(v) then to the Owner Trustee (or the Paying Agent under the Trust Agreement on its behalf) for deposit in the Certificate Distribution Account, the Certificate Remittance Amount.
(I) On each Remittance Date, the amount to be distributed to the Pool I Notes pursuant to clause (ii) above, along with amounts transferred from the Rounding Account pursuant to Section 7.08(g), will be allocated in the following order of priority:
(A) first, concurrently to the Noteholders of each Class of Pool I Notes, the applicable Current Interest Requirement for such Remittance Date, pro rata in accordance with such Current Interest Requirements; and
(B) second, concurrently to the Class AF-1 and Class AF-2 Notes, pro rata based upon their respective Class Principal Balance, the excess, if any, of the amount to be distributed to the Pool I Notes on such Remittance Date over the amount distributed pursuant to (A) above and reimbursement to the Rounding Account as described below, until the Class Principal Balance of each such Class is reduced to zero and such Noteholders have received an amount equal to the amount described in clause (iv) of the definition of Pool Remittance Amount that is recovered from such Noteholders.
(II) On each Remittance Date, the amount to be distributed to the Pool II Notes pursuant to clause (ii) above will be allocated in the following order of priority:
(A) first, to the Holders of the Class AV Notes, the Current Interest Requirement for the Class AV Notes for such Remittance Date; and
(B) second, to the Class AV Noteholders, the excess, if any, of the amount to be distributed to the Pool II Notes on such Remittance Date over the amount distributed pursuant to (A) above, until the Class Principal Balance of such Class is reduced to zero and such Noteholders have received an amount equal to the amount described in clause (iv) of the definition of Pool Remittance Amount that is recovered from such Noteholders.
(e) Except as described in clause (f) below, all distributions made to the Noteholders on each Remittance Date will be made on a pro rata basis among the Noteholders of the respective Class of record on the next preceding Record Date based on the Percentage Interest represented by their respective Notes, and shall, except for the final payment on such Notes, be made by wire transfer of immediately available funds to the account of such Noteholder as shall appear on the Note Register without the presentation or surrender of the Note or the making of any notation thereon, at a bank or other entity having appropriate facilities therefor, at the expense of each such Noteholder unless such Noteholder shall own of record Notes which have original principal amounts aggregating (i) at least $5,000,000 or (ii) one of the two highest outstanding amounts less than $5,000,000.
(f) Notwithstanding the foregoing, the amount being distributed to the Class AF-2 Notes on each Remittance Date pursuant to Section 7.08(d)(I)(B) will be allocated as principal to the specific Notes of such Class selected no later than 5 Business Days prior to the related Remittance Date by lot or such other manner as may be determined, which allocations will be made only in amounts equal to $1,000 and integral multiples of $1,000 in excess thereof.
(g) On each Remittance Date, the holders of the Class AF-1 and Class AF-2 Notes also will receive amounts transferred from the Rounding Account pursuant to Section 7.02(b)(i). Principal payments distributed to the holders of the Class AF-1 and Class AF-2 Notes shall be made in integral multiples of $1,000. If on any Remittance Date the amount of principal to be distributed to the holders of Class AF-1 or Class AF-2 is not an even multiple of $1,000, such holders will receive from the Rounding Account the amount of such difference. The Rounding Account will be reimbursed, to the extent funds are available, on the next Remittance Date prior to principal being paid to the holders of the Class AF-1 and Class AF-2 Notes.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Money Store Home Equity Corp)
Priority and Subordination of Distributions. (a) The rights of the Certificateholders to receive distributions from the proceeds of the Trust Fund, and all ownership interests of the Certificateholders in such distributions, shall be as set forth in this Agreement. In this regard, all The rights of the Class X and Class R Certificateholders to receive distributions in respect of the Class X and Class R Certificates, respectively, and all ownership interests of the Class X and Class R Certificateholders in and to such distributions, Certificates shall be subject and subordinate to the preferential rights of the Class A, Class M and Class B Certificateholders, A Certificateholders to receive distributions in respect of the Class A, Class M and Class B A Certificates, respectivelyto the extent set forth herein, and distributions on the ownership interests Class R Certificates are subject and subordinate to the maintenance of the Class A, Class M and Class B Certificateholders, respectively, in such distributions, Specified Spread Account Requirement as described specified herein. In accordance with the foregoing, the ownership interests of the Class X and Class R Certificateholders in amounts deposited in the applicable Principal and Interest Account or in any Accounts from time to time shall not vest unless and until such amounts are distributed in respect of the Class X and Class R Certificates in accordance with the terms of this Agreement. Notwithstanding anything contained in this Agreement to the contrary, the Class X and Class R Certificateholders no Certificateholder shall not be required to refund any amount properly distributed on the Class X and Class R Certificatesto it pursuant to Section 6.02, 6.05, 6.09(b) or 6.09(d).
(b) [Reserved]No later than 10:00a.m. New York time on the Business Day immediately following each Determination Date occurring on or prior to the earlier to occur of (x) the Cross-Over Date or (y) the Payment Date on which all amounts due have been paid to the ClassA Certificateholders (including the Certificate Insurer as subrogee of the ClassA Certificateholders) based exclusively on the computer tape and other information prepared by the Servicer pursuant to Section 6.07, indicating with respect to the immediately succeeding Payment Date:
(i) whether, any withdrawals from the Spread Account would be required pursuant to Section 6.09(b)(iii);
(ii) if so, whether the amount available in cash and from liquidation of Permitted Instruments on deposit in the Spread Account would be insufficient to fund such withdrawal; and
(iii) if so, the amount that is the lesser of (A) the amount of shortfall and (B) the amount then available to be drawn under the Letter(s) of Credit then on deposit in the Spread Account (the "Draw Amount"); the Trustee shall promptly cause to be presented to the Letter of Credit Bank(s) of such Letter(s) of Credit a drawing certificate(s) of proper form for payment thereunder such that the proceeds of such drawing(s) will be available on the Business Day next preceding the next Payment Date and otherwise in conformity with the terms thereof for the aggregate Draw Amount. The Trustee shall draw upon all other Letters of Credit, to the full extent amounts are available thereunder. Proceeds received in payment of any Letter of Credit drawings shall be deposited and held in the Letter of Credit Proceeds Sub-Account of the Spread Account.
(c) As soon as possible, and in no event later than 10:00 a.m. New York time on the Business Day immediately preceding each Remittance Payment Date, the Trustee shall furnish the Certificate Insurer and the Servicer with a completed notice in the form set forth as Exhibit L Q hereto (the "Notice") hereto, which will be based upon the information set forth in the Servicer's Certificate, in the event that an Event of Nonpayment will occur, or a Guaranteed Supplemental Payment is owingpursuant to the definition thereof, with respect to such Remittance Payment Date. The Notice shall specify the total amount of the Insured Payment and Guaranteed Supplemental Payment to be paid on the applicable Remittance Date, stated separately for each Class of Pool I or Pool IV Certificates, as applicable, and shall constitute a claim for an Insured Payment or Guaranteed Supplemental Payment, as the case may be, pursuant to the applicable Certificate Insurance Policy. The Certificate Insurer shall remit or cause to be remitted to Upon receipt of Insured Payments for the Insurance Paying Agent the amount benefit of the Insured Payment or Guaranteed Supplemental Payment, as the case may be; provided, however, if the Certificate Insurer is not in default with regard to payment Class A Certificateholders under the Certificate Insurance Policies (i) the amount of the Guaranteed Supplemental Payment required to be paid by the Certificate Insurer shall be reduced by the Class X Accelerated Distribution Amount and (ii) any remaining Guaranteed Supplemental Payment or Insured Payment may be funded in whole or in part, by amounts transferred to the Certificate Account from TMS-CAP Trust 1997-1. Upon receipt of such Insured Payment or Guaranteed Supplemental Payment by the Insurance Paying Agent on behalf of the Holders of the respective Class of Pool I or Pool IV Certificates under the applicable Certificate Insurance Policy, it shall remit such amounts to the Trustee who shall deposit such Insured Payment or Guaranteed Supplemental Payment, as the case may be, Payments in the applicable Certificate Account and shall distribute such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in accordance with Sections 6.08(d)(X) and (e) hereof. Notwithstanding the foregoing, if an Event of Nonpayment with respect to Pool I or Pool IV will occur with respect to a Remittance Date and funds are on deposit in the Spread Account, the amount of the Insured Payment shall be reduced up to the amount then on deposit in the Spread Account. Pursuant to Section 6.05(b)(ii), the Trustee shall, on such Remittance Date, transfer such amount to the applicable Certificate Account from the Spread Collection Account. The Trustee shall serve as Insurance Paying Agent hereunder for so long as a Certificate Insurance Policy shall remain in effect; PROVIDED, HOWEVER, that the Insurance Paying Agent may be located in another jurisdiction with the written consent of the Certificate Insurer. The Insurance Paying Agent shall act as the agent of the Trustee and shall (i) pay amounts required by Section 6.04(b)(i) hereof to the Certificate Insurer, (ii) pay Insured Payments or Guaranteed Supplemental Payments received from the Certificate Insurer as the Trustee shall direct and (iii) take such other actions with respect to the Certificate Insurer and the Certificate Insurance Policies as the Trustee shall direct. The Trustee shall act initially as the Insurance Paying Agent. The Trustee shall receive through the Insurance Paying Agentreceive, as attorney-in-fact of each Holder of Pool I or Pool IV Certificatesa Class A Certificate, any Insured Payment or Guaranteed Supplemental Payment from the Certificate Insurer and disburse the same to each Holder of Pool I or Pool IV Certificates a Class A Certificate, respectively, in accordance with the provisions of this Section 6.086.05. Insured Payments or Guaranteed Supplemental Payments disbursed by the Trustee from proceeds of the Certificate Insurance Policies Policy shall not be considered payment by the Trust Fund nor shall such payments payment discharge the obligation of the Trust Fund with respect to such Pool I or Pool IV Class A Certificates, and the Certificate Insurer shall become the owner of such unpaid amounts of Insured Payments and Guaranteed Supplemental Payments due from the Trust Fund in respect of such Class A Certificates. The Trustee hereby agrees on behalf of each Holder of Pool I or Pool IV Certificates a Class A Certificate for the benefit of the Certificate Insurer that it recognizes that to the extent the Certificate Insurer makes Insured Payments or Guaranteed Supplemental Payments, either directly or indirectly (as by paying through the Insurance Paying AgentTrustee), to the Pool I or Pool IV Class A Certificateholders, the Certificate Insurer will be subrogated to the rights of the such Pool I or Pool IV Certificateholders Class A Certificateholders, as applicable, with respect to such Insured Payment or Guaranteed Supplemental Payments, and shall be deemed to the extent of the payments so made to be a registered Class A Certificateholder of the related Class, and shall receive all future Class A Remittance Amounts, as the Pool Carry-Forward Amounts of the related Pools in accordance with Section 6.08(d)(X) below case may be, until all such Insured Payments and Guaranteed Supplemental Payments by the Certificate Insurer have been fully reimbursed (including reimbursements received from TMStogether with interest thereon at the applicable Pass-Cap Trust 1997-1)Through Rate, subject to the following paragraph. To evidence such subrogation, the Trustee shall, or shall cause the Certificate Registrar to, note the Certificate Insurer's rights as subrogee on the registration books maintained by the Trustee or the Certificate Registrar upon receipt from the Certificate Insurer of proof of payment of any Insured Payment. Except as otherwise described herein, the Certificate Insurer shall not acquire any voting rights hereunder as a result of such subrogation. It is understood and agreed that the intention of the parties is that the Certificate Insurer shall not be entitled to reimbursement on any Payment or Guaranteed Supplemental Date for amounts previously paid by it unless on such Payment Date the Class A Certificateholders shall also have received the full amount of the Class A Remittance Amount (exclusive of the principal portion of any Class A Carry-Forward Amount representing amounts previously paid to the Class A Certificateholders as Insured Payments. Each Pool I or Pool IV Certificateholder ), for such Payment Date.
(d) Not later than 12:00 p.m. New York time on each Payment Date, with respect to the Fixed Rate Certificates and the Adjustable Rate Certificates, the Trustee shall promptly withdraw from the Collection Account from the amounts available therein as set forth in this Article VI, if any, and shall, to the extent available, distribute (without duplication) such amount in the priority indicated:
(i) notify first, for deposit into the Trustee in writing upon Insurance Account for the receipt benefit of a court order the Certificate Insurer, the Monthly Premium with respect to such Certificates payable to the effect that any amounts described in Clause Certificate Insurer;
(ii) second, for deposit into the Spread Account, the Excess Spread with respect to the related Mortgage Loan Group;
(iii) third, for deposit into the Letter of Credit Fee Account, the Letter of Credit Fee Amount with respect to such Certificates;
(iv) fourth, from amounts attributable to the related Mortgage Loan Group, (A) to each of the definition of Pool Fixed Rate Certificateholders, the Fixed Rate Interest Remittance Amount; and (B) to the Adjustable Rate Certificateholders, the Adjustable Rate Interest Remittance Amount;
(v) fifth, [Reserved];
(vi) sixth, to the Fixed Rate Certificates and to the Adjustable Rate Certificates, the Fixed Rate Principal Remittance Amount constitute a voidable preference pursuant and the Adjustable Rate Principal Remittance Amount, respectively, as follows:
(a) the Fixed Rate Principal Remittance Amount as follows: (i) first, to the United States Bankruptcy Code and Class A-9 Certificates, in the amount equal to the Class A-9 Lockout Remittance Amount; (ii) shall enclose a certified copy second, to the Class A-1 Certificates, until the Class A-1 Principal Balance has been reduced to its Targeted Amount (as set forth in the table entitled "Targeted Amounts" attached hereto as Exhibit V); (iii) third, after the Class A-1 Principal Balance has been reduced to its Targeted Amount, to the Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class A-8, Class A-1 (without regard to its Targeted Amount) and Class A-9 Certificates (without regard to the Class A-9 Lockout Remittance Amount), in that order, in each case until the Principal Balance of each such Class has been reduced to zero; and
(b) concurrently, to the Class A-10 Certificates, until the Principal Balance of such order with such notice Class has been reduced to zero, the Adjustable Rate Principal Remittance Amount;
(vii) seventh, to the Trustee, any amounts then due and owing representing fees of the Trustee (without regard to amounts attributable to either Mortgage Loan Group); provided, that the Trustee certifies in writing that such amount is due and owing and has not been paid by the Servicer within 30 days after written demand therefor;
(viii) eighth, to the Servicer and/or the Representative, as applicable, any Reimbursable Amount (without regard to amounts attributable to either Mortgage Loan Group);
(ix) ninth, to the Servicer an amount equal to Nonrecoverable Advances previously made by the Servicer and not previously reimbursed (without regard to amounts attributable to either Mortgage Loan Group); and
(x) tenth, to the Class R Certificateholders, the balance, if any.
(e) [Reserved]
(f) All distributions made to the Class A Certificateholders or the Class R Certificateholders as a Class on each Payment Date will be made on a pro rata basis among the Certificateholders of the respective Class of record on the next preceding Record Date based on the Percentage Interest represented by their respective Certificates, and shall be made by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity having appropriate facilities therefor, if such Certificateholder shall own of record Class A Certificates which have denominations aggregating at least $1,000,000 appearing in the Certificate Register, and in all cases with respect to the Class R Certificates, and shall have provided complete wiring instructions at least five Business Days prior to the Record Date, and otherwise by check mailed to the address of such Certificateholder appearing in the Certificate Register.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Eqcc Asset Backed Corp)
Priority and Subordination of Distributions. (a) The rights of the Certificateholders to receive distributions from the proceeds of the Trust Fund, and all ownership interests of the Certificateholders in such distributions, shall be as set forth in this Agreement. In this regard, all rights of the Class X and Class R Certificateholders to receive distributions in respect of the Class X and Class R Certificates, respectively, and all ownership interests of the Class X and Class R Certificateholders in and to such distributions, shall be subject and subordinate to the preferential rights of the Class A, Class M and Class B Certificateholders, to receive distributions in respect of the Class A, Class M and Class B Certificates, respectively, and the ownership interests of the Class A, Class M and Class B Certificateholders, respectively, in such distributions, as described herein. In accordance with the foregoing, the ownership interests of the Class X and Class R Certificateholders in amounts deposited in the applicable Principal and Interest Account or in any Accounts from time to time shall not vest unless and until such amounts are distributed in respect of the Class X and Class R Certificates in accordance with the terms of this Agreement. Notwithstanding anything contained in this Agreement to the contrary, the Class X and Class R Certificateholders shall not be required to refund any amount properly distributed on the Class X and Class R Certificates.
(b) [Reserved]
(c) As soon as possible, and in no event later than 10:00 a.m. New York time on the Business Day immediately preceding each Remittance Date, the Trustee shall furnish the Certificate Insurer and the Servicer with a completed notice in the form set forth as Exhibit L (the "Notice") hereto, which will be based upon the information set forth in the Servicer's Certificate, in the event that an Event of Nonpayment will occur, or a Guaranteed Supplemental Payment is owing, occur with respect to such Remittance Date. The Notice shall specify the total amount of the Insured Payment and Guaranteed Supplemental Payment to be paid on the applicable Remittance Date, stated separately for each Class of Pool I or Pool IV Certificates, as applicable, and shall constitute a claim for an Insured Payment or Guaranteed Supplemental Payment, as the case may be, pursuant to the applicable Certificate Insurance Policy. The Certificate Insurer shall remit or cause to be remitted to the Insurance Paying Agent the amount of the Insured Payment or Guaranteed Supplemental Payment, as the case may be; provided, however, if the Certificate Insurer is not in default with regard to payment under the Certificate Insurance Policies (i) the amount of the Guaranteed Supplemental Payment required to be paid by the Certificate Insurer shall be reduced by the Class X Accelerated Distribution Amount and (ii) any remaining Guaranteed Supplemental Payment or Insured Payment may be funded in whole or in part, by amounts transferred to the Certificate Account from TMS-CAP Trust 1997-1. Upon receipt of such Insured Payment or Guaranteed Supplemental Payment by the Insurance Paying Agent on behalf of the Holders of the respective Class of Pool I or Pool IV Certificates under the applicable Certificate Insurance Policy, it shall remit such amounts to the Trustee who shall deposit such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in the applicable Certificate Account and shall distribute such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in accordance with Sections 6.08(d)(X) and (e) hereof. Notwithstanding the foregoing, if an Event of Nonpayment with respect to Pool I or Pool IV will occur with respect to a Remittance Date and funds are on deposit in the Spread Account, the amount of the Insured Payment shall be reduced up to the amount then on deposit in the Spread Account. Pursuant to Section 6.05(b)(ii), the Trustee shall, on such Remittance Date, transfer such amount to the applicable Certificate Account from the Spread Account. The Trustee shall serve as Insurance Paying Agent hereunder for so long as a Certificate Insurance Policy shall remain in effect; PROVIDEDprovided, HOWEVERhowever, that the Insurance Paying Agent may be located in another jurisdiction with the written consent of the Certificate Insurer. The Insurance Paying Agent shall act as the agent of the Trustee and shall (i) pay amounts required by Section 6.04(b)(i) hereof to the Certificate Insurer, (ii) pay Insured Payments or Guaranteed Supplemental Payments received from the Certificate Insurer as the Trustee shall direct and (iii) take such other actions with respect to the Certificate Insurer and the Certificate Insurance Policies as the Trustee shall direct. The Trustee shall act initially as the Insurance Paying Agent. The Trustee shall receive through the Insurance Paying Agent, as attorney-in-fact of each Holder of Pool I or Pool IV Certificates, any Insured Payment or Guaranteed Supplemental Payment from the Certificate Insurer and disburse the same to each Holder of Pool I or Pool IV Certificates in accordance with the provisions of this Section 6.08. Insured Payments or Guaranteed Supplemental Payments disbursed by the Trustee from proceeds of the Certificate Insurance Policies shall not be considered payment by the Trust Fund nor shall such payments discharge the obligation of the Trust Fund with respect to such Pool I or Pool IV Certificates, and the Certificate Insurer shall become the owner of such unpaid amounts of Insured Payments and Guaranteed Supplemental Payments due from the Trust Fund in respect of such Certificates. The Trustee hereby agrees on behalf of each Holder of Pool I or Pool IV Certificates for the benefit of the Certificate Insurer that it recognizes that to the extent the Certificate Insurer makes Insured Payments or Guaranteed Supplemental Payments, either directly or indirectly (as by paying through the Insurance Paying Agent), to the Pool I or Pool IV Certificateholders, the Certificate Insurer will be subrogated to the rights of the such Pool I or Pool IV Certificateholders with respect to such Insured Payment or Guaranteed Supplemental PaymentsPayment, shall be deemed to the extent of the payments so made to be a registered Certificateholder of the related Class, and shall receive the Pool Carry-Forward Amounts of the related Pools in accordance with Section 6.08(d)(X) below until all such Insured Payments and Guaranteed Supplemental Payments by the Certificate Insurer have been fully reimbursed (including reimbursements received from TMS-Cap Trust 1997-1)reimbursed. To evidence such subrogation, the Trustee shall, or shall cause the Certificate Registrar to, note the Certificate Insurer's rights as subrogee on the registration books maintained by the Trustee or the Certificate Registrar upon receipt from the Certificate Insurer of proof of payment of any Insured Payment or Guaranteed Supplemental PaymentsPayment. Each Pool I or Pool IV Certificateholder shall promptly (i) notify the Trustee in writing upon the receipt of a court order to the effect that any amounts described in Clause (iv) of the definition of Pool Remittance Amount constitute a voidable preference pursuant to the United States Bankruptcy Code and (ii) shall enclose a certified copy of such order with such notice to the Trustee.
Appears in 1 contract
Priority and Subordination of Distributions. (a) The rights of the Noteholders and Certificateholders to receive distributions from the proceeds of the Trust FundTrust, and all ownership interests of the Noteholders and Certificateholders in such distributions, shall be as set forth in this Agreement and the Trust Agreement. In this regard, all rights of the Class X and Class R Certificateholders to receive distributions in respect of the Class X and Class R Certificates, respectively, and all ownership interests of the Class X and Class R Certificateholders in and to such distributions, shall be subject and subordinate to the preferential rights of the Class A, Class M and Class B Certificateholders, Noteholders to receive distributions in respect of the Class A, Class M and Class B Certificates, respectively, and the ownership interests of the Class A, Class M and Class B Certificateholders, respectively, in such distributionsNotes, as described herein. In accordance with the foregoing, the ownership interests of the Class X and Class R Certificateholders in amounts deposited in the applicable Principal and Interest Account or in any Accounts from time to time shall not vest unless and until such amounts are distributed in respect of the Class X and Class R Certificates in accordance with the terms of this Agreement and the Trust Agreement. Notwithstanding anything contained in this Agreement to the contrary, the Class X and Class R Certificateholders shall not be required to refund any amount properly distributed on the Class X and Class R Certificates.
(b) [Reserved].
(c) As soon as possible, and in no event later than 10:00 a.m. New York time on the Business Day immediately preceding [Reserved].
(d) On each Remittance Date, the Trustee shall furnish withdraw from the Certificate Insurer and Note Distribution Account the portion of the Available Remittance Amount, net of reimbursements to the Servicer with a completed notice or the Representative for Reimbursable Advances pursuant to Section 4.04(f) and net of amounts deposited into the FHA Premium Account pursuant to Section 7.01(b)(ii), and make distributions thereof in the form set forth as Exhibit L following order of priority (the "Notice") hereto, which will be based solely upon the information set forth in provided by the Servicer's Certificate):
(i) to the Expense Account, in an amount equal to one-twelfth of the event that an Event of Nonpayment will occur, or a Guaranteed Supplemental Payment is owing, Annual Expense Escrow Amount with respect to such Remittance Date. The Notice shall specify the total Loans, plus any amount of the Insured Payment and Guaranteed Supplemental Payment to be paid on the applicable Remittance Date, stated separately for each Class of Pool I or Pool IV Certificates, as applicable, and shall constitute a claim for an Insured Payment or Guaranteed Supplemental Payment, as the case may be, pursuant to the applicable Certificate Insurance Policy. The Certificate Insurer shall remit or cause to be remitted to the Insurance Paying Agent the amount of the Insured Payment or Guaranteed Supplemental Payment, as the case may be; provided, however, if the Certificate Insurer is not in default with regard to payment under the Certificate Insurance Policies (i) the amount of the Guaranteed Supplemental Payment required to be paid by to the Certificate Insurer shall be reduced by Trustee, the Co-Trustee and the Owner Trustee pursuant to Section 7.04(a) resulting from insufficiencies in the Expense Account;
(ii) after the payment of the amounts specified in clause (i) above, to pay the Class X Accelerated A Current Interest Distribution Amount Requirement concurrently to the Holders of the Class A-1, Class A-2, Class A-3, Class A-4 and Class A-5 Notes, pro rata to each Class of Class A Notes in accordance with their respective Current Interest Distribution Requirements;
(iii) after payment of the amounts specified in clauses (i) and (ii) any remaining Guaranteed Supplemental Payment or Insured Payment may be funded above, to pay the Class M Current Interest Distribution Requirement as follows and in whole or in part, by amounts transferred the following order of priority:
(A) the Current Interest Distribution Requirement applicable to the Certificate Account from TMS-CAP Trust 1997-1. Upon receipt of such Insured Payment or Guaranteed Supplemental Payment by Class M-1 Notes to the Insurance Paying Agent on behalf Class M-1 Noteholders; and
(B) the Current Interest Distribution Requirement applicable to the Class M-2 Notes to the Class M-2 Noteholders;
(iv) after payment of the Holders of the respective Class of Pool I or Pool IV Certificates under the applicable Certificate Insurance Policyamounts specified in clauses (i), it shall remit such amounts to the Trustee who shall deposit such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in the applicable Certificate Account and shall distribute such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in accordance with Sections 6.08(d)(X(ii) and (eiii) hereof. Notwithstanding above, to pay the foregoingCurrent Interest Distribution Requirement to the Class B Noteholders;
(v) after payment of the amounts specified in clauses (i), if an Event of Nonpayment with respect (ii), (iii) and (iv) above, to Pool I or Pool IV will occur with respect pay the Class A Principal Distribution Amount sequentially to a Remittance Date and funds are on deposit in the Spread AccountClass A-1 Noteholders, the amount of the Insured Payment shall be reduced up to the amount then on deposit in the Spread Account. Pursuant to Section 6.05(b)(ii)Class A-2 Noteholders, the Trustee shallClass A-3 Noteholders, on the Class A-4 Noteholders and the Class A-5 Noteholders, in that order of priority, but in no event will any Class of Class A Notes be paid more than is necessary to reduce the Class Principal Balance of such Remittance Date, transfer such amount Class to the applicable Certificate Account from the Spread Account. The Trustee shall serve as Insurance Paying Agent hereunder for so long as a Certificate Insurance Policy shall remain in effectzero; PROVIDED, HOWEVER, that on each Remittance Date on and after the Insurance Paying Agent may be located in another jurisdiction with Remittance Date on which the written consent Class Principal Balances of the Certificate Insurer. The Insurance Paying Agent Class M and Class B Notes have been reduced to zero, amounts paid to the Class A Noteholders pursuant to this clause (v) shall act as be paid pro rata to each Class of Class A Notes based upon the agent Class Principal Balance of each such Class of Class A Notes;
(vi) after payment of the Trustee and shall amounts specified in clauses (i) through (v) above, to pay amounts required by Section 6.04(b)(i) hereof the Class M-1 Principal Distribution Amount to the Certificate InsurerHolders of the Class M-1 Notes, but in no event more than is necessary to reduce the Class Principal Balance of the Class M-1 Notes to zero;
(iivii) after payment of the amounts specified in clauses (i) through (vi) above, to pay Insured Payments or Guaranteed Supplemental Payments received from the Certificate Insurer as the Trustee shall direct and (iii) take such other actions with respect Class M-2 Principal Distribution Amount to the Certificate Insurer Holders of the Class M-2 Notes, but in no event more than is necessary to reduce the Class Principal Balance of the Class M-2 Notes to zero;
(viii) after payment of the amounts specified in clauses (i) through (vii) above, to pay the Class B Principal Distribution Amount to the Holders of the Class B Notes, but in no event more than is necessary to reduce the Class Principal Balance of the Class B Notes to zero;
(ix) after payment of the amounts specified in clauses (i) through (viii) above, to pay any Interest Shortfall Carryforward Amounts applicable to the Class A Notes concurrently to the Holders of the Class A-1, Class A-2, Class A-3, Class A-4 and the Certificate Insurance Policies as the Trustee shall direct. The Trustee shall act initially as the Insurance Paying Agent. The Trustee shall receive through the Insurance Paying AgentClass A-5 Notes, as attorney-in-fact of each Holder of Pool I or Pool IV Certificates, any Insured Payment or Guaranteed Supplemental Payment from the Certificate Insurer and disburse the same pro rata to each Holder Class of Pool I or Pool IV Certificates Class A Notes in accordance with the provisions of this Section 6.08. Insured Payments or Guaranteed Supplemental Payments disbursed by the Trustee from proceeds their respective Interest Shortfall Carryforward Amounts;
(x) after payment of the Certificate Insurance Policies shall not be considered payment by amounts specified in clauses (i) through (ix) above, to pay the Trust Fund nor shall such payments discharge Interest Shortfall Carryforward Amounts applicable to the obligation Class M-1 Notes to the Holders of the Trust Fund with respect to such Pool I or Pool IV Certificates, and the Certificate Insurer shall become the owner of such unpaid amounts of Insured Payments and Guaranteed Supplemental Payments due from the Trust Fund in respect of such Certificates. The Trustee hereby agrees on behalf of each Holder of Pool I or Pool IV Certificates for the benefit Class M-1 Notes;
(xi) after payment of the Certificate Insurer that it recognizes that amounts specified in clauses (i) through (x) above, to pay the Class M-1 Realized Loss Amount to the Holders of the Class M-1 Notes;
(xii) after payment of the amounts specified in clauses (i) through (xi) above, to pay the Interest Shortfall Carryforward Amounts applicable to the Class M-2 Notes to the Holders of the Class M-2 Notes;
(xiii) after payment of the amounts specified in clauses (i) through (xii) above, to pay the Class M-2 Realized Loss Amount to the Holders of the Class M- 2 Notes;
(xiv) after payment of the amounts specified in clauses (i) through (xiii) above, to pay the Interest Shortfall Carryforward Amounts applicable to the Class B Notes to the Holders of the Class B Notes;
(xv) after payment of the amounts specified in clauses (i) through (xiv) above, to pay the Class B Realized Loss Amount to the Holders of the Class B Notes;
(xvi) after payment of the amounts specified in clauses (i) through (xv) above, then to the Servicer and/or the Representative, an amount, if any, equal to the Reimbursable Amounts to the extent the Certificate Insurer makes Insured Payments or Guaranteed Supplemental Servicer has not previously netted such amounts from Monthly Payments; and
(xvii) after payment of the amounts specified in clauses (i) through (xvi) above, either directly or indirectly (as by paying through the Insurance Paying Agent), then to the Pool I Owner Trustee (or Pool IV Certificateholdersthe Paying Agent under the Trust Agreement on its behalf) for deposit in the Certificate Distribution Account, the Certificate Insurer Remittance Amount.
(e) All distributions made to the Noteholders on each Remittance Date will be subrogated made on a pro rata basis among the Noteholders of the respective Class of record on the next preceding Record Date based on the Percentage Interest represented by their respective Notes, and shall, except for the final payment on such Notes, be made by wire transfer of immediately available funds to the rights account of such Noteholder as shall appear on the Note Register without the presentation or surrender of the such Pool I or Pool IV Certificateholders with respect to such Insured Payment or Guaranteed Supplemental Payments, shall be deemed to the extent of the payments so made to be a registered Certificateholder of the related Class, and shall receive the Pool Carry-Forward Amounts of the related Pools in accordance with Section 6.08(d)(X) below until all such Insured Payments and Guaranteed Supplemental Payments by the Certificate Insurer have been fully reimbursed (including reimbursements received from TMS-Cap Trust 1997-1). To evidence such subrogation, the Trustee shall, or shall cause the Certificate Registrar to, note the Certificate Insurer's rights as subrogee on the registration books maintained by the Trustee Note or the Certificate Registrar upon receipt from the Certificate Insurer of proof of payment making of any Insured Payment notation thereon, at a bank or Guaranteed Supplemental Payments. Each Pool I or Pool IV Certificateholder other entity having appropriate facilities therefor, at the expense of each such Noteholder unless such Noteholder shall promptly own of record Notes which have original principal amounts aggregating (i) notify the Trustee in writing upon the receipt of a court order to the effect that any amounts described in Clause (iv) of the definition of Pool Remittance Amount constitute a voidable preference pursuant to the United States Bankruptcy Code and at least $5,000,000 or (ii) shall enclose a certified copy one of such order with such notice to the Trusteetwo highest outstanding amounts less than $5,000,000.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Money Store Home Equity Corp)
Priority and Subordination of Distributions. (a) The rights of the Noteholders and Certificateholders to receive distributions from the proceeds of the Trust FundTrust, and all ownership interests of the Noteholders and Certificateholders in such distributions, shall be as set forth in this Agreement and the Trust Agreement. In this regard, all rights of the Class X and Class R Certificateholders to receive distributions in respect of the Class X and Class R Certificates, respectively, and all ownership interests of the Class X and Class R Certificateholders in and to such distributions, shall be subject and subordinate to the preferential rights of the Class A, Class M and Class B Certificateholders, Noteholders to receive distributions in respect of the Class A, Class M and Class B Certificates, respectively, and the ownership interests of the Class A, Class M and Class B Certificateholders, respectively, in such distributionsNotes, as described herein. In accordance with the foregoing, the ownership interests of the Class X and Class R Certificateholders in amounts deposited in the applicable Principal and Interest Account or in any Accounts from time to time shall not vest unless and until such amounts are distributed in respect of the Class X and Class R Certificates in accordance with the terms of this Agreement and the Trust Agreement. Notwithstanding anything contained in this Agreement to the contrary, the Class X and Class R Certificateholders shall not be required to refund any amount properly distributed on the Class X and Class R Certificates.
(b) [Reserved].
(c) As soon as possible, and in no event later than 10:00 a.m. New York time on the Business Day immediately preceding [Reserved].
(d) On each Remittance Date, the Trustee shall furnish withdraw from the Certificate Insurer and Note Distribution Account the portion of the Available Remittance Amount, net of reimbursements to the Servicer with a completed notice or the Representative for Reimbursable Advances pursuant to Section 4.04(f) and net of amounts deposited into the FHA Premium Account pursuant to Section 7.01(b)(ii), and make distributions thereof in the form set forth as Exhibit L following order of priority (the "Notice") hereto, which will be based solely upon the information set forth in provided by the Servicer's Certificate):
(i) to the Expense Account, in an amount equal to one-twelfth of the event that an Event of Nonpayment will occur, or a Guaranteed Supplemental Payment is owing, Annual Expense Escrow Amount with respect to such Remittance Date. The Notice shall specify the total Loans, plus any amount of the Insured Payment and Guaranteed Supplemental Payment to be paid on the applicable Remittance Date, stated separately for each Class of Pool I or Pool IV Certificates, as applicable, and shall constitute a claim for an Insured Payment or Guaranteed Supplemental Payment, as the case may be, pursuant to the applicable Certificate Insurance Policy. The Certificate Insurer shall remit or cause to be remitted to the Insurance Paying Agent the amount of the Insured Payment or Guaranteed Supplemental Payment, as the case may be; provided, however, if the Certificate Insurer is not in default with regard to payment under the Certificate Insurance Policies (i) the amount of the Guaranteed Supplemental Payment required to be paid by to the Certificate Insurer shall be reduced by Trustee, the Co-Trustee and the Owner Trustee pursuant to Section 7.04(a) resulting from insufficiencies in the Expense Account;
(ii) after the payment of the amounts specified in clause (i) above, to pay the Class X Accelerated A Current Interest Distribution Amount Requirement concurrently to the Holders of the Class A-1, Class A-2, Class A-3 and Class A-4 Notes, pro rata to each Class of Class A Notes in accordance with their respective Current Interest Distribution Requirements;
(iii) after payment of the amounts specified in clauses (i) and (ii) any remaining Guaranteed Supplemental Payment or Insured Payment may be funded above, to pay the Class M Current Interest Distribution Requirement as follows and in whole or in part, by amounts transferred the following order of priority:
(A) the Current Interest Distribution Requirement applicable to the Certificate Account from TMS-CAP Trust 1997-1. Upon receipt of such Insured Payment or Guaranteed Supplemental Payment by Class M-1 Notes to the Insurance Paying Agent on behalf Class M-1 Noteholders; and
(B) the Current Interest Distribution Requirement applicable to the Class M-2 Notes to the Class M-2 Noteholders;
(iv) after payment of the Holders of the respective Class of Pool I or Pool IV Certificates under the applicable Certificate Insurance Policyamounts specified in clauses (i), it shall remit such amounts to the Trustee who shall deposit such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in the applicable Certificate Account and shall distribute such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in accordance with Sections 6.08(d)(X(ii) and (eiii) hereof. Notwithstanding above, to pay the foregoingCurrent Interest Distribution Requirement to the Class B Noteholders;
(v) after payment of the amounts specified in clauses (i), if an Event of Nonpayment with respect (ii), (iii) and (iv) above, to Pool I or Pool IV will occur with respect pay the Class A Principal Distribution Amount sequentially to a Remittance Date and funds are on deposit in the Spread AccountClass A-1 Noteholders, the amount of the Insured Payment shall be reduced up to the amount then on deposit in the Spread Account. Pursuant to Section 6.05(b)(ii)Class A-2 Noteholders, the Trustee shallClass A-3 Noteholders and the Class A-4 Noteholders, on in that order of priority, but in no event will any Class of Class A Notes be paid more than is necessary to reduce the Class Principal Balance of such Remittance Date, transfer such amount Class to the applicable Certificate Account from the Spread Account. The Trustee shall serve as Insurance Paying Agent hereunder for so long as a Certificate Insurance Policy shall remain in effectzero; PROVIDED, HOWEVER, that on each Remittance Date on and after the Insurance Paying Agent may be located in another jurisdiction with Remittance Date on which the written consent Class Principal Balances of the Certificate Insurer. The Insurance Paying Agent Class M and Class B Notes have been reduced to zero, amounts paid to the Class A Noteholders pursuant to this clause (v) shall act as be paid pro rata to each Class of Class A Notes based upon the agent Class Principal Balance of each such Class of Class A Notes;
(vi) after payment of the Trustee and shall amounts specified in clauses (i) through (v) above, to pay amounts required by Section 6.04(b)(i) hereof the Class M-1 Principal Distribution Amount to the Certificate InsurerHolders of the Class M-1 Notes, but in no event more than is necessary to reduce the Class Principal Balance of the Class M-1 Notes to zero;
(iivii) after payment of the amounts specified in clauses (i) through (vi) above, to pay Insured Payments or Guaranteed Supplemental Payments received from the Certificate Insurer as the Trustee shall direct and (iii) take such other actions with respect Class M-2 Principal Distribution Amount to the Certificate Insurer Holders of the Class M-2 Notes, but in no event more than is necessary to reduce the Class Principal Balance of the Class M-2 Notes to zero;
(viii) after payment of the amounts specified in clauses (i) through (vii) above, to pay the Class B Principal Distribution Amount to the Holders of the Class B Notes, but in no event more than is necessary to reduce the Class Principal Balance of the Class B Notes to zero;
(ix) after payment of the amounts specified in clauses (i) through (viii) above, to pay any Interest Shortfall Carryforward Amounts applicable to the Class A Notes concurrently to the Holders of the Class A-1, Class A-2, Class A-3 and the Certificate Insurance Policies as the Trustee shall direct. The Trustee shall act initially as the Insurance Paying Agent. The Trustee shall receive through the Insurance Paying AgentClass A-4 Notes, as attorney-in-fact of each Holder of Pool I or Pool IV Certificates, any Insured Payment or Guaranteed Supplemental Payment from the Certificate Insurer and disburse the same pro rata to each Holder Class of Pool I or Pool IV Certificates Class A Notes in accordance with the provisions of this Section 6.08. Insured Payments or Guaranteed Supplemental Payments disbursed by the Trustee from proceeds their respective Interest Shortfall Carryforward Amounts.
(x) after payment of the Certificate Insurance Policies shall not be considered payment by amounts specified in clauses (i) through (ix) above, to pay the Trust Fund nor shall such payments discharge Interest Shortfall Carryforward Amounts applicable to the obligation Class M-1 Notes to the Holders of the Trust Fund with respect to such Pool I or Pool IV Certificates, and the Certificate Insurer shall become the owner of such unpaid amounts of Insured Payments and Guaranteed Supplemental Payments due from the Trust Fund in respect of such Certificates. The Trustee hereby agrees on behalf of each Holder of Pool I or Pool IV Certificates for the benefit Class M-1 Notes;
(xi) after payment of the Certificate Insurer that it recognizes that amounts specified in clauses (i) through (x) above, to pay the Class M-1 Realized Loss Amount to the Holders of the Class M-1 Notes;
(xii) after payment of the amounts specified in clauses (i) through (xi) above, to pay the Interest Shortfall Carryforward Amounts applicable to the Class M-2 Notes to the Holders of the Class M-2 Notes;
(xiii) after payment of the amounts specified in clauses (i) through (xii) above, to pay the Class M-2 Realized Loss Amount to the Holders of the Class M-2 Notes;
(xiv) after payment of the amounts specified in clauses (i) through (xiii) above, to pay the Interest Shortfall Carryforward Amounts applicable to the Class B Notes to the Holders of the Class B Notes;
(xv) after payment of the amounts specified in clauses (i) through (xiv) above, to pay the Class B Realized Loss Amount to the Holders of the Class B Notes;
(xvi) after payment of the amounts specified in clauses (i) through (xv) above, then to the Servicer and/or the Representative, an amount, if any, equal to the Reimbursable Amounts to the extent the Certificate Insurer makes Insured Payments or Guaranteed Supplemental Servicer has not previously netted such amounts from Monthly Payments; and
(xvii) after payment of the amounts specified in clauses (i) through (xvi) above, either directly or indirectly (as by paying through the Insurance Paying Agent), then to the Pool I Owner Trustee (or Pool IV Certificateholdersthe Paying Agent under the Trust Agreement on its behalf) for deposit in the Certificate Distribution Account, the Certificate Insurer Remittance Amount.
(e) All distributions made to the Noteholders on each Remittance Date will be subrogated made on a pro rata basis among the Noteholders of the respective Class of record on the next preceding Record Date based on the Percentage Interest represented by their respective Notes, and shall, except for the final payment on such Notes, be made by wire transfer of immediately available funds to the rights account of such Noteholder as shall appear on the Note Register without the presentation or surrender of the such Pool I or Pool IV Certificateholders with respect to such Insured Payment or Guaranteed Supplemental Payments, shall be deemed to the extent of the payments so made to be a registered Certificateholder of the related Class, and shall receive the Pool Carry-Forward Amounts of the related Pools in accordance with Section 6.08(d)(X) below until all such Insured Payments and Guaranteed Supplemental Payments by the Certificate Insurer have been fully reimbursed (including reimbursements received from TMS-Cap Trust 1997-1). To evidence such subrogation, the Trustee shall, or shall cause the Certificate Registrar to, note the Certificate Insurer's rights as subrogee on the registration books maintained by the Trustee Note or the Certificate Registrar upon receipt from the Certificate Insurer of proof of payment making of any Insured Payment notation thereon, at a bank or Guaranteed Supplemental Payments. Each Pool I or Pool IV Certificateholder other entity having appropriate facilities therefor, at the expense of each such Noteholder unless such Noteholder shall promptly own of record Notes which have original principal amounts aggregating (i) notify the Trustee in writing upon the receipt of a court order to the effect that any amounts described in Clause (iv) of the definition of Pool Remittance Amount constitute a voidable preference pursuant to the United States Bankruptcy Code and at least $5,000,000 or (ii) shall enclose a certified copy one of such order with such notice to the Trusteetwo highest outstanding amounts less than $5,000,000.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Money Store Home Equity Corp)
Priority and Subordination of Distributions. (a) The rights of the Certificateholders to receive distributions from the proceeds of the Trust Fund, and all ownership interests of the Certificateholders in such distributions, shall be as set forth in this Agreement. In this regard, all The rights of the Class X and Class R Certificateholders to receive distributions in respect of the Class X and Class R Certificates, respectively, and all ownership interests of the Class X and Class R Certificateholders in and to such distributions, Certificates shall be subject and subordinate to the preferential rights of the Class A, Class M and Class B Certificateholders, A Certificateholders to receive distributions in respect of the Class A, Class M and Class B A Certificates, respectivelyto the extent set forth herein, and distributions on the ownership interests Class X Certificates are subject and subordinate to the maintenance of the Class A, Class M and Class B Certificateholders, respectively, in such distributions, Specified Spread Account Requirement as described specified herein. In accordance with the foregoing, the ownership interests of the Class X and Class R Certificateholders in amounts deposited in the applicable Principal and Interest Spread Account or in any Accounts from time to time shall not vest unless and until such amounts are distributed in respect of the Class X and Class R Certificates in accordance with the terms of this Agreement. Notwithstanding anything contained in this Agreement to the contrary, the Class X and Class R Certificateholders no Certificateholder shall not be required to refund any amount properly distributed on the Class X and Class R Certificatesto it pursuant to SECTION 6.02, 6.05, 6.09(B) OR 6.09(D).
(b) [Reserved];
(c) As soon as possible, and in no event later than 10:00 a.m. New York time on the Business Day immediately preceding each Remittance Distribution Date, the Trustee shall furnish the Certificate Insurer and the Servicer with a completed notice in the form set forth as Exhibit L Q hereto (the "Notice"NOTICE) hereto, which will be based upon the information set forth in the Servicer's Certificate, in the event that an Event of Nonpayment will occur, or a Guaranteed Supplemental Payment is owingpursuant to the definition thereof, with respect to such Remittance Distribution Date. The Notice shall specify the total amount of the Insured Payment and Guaranteed Supplemental Payment to be paid on the applicable Remittance Date, stated separately for each Class of Pool I or Pool IV Certificates, as applicable, and shall constitute a claim for an Insured Payment or Guaranteed Supplemental Payment, as the case may be, pursuant to the applicable Certificate Insurance Policy. The Certificate Insurer shall remit or cause to be remitted to Upon receipt of Insured Payments for the Insurance Paying Agent the amount benefit of the Insured Payment or Guaranteed Supplemental Payment, as the case may be; provided, however, if the Certificate Insurer is not in default with regard to payment Class A Certificateholders under the Certificate Insurance Policies (i) the amount of the Guaranteed Supplemental Payment required to be paid by the Certificate Insurer shall be reduced by the Class X Accelerated Distribution Amount and (ii) any remaining Guaranteed Supplemental Payment or Insured Payment may be funded in whole or in part, by amounts transferred to the Certificate Account from TMS-CAP Trust 1997-1. Upon receipt of such Insured Payment or Guaranteed Supplemental Payment by the Insurance Paying Agent on behalf of the Holders of the respective Class of Pool I or Pool IV Certificates under the applicable Certificate Insurance Policy, it shall remit such amounts to the Trustee who shall deposit such Insured Payment or Guaranteed Supplemental Payment, as the case may be, Payments in the applicable Certificate Account and shall distribute such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in accordance with Sections 6.08(d)(X) and (e) hereof. Notwithstanding the foregoing, if an Event of Nonpayment with respect to Pool I or Pool IV will occur with respect to a Remittance Date and funds are on deposit in the Spread Account, the amount of the Insured Payment shall be reduced up to the amount then on deposit in the Spread Account. Pursuant to Section 6.05(b)(ii), the Trustee shall, on such Remittance Date, transfer such amount to the applicable Certificate Account from the Spread Collection Account. The Trustee shall serve as Insurance Paying Agent hereunder for so long as a Certificate Insurance Policy shall remain in effect; PROVIDED, HOWEVER, that the Insurance Paying Agent may be located in another jurisdiction with the written consent of the Certificate Insurer. The Insurance Paying Agent shall act as the agent of the Trustee and shall (i) pay amounts required by Section 6.04(b)(i) hereof to the Certificate Insurer, (ii) pay Insured Payments or Guaranteed Supplemental Payments received from the Certificate Insurer as the Trustee shall direct and (iii) take such other actions with respect to the Certificate Insurer and the Certificate Insurance Policies as the Trustee shall direct. The Trustee shall act initially as the Insurance Paying Agent. The Trustee shall receive through the Insurance Paying Agentreceive, as attorney-in-fact of each Holder of Pool I or Pool IV Certificatesa Class A Certificate, any Insured Payment or Guaranteed Supplemental Payment from the Certificate Insurer and disburse the same to each Holder of Pool I or Pool IV Certificates a Class A Certificate, respectively, in accordance with the provisions of this Section 6.08SECTION 6.05. Insured Payments or Guaranteed Supplemental Payments disbursed by the Trustee from proceeds of the Certificate Insurance Policies Policy shall not be considered payment by the Trust Fund nor shall such payments payment discharge the obligation of the Trust Fund with respect to such Pool I or Pool IV Class A Certificates, and the Certificate Insurer shall become the owner of such unpaid amounts of Insured Payments and Guaranteed Supplemental Payments due from the Trust Fund in respect of such Class A Certificates. The Trustee hereby agrees on behalf of each Holder of Pool I or Pool IV Certificates a Class A Certificate for the benefit of the Certificate Insurer that it recognizes that to the extent the Certificate Insurer makes Insured Payments or Guaranteed Supplemental Payments, either directly or indirectly (as by paying through the Insurance Paying AgentTrustee), to the Pool I or Pool IV Class A Certificateholders, the Certificate Insurer will be subrogated to the rights of the such Pool I or Pool IV Certificateholders Class A Certificateholders, as applicable, with respect to such Insured Payment or Guaranteed Supplemental Payments, and shall be deemed to the extent of the payments so made to be a registered Class A Certificateholder of the related Class, and shall receive all future Class A Remittance Amounts, as the Pool Carry-Forward Amounts of the related Pools in accordance with Section 6.08(d)(X) below case may be, until all such Insured Payments and Guaranteed Supplemental Payments by the Certificate Insurer have been fully reimbursed (including reimbursements received from TMStogether with interest thereon at the applicable Pass-Cap Trust 1997-1)Through Rate, subject to the following paragraph. To evidence such subrogation, the Trustee shall, or shall cause the Certificate Registrar to, note the Certificate Insurer's rights as subrogee on the registration books maintained by the Trustee or the Certificate Registrar upon receipt from the Certificate Insurer of proof of payment of any Insured Payment or Guaranteed Supplemental PaymentsPayment. Each Pool I or Pool IV Certificateholder Except as otherwise described herein, the Certificate Insurer shall promptly not acquire any voting rights hereunder as a result of such subrogation. It is understood and agreed that the intention of the parties is that the Certificate Insurer shall not be entitled to reimbursement on any Distribution Date for amounts previously paid by it unless on such Distribution Date the Class A Certificateholders shall also have received the full amount of the Class A Remittance Amount for such Distribution Date. For purposes of implementing the Certificate Insurer's rights as subrogee, distributions shall be made to the Certificate Insurer under priority fourth of SUBSECTION (D) of this SECTION 6.05 after all distributions are made to the Class A Certificateholders on the applicable Distribution Date as aforesaid.
(d) Not later than 12:00 p.m. New York time on each Distribution Date, with respect to the Class A Certificates and the Residual Certificates, the Trustee shall withdraw from the Collection Account, from the amounts available therein as set forth in this ARTICLE VI, if any, and shall, to the extent available, distribute (without duplication) such amount in the priority indicated:
(i) notify first, sequentially, (a) for deposit into the Trustee in writing upon Insurance Account for the receipt benefit of a court order the Certificate Insurer, the Monthly Premium with respect to such Certificates payable to the effect that any amounts Certificate Insurer and (b) for remittance of the Initial Premium Fee Recovery Amount to the Representative;
(ii) second, for deposit into the Spread Account, the Excess Spread with respect to the related Mortgage Loan Group (which for federal income tax purposes will be treated in the manner described in Clause Section 6.09);
(iii) third, from amounts attributable to the related Mortgage Loan Group and, subject to SECTION 6.09(B)(II), amounts withdrawn from the Spread Account pursuant to SECTION 6.09(B)(II), (A) to each of the Fixed Rate Certificateholders, the applicable Fixed Rate Interest Remittance Amount; and (B) to the Class A-1A Certificateholders, the Class A-1A Interest Remittance Amount;
(iv) of fourth, to the definition of Pool Fixed Rate Certificates and to the Class A-1A Certificates, the Fixed Rate Principal Remittance Amount constitute a voidable preference pursuant and the Class A-1A Principal Remittance Amount, respectively, concurrently as follows:
(1) to the United States Bankruptcy Code and (ii) shall enclose a certified copy Class A-6F Certificates, until the Principal Balance of such order with Class has been reduced to zero, the Lockout Remittance Amount; and then, to the Class X-0X, Xxxxx X-0X, Xxxxx X-0X, Class A-4F, Class A-5F and then, to the Class A-6F Certificates (without regard to the Lockout Remittance Amount), in that order, in each case until the Principal Balance of each such notice Class has been reduced to zero, the Fixed Rate Principal Remittance Amount; and
(2) to the Class A-1A Certificates, until the Principal Balance of such Class has been reduced to zero, the Class A-1A Principal Remittance Amount;
(v) fifth, to the Trustee, any amounts then due and owing representing fees of the Trustee (without regard to amounts attributable to either Mortgage Loan Group); PROVIDED, that the Trustee certifies in writing that such amount is due and owing and has not been paid by the Servicer within 30 days after written demand therefor;
(vi) sixth, to the Servicer and/or the Representative, as applicable, any Reimbursable Amount (without regard to amounts attributable to either Mortgage Loan Group);
(vii) seventh, to the Servicer an amount equal to Nonrecoverable Advances previously made by the Servicer and not previously reimbursed (without regard to amounts attributable to either Mortgage Loan Group); and
(viii) eighth, to the Class R and Class LR Certificateholders, the balance if any of amounts remaining in the Upper-Tier Distribution Account and the Lower-Tier Distribution Account, respectively.
(e) All distributions made pursuant to (d) (ii), (iii) and (iv) above shall be treated as having been distributed in respect of the Lower-Tier Regular Interests and deposited in the Upper-Tier Distribution Account, then as having been distributed to Certificateholders from the Upper-Tier Distribution Account. Interest shall be treated as having been distributed in respect of each Lower-Tier Regular Interest at the rate set forth in the applicable definition thereof. Principal shall be treated as having been distributed in respect of each Lower-Tier Regular Interest at the times and in the amounts principal is distributed to the Class of Certificates referenced in the applicable definition thereof. The amounts described pursuant to (d) (i), (v), (vi) and (vii) above shall be treated as having been distributed to the respective recipients from the Lower-Tier Distribution Account. All distributions made to the Class A Certificateholders or the Class X, Class R and Class LR Certificateholders as a Class on each Distribution Date will be made on a pro rata basis among the Certificateholders of the respective Class of record on the next preceding Record Date based on the Percentage Interest represented by their respective Certificates, and shall be made by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity having appropriate facilities therefor, if such Certificateholder shall own of record Class A Certificates which have denominations aggregating at least $1,000,000 appearing in the Certificate Register, and in all cases with respect to the Class X, Class R and Class LR Certificateholders, and shall have provided complete wiring instructions at least five Business Days prior to the Record Date, and otherwise by check mailed to the address of such Certificateholder appearing in the Certificate Register.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Eqcc Home Equity Loan Trust 1999-1)
Priority and Subordination of Distributions. (a) The rights of the Certificateholders to receive distributions from the proceeds of the Trust Fund, and all ownership interests of the Certificateholders in such distributions, shall be as set forth in this Agreement. In this regard, all rights of the Class X and Class R Certificateholders to receive distributions in respect of the Class X and Class R Certificates, respectively, and all ownership interests of the Class X and Class R Certificateholders in and to such distributions, shall be subject and subordinate to the preferential rights of the Class A, Class M and Class B Certificateholders, to receive distributions in respect of the Class A, Class M and Class B Certificates, respectively, and the ownership interests of the Class A, Class M and Class B Certificateholders, respectively, in such distributions, as described herein. In accordance with the foregoing, the ownership interests of the Class X and Class R Certificateholders in amounts deposited in the applicable Principal and Interest Account or in any Accounts from time to time shall not vest unless and until such amounts are distributed in respect of the Class X and Class R Certificates in accordance with the terms of this Agreement. Notwithstanding anything contained in this Agreement to the contrary, the Class X and Class R Certificateholders shall not be required to refund any amount properly distributed on the Class X and Class R Certificates.
(b) [Reserved]
(c) As soon as possible, and in no event later than 10:00 a.m. New York time on the Business Day immediately preceding each Remittance Date, the Trustee shall furnish the Certificate Insurer and the Servicer with a completed notice in the form set forth as Exhibit L (the "Notice") hereto, which will be based upon the information set forth in the Servicer's Certificate, in the event that an Event of Nonpayment will occur, or a Guaranteed Supplemental Payment is owing, occur with respect to such Remittance Date. The Notice shall specify the total amount of the Insured Payment and Guaranteed Supplemental Payment to be paid on the applicable Remittance Date, stated separately for each Class of Pool I or Pool IV II Certificates, as applicable, and shall constitute a claim for an Insured Payment or Guaranteed Supplemental Payment, as the case may be, pursuant to the applicable Certificate Insurance Policy. The Certificate Insurer shall remit or cause to be remitted to the Insurance Paying Agent the amount of the Insured Payment or Guaranteed Supplemental Payment, as the case may be; provided, however, if the Certificate Insurer is not in default with regard to payment under the Certificate Insurance Policies (i) the amount of the Guaranteed Supplemental Payment required to be paid by the Certificate Insurer shall be reduced by the Class X Accelerated Distribution Amount and (ii) any remaining Guaranteed Supplemental Payment or Insured Payment may be funded in whole or in part, by amounts transferred to the Certificate Account from TMS-CAP Trust 1997-1. Upon receipt of such Insured Payment or Guaranteed Supplemental Payment by the Insurance Paying Agent on behalf of the Holders of the respective Class of Pool I or Pool IV II Certificates under the applicable Certificate Insurance Policy, it shall remit such amounts to the Trustee who shall deposit such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in the applicable Certificate Account and shall distribute such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in accordance with Sections 6.08(d)(X) and (e) hereof. Notwithstanding the foregoing, if an Event of Nonpayment with respect to Pool I or Pool IV II will occur with respect to a Remittance Date and funds are on deposit in the Spread Account, the amount of the Insured Payment shall be reduced up to the amount then on deposit in the Spread Account. Pursuant to Section 6.05(b)(ii), the Trustee shall, on such Remittance Date, transfer such amount to the applicable Certificate Account from the Spread Account. The Trustee shall serve as Insurance Paying Agent hereunder for so long as a Certificate Insurance Policy shall remain in effect; PROVIDED, HOWEVER, that the Insurance Paying Agent may be located in another jurisdiction with the written consent of the Certificate Insurer. The Insurance Paying Agent shall act as the agent of the Trustee and shall (i) pay amounts required by Section 6.04(b)(i) hereof to the Certificate Insurer, (ii) pay Insured Payments or Guaranteed Supplemental Payments received from the Certificate Insurer as the Trustee shall direct and (iii) take such other actions with respect to the Certificate Insurer and the Certificate Insurance Policies as the Trustee shall direct. The Trustee shall act initially as the Insurance Paying Agent. The Trustee shall receive through the Insurance Paying Agent, as attorney-in-fact of each Holder of Pool I or Pool IV II Certificates, any Insured Payment or Guaranteed Supplemental Payment from the Certificate Insurer and disburse the same to each Holder of Pool I or Pool IV II Certificates in accordance with the provisions of this Section 6.08. Insured Payments or Guaranteed Supplemental Payments disbursed by the Trustee from proceeds of the Certificate Insurance Policies shall not be considered payment by the Trust Fund nor shall such payments discharge the obligation of the Trust Fund with respect to such Pool I or Pool IV II Certificates, and the Certificate Insurer shall become the owner of such unpaid amounts of Insured Payments and Guaranteed Supplemental Payments due from the Trust Fund in respect of such Certificates. The Trustee hereby agrees on behalf of each Holder of Pool I or Pool IV II Certificates for the benefit of the Certificate Insurer that it recognizes that to the extent the Certificate Insurer makes Insured Payments or Guaranteed Supplemental Payments, either directly or indirectly (as by paying through the Insurance Paying Agent), to the Pool I or Pool IV II Certificateholders, the Certificate Insurer will be subrogated to the rights of the such Pool I or Pool IV II Certificateholders with respect to such Insured Payment or Guaranteed Supplemental PaymentsPayment, shall be deemed to the extent of the payments so made to be a registered Certificateholder of the related Class, and shall receive the Pool Carry-Forward Amounts of the related Pools in accordance with Section 6.08(d)(X) below until all such Insured Payments and Guaranteed Supplemental Payments by the Certificate Insurer have been fully reimbursed (including reimbursements received from TMS-Cap Trust 1997-1)reimbursed. To evidence such subrogation, the Trustee shall, or shall cause the Certificate Registrar to, note the Certificate Insurer's rights as subrogee on the registration books maintained by the Trustee or the Certificate Registrar upon receipt from the Certificate Insurer of proof of payment of any Insured Payment or Guaranteed Supplemental PaymentsPayment. Each Pool I or Pool IV II Certificateholder shall promptly (i) notify the Trustee in writing upon the receipt of a court order to the effect that any amounts described in Clause (iv) of the definition of Pool Remittance Amount constitute a voidable preference pursuant to the United States Bankruptcy Code and (ii) shall enclose a certified copy of such order with such notice to the Trustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Money Store Home Equity Corp)
Priority and Subordination of Distributions. (a) The rights of the Certificateholders to receive distributions from the proceeds of the Trust Fund, and all ownership interests of the Certificateholders in such distributions, shall be as set forth in this Agreement. In this regard, all The rights of the Class X and Class R Certificateholders to receive distributions in respect of the Class X and Class R Certificates, respectively, and all ownership interests of the Class X and Class R Certificateholders in and to such distributions, Certificates shall be subject and subordinate to the preferential rights of the Class A, Class M and Class B Certificateholders, A Certificateholders to receive distributions in respect of the Class A, Class M and Class B A Certificates, respectivelyto the extent set forth herein, and distributions on the ownership interests Class X Certificates are subject and subordinate to the maintenance of the Class A, Class M and Class B Certificateholders, respectively, in such distributions, Specified Spread Account Requirement as described specified herein. In accordance with the foregoing, the ownership interests of the Class X and Class R Certificateholders in amounts deposited in the applicable Principal and Interest Spread Account or in any Accounts from time to time shall not vest unless and until such amounts are distributed in respect of the Class X and Class R Certificates in accordance with the terms of this Agreement. Notwithstanding anything contained in this Agreement to the contrary, the Class X and Class R Certificateholders no Certificateholder shall not be required to refund any amount properly distributed on the Class X and Class R Certificatesto it pursuant to Section 6.02, 6.05, 6.09(b) or 6.09(d).
(b) [Reserved];
(c) As soon as possible, and in no event later than 10:00 a.m. New York time on the Business Day immediately preceding each Remittance Payment Date, the Trustee shall furnish the Certificate Insurer and the Servicer with a completed notice in the form set forth as Exhibit L Q hereto (the "Notice") hereto, which will be based upon the information set forth in the Servicer's Certificate, in the event that an Event of Nonpayment will occur, or a Guaranteed Supplemental Payment is owingpursuant to the definition thereof, with respect to such Remittance Payment Date. The Notice shall specify the total amount of the Insured Payment and Guaranteed Supplemental Payment to be paid on the applicable Remittance Date, stated separately for each Class of Pool I or Pool IV Certificates, as applicable, and shall constitute a claim for an Insured Payment or Guaranteed Supplemental Payment, as the case may be, pursuant to the applicable Certificate Insurance Policy. The Certificate Insurer shall remit or cause to be remitted to Upon receipt of Insured Payments for the Insurance Paying Agent the amount benefit of the Insured Payment or Guaranteed Supplemental Payment, as the case may be; provided, however, if the Certificate Insurer is not in default with regard to payment Class A Certificateholders under the Certificate Insurance Policies (i) the amount of the Guaranteed Supplemental Payment required to be paid by the Certificate Insurer shall be reduced by the Class X Accelerated Distribution Amount and (ii) any remaining Guaranteed Supplemental Payment or Insured Payment may be funded in whole or in part, by amounts transferred to the Certificate Account from TMS-CAP Trust 1997-1. Upon receipt of such Insured Payment or Guaranteed Supplemental Payment by the Insurance Paying Agent on behalf of the Holders of the respective Class of Pool I or Pool IV Certificates under the applicable Certificate Insurance Policy, it shall remit such amounts to the Trustee who shall deposit such Insured Payment or Guaranteed Supplemental Payment, as the case may be, Payments in the applicable Certificate Account and shall distribute such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in accordance with Sections 6.08(d)(X) and (e) hereof. Notwithstanding the foregoing, if an Event of Nonpayment with respect to Pool I or Pool IV will occur with respect to a Remittance Date and funds are on deposit in the Spread Account, the amount of the Insured Payment shall be reduced up to the amount then on deposit in the Spread Account. Pursuant to Section 6.05(b)(ii), the Trustee shall, on such Remittance Date, transfer such amount to the applicable Certificate Account from the Spread Collection Account. The Trustee shall serve as Insurance Paying Agent hereunder for so long as a Certificate Insurance Policy shall remain in effect; PROVIDED, HOWEVER, that the Insurance Paying Agent may be located in another jurisdiction with the written consent of the Certificate Insurer. The Insurance Paying Agent shall act as the agent of the Trustee and shall (i) pay amounts required by Section 6.04(b)(i) hereof to the Certificate Insurer, (ii) pay Insured Payments or Guaranteed Supplemental Payments received from the Certificate Insurer as the Trustee shall direct and (iii) take such other actions with respect to the Certificate Insurer and the Certificate Insurance Policies as the Trustee shall direct. The Trustee shall act initially as the Insurance Paying Agent. The Trustee shall receive through the Insurance Paying Agentreceive, as attorney-in-fact of each Holder of Pool I or Pool IV Certificatesa Class A Certificate, any Insured Payment or Guaranteed Supplemental Payment from the Certificate Insurer and disburse the same to each Holder of Pool I or Pool IV Certificates a Class A Certificate, respectively, in accordance with the provisions of this Section 6.086.05. Insured Payments or Guaranteed Supplemental Payments disbursed by the Trustee from proceeds of the Certificate Insurance Policies Policy shall not be considered payment by the Trust Fund nor shall such payments payment discharge the obligation of the Trust Fund with respect to such Pool I or Pool IV Class A Certificates, and the Certificate Insurer shall become the owner of such unpaid amounts of Insured Payments and Guaranteed Supplemental Payments due from the Trust Fund in respect of such Class A Certificates. The Trustee hereby agrees on behalf of each Holder of Pool I or Pool IV Certificates a Class A Certificate for the benefit of the Certificate Insurer that it recognizes that to the extent the Certificate Insurer makes Insured Payments or Guaranteed Supplemental Payments, either directly or indirectly (as by paying through the Insurance Paying AgentTrustee), to the Pool I or Pool IV Class A Certificateholders, the Certificate Insurer will be subrogated to the rights of the such Pool I or Pool IV Certificateholders Class A Certificateholders, as applicable, with respect to such Insured Payment or Guaranteed Supplemental Payments, and shall be deemed to the extent of the payments so made to be a registered Class A Certificateholder of the related Class, and shall receive all future Insured Class A Remittance Amounts, as the Pool Carry-Forward Amounts of the related Pools in accordance with Section 6.08(d)(X) below case may be, until all such Insured Payments and Guaranteed Supplemental Payments by the Certificate Insurer have been fully reimbursed together with interest thereon at the applicable Pass-Through Rate (including reimbursements received from TMSor, in the case of the Class A-1F Certificates, the Insured Pass-Cap Trust 1997-1Through Rate), subject to the following paragraph. To evidence such subrogation, the Trustee shall, or shall cause the Certificate Registrar to, note the Certificate Insurer's rights as subrogee on the registration books maintained by the Trustee or the Certificate Registrar upon receipt from the Certificate Insurer of proof of payment of any Insured Payment. Except as otherwise described herein, the Certificate Insurer shall not acquire any voting rights hereunder as a result of such subrogation. It is understood and agreed that the intention of the parties is that the Certificate Insurer shall not be entitled to reimbursement on any Payment or Guaranteed Supplemental PaymentsDate for amounts previously paid by it unless on such Payment Date the Class A Certificateholders shall also have received the full amount of the Insured Class A Remittance Amount for such Payment Date. Each Pool I or Pool IV Certificateholder For purposes of implementing the Certificate Insurer's rights as subrogee, distributions shall promptly be made to the Certificate Insurer under priority fourth of subsection (d) of this Section 6.05 after all distributions are made to the Class A Certificateholders on the applicable Payment Date as aforesaid.
(d) Not later than 12:00 p.m. New York time on each Payment Date, with respect to the Class A-1F Certificates and the Class A-1A Certificates, the Trustee shall withdraw from the Collection Account (and, with respect to clause (iii)(A) of this Section 6.05(d), from the Yield Supplement Sub-Account), from the amounts available therein as set forth in this Article VI, if any, and shall, to the extent available, distribute (without duplication) such amount in the priority indicated:
(i) notify first, sequentially, (a) for deposit into the Trustee in writing upon Insurance Account for the receipt benefit of a court order the Certificate Insurer, the Monthly Premium with respect to such Certificates payable to the effect that any amounts Certificate Insurer and (b) for remittance of the Initial Premium Fee Recovery Amount to the Representative;
(ii) second, for deposit into the Spread Account, the Excess Spread with respect to the related Mortgage Loan Group (which for federal income tax purposes will be treated in the manner described in Clause Section 6.09);
(iii) third, from amounts attributable to the related Mortgage Loan Group and, subject to Section 6.09(b)(ii), amounts withdrawn from the Spread Account pursuant to Section 6.09(b)(ii), (A) to the Class A-1F Certificateholders, the Class A-1F Interest Remittance Amount; and (B) to the Class A-1A Certificateholders, the Class A-1A Interest Remittance Amount;
(iv) of fourth, to the definition of Pool Class A-1F Certificates and to the Class A-1A Certificates, the Class A-1F Principal Remittance Amount constitute a voidable preference pursuant and the Class A-1A Principal Remittance Amount, respectively, concurrently as follows:
(1) to the United States Bankruptcy Code and (ii) shall enclose a certified copy Class A-1F Certificates, until the Principal Balance of such order with Class has been reduced to zero, the Class A-1F Principal Remittance Amount; and
(2) to the Class A-1A Certificates, until the Principal Balance of such notice Class has been reduced to zero, the Class A-1A Principal Remittance Amount;
(v) fifth, to the Trustee, any amounts then due and owing representing fees of the Trustee (without regard to amounts attributable to either Mortgage Loan Group); provided, that the Trustee certifies in writing that such amount is due and owing and has not been paid by the Servicer within 30 days after written demand therefor;
(vi) sixth, to the Servicer and/or the Representative, as applicable, any Reimbursable Amount (without regard to amounts attributable to either Mortgage Loan Group);
(vii) seventh, to the Servicer an amount equal to Nonrecoverable Advances previously made by the Servicer and not previously reimbursed (without regard to amounts attributable to either Mortgage Loan Group); and
(viii) eighth, to the Class R Certificateholders, the balance if any of amounts remaining in the Collection Account.
(e) All distributions made to the Class A Certificateholders or the Class X and Class R Certificateholders as a Class on each Payment Date will be made on a pro rata basis among the Certificateholders of the respective Class of record on the next preceding Record Date based on the Percentage Interest represented by their respective Certificates, and shall be made by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity having appropriate facilities therefor, if such Certificateholder shall own of record Class A Certificates which have denominations aggregating at least $1,000,000 appearing in the Certificate Register, and in all cases with respect to the Class X and Class R Certificates, and shall have provided complete wiring instructions at least five Business Days prior to the Record Date, and otherwise by check mailed to the address of such Certificateholder appearing in the Certificate Register.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Eqcc Home Equity Loan Trust 1998-3)
Priority and Subordination of Distributions. (a) The rights of the Certificateholders to receive distributions from the proceeds of the Trust Fund, and all ownership interests of the Certificateholders in such distributions, shall be as set forth in this Agreement. In this regard, all The rights of the Class X and Class R Certificateholders to receive distributions in respect of the Class X and Class R Certificates, respectively, and all ownership interests of the Class X and Class R Certificateholders in and to such distributions, Certificates shall be subject and subordinate to the preferential rights of the Class A, Class M and Class B Certificateholders, A Certificateholders to receive distributions in respect of the Class A, Class M and Class B A Certificates, respectively, and to the ownership interests of the Class A, Class M and Class B Certificateholders, respectively, in such distributions, as described extent set forth herein. In accordance with the foregoing, the ownership interests of the Class X and Class R Certificateholders in amounts deposited in the applicable Principal and Interest Account or in any Accounts from time to time shall not vest unless and until such amounts are distributed in respect of the Class X and Class R Certificates in accordance with the terms of this Agreement. Notwithstanding anything contained in this Agreement to the contrary, the Class X and Class R Certificateholders no Certificateholder shall not be required to refund any amount properly distributed on the Class X and Class R Certificatesto it pursuant to SECTION 6.02 OR 6.05.
(b) [Reserved];
(c) As soon as possible, and in no event later than 10:00 a.m. New York time on the Business Day immediately preceding each Remittance Distribution Date, the Trustee shall furnish the Certificate Insurer and the Servicer with a completed notice in the form set forth as Exhibit L Q hereto (the "Notice"NOTICE) hereto, which will be based upon the information set forth in the Servicer's Certificate, in the event that (i) an Event of Nonpayment will occur, or a Guaranteed Supplemental Payment is owingpursuant to the definition thereof, with respect to such Remittance Distribution Date, (ii) the aggregate of the Certificate Balances of a Certificate Group then outstanding (after giving effect to principal distributions to be made pursuant to SECTION 6.05(D) on such Distribution Date) would exceed the aggregate Principal Balance of the Mortgage Loans then outstanding, (iii) without duplication of the notice specified in clause (ii), the Certificate Balance of each Class of Class A Certificates remains unpaid on the Final Scheduled Distribution Date for such Class, after giving effect to distributions on such Distribution Date, (iv) such Distribution Date is the dated fixed for termination of the Trust pursuant to Section 11.01 or (v) a Preference Amount exists. The Notice shall specify the total amount of the Insured Payment and Guaranteed Supplemental Payment to be paid on the applicable Remittance Date, stated separately for each Class of Pool I or Pool IV Certificates, as applicable, and shall constitute a claim for an Insured Payment or Guaranteed Supplemental Payment, as the case may be, pursuant to the applicable Certificate Insurance Policy. The In the case of a Preference Amount, such Notice shall be accompanied by a certified copy of the order requiring the return of a preference payment, and such other documentation as is required pursuant to the terms of the Certificate Insurer shall remit or cause Insurance Policy by the Certificate Insurer, such documentation being in a form satisfactory to the Certificate Insurer, provided that if such documents are received after 12:00 noon New York City time on such Business Day, they will be deemed to be remitted to received on the Insurance Paying Agent following Business Day. Upon receipt of Insured Payments for the amount benefit of the Insured Payment or Guaranteed Supplemental Payment, as the case may be; provided, however, if the Certificate Insurer is not in default with regard to payment Class A Certificateholders under the Certificate Insurance Policies (i) the amount of the Guaranteed Supplemental Payment required to be paid by the Certificate Insurer shall be reduced by the Class X Accelerated Distribution Amount and (ii) any remaining Guaranteed Supplemental Payment or Insured Payment may be funded in whole or in part, by amounts transferred to the Certificate Account from TMS-CAP Trust 1997-1. Upon receipt of such Insured Payment or Guaranteed Supplemental Payment by the Insurance Paying Agent on behalf of the Holders of the respective Class of Pool I or Pool IV Certificates under the applicable Certificate Insurance Policy, it shall remit such amounts to the Trustee who shall deposit such Insured Payment or Guaranteed Supplemental Payment, as the case may be, Payments in the applicable Certificate Account and shall distribute such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in accordance with Sections 6.08(d)(X) and (e) hereof. Notwithstanding the foregoing, if an Event of Nonpayment with respect to Pool I or Pool IV will occur with respect to a Remittance Date and funds are on deposit in the Spread Account, the amount of the Insured Payment shall be reduced up to the amount then on deposit in the Spread Account. Pursuant to Section 6.05(b)(ii), the Trustee shall, on such Remittance Date, transfer such amount to the applicable Certificate Account from the Spread Collection Account. The Trustee shall serve as Insurance Paying Agent hereunder for so long as a Certificate Insurance Policy shall remain in effect; PROVIDED, HOWEVER, that the Insurance Paying Agent may be located in another jurisdiction with the written consent of the Certificate Insurer. The Insurance Paying Agent shall act as the agent of the Trustee and shall (i) pay amounts required by Section 6.04(b)(i) hereof to the Certificate Insurer, (ii) pay Insured Payments or Guaranteed Supplemental Payments received from the Certificate Insurer as the Trustee shall direct and (iii) take such other actions with respect to the Certificate Insurer and the Certificate Insurance Policies as the Trustee shall direct. The Trustee shall act initially as the Insurance Paying Agent. The Trustee shall receive through the Insurance Paying Agentreceive, as attorney-in-fact of each Holder of Pool I or Pool IV Certificatesa Class A Certificate, any Insured Payment or Guaranteed Supplemental Payment from the Certificate Insurer and disburse the same to each Holder of Pool I or Pool IV Certificates a Class A Certificate, respectively, in accordance with the provisions of this Section 6.08SECTION 6.05. Insured Payments or Guaranteed Supplemental Payments disbursed by the Trustee from proceeds of the Certificate Insurance Policies Policy shall not be considered payment by the Trust Fund nor shall such payments payment discharge the obligation of the Trust Fund with respect to such Pool I or Pool IV Class A Certificates, and the Certificate Insurer shall become the owner of such unpaid amounts of Insured Payments and Guaranteed Supplemental Payments due from the Trust Fund in respect of such Class A Certificates. The Trustee hereby agrees on behalf of each Holder of Pool I or Pool IV Certificates a Class A Certificate for the benefit of the Certificate Insurer that it recognizes that to the extent the Certificate Insurer makes Insured Payments or Guaranteed Supplemental Payments, either directly or indirectly (as by paying through the Insurance Paying AgentTrustee), to the Pool I or Pool IV Class A Certificateholders, the Certificate Insurer will be subrogated to the rights of the such Pool I or Pool IV Certificateholders Class A Certificateholders, as applicable, with respect to such Insured Payment or Guaranteed Supplemental Payments, and shall be deemed to the extent of the payments so made to be a registered Class A Certificateholder of the related Class, and shall receive all future amounts distributable pursuant to SECTION 6.05(D) to the Pool Carry-Forward Amounts of Class A Certificates which received such Insured Payment, as the related Pools in accordance with Section 6.08(d)(X) below case may be, until all such Insured Payments and Guaranteed Supplemental Payments by the Certificate Insurer have been fully reimbursed (including reimbursements received from TMStogether with interest thereon at the applicable Pass-Cap Trust 1997-1)Through Rate. To evidence such subrogation, the Trustee shall, or shall cause the Certificate Registrar to, note the Certificate Insurer's rights as subrogee on the registration books maintained by the Trustee or the Certificate Registrar upon receipt from the Certificate Insurer of proof of payment of any Insured Payment or Guaranteed Supplemental PaymentsPayment. Each Pool I or Pool IV Certificateholder Except as otherwise described herein, the Certificate Insurer shall promptly (i) notify not acquire any voting rights hereunder as a result of such subrogation. Any amounts received by the Trustee in writing upon under the receipt of a court order Certificate Insurance Policy pursuant to the effect that any amounts described in Clause clause (ivii) of the definition of Pool Remittance Amount constitute a voidable preference "Insured Payment" shall be allocated among the Certificate Groups pro rata on the basis of the amounts, if any, by which the Certificate Principal Balance of each Certificate Group exceeds the aggregate Principal Balance of the Mortgage Loans in the related Mortgage Loan Group, and any amounts allocated to the Fixed Rate Group 1 Certificates will be distributed in the priority specified in SECTION 6.05(D)(IV).
(i) Not later than 12:00 p.m. New York time on each Distribution Date, the Trustee will be required to withdraw from the Collection Account and distribute, based on the information provided by the Servicer pursuant to Section 6.07, the United States Bankruptcy Code Fixed Rate Group 1 Available Funds in the priority described below: first, (a) to the Insurance Account for the benefit of the Certificate Insurer, the Monthly Premium payable to the Certificate Insurer in respect of the Fixed Rate Group 1 Certificates and (b) to the Representative, the Initial Premium Fee Recovery Amount in respect of the Fixed Rate Group 1 Certificates; second, to each Class of Fixed Rate Group 1 Certificates, the related Interest Remittance Amount; third, to the Fixed Rate Group 1 Certificates, the Fixed Rate Group 1 Basic Principal Distribution Amount in the priority described under Section 6.05(d)(iv); fourth, to the Certificate Insurer, an amount equal to any Insured Payments previously made by the Certificate Insurer on the Fixed Rate Group 1 Certificates (including any interest thereon) and not previously reimbursed; fifth, concurrently, pro rata, as follows:
(i) to the Certificate Insurer, an amount equal to the excess, if any, of (x) any Insured Payments previously made by the Certificate Insurer on the Fixed Rate Group 2 Certificates (including interest thereon) and not previously reimbursed over (y) the amount actually distributed to the Fixed Rate Group 2 Certificates on such Distribution Date pursuant to Section 6.05(d)(ii), priority fourth below from the Fixed Rate Group 2 Available Funds; and
(ii) shall enclose a certified copy to the Certificate Insurer, an amount equal to the excess, if any, of (x) any Insured Payments previously made by the Certificate Insurer on the Class A-1A Certificates (including interest thereon) and not previously reimbursed over (y) the amount actually distributed to the Class A-1A Certificates on such order with Distribution Date pursuant to Section 6.05(d)(iii), priority fourth below from the Adjustable Rate Group Available Funds; sixth, concurrently, pro rata, as follows:
(i) to the Fixed Rate Group 2 Certificates, an amount equal to the excess, if any, of (x) the related Interest Remittance Amount for such notice Distribution Date over (y) the amount actually distributed to the Fixed Rate Group 2 Certificates on such Distribution Date pursuant to SECTION 6.05(D)(II), priority second below from the Fixed Rate Group 2 Available Funds; and
(ii) to the Class A-1A Certificates, an amount equal to the excess, if any, of (x) the related Interest Remittance Amount for such Distribution Date over (y) the amount actually distributed to the Class A-1A Certificates on such Distribution Date pursuant to SECTION 6.05(D)(III), priority second below from the Adjustable Rate Group Available Funds; seventh, concurrently, pro rata, as follows:
(i) to the Fixed Rate Group 2 Certificates, an amount equal to the excess, if any of (x) the Fixed Rate Group 2 Basic Principal Distribution Amount for such Distribution Date over (y) the amount actually distributed to the Fixed Rate Group 2 Certificates on such Distribution Date pursuant to Section 6.05(d)(ii), priority third below from the Fixed Rate Group 2 Available Funds; and
(ii) to the Class A-1A Certificates, an amount equal to the excess, if any, of (x) the Class A-1A Basic Principal Distribution Amount for such Distribution Date over (y) the amount actually distributed to the Class A-1A Certificates on such Distribution Date pursuant to Section 6.05(d)(iii), priority third below from the Adjustable Rate Group Available Funds; eighth, to the Fixed Rate Group 1 Certificates, in the priority described in Section 6.05(d)(iv) below, an amount equal to the Fixed Rate Group 1 Extra Principal Distribution Amount; ninth, concurrently, pro rata, as follows:
(i) to the Fixed Rate Group 2 Certificates, an amount equal to any remaining Overcollateralization Deficiency Amount for such Distribution Date for the Fixed Rate Group 2 Certificates after distribution to the Fixed Rate Group 2 Certificates on such Distribution Date pursuant to Section 6.05(d)(ii), priority eighth below from the Fixed Rate Group 2 Available Funds; and
(ii) to the Class A-1A Certificates, an amount equal to any remaining Overcollateralization Deficiency Amount for such Distribution Date for the Class A-1A Certificates after distributions to the Class A-1A Certificates on such Distribution Date pursuant to Section 6.05(d)(iii), priority eighth below from the Adjustable Rate Group Available Funds; tenth, to the Trustee, any amounts then due and owing representing fees of the Trustee in respect of Fixed Rate Group 1, provided that the Trustee certifies in writing that such amount is due and owing and has not been paid by the Servicer within 30 days after written demand therefor; eleventh, to the Servicer and/or the Representative, as applicable, any Reimbursable Amounts in respect of Fixed Rate Group 1; twelfth, to the Servicer, an amount equal to Nonrecoverable Advances previously made by the Servicer in respect of Fixed Rate Group 1 and not previously reimbursed; thirteenth, in respect of Fixed Rate Group 1, to the applicable Fixed Rate Group 1 Certificates, pro rata, the related unpaid Fixed Rate Group 1 Interest Carryovers, if any; fourteenth, concurrently, pro rata, as follows:
(i) to the Fixed Rate Group 2 Certificates, unpaid Fixed Rate Group 2 Interest Carryovers, if any, after giving effect to the amount actually distributed on such Distribution Date pursuant to Section 6.05(d)(ii), priority thirteenth below; and
(ii) to the Class A-1A Certificates, unpaid Class A-1A LIBOR Interest Carryovers, if any, after giving effect to the amount actually distributed on such Distribution Date pursuant to Section 6.05(d)(iii), priority thirteenth below; fifteenth, to the Class X Certificates, the Unpaid Class X Remittance Amount (without duplication of amounts distributed pursuant to priority fifteenth of SECTIONS 6.05(D)(II) or 6.05(D)(III)); and sixteenth, to the Class R-IV Certificates, the balance, if any, of the Fixed Rate Group 1 Available Funds.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Eqcc Home Equity Loan Trust 1999-3)
Priority and Subordination of Distributions. (a) The rights of the Certificateholders to receive distributions from the proceeds of the Trust Fund, and all ownership interests of the Certificateholders in such distributionsdistribu tions, shall be as set forth in this Agreement. In this regard, all The rights of the Class X and Class R Certificateholders to receive distributions in respect of the Class X and Class R Certificates, respectively, and all ownership interests of the Class X and Class R Certificateholders in and to such distributions, Certificates shall be subject and subordinate to the preferential rights of the Class A, Class M and Class B Certificateholders, A Certificateholders to receive distributions in respect of the Class A, Class M and Class B A Certificates, respectivelyto the extent set forth herein, and distributions on the ownership interests Class R Certificates are subject and subordinate to the maintenance of the Class A, Class M and Class B Certificateholders, respectively, in such distributions, Specified Spread Account Requirement as described specified herein. In accordance with the foregoing, the ownership interests of the Class X and Class R Certificateholders in amounts deposited in the applicable Principal and Interest Account or in any Accounts from time to time shall not vest unless and until such amounts are distributed in respect of the Class X and Class R Certificates in accordance with the terms of this Agreement. Notwithstanding anything contained in this Agreement to the contrary, the Class X and Class R Certificateholders no Certificateholder shall not be required to refund any amount properly distributed on the Class X and Class R Certificatesto it pursuant to Section 6.02, 6.05, 6.09(b) or 6.09(d).
(b) [Reserved]No later than 10:00 a.m. New York time on the Business Day immediately following each Determination Date occurring on or prior to the earlier to occur of (x) the Cross-Over Date or (y) the Payment Date on which all amounts due have been paid to the Class A Certificateholders (including the Certificate Insurer as subrogee of the Class A Certificateholders) based exclusively on the computer tape and other information prepared by the Servicer pursuant to Section 6.07, indicating with respect to the immediately succeeding Payment Date:
(i) whether, any withdrawals from the Spread Account would be required pursuant to Section 6.09(b)(iii);
(ii) if so, whether the amount available in cash and from liquidation of Permitted Instruments on deposit in the Spread Account would be insufficient to fund such withdrawal; and
(iii) if so, the amount that is the lesser of (A) the amount of shortfall and (B) the amount then available to be drawn under the Letter(s) of Credit then on deposit in the Spread Account (the "Draw Amount"); the Trustee shall promptly cause to be presented to the Letter of Credit Bank(s) of such Letter(s) of Credit a drawing certificate(s) of proper form for payment thereunder such that the proceeds of such drawing(s) will be available on the Business Day next preceding the next Payment Date and otherwise in conformity with the terms thereof for the aggregate Draw Amount. The Trustee shall draw upon all other Letters of Credit, to the full extent amounts are available thereunder. Proceeds received in payment of any Letter of Credit drawings shall be deposited and held in the Letter of Credit Proceeds Sub-Account of the Spread Account.
(c) As soon as possible, and in no event later than 10:00 a.m. New York time on the Business Day immediately preceding each Remittance Payment Date, the Trustee shall furnish the Certificate Insurer and the Servicer with a completed notice in the form set forth as Exhibit L Q hereto (the "Notice") hereto, which will be based upon the information set forth in the Servicer's Certificate, in the event that an Event of Nonpayment will occur, or a Guaranteed Supplemental Payment is owingpursuant to the definition thereof, with respect to such Remittance Payment Date. The Notice shall specify the total amount of the Insured Payment and Guaranteed Supplemental Payment to be paid on the applicable Remittance Date, stated separately for each Class of Pool I or Pool IV Certificates, as applicable, and shall constitute a claim for an Insured Payment or Guaranteed Supplemental Payment, as the case may be, pursuant to the applicable Certificate Insurance Policy. The Certificate Insurer shall remit or cause to be remitted to Upon receipt of Insured Payments for the Insurance Paying Agent the amount benefit of the Insured Payment or Guaranteed Supplemental Payment, as the case may be; provided, however, if the Certificate Insurer is not in default with regard to payment Class A Certificateholders under the Certificate Insurance Policies (i) the amount of the Guaranteed Supplemental Payment required to be paid by the Certificate Insurer shall be reduced by the Class X Accelerated Distribution Amount and (ii) any remaining Guaranteed Supplemental Payment or Insured Payment may be funded in whole or in part, by amounts transferred to the Certificate Account from TMS-CAP Trust 1997-1. Upon receipt of such Insured Payment or Guaranteed Supplemental Payment by the Insurance Paying Agent on behalf of the Holders of the respective Class of Pool I or Pool IV Certificates under the applicable Certificate Insurance Policy, it shall remit such amounts to the Trustee who shall deposit such Insured Payment or Guaranteed Supplemental Payment, as the case may be, Payments in the applicable Certificate Account and shall distribute such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in accordance with Sections 6.08(d)(X) and (e) hereof. Notwithstanding the foregoing, if an Event of Nonpayment with respect to Pool I or Pool IV will occur with respect to a Remittance Date and funds are on deposit in the Spread Account, the amount of the Insured Payment shall be reduced up to the amount then on deposit in the Spread Account. Pursuant to Section 6.05(b)(ii), the Trustee shall, on such Remittance Date, transfer such amount to the applicable Certificate Account from the Spread Collection Account. The Trustee shall serve as Insurance Paying Agent hereunder for so long as a Certificate Insurance Policy shall remain in effect; PROVIDED, HOWEVER, that the Insurance Paying Agent may be located in another jurisdiction with the written consent of the Certificate Insurer. The Insurance Paying Agent shall act as the agent of the Trustee and shall (i) pay amounts required by Section 6.04(b)(i) hereof to the Certificate Insurer, (ii) pay Insured Payments or Guaranteed Supplemental Payments received from the Certificate Insurer as the Trustee shall direct and (iii) take such other actions with respect to the Certificate Insurer and the Certificate Insurance Policies as the Trustee shall direct. The Trustee shall act initially as the Insurance Paying Agent. The Trustee shall receive through the Insurance Paying Agentreceive, as attorney-in-fact of each Holder of Pool I or Pool IV Certificatesa Class A Certificate, any Insured Payment or Guaranteed Supplemental Payment from the Certificate Insurer and disburse the same to each Holder of Pool I or Pool IV Certificates a Class A Certificate, respectively, in accordance with the provisions of this Section 6.086.05. Insured Payments or Guaranteed Supplemental Payments disbursed by the Trustee from proceeds of the Certificate Insurance Policies Policy shall not be considered payment by the Trust Fund nor shall such payments payment discharge the obligation of the Trust Fund with respect to such Pool I or Pool IV Class A Certificates, and the Certificate Insurer shall become the owner of such unpaid amounts of Insured Payments and Guaranteed Supplemental Payments due from the Trust Fund in respect of such Class A Certificates. The Trustee hereby agrees on behalf of each Holder of Pool I or Pool IV Certificates a Class A Certificate for the benefit of the Certificate Insurer that it recognizes that to the extent the Certificate Insurer makes Insured Payments or Guaranteed Supplemental Payments, either directly or indirectly (as by paying through the Insurance Paying AgentTrustee), to the Pool I or Pool IV Class A Certificateholders, the Certificate Insurer will be subrogated to the rights of the such Pool I or Pool IV Certificateholders Class A Certificateholders, as applicable, with respect to such Insured Payment or Guaranteed Supplemental Payments, and shall be deemed to the extent of the payments so made to be a registered Class A Certificateholder of the related Class, and shall receive all future Class A Remittance Amounts, as the Pool Carry-Forward Amounts of the related Pools in accordance with Section 6.08(d)(X) below case may be, until all such Insured Payments and Guaranteed Supplemental Payments by the Certificate Insurer have been fully reimbursed (including reimbursements received from TMStogether with interest thereon at the applicable Pass-Cap Trust 1997-1)Through Rate, subject to the following paragraph. To evidence such subrogation, the Trustee shall, or shall cause the Certificate Registrar to, note the Certificate Insurer's rights as subrogee on the registration books maintained by the Trustee or the Certificate Registrar upon receipt from the Certificate Insurer of proof of payment of any Insured Payment. Except as otherwise described herein, the Certificate Insurer shall not acquire any voting rights hereunder as a result of such subrogation. It is understood and agreed that the intention of the parties is that the Certificate Insurer shall not be entitled to reimbursement on any Payment or Guaranteed Supplemental Date for amounts previously paid by it unless on such Payment Date the Class A Certificateholders shall also have received the full amount of the Class A Remittance Amount (exclusive of the principal portion of any Class A Carry-Forward Amount representing amounts previously paid to the Class A Certificateholders as Insured Payments. Each Pool I or Pool IV Certificateholder ), for such Payment Date.
(d) Not later than 11:00 a.m. New York time on each Payment Date, the Trustee shall promptly withdraw from the Collection Account from the amounts available therein as set forth in this Article VI, if any, and shall, to the extent available, distribute (without duplication) such amount in the priority indicated:
(i) notify first, for deposit into the Trustee Insurance Account for the benefit of the Certificate Insurer, the Monthly Premium with respect to such Certificates (as set forth in writing upon the receipt of a court order clause (e) below) payable to the effect that any amounts described in Clause Certificate Insurer;
(ii) second, for deposit into the Spread Account, the Excess Spread;
(iii) third, for deposit into the Letter of Credit Fee Account, the Letter of Credit Fee Amount with respect to such Certificates;
(iv) fourth, to the Class A Certificateholders, the Class A Interest Remittance Amount;
(v) fifth, to the extent not payable pursuant to clause (i) above, for deposit into the Insurance Account for the benefit of the definition of Pool Certificate Insurer, the Monthly Premium with respect to the Class A Certificates payable to the Certificate Insurer (as set forth in clause (e) below);
(vi) sixth, to the Class A Certificates, the Class A Principal Remittance Amount constitute a voidable preference pursuant as follows:
(A) to the United States Bankruptcy Code Class A-9 Certificates, the Class A-9 Lock-Out Remittance Amount; and
(B) to the Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class A-8 and Class A-9 Certificates, in that order, in each case, until the Principal Balance thereof has been reduced to zero.
(iivii) shall enclose a certified copy of such order with such notice seventh, to the Trustee, any amounts then due and owing representing fees of the Trustee; provided, that the Trustee certifies in writing that such amount is due and owing and has not been paid by the Servicer within 30 days after written demand therefor;
(viii) eighth, to the Servicer and/or the Representative, as applicable, any Reimbursable Amount;
(ix) ninth, to the Servicer an amount equal to Nonrecoverable Advances previously made by the Servicer and not previously reimbursed; and
(x) tenth, to the Class R Certificateholders, the balance, if any.
(e) On each Payment Date, the portion of the Monthly Premium payable to the Certificate Insurer with respect to the Class A Certificates equal to the product of (x) the Monthly Premium with respect to such Certificates for such Payment Date and (y) the Premium Factor shall not be payable pursuant to clause (i) of paragraph (d) above, but shall instead be payable pursuant to clause (v) of paragraph (d) above.
(f) All distributions made to the Class A Certificate holders or the Class R Certificateholders as a Class on each Payment Date will be made on a pro rata basis among the Certificateholders of the respective Class of record on the next preceding Record Date based on the Percentage Interest represented by their respective Certificates, and shall be made by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity having appropriate facilities therefor, if such Certificateholder shall own of record Class A Certificates which have denominations aggregating at least $1,000,000 appearing in the Certificate Register, and in all cases with respect to the Class R Certificates, and shall have provided complete wiring instructions at least five Business Days prior to the Record Date, and otherwise by check mailed to the address of such Certificateholder appearing in the Certificate Register.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Eqcc Asset Backed Corp)
Priority and Subordination of Distributions. (a) The rights of the Certificateholders to receive distributions from the proceeds of the Trust Fund, and all ownership interests of the Certificateholders in such distributions, shall be as set forth in this Agreement. In this regard, all rights of the Class X and Class R Certificateholders to receive distributions in respect of the Class X and Class R Certificates, respectively, and all ownership interests of the Class X and Class R Certificateholders in and to such distributions, shall be subject and subordinate to the preferential rights of the Class A, Class M and Class B A Certificateholders, to receive distributions dis tributions in respect of the Class A, Class M and Class B A Certificates, respectively, and the ownership interests of the Class A, Class M and Class B Certificateholders, respectively, A Certificateholders in such distributions, as described herein. In accordance with the foregoing, the ownership interests of the Class X and Class R Certificateholders in amounts deposited in the applicable Principal and Interest Account or in any Accounts from time to time shall not vest unless and until such amounts are distributed in respect of the Class X and Class R Certificates in accordance with the terms of this Agreement. Notwithstanding anything contained in this Agreement to the contrary, the Class X and Class R Certificateholders shall not be required to refund any amount properly distributed on the Class X and Class R CertificatesCertificates pursuant to Section 6.08(d)(v).
(b) [Reserved]
(c) As soon as possible, and in no event later than 10:00 a.m. New York time on the Business Day immediately preceding each Remittance Date, the Trustee shall furnish the Certificate Insurer and the Servicer with a completed notice in the form set forth as Exhibit L (the "Notice") hereto, which will be based upon the information set forth in the Servicer's Certificate, in the event that an Event of Nonpayment will occur, or a Guaranteed Supplemental Payment is owing, occur with respect to such Remittance Date. The Notice shall specify the total amount of the Insured Payment and Guaranteed Supplemental Payment to be paid on the applicable Remittance Date, stated separately for each Class of Pool I or Pool IV Class A Certificates, as applicable, and shall constitute a claim for an Insured Payment or Guaranteed Supplemental Payment, as the case may be, pursuant to the applicable Certificate Insurance Policy. The Certificate Insurer shall remit or cause to be remitted to the Insurance Paying Agent the amount of the Insured Payment or Guaranteed Supplemental Payment, as the case may be; provided, however, if the Certificate Insurer is not in default with regard to payment under the Certificate Insurance Policies (i) the amount of the Guaranteed Supplemental Payment required to be paid by the Certificate Insurer shall be reduced by the Class X Accelerated Distribution Amount and (ii) any remaining Guaranteed Supplemental Payment or Insured Payment may be funded in whole or in part, by amounts transferred to the Certificate Account from TMS-CAP Trust 1997-1. Upon receipt of such Insured Payment or Guaranteed Supplemental Payment by the Insurance Paying Agent on behalf of the Holders of the respective Class of Pool I or Pool IV Class A Certificates under the applicable Certificate Insurance Policy, it shall remit such amounts to the Trustee who shall deposit such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in the applicable Certificate Account and shall distribute such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in accordance with Sections 6.08(d)(X6.08(d) and (e) hereof. Notwithstanding the foregoing, if an Event of Nonpayment with respect to Pool I or Pool IV will occur with respect to a Remittance Date and funds are on deposit in the Spread Account, the amount of the Insured Payment shall be reduced up to the amount then on deposit in the Spread Account. Pursuant to Section 6.05(b)(ii), the Trustee shall, on such Remittance Date, transfer such amount to the applicable Certificate Account from the Spread Account. The Trustee shall serve as Insurance Paying Agent hereunder for so long as a Certificate Insurance Policy shall remain in effect; PROVIDED, HOWEVER, that the Insurance Paying Agent may be located in another jurisdiction with the written consent of the Certificate Insurer. The Insurance Paying Agent shall act as the agent of the Trustee and shall (i) pay amounts required by Section 6.04(b)(i) hereof to the Certificate Insurer, (ii) pay Insured Payments or Guaranteed Supplemental Payments received from the Certificate Insurer as the Trustee shall direct and (iii) take such other actions with respect to the Certificate Insurer and the Certificate Insurance Policies as the Trustee shall direct. The Trustee shall act initially as the Insurance Paying Agent. The Trustee shall receive through the Insurance Paying Agent, as attorney-in-fact of each Holder of Pool I or Pool IV Class A Certificates, any Insured Payment or Guaranteed Supplemental Payment from the Certificate Insurer and disburse the same to each Holder of Pool I or Pool IV Class A Certificates in accordance with the provisions of this Section 6.08. Insured Payments or Guaranteed Supplemental Payments disbursed by the Trustee from proceeds of the Certificate Insurance Policies shall not be considered payment by the Trust Fund nor shall such payments discharge the obligation of the Trust Fund with respect to such Pool I or Pool IV Class A Certificates, and the Certificate Insurer shall become the owner of such unpaid amounts of Insured Payments and Guaranteed Supplemental Payments due from the Trust Fund in respect of such Class A Certificates. The Trustee hereby agrees on behalf of each Holder of Pool I or Pool IV Class A Certificates for the benefit of the Certificate Insurer that it recognizes that to the extent the Certificate Insurer makes Insured Payments or Guaranteed Supplemental Payments, either directly or indirectly (as by paying through the Insurance Paying Agent), to the Pool I or Pool IV Class A Certificateholders, the Certificate Insurer will be subrogated to the rights of the such Pool I or Pool IV Class A Certificateholders with respect to such Insured Payment or Guaranteed Supplemental PaymentsPayment, shall be deemed to the extent of the payments so made to be a registered Certificateholder of the related Class, and shall receive the Pool Carry-Forward Amounts of the related Pools in accordance with Section 6.08(d)(XSections 6.08(d) below until all such Insured Payments and Guaranteed Supplemental Payments by the Certificate Insurer have been fully reimbursed (including reimbursements received from TMS-Cap Trust 1997-1)reimbursed. To evidence such subrogation, the Trustee shall, or shall cause the Certificate Registrar to, note the Certificate Insurer's rights as subrogee on the registration books maintained by the Trustee or the Certificate Registrar upon receipt from the Certificate Insurer of proof of payment of any Insured Payment or Guaranteed Supplemental PaymentsPayment. Each Pool I or Pool IV Class A Certificateholder shall promptly (i) notify the Trustee in writing upon the receipt of a court order to the effect that any amounts described in Clause (iv) of the definition of Pool Remittance Amount constitute a voidable preference pursuant to the United States Bankruptcy Code and (ii) shall enclose a certified copy of such order with such notice to the Trustee.
(d) On each Remittance Date, and after making the allocations set forth in Section 6.14, the Trustee shall withdraw from the applicable Certificate Account the sum of (i) the Pool Available Amount for each Pool and (ii) the Remainder Excess Spread Amount for each Pool, net of reimbursements to the Servicer or the Representative for Reimbursable Advances pursuant to Section 5.04(f), and make distributions thereof in the following order of priority:
(i) to the Certificateholders of each Pool, the lesser of the Pool Available Amount for the related Pool and the Pool Remittance Amount for the related Pool;
(ii) then to each Expense Account, an amount equal to one-twelfth of the Annual Expense Escrow Amount with respect to the Mortgage Loans of the related Pool, plus any amount required to be paid to the Trustee or the Co-Trustee pursuant to Section 6.03(a) resulting from insufficiencies in the applicable Expense Account;
(iii) then to the Servicer and/or the Representative, an amount, if any, equal to the Reimbursable Amounts with respect to the applicable Pool to the extent the Servicer has not previously netted such amounts from Monthly Payments;
(iv) then to the Pool II Certificateholders, any Certificateholders' Interest Carryover (but only with respect to distributions relating to Pool II Mortgage Loans), allocated pro rata among each Class of Pool II Certificates based upon the amount of Certificateholders' Interest Carryover allocated to each such Class;
(v) then to the Class X Certificateholders, an amount equal to the Class X Remittance Amount; and
(vi) then to the Class R Certificateholders, any remainder. On each Remittance Date, the amount to be distributed to the Pool I Certificates pursuant to clause (i) above will be allocated in the following order of priority:
(A) first, concurrently to the Certificateholders of each Class of Pool I Certificates, the applicable Class Current Interest Requirements for such Remittance Date, pro rata in accordance with such amounts;
(B) second, to the Class A-9 Certificateholders, an amount equal to the Class A-9 Principal Distribution Amount for such Remittance Date; and
(C) third, to the Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A- 0, Xxxxx X-0, Class A-8 and Class A-9 Certificateholderx, xequentially in that order, the excess, if any, of the amount to be distributed to the Pool I Certificates on such Remittance Date over the amount distributed pursuant to (A) and (B) above, until the Class Principal Balance of each such Class (in ascending order of numerical designation) is reduced to zero and such Certificateholders have received an amount equal to the amount described in clause (iv) of the definition of Pool Remittance Amount that is recovered from such Certificateholders. On each Remittance Date, the amount to be distributed to the Pool II Certificates pursuant to clause (i) above will be allocated in the following order of priority:
(A) first, to the Class A-10 Certificateholders, the applicable Class Current Interest Requirement for such Remittance Date; and
(B) second, to the Class A-10 Certificateholders, the excess, if any, of the amount to be distributed to the Pool II Certificates on such Remittance Date over the amount distributed pursuant to (A) above, until the Class Principal Balance of such Class is reduced to zero and such Certificateholders have recovered an amount equal to the amount described in clause (iv) of the definition of Pool Remittance Amount that is recovered from such Certificateholders. On each Remittance Date, the amount to be distributed to the Pool III Certificates pursuant to clause (i) above will be allocated in the following order of priority:
(A) first, concurrently to the Certificateholders of each Class of Pool III Certificates, the applicable Class Current Interest Requirement for such Remittance Date; and
(B) second, to the Class A-11 through Class A-15 Certificateholders, sequentially in that order, the excess, if any, of the amount to be distributed to the Pool III Certificates on such Remittance Date over the amount distributed pursuant to (A) above, until the Class Principal Balance of each such Class (in ascending order of numerical designation) is reduced to zero and such Certificateholders have received an amount equal to the amount described in clause (iv) of the definition of Pool Remittance Amount that is recovered from such Certificateholders. On each Remittance Date, the amount to be distributed to the Pool IV Certificates pursuant to clause (i) above will be allocated in the following order of priority:
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Money Store Trust 1996-D)
Priority and Subordination of Distributions. (a) The rights of the Certificateholders to receive distributions from the proceeds of the Trust Fund, and all ownership interests of the Certificateholders in such distributions, shall be as set forth in this Agreement. In this regard, all rights of the Class X and Class R Certificateholders to receive distributions in respect of the Class X and Class R Certificates, respectively, and all ownership interests of the Class X and Class R Certificateholders in and to such distributions, shall be subject and subordinate to the preferential rights of the Class A, Class M and Class B A Certificateholders, to receive distributions in respect of the Class A, Class M and Class B A Certificates, respectively, and the ownership interests of the Class A, Class M and Class B Certificateholders, respectively, A Certificateholders in such distributions, as described herein. In accordance with the foregoing, the ownership interests of the Class X and Class R Certificateholders in amounts deposited in the applicable Principal and Interest Account or in any Accounts from time to time shall not vest unless and until such amounts are distributed in respect of the Class X and Class R Certificates in accordance with the terms of this Agreement. Notwithstanding anything contained in this Agreement to the contrary, the Class X and Class R Certificateholders shall not be required to refund any amount properly distributed on the Class X and Class R CertificatesCertificates pursuant to Section 6.08(d)(v).
(b) [Reserved]
(c) As soon as possible, and in no event later than 10:00 a.m. New York time on the Business Day immediately preceding each Remittance Date, the Trustee shall furnish the Certificate Insurer and the Servicer with a completed notice in the form set forth as Exhibit L (the "Notice") hereto, which will be based upon the information set forth in the Servicer's Certificate, in the event that an Event of Nonpayment will occur, or a Guaranteed Supplemental Payment is owing, occur with respect to such Remittance Date. The Notice shall specify the total amount of the Insured Payment and Guaranteed Supplemental Payment to be paid on the applicable Remittance Date, stated separately for each Class of Pool I or Pool IV Class A Certificates, as applicable, and shall constitute a claim for an Insured Payment or Guaranteed Supplemental Payment, as the case may be, pursuant to the applicable Certificate Insurance Policy. The Certificate Insurer shall remit or cause to be remitted to the Insurance Paying Agent the amount of the Insured Payment or Guaranteed Supplemental Payment, as the case may be; provided, however, if the Certificate Insurer is not in default with regard to payment under the Certificate Insurance Policies (i) the amount of the Guaranteed Supplemental Payment required to be paid by the Certificate Insurer shall be reduced by the Class X Accelerated Distribution Amount and (ii) any remaining Guaranteed Supplemental Payment or Insured Payment may be funded in whole or in part, by amounts transferred to the Certificate Account from TMS-CAP Trust 1997-1. Upon receipt of such Insured Payment or Guaranteed Supplemental Payment by the Insurance Paying Agent on behalf of the Holders of the respective Class of Pool I or Pool IV Class A Certificates under the applicable Certificate Insurance Policy, it shall remit such amounts to the Trustee who shall deposit such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in the applicable Certificate Account and shall distribute such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in accordance with Sections 6.08(d)(X6.08(d) and (e) hereof. Notwithstanding the foregoing, if an Event of Nonpayment with respect to Pool I or Pool IV will occur with respect to a Remittance Date and funds are on deposit in the Spread Account, the amount of the Insured Payment shall be reduced up to the amount then on deposit in the Spread Account. Pursuant to Section 6.05(b)(ii), the Trustee shall, on such Remittance Date, transfer such amount to the applicable Certificate Account from the Spread Account. The Trustee shall serve as Insurance Paying Agent hereunder for so long as a Certificate Insurance Policy shall remain in effect; PROVIDEDprovided, HOWEVERhowever, that the Insurance Paying Agent may be located in another jurisdiction with the written consent of the Certificate Insurer. The Insurance Paying Agent shall act as the agent of the Trustee and shall (i) pay amounts required by Section 6.04(b)(i) hereof to the Certificate Insurer, (ii) pay Insured Payments or Guaranteed Supplemental Payments received from the Certificate Insurer as the Trustee shall direct and (iii) take such other actions with respect to the Certificate Insurer and the Certificate Insurance Policies as the Trustee shall direct. The Trustee shall act initially as the Insurance Paying Agent. The Trustee shall receive through the Insurance Paying Agent, as attorney-in-fact of each Holder of Pool I or Pool IV Class A Certificates, any Insured Payment or Guaranteed Supplemental Payment from the Certificate Insurer and disburse the same to each Holder of Pool I or Pool IV Class A Certificates in accordance with the provisions of this Section 6.08. Insured Payments or Guaranteed Supplemental Payments disbursed by the Trustee from proceeds of the Certificate Insurance Policies shall not be considered payment by the Trust Fund nor shall such payments discharge the obligation of the Trust Fund with respect to such Pool I or Pool IV Class A Certificates, and the Certificate Insurer shall become the owner of such unpaid amounts of Insured Payments and Guaranteed Supplemental Payments due from the Trust Fund in respect of such Class A Certificates. The Trustee hereby agrees on behalf of each Holder of Pool I or Pool IV Class A Certificates for the benefit of the Certificate Insurer that it recognizes that to the extent the Certificate Insurer makes Insured Payments or Guaranteed Supplemental Payments, either directly or indirectly (as by paying through the Insurance Paying Agent), to the Pool I or Pool IV Class A Certificateholders, the Certificate Insurer will be subrogated to the rights of the such Pool I or Pool IV Class A Certificateholders with respect to such Insured Payment or Guaranteed Supplemental PaymentsPayment, shall be deemed to the extent of the payments so made to be a registered Certificateholder of the related Class, and shall receive the Pool Carry-Forward Amounts of the related Pools in accordance with Section 6.08(d)(XSections 6.08(d) below until all such Insured Payments and Guaranteed Supplemental Payments by the Certificate Insurer have been fully reimbursed (including reimbursements received from TMS-Cap Trust 1997-1)reimbursed. To evidence such subrogation, the Trustee shall, or shall cause the Certificate Registrar to, note the Certificate Insurer's rights as subrogee on the registration books maintained by the Trustee or the Certificate Registrar upon receipt from the Certificate Insurer of proof of payment of any Insured Payment or Guaranteed Supplemental PaymentsPayment. Each Pool I or Pool IV Class A Certificateholder shall promptly (i) notify the Trustee in writing upon the receipt of a court order to the effect that any amounts described in Clause (iv) of the definition of Pool Remittance Amount constitute a voidable preference pursuant to the United States Bankruptcy Code and (ii) shall enclose a certified copy of such order with such notice to the Trustee.
(d) On each Remittance Date, and after making the allocations set forth in Section 6.14, the Trustee shall withdraw from the applicable Certificate Account the sum of (i) the Pool Available Amount for each Pool and (ii) the Remainder Excess Spread Amount for each Pool, net of reimbursements to the Servicer or the Representative for Reimbursable Advances pursuant to Section 5.04(f), and make distributions thereof in the following order of priority:
(i) to the Certificateholders of each Pool, the lesser of the Pool Available Amount for the related Pool and the Pool Remittance Amount for the related Pool;
(ii) then to each Expense Account, an amount equal to one-twelfth of the Annual Expense Escrow Amount with respect to the Mortgage Loans of the related Pool, plus any amount required to be paid to the Trustee pursuant to Section 6.03(a) resulting from insufficiencies in the applicable Expense Account;
(iii) then to the Servicer and/or the Representative, an amount, if any, equal to the Reimbursable Amounts with respect to the applicable Pool to the extent the Servicer has not previously netted such amounts from Monthly Payments;
(iv) then to the Pool II Certificateholders, any Certificateholders' Interest Carryover (but only with respect to distributions relating to Pool II Mortgage Loans), allocated pro rata among each Class of Pool II Certificates based upon the amount of Certificateholders' Interest Carryover allocated to each such Class;
(v) then to the Class X Certificateholders, the lesser of (i) the Class X Remittance Amount and (ii) any interest accrued (and yet unpaid) with respect to the Class X Certificates in accordance with footnote (5) iof Section 4.01(b) hereof; and
(vi) then to the Class R Certificateholders, any remainder. On each Remittance Date, the amount to be distributed to the Pool I Certificates pursuant to clause (i) above will be allocated in the following order of priority:
(A) first, concurrently to the Certificateholders of each Class of Pool I Certificates, the applicable Class Current Interest Requirements for such Remittance Date, pro rata in accordance with such amounts;
(B) second, to the Class A-9 Certificateholders, an amount equal to the Class A-9 Principal Distribution Amount for such Remittance Date; and
(C) third, to the Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Xxxxx X-0, Xlass A-7, Class A-8 and Class A-9 Certificateholders, sequentially in that order, the excess, if any, of the amount to be distributed to the Pool I Certificates on such Remittance Date over the amount distributed pursuant to (A) and (B) above, until the Class Principal Balance of each such Class (in ascending order of numerical designation) is reduced to zero and such Certificateholders have received an amount equal to the amount described in clause (iv) of the definition of Pool Remittance Amount that is recovered from such Certificateholders. On each Remittance Date, the amount to be distributed to the Pool II Certificates pursuant to clause (i) above will be allocated in the following order of priority:
(A) first, concurrently to the Certificateholders of each Class of Pool II Certificates, the applicable Class Current Interest Requirements for such Remittance Date, pro rata in accordance with such amounts; and
(B) second, to the Class A-10 and Class A-11 Certificateholders, sequentially in that order, the excess, if any, of the amount to be distributed to the Pool II Certificates on such Remittance Date over the amount distributed pursuant to (A) above, until the Class Principal Balance of such Class is reduced to zero and such Certificateholders have recovered an amount equal to the amount described in clause (iv) of the definition of Pool Remittance Amount that is recovered from such Certificateholders. On each Remittance Date, the amount to be distributed to the Pool III Certificates pursuant to clause (i) above will be allocated in the following order of priority:
(A) first, to the Class A-12 Certificateholders, the applicable Class Current Interest Requirement for such Remittance Date; and
(B) second, to the Class A-12 Certificateholders, the excess, if any, of the amount to be distributed to the Pool III Certificates on such Remittance Date over the amount distributed pursuant to (A) above, until the Class Principal Balance of such Class (in ascending order of numerical designation) is reduced to zero and such Certificateholders have received an amount equal to the amount described in clause (iv) of the definition of Pool Remittance Amount that is recovered from such Certificateholders.
(i) from amounts transferred from the Pre-Funding Account, distributions of principal to the Classes of Class A Certificates then entitled to receive distributions of principal in the priority and proportions set forth in this Section 6.08(d) and (ii) from amounts transferred from the Capitalized Interest Account, distributions of interest to such Classes of Class A Certificates equal to the applicable Capitalized Interest Requirement. Notwithstanding the foregoing, if on the Special Remittance Date the amount of principal allocated to a Class of Auction Rate Certificates is not equal to $25,000 or an integral multiple of $25,000 in excess thereof, the entire amount (if less than $25,000) or the amount exceeding an integral multiple of $25,000 will, instead, be distributed to the Adjustable Rate Certificates.
(e) All distributions made to the Certificateholders on each Remittance Date and the Special Remittance Date will be made on a pro rata basis (except with respect to payments of principal to the Auction Rate Certificateholders) among the Certificateholders of the respective Class of record on the next preceding Record Date based on the Percentage Interest represented by their respective Certificates, and shall, except for the final payment on such Certificates, be made by wire transfer of immediately available funds to the account of such Certificateholder as shall appear on the Certificate Register without the presentation or surrender of the Certificate or the making of any notation thereon, at a bank or other entity having appropriate facilities therefor, at the expense of each such Certificateholder unless such Certificateholder shall own of record Certificates which have original principal amounts aggregating (i) at least $5,000,000 or (ii) one of the two highest outstanding amounts less than $5,000,000.
(f) Notwithstanding the foregoing, principal payments will be made to each Class of Auction Rate Certificates only in amounts equal to $25,000 and integral multiples in excess thereof. If the amount in the Certificate Account for Pool II otherwise required to be applied as a payment of principal on the Auction Rate Certificates either (i) is less than $25,000 or (ii) exceeds an integral multiple of $25,000, then, in the case of (i), such entire amount or, in the case of (ii), such excess amount, will not be paid as principal on the upcoming Remittance Date, but will be retained in the Certificate Account for Pool II until the amount therein available for payment of principal on the Auction Rate Certificates equals $25,000 or any integral multiple thereof. In no event, however, shall amounts remain in the Certificate Account for Pool II more than 13 months after the related payments are deposited into the Trust Fund. The amount being distributed to a Class of Auction Rate Certificates as principal will be allocated to the specific Certificates of such Class selected no later than 5 Business Days prior to the related Remittance Date by lot or such other manner as may be determined, which allocations will be made only in amounts equal to $25,000 and integral multiples of $25,000 in excess thereof.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Money Store Home Equity Corp)
Priority and Subordination of Distributions. (a) The rights of the Certificateholders to receive distributions from the proceeds of the Trust Fund, and all ownership interests of the Certificateholders in such distributions, shall be as set forth in this Agreement. In this regard, all rights of the Class X and Class R Certificateholders to receive distributions in respect of the Class X and Class R Certificates, respectively, and all ownership interests of the Class X and Class R Certificateholders in and to such distributions, shall be subject and subordinate to the preferential rights of the Class A, Class M and Class B A Certificateholders, to receive distributions in respect of the Class A, Class M and Class B A Certificates, respectively, and the ownership interests of the Class A, Class M and Class B Certificateholders, respectively, A Certificateholders in such distributions, as described herein. In accordance with the foregoing, the ownership interests of the Class X and Class R Certificateholders in amounts deposited in the applicable Principal and Interest Account or in any Accounts from time to time shall not vest unless and until such amounts are distributed in respect of the Class X and Class R Certificates in accordance with the terms of this Agreement. Notwithstanding anything contained in this Agreement to the contrary, the Class X and Class R Certificateholders shall not be required to refund any amount properly distributed on the Class X and Class R CertificatesCertificates pursuant to Section 6.08(d)(v).
(b) [Reserved]
(c) As soon as possible, and in no event later than 10:00 a.m. New York time on the Business Day immediately preceding each Remittance Date, the Trustee shall furnish the Certificate Insurer and the Servicer with a completed notice in the form set forth as Exhibit L (the "Notice") hereto, which will be based upon the information set forth in the Servicer's Certificate, in the event that an Event of Nonpayment will occur, or a Guaranteed Supplemental Payment is owing, occur with respect to such Remittance Date. The Notice shall specify the total amount of the Insured Payment and Guaranteed Supplemental Payment to be paid on the applicable Remittance Date, stated separately for each Class of Pool I or Pool IV Class A Certificates, as applicable, and shall constitute a claim for an Insured Payment or Guaranteed Supplemental Payment, as the case may be, pursuant to the applicable Certificate Insurance Policy. The Certificate Insurer shall remit or cause to be remitted to the Insurance Paying Agent the amount of the Insured Payment or Guaranteed Supplemental Payment, as the case may be; provided, however, if the Certificate Insurer is not in default with regard to payment under the Certificate Insurance Policies (i) the amount of the Guaranteed Supplemental Payment required to be paid by the Certificate Insurer shall be reduced by the Class X Accelerated Distribution Amount and (ii) any remaining Guaranteed Supplemental Payment or Insured Payment may be funded in whole or in part, by amounts transferred to the Certificate Account from TMS-CAP Trust 1997-1. Upon receipt of such Insured Payment or Guaranteed Supplemental Payment by the Insurance Paying Agent on behalf of the Holders of the respective Class of Pool I or Pool IV Class A Certificates under the applicable Certificate Insurance Policy, it shall remit such amounts to the Trustee who shall deposit such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in the applicable Certificate Account and shall distribute such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in accordance with Sections 6.08(d)(X6.08(d) and (e) hereof. Notwithstanding the foregoing, if an Event of Nonpayment with respect to Pool I or Pool IV will occur with respect to a Remittance Date and funds are on deposit in the Spread Account, the amount of the Insured Payment shall be reduced up to the amount then on deposit in the Spread Account. Pursuant to Section 6.05(b)(ii), the Trustee shall, on such Remittance Date, transfer such amount to the applicable Certificate Account from the Spread Account. The Trustee shall serve as Insurance Paying Agent hereunder for so long as a Certificate Insurance Policy shall remain in effect; PROVIDED, HOWEVER, that the Insurance Paying Agent may be located in another jurisdiction with the written consent of the Certificate Insurer. The Insurance Paying Agent shall act as the agent of the Trustee and shall (i) pay amounts required by Section 6.04(b)(i) hereof to the Certificate Insurer, (ii) pay Insured Payments or Guaranteed Supplemental Payments received from the Certificate Insurer as the Trustee shall direct and (iii) take such other actions with respect to the Certificate Insurer and the Certificate Insurance Policies as the Trustee shall direct. The Trustee shall act initially as the Insurance Paying Agent. The Trustee shall receive through the Insurance Paying Agent, as attorney-in-fact of each Holder of Pool I or Pool IV Class A Certificates, any Insured Payment or Guaranteed Supplemental Payment from the Certificate Insurer and disburse the same to each Holder of Pool I or Pool IV Class A Certificates in accordance with the provisions of this Section 6.08. Insured Payments or Guaranteed Supplemental Payments disbursed by the Trustee from proceeds of the Certificate Insurance Policies shall not be considered payment by the Trust Fund nor shall such payments discharge the obligation of the Trust Fund with respect to such Pool I or Pool IV Class A Certificates, and the Certificate Insurer shall become the owner of such unpaid amounts of Insured Payments and Guaranteed Supplemental Payments due from the Trust Fund in respect of such Class A Certificates. The Trustee hereby agrees on behalf of each Holder of Pool I or Pool IV Class A Certificates for the benefit of the Certificate Insurer that it recognizes that to the extent the Certificate Insurer makes Insured Payments or Guaranteed Supplemental Payments, either directly or indirectly (as by paying through the Insurance Paying Agent), to the Pool I or Pool IV Class A Certificateholders, the Certificate Insurer will be subrogated to the rights of the such Pool I or Pool IV Class A Certificateholders with respect to such Insured Payment or Guaranteed Supplemental PaymentsPayment, shall be deemed to the extent of the payments so made to be a registered Certificateholder of the related Class, and shall receive the Pool Carry-Forward Amounts of the related Pools in accordance with Section 6.08(d)(XSections 6.08(d) below until all such Insured Payments and Guaranteed Supplemental Payments by the Certificate Insurer have been fully reimbursed (including reimbursements received from TMS-Cap Trust 1997-1)reimbursed. To evidence such subrogation, the Trustee shall, or shall cause the Certificate Registrar to, note the Certificate Insurer's rights as subrogee on the registration books maintained by the Trustee or the Certificate Registrar upon receipt from the Certificate Insurer of proof of payment of any Insured Payment or Guaranteed Supplemental PaymentsPayment. Each Pool I or Pool IV Class A Certificateholder shall promptly (i) notify the Trustee in writing upon the receipt of a court order to the effect that any amounts described in Clause (iv) of the definition of Pool Remittance Amount constitute a voidable preference pursuant to the United States Bankruptcy Code and (ii) shall enclose a certified copy of such order with such notice to the Trustee.
(d) On each Remittance Date, and after making the allocations set forth in Section 6.14, the Trustee shall withdraw from the applicable Certificate Account the sum of (i) the Pool Available Amount for each Pool and (ii) the Remainder Excess Spread Amount for each Pool, net of reimbursements to the Servicer or the Representative for Reimbursable Advances pursuant to Section 5.04(f), and make distributions thereof in the following order of priority:
(i) to the Certificateholders of each Pool, the lesser of the Pool Available Amount for the related Pool and the Pool Remittance Amount for the related Pool;
(ii) then to each Expense Account, an amount equal to one-twelfth of the Annual Expense Escrow Amount with respect to the Mortgage Loans of the related Pool, plus any amount required to be paid to the Trustee pursuant to Section 6.03(a) resulting from insufficiencies in the applicable Expense Account;
(iii) then to the Servicer and/or the Representative, an amount, if any, equal to the Reimbursable Amounts with respect to the applicable Pool to the extent the Servicer has not previously netted such amounts from Monthly Payments;
(iv) then to the Pool II Certificateholders, any Certificateholders' Interest Carryover (but only with respect to distributions relating to Pool II Mortgage Loans), allocated pro rata among each Class of Pool II Certificates based upon the amount of Certificateholders' Interest Carryover allocated to each such Class;
(v) then to the Class X Certificateholders, the lesser of (i) the Class X Remittance Amount and (ii) any interest accrued (and yet unpaid) with respect to the Class X Certificates in accordance with footnote (5) of Section 4.01(b) hereof; and
(vi) then to the Class R Certificateholders, any remainder. On each Remittance Date, the amount to be distributed to the Pool I Certificates pursuant to clause (i) above will be allocated in the following order of priority:
(A) first, concurrently to the Certificateholders of each Class of Pool I Certificates, the applicable Class Current Interest Requirements for such Remittance Date, pro rata in accordance with such amounts;
(B) second, to the Class A-8 Certificateholders, an amount equal to the Class A-8 Principal Distribution Amount for such Remittance Date; and
(C) third, to the Class A-1, Class A-2, Class A-3, Class X-0, Xxxxx X-0, Class A-6, Class A-7 and Class A-8 Certificateholders, sequentially in that order, the excess, if any, of the amount to be distributed to the Pool I Certificates on such Remittance Date over the amount distributed pursuant to (A) and (B) above, until the Class Principal Balance of each such Class (in ascending order of numerical designation) is reduced to zero and such Certificateholders have received an amount equal to the amount described in clause (iv) of the definition of Pool Remittance Amount that is recovered from such Certificateholders. On each Remittance Date, the amount to be distributed to the Pool II Certificates pursuant to clause (i) above will be allocated in the following order of priority:
(A) first, concurrently to the Certificateholders of each Class of Pool II Certificates, the applicable Class Current Interest Requirements for such Remittance Date, pro rata in accordance with such amounts; and
(B) second, to the Class A-9 and Class A-10 Certificateholders, sequentially in that order, the excess, if any, of the amount to be distributed to the Pool II Certificates on such Remittance Date over the amount distributed pursuant to (A) above, until the Class Principal Balance of such Class is reduced to zero and such Certificateholders have recovered an amount equal to the amount described in clause (iv) of the definition of Pool Remittance Amount that is recovered from such Certificateholders. On each Remittance Date, the amount to be distributed to the Pool III Certificates pursuant to clause (i) above will be allocated in the following order of priority:
(A) first, to the Class A-11 Certificateholders, the applicable Class Current Interest Requirement for such Remittance Date; and
(B) second, to the Class A-11 Certificateholders, the excess, if any, of the amount to be distributed to the Pool III Certificates on such Remittance Date over the amount distributed pursuant to (A) above, until the Class Principal Balance of such Class (in ascending order of numerical designation) is reduced to zero and such Certificateholders have received an amount equal to the amount described in clause (iv) of the definition of Pool Remittance Amount that is recovered from such Certificateholders.
(i) from amounts transferred from the Pre-Funding Account, distributions of principal to the Classes of Class A Certificates then entitled to receive distributions of principal in the priority and proportions set forth in this Section 6.08(d) and (ii) from amounts transferred from the Capitalized Interest Account, distributions of interest to such Classes of Class A Certificates equal to the applicable Capitalized Interest Requirement. Notwithstanding the foregoing, if on the Special Remittance Date the amount of principal allocated to a Class of Auction Rate Certificates is not equal to $25,000 or an integral multiple of $25,000 in excess thereof, the entire amount (if less than $25,000) or the amount exceeding an integral multiple of $25,000 will, instead, be distributed to the Adjustable Rate Certificates.
(e) All distributions made to the Certificateholders on each Remittance Date and the Special Remittance Date will be made on a pro rata basis (except with respect to payments of principal to the Auction Rate Certificateholders) among the Certificateholders of the respective Class of record on the next preceding Record Date based on the Percentage Interest represented by their respective Certificates, and shall, except for the final payment on such Certificates, be made by wire transfer of immediately available funds to the account of such Certificateholder as shall appear on the Certificate Register without the presentation or surrender of the Certificate or the making of any notation thereon, at a bank or other entity having appropriate facilities therefor, at the expense of each such Certificateholder unless such Certificateholder shall own of record Certificates which have original principal amounts aggregating (i) at least $5,000,000 or (ii) one of the two highest outstanding amounts less than $5,000,000.
(f) Notwithstanding the foregoing, principal payments will be made to each Class of Auction Rate Certificates only in amounts equal to $25,000 and integral multiples in excess thereof. If the amount in the Certificate Account for Pool II otherwise required to be applied as a payment of principal on the Auction Rate Certificates either (i) is less than $25,000 or (ii) exceeds an integral multiple of $25,000, then, in the case of (i), such entire amount or, in the case of (ii), such excess amount, will not be paid as principal on the upcoming Remittance Date, but will be retained in the Certificate Account for Pool II until the amount therein available for payment of principal on the Auction Rate Certificates equals $25,000 or any integral multiple thereof. In no event, however, shall amounts remain in the Certificate Account for Pool II more than 13 months after the related payments are deposited into the Trust Fund. The amount being distributed to a Class of Auction Rate Certificates as principal will be allocated to the specific Certificates of such Class selected no later than 5 Business Days prior to the related Remittance Date by lot or such other manner as may be determined, which allocations will be made only in amounts equal to $25,000 and integral multiples of $25,000 in excess thereof.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Money Store Home Equity Corp)
Priority and Subordination of Distributions. (a) The rights of the Noteholders and Certificateholders to receive distributions from the proceeds of the Trust FundTrust, and all ownership interests of the Noteholders and Certificateholders in such distributions, shall be as set forth in this Agreement and the Trust Agreement. In this regard, all rights of the Class X and Class R Certificateholders to receive distributions in respect of the Class X and Class R Certificates, respectively, and all ownership interests of the Class X and Class R Certificateholders in and to such distributions, shall be subject and subordinate to the preferential rights of the Class A, Class M and Class B Certificateholders, Noteholders to receive distributions in respect of the Class A, Class M and Class B Certificates, respectively, and the ownership interests of the Class A, Class M and Class B Certificateholders, respectively, in such distributionsNotes, as described herein. In accordance with the foregoing, the ownership interests of the Class X and Class R Certificateholders in amounts deposited in the applicable Principal and Interest Account or in any Accounts from time to time shall not vest unless and until such amounts are distributed in respect of the Class X and Class R Certificates in accordance with the terms of this Agreement and the Trust Agreement. Notwithstanding anything contained in this Agreement to the contrary, the Class X and Class R Certificateholders shall not be required to refund any amount properly distributed on the Class X and Class R Certificates.
(b) [Reserved]
(c) As soon as possible, and in no event later than 10:00 a.m. New York time on the Business Day immediately preceding [Reserved]
(d) On each Remittance Date, the Indenture Trustee shall furnish withdraw from the Certificate Insurer and applicable Note Distribution Account the portion of the Pool Available Remittance Amount for the applicable Pool, net of reimbursements to the Servicer with a completed notice in the form set forth as Exhibit L for Reimbursable Advances (the "Notice") hereto, which will be based upon the information set forth in the Servicer's Certificateplus, in the event that case of Pool I, amounts transferred from the Rounding Account) and make distributions thereof in the following order of priority (based solely upon information received from the Trust Administrator):
(i) to the Expense Account relating to Pool I, an Event amount equal to one-twelfth of Nonpayment will occur, or a Guaranteed Supplemental Payment is owing, the Annual Expense Escrow Amount with respect to such Remittance Date. The Notice shall specify the total amount of the Insured Payment and Guaranteed Supplemental Payment to be paid on the applicable Remittance Date, stated separately for each Class of Pool I or Pool IV CertificatesLoans, as applicable, and shall constitute a claim for an Insured Payment or Guaranteed Supplemental Payment, as the case may be, pursuant to the applicable Certificate Insurance Policy. The Certificate Insurer shall remit or cause to be remitted to the Insurance Paying Agent the plus any amount of the Insured Payment or Guaranteed Supplemental Payment, as the case may be; provided, however, if the Certificate Insurer is not in default with regard to payment under the Certificate Insurance Policies (i) the amount of the Guaranteed Supplemental Payment required to be paid by to the Certificate Insurer shall be reduced by Indenture Trustee, the Class X Accelerated Distribution Amount and Owner Trustee, the Remarketing Agent, the Trust Administrator or the Letter of Credit Provider pursuant to Section 7.03(a) resulting from insufficiencies in the Expense Account for Pool I;
(ii) any remaining Guaranteed Supplemental Payment or Insured Payment may be funded in whole or in part, by amounts transferred to the Class AS-1, Class AS-2 and Class AS-3 Notes, concurrently, the sum of their respective Current Interest Requirements and Class Interest Shortfall Carryforward Amounts, pro rata based upon such amounts;
(iii) to the Class MS-1, Class MS-2 and Class BS Notes, sequentially in that order, the sum of their respective Current Interest Requirements and Class Interest Shortfall Carryforward Amounts;
(iv) to the Class AS-1, Class AS-2 and Class AS-3 Notes, the Class A Principal Distribution Amount, first to the Holders of the Class AS-1 Notes until their Class Principal Balance has been reduced to zero, then to the Holders of the Class AS-2 Notes until their Class Principal Balance has been reduced to zero, and then to the Holders of the Class AS-3 Notes until their Class Principal Balance has been reduced to zero; provided, however that on and after any Remittance Date on which the Class Principal Balances of the Class M and Class B Notes of Pool I have been reduced to zero, any amounts payable to the Class A Notes of Pool I on such Remittance Date shall be distributed pro rata, based upon their Class Principal Balances, and not sequentially;
(v) to the Class MS-1 and Class MS-2 Notes, sequentially in that order, the Class MS-1 and Class MS-2 Principal Distribution Amounts, respectively;
(vi) to the Class BS Notes, the Class BS Principal Distribution Amount;
(vii) to the Class MS-1 Notes, the Class MS-1 Realized Loss Amount;
(viii) to the Class MS-2 Notes, the Class MS-2 Realized Loss Amount;
(ix) to the Class BS Notes, the Class BS Realized Loss Amount;
(x) to the Servicer, any unpaid Servicing Advances for Pool I;
(xi) to the Letter of Credit Provider, the amount of any unpaid Letter of Credit Reimbursement Amounts;
(xii) to the Class MN and Class BN Notes, sequentially in that order, the Class MN and Class BN Realized Loss Amounts, respectively;
(xiii) to the Class AS-1, Class AS-2, Class AS-3, Class MS-1, Class MS-2 and Class BS Notes, sequentially in that order, their respective Noteholders' Interest Carryover; and
(xiv) any remainder to the Owner Trustee for Deposit in the sub-account of the Certificate Distribution Account from TMS-CAP Trust 1997-1applicable to Pool I. Principal payments distributed to the Holders of the Class AS-3 Notes are required to be made in integral multiples of $25,000. Upon receipt If on any Remittance Date the amount of principal to be distributed to the Holders of the Class AS-3 Notes is not an even multiple of $25,000, such holders will receive the amount of such Insured Payment or Guaranteed Supplemental Payment by difference amounts from the Insurance Paying Agent on behalf Rounding Account.
(i) to the Expense Account relating to Pool II, an amount equal to one-twelfth of the Holders Annual Expense Escrow Amount with respect to the Pool II Loans, plus any amount required to be paid to the Indenture Trustee, the Owner Trustee, the Remarketing Agent, the Trust Administrator or the Letter of Credit Provider pursuant to Section 7.03(a) resulting from insufficiencies in the Expense Account for Pool II;
(ii) to the Class AN Notes, the sum of its Current Interest Requirement and Class Interest Shortfall Carryforward Amount;
(iii) to the Class MN Notes, the sum of its Current Interest Requirement and Class Interest Shortfall Carryforward Amount;
(iv) to the Class BN Notes, the sum of its Current Interest Requirement and Class Interest Shortfall Carryforward Amount;
(v) to the Class AN Notes, the Class AN Principal Distribution Amount;
(vi) to the Class MN Notes, the Class MN Principal Distribution Amount;
(vii) to the Class BN Notes, the Class BN Principal Distribution Amount;
(viii) to the Class MN Notes, the Class MN Realized Loss Amount;
(ix) to the Class BN Notes, the Class BN Realized Loss Amount;
(x) to the Servicer, any unpaid Servicing Advances for Pool II;
(xi) to the Letter of Credit Provider, the amount of any unpaid Letter of Credit Reimbursement Amounts;
(xii) to the Class MS-1, Class MS-2 and Class BS Notes, sequentially in that order, the Class MS-1, Class MS-2 and Class BS Realized Loss Amounts, respectively;
(xiii) to the Class AN, Class MN and Class BN Notes, sequentially in that order, their respective Noteholders' Interest Carryover; and
(xiv) any remainder to the Owner Trustee for deposit in the sub-account of the Certificate Distribution Account for Pool II.
(e) Except as described in clause (f) below, all distributions made to the Noteholders on each Remittance Date will be made on a pro rata basis among the Noteholders of the respective Class of Pool I or Pool IV Certificates under record on the applicable Certificate Insurance Policynext preceding Record Date based on the Percentage Interest represented by their respective Notes, it shall remit and shall, except for the final payment on such amounts Notes, be made by wire transfer of immediately available funds to the Trustee who account of such Noteholder as shall deposit appear on the Note Register without the presentation or surrender of the Note or the making of any notation thereon, at a bank or other entity having appropriate facilities therefor, at the expense of each such Insured Payment Noteholder unless such Noteholder shall own of record Notes which have original principal amounts aggregating (i) at least $5,000,000 or Guaranteed Supplemental Payment, as (ii) one of the case may be, in the applicable Certificate Account and shall distribute such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in accordance with Sections 6.08(d)(Xtwo highest outstanding amounts less than $5,000,000.
(f) and (e) hereof. Notwithstanding the foregoing, if an Event of Nonpayment with respect to Pool I or Pool IV will occur with respect to a Remittance Date and funds are on deposit in the Spread Account, the amount of principal being distributed to the Insured Payment Class AS-3 Notes on each Remittance Date will be allocated to the specific Notes of such Class selected no later than 5 Business Days prior to the related Remittance Date by lot or such other manner as may be determined, which allocations will be made only in amounts equal to $25,000 and integral multiples of $25,000 in excess thereof.
(g) On each Remittance Date that principal is being distributed to the Class AS-3 Notes, such Notes also will receive amounts transferred from the Rounding Account pursuant to Section 7.02(b)(i). Principal payments distributed to the holders of the Class AS-3 Notes shall be reduced up made in integral multiples of $25,000. If on any Remittance Date the amount of principal to be distributed to the amount then on deposit in the Spread Account. Pursuant to Section 6.05(b)(ii)holders of Class AS-3 Notes is not an even multiple of $25,000, the Trustee shall, on such Remittance Date, transfer such amount to the applicable Certificate Account holders will receive from the Spread AccountRounding Account the amount of such difference. The Trustee shall serve as Insurance Paying Agent hereunder for so long as a Certificate Insurance Policy shall remain in effect; PROVIDEDRounding Account will be reimbursed, HOWEVER, that the Insurance Paying Agent may be located in another jurisdiction with the written consent of the Certificate Insurer. The Insurance Paying Agent shall act as the agent of the Trustee and shall (i) pay amounts required by Section 6.04(b)(i) hereof to the Certificate Insurer, (ii) pay Insured Payments or Guaranteed Supplemental Payments received from the Certificate Insurer as the Trustee shall direct and (iii) take such other actions with respect to the Certificate Insurer and the Certificate Insurance Policies as the Trustee shall direct. The Trustee shall act initially as the Insurance Paying Agent. The Trustee shall receive through the Insurance Paying Agent, as attorney-in-fact of each Holder of Pool I or Pool IV Certificates, any Insured Payment or Guaranteed Supplemental Payment from the Certificate Insurer and disburse the same to each Holder of Pool I or Pool IV Certificates in accordance with the provisions of this Section 6.08. Insured Payments or Guaranteed Supplemental Payments disbursed by the Trustee from proceeds of the Certificate Insurance Policies shall not be considered payment by the Trust Fund nor shall such payments discharge the obligation of the Trust Fund with respect to such Pool I or Pool IV Certificates, and the Certificate Insurer shall become the owner of such unpaid amounts of Insured Payments and Guaranteed Supplemental Payments due from the Trust Fund in respect of such Certificates. The Trustee hereby agrees on behalf of each Holder of Pool I or Pool IV Certificates for the benefit of the Certificate Insurer that it recognizes that to the extent funds are available, on the Certificate Insurer makes Insured Payments or Guaranteed Supplemental Payments, either directly or indirectly (as by paying through the Insurance Paying Agent), next Remittance Date prior to principal being paid to the Pool I or Pool IV Certificateholders, the Certificate Insurer will be subrogated to the rights holders of the such Pool I or Pool IV Certificateholders with respect to such Insured Payment or Guaranteed Supplemental Payments, shall be deemed to the extent of the payments so made to be a registered Certificateholder of the related Class, and shall receive the Pool Carry-Forward Amounts of the related Pools in accordance with Section 6.08(d)(X) below until all such Insured Payments and Guaranteed Supplemental Payments by the Certificate Insurer have been fully reimbursed (including reimbursements received from TMS-Cap Trust 1997-1). To evidence such subrogation, the Trustee shall, or shall cause the Certificate Registrar to, note the Certificate Insurer's rights as subrogee on the registration books maintained by the Trustee or the Certificate Registrar upon receipt from the Certificate Insurer of proof of payment of any Insured Payment or Guaranteed Supplemental Payments. Each Pool I or Pool IV Certificateholder shall promptly (i) notify the Trustee in writing upon the receipt of a court order to the effect that any amounts described in Clause (iv) of the definition of Pool Remittance Amount constitute a voidable preference pursuant to the United States Bankruptcy Code and (ii) shall enclose a certified copy of such order with such notice to the TrusteeClass AS-3 Notes.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Money Store Commercial Mortgage Inc)
Priority and Subordination of Distributions. (a) The rights of the Certificateholders to receive distributions from the proceeds of the Trust Fund, and all ownership interests of the Certificateholders in such distributions, shall be as set forth in this Agreement. In this regard, all rights of the Class X and Class R Certificateholders to receive distributions in respect of the Class X and Class R Certificates, respectively, and all ownership interests of the Class X and Class R Certificateholders in and to such distributions, shall be subject and subordinate to the preferential rights of the Class A, Class M and Class B Certificateholders, to receive distributions in respect of the Class A, Class M and Class B Certificates, respectively, and the ownership interests of the Class A, Class M and Class B Certificateholders, respectively, in such distributions, as described herein. In accordance with the foregoing, the ownership interests of the Class X and Class R Certificateholders in amounts deposited in the applicable Principal and Interest Account or in any Accounts from time to time shall not vest unless and until such amounts are distributed in respect of the Class X and Class R Certificates in accordance with the terms of this Agreement. Notwithstanding anything contained in this Agreement to the contrary, the Class X and Class R Certificateholders shall not be required to refund any amount properly distributed on the Class X and Class R Certificates.
(b) [Reserved]
(c) As soon as possible, and in no event later than 10:00 a.m. New York time on the Business Day immediately preceding each Remittance Date, the Pool I and Pool II Co-Trustee shall furnish the Certificate Insurer and the Servicer with a completed notice in the form set forth as Exhibit L (the "Notice") hereto, which will be based upon the information set forth in the Servicer's Certificate, in the event that an Event of Nonpayment will occur, or a Guaranteed Supplemental Payment is owing, occur with respect to such Remittance Date. The Notice shall specify the total amount of the Insured Payment and Guaranteed Supplemental Payment to be paid on the applicable Remittance Date, stated separately for each Class of Pool I or Pool IV II Certificates, as applicable, and shall constitute a claim for an Insured Payment or Guaranteed Supplemental Payment, as the case may be, pursuant to the applicable Certificate Insurance Policy. The Certificate Insurer shall remit or cause to be remitted to the Insurance Paying Agent the amount of the Insured Payment or Guaranteed Supplemental Payment, as the case may be; provided, however, if the Certificate Insurer is not in default with regard to payment under the Certificate Insurance Policies (i) the amount of the Guaranteed Supplemental Payment required to be paid by the Certificate Insurer shall be reduced by the Class X Accelerated Distribution Amount and (ii) any remaining Guaranteed Supplemental Payment or Insured Payment may be funded in whole or in part, by amounts transferred to the Certificate Account from TMS-CAP Trust 1997-1. Upon receipt of such Insured Payment or Guaranteed Supplemental Payment by the Insurance Paying Agent on behalf of the Holders of the respective Class of Pool I or Pool IV II Certificates under the applicable Certificate Insurance Policy, it shall remit such amounts to the Pool I and Pool II Co-Trustee who shall deposit such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in the applicable Certificate Account and shall distribute such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in accordance with Sections 6.08(d)(X) and (e) hereof. Notwithstanding the foregoing, if an Event of Nonpayment with respect to Pool I or Pool IV II will occur with respect to a Remittance Date and funds are on deposit in the Spread Account, the amount of the Insured Payment shall be reduced up to the amount then on deposit in the Spread Account. Pursuant to Section 6.05(b)(ii), the Pool I and Pool II Co-Trustee shall, on such Remittance Date, transfer such amount to the applicable Certificate Account from the Spread Account. The Pool I and Pool II Co-Trustee shall serve as Insurance Paying Agent hereunder for so long as a Certificate Insurance Policy shall remain in effect; PROVIDED, HOWEVER, that the Insurance Paying Agent may be located in another jurisdiction with the written consent of the Certificate Insurer. The Insurance Paying Agent shall act as the agent of the Pool I and Pool II Co-Trustee and shall (i) pay amounts required by Section 6.04(b)(i) hereof to the Certificate Insurer, (ii) pay Insured Payments or Guaranteed Supplemental Payments received from the Certificate Insurer as the Pool I and Pool II Co-Trustee shall direct and (iii) take such other actions with respect to the Certificate Insurer and the Certificate Insurance Policies as the Pool I and Pool II Co-Trustee shall direct. The Pool I and Pool II Co- Trustee shall act initially as the Insurance Paying Agent. The Pool I and Pool II Co-Trustee shall receive through the Insurance Paying Agent, as attorney-in-fact of each Holder of Pool I or Pool IV II Certificates, any Insured Payment or Guaranteed Supplemental Payment from the Certificate Insurer and disburse the same to each Holder of Pool I or Pool IV II Certificates in accordance with the provisions of this Section 6.08. Insured Payments or Guaranteed Supplemental Payments disbursed by the Pool I and Pool II Co-Trustee from proceeds of the Certificate Insurance Policies shall not be considered payment by the Trust Fund nor shall such payments discharge the obligation of the Trust Fund with respect to such Pool I or Pool IV II Certificates, and the Certificate Insurer shall become the owner of such unpaid amounts of Insured Payments and Guaranteed Supplemental Payments due from the Trust Fund in respect of such Certificates. The Pool I and Pool II Co-Trustee hereby agrees on behalf of each Holder of Pool I or Pool IV II Certificates for the benefit of the Certificate Insurer that it recognizes that to the extent the Certificate Insurer makes Insured Payments or Guaranteed Supplemental Payments, either directly or indirectly (as by paying through the Insurance Paying Agent), to the Pool I or Pool IV II Certificateholders, the Certificate Insurer will be subrogated to the rights of the such Pool I or Pool IV II Certificateholders with respect to such Insured Payment or Guaranteed Supplemental PaymentsPayment, shall be deemed to the extent of the payments so made to be a registered Certificateholder of the related Class, and shall receive the Pool Carry-Forward Amounts of the related Pools in accordance with Section 6.08(d)(X) below until all such Insured Payments and Guaranteed Supplemental Payments by the Certificate Insurer have been fully reimbursed (including reimbursements received from TMS-Cap Trust 1997-1)reimbursed. To evidence such subrogation, the Pool I and Pool II Co-Trustee shall, or shall cause the applicable Certificate Registrar to, note the Certificate Insurer's rights as subrogee on the registration books maintained by the Pool I and Pool II Co-Trustee or the applicable Certificate Registrar upon receipt from the Certificate Insurer of proof of payment of any Insured Payment or Guaranteed Supplemental PaymentsPayment. Each Pool I or Pool IV II Certificateholder shall promptly (i) notify the Pool I and Pool II Co-Trustee in writing upon the receipt of a court order to the effect that any amounts described in Clause (iv) of the definition of Pool Remittance Amount constitute a voidable preference pursuant to the United States Bankruptcy Code and (ii) shall enclose a certified copy of such order with such notice to the Pool I and Pool II Co-Trustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Money Store Home Equity Corp)
Priority and Subordination of Distributions. (a) The rights of the Certificateholders to receive distributions from the proceeds of the Trust Fund, and all ownership interests of the Certificateholders in such distributionsdistribu tions, shall be as set forth in this Agreement. In this regard, all The rights of the Class X and Class R Certificateholders to receive distributions in respect of the Class X and Class R Certificates, respectively, and all ownership interests of the Class X and Class R Certificateholders in and to such distributions, Certificates shall be subject and subordinate to the preferential rights of the Class A, Class M and Class B Certificateholders, A Certificateholders to receive distributions in respect of the Class A, Class M and Class B A Certificates, respectivelyto the extent set forth herein, and distributions on the ownership interests Class R Certificates are subject and subordinate to the maintenance of the Class A, Class M and Class B Certificateholders, respectively, in such distributions, Specified Spread Account Requirement as described specified herein. In accordance with the foregoing, the ownership interests of the Class X and Class R Certificateholders in amounts deposited in the applicable Principal and Interest Account or in any Accounts from time to time shall not vest unless and until such amounts are distributed in respect of the Class X and Class R Certificates in accordance with the terms of this Agreement. Notwithstanding anything contained in this Agreement to the contrary, the Class X and Class R Certificateholders no Certificateholder shall not be required to refund any amount properly distributed on the Class X and Class R Certificatesto it pursuant to Section 6.02, 6.05, 6.09(b) or 6.09(d).
(b) [Reserved]No later than 10:00 a.m. New York time on the Business Day immediately following each Determination Date occurring on or prior to the earlier to occur of (x) the Cross-Over Date or (y) the Payment Date on which all amounts due have been paid to the Class A Certificateholders (including the Certificate Insurer as subrogee of the Class A Certificateholders) based exclusively on the computer tape and other information prepared by the Servicer pursuant to Section 6.07, indicating with respect to the immediately succeeding Payment Date:
(i) whether, any withdrawals from the Spread Account would be required pursuant to Section 6.09(b)(iii);
(ii) if so, whether the amount available in cash and from liquidation of Permitted Instruments on deposit in the Spread Account would be insufficient to fund such withdrawal; and
(iii) if so, the amount that is the lesser of (A) the amount of shortfall and (B) the amount then available to be drawn under the Letter(s) of Credit then on deposit in the Spread Account (the "Draw Amount"); the Trustee shall promptly cause to be presented to the Letter of Credit Bank(s) of such Letter(s) of Credit a drawing certificate(s) of proper form for payment thereunder such that the proceeds of such drawing(s) will be available on the Business Day next preceding the next Payment Date and otherwise in conformity with the terms thereof for the aggregate Draw Amount. The Trustee shall draw upon all other Letters of Credit, to the full extent amounts are available thereunder. Proceeds received in payment of any Letter of Credit drawings shall be deposited and held in the Letter of Credit Proceeds Sub-Account of the Spread Account.
(c) As soon as possible, and in no event later than 10:00 a.m. New York time on the Business Day immediately preceding each Remittance Payment Date, the Trustee shall furnish the Certificate Insurer and the Servicer with a completed notice in the form set forth as Exhibit L Q hereto (the "Notice") hereto, which will be based upon the information set forth in the Servicer's Certificate, in the event that an Event of Nonpayment will occur, or a Guaranteed Supplemental Payment is owingpursuant to the definition thereof, with respect to such Remittance Payment Date. The Notice shall specify the total amount of the Insured Payment and Guaranteed Supplemental Payment to be paid on the applicable Remittance Date, stated separately for each Class of Pool I or Pool IV Certificates, as applicable, and shall constitute a claim for an Insured Payment or Guaranteed Supplemental Payment, as the case may be, pursuant to the applicable Certificate Insurance Policy. The Certificate Insurer shall remit or cause to be remitted to Upon receipt of Insured Payments for the Insurance Paying Agent the amount benefit of the Insured Payment or Guaranteed Supplemental Payment, as the case may be; provided, however, if the Certificate Insurer is not in default with regard to payment Class A Certificateholders under the Certificate Insurance Policies (i) the amount of the Guaranteed Supplemental Payment required to be paid by the Certificate Insurer shall be reduced by the Class X Accelerated Distribution Amount and (ii) any remaining Guaranteed Supplemental Payment or Insured Payment may be funded in whole or in part, by amounts transferred to the Certificate Account from TMS-CAP Trust 1997-1. Upon receipt of such Insured Payment or Guaranteed Supplemental Payment by the Insurance Paying Agent on behalf of the Holders of the respective Class of Pool I or Pool IV Certificates under the applicable Certificate Insurance Policy, it shall remit such amounts to the Trustee who shall deposit such Insured Payment or Guaranteed Supplemental Payment, as the case may be, Payments in the applicable Certificate Account and shall distribute such Insured Payment or Guaranteed Supplemental Payment, as the case may be, in accordance with Sections 6.08(d)(X) and (e) hereof. Notwithstanding the foregoing, if an Event of Nonpayment with respect to Pool I or Pool IV will occur with respect to a Remittance Date and funds are on deposit in the Spread Account, the amount of the Insured Payment shall be reduced up to the amount then on deposit in the Spread Account. Pursuant to Section 6.05(b)(ii), the Trustee shall, on such Remittance Date, transfer such amount to the applicable Certificate Account from the Spread Collection Account. The Trustee shall serve as Insurance Paying Agent hereunder for so long as a Certificate Insurance Policy shall remain in effect; PROVIDED, HOWEVER, that the Insurance Paying Agent may be located in another jurisdiction with the written consent of the Certificate Insurer. The Insurance Paying Agent shall act as the agent of the Trustee and shall (i) pay amounts required by Section 6.04(b)(i) hereof to the Certificate Insurer, (ii) pay Insured Payments or Guaranteed Supplemental Payments received from the Certificate Insurer as the Trustee shall direct and (iii) take such other actions with respect to the Certificate Insurer and the Certificate Insurance Policies as the Trustee shall direct. The Trustee shall act initially as the Insurance Paying Agent. The Trustee shall receive through the Insurance Paying Agentreceive, as attorney-in-fact of each Holder of Pool I or Pool IV Certificatesa Class A Certificate, any Insured Payment or Guaranteed Supplemental Payment from the Certificate Insurer and disburse the same to each Holder of Pool I or Pool IV Certificates a Class A Certificate, respectively, in accordance with the provisions of this Section 6.086.05. Insured Payments or Guaranteed Supplemental Payments disbursed by the Trustee from proceeds of the Certificate Insurance Policies Policy shall not be considered payment by the Trust Fund nor shall such payments payment discharge the obligation of the Trust Fund with respect to such Pool I or Pool IV Class A Certificates, and the Certificate Insurer shall become the owner of such unpaid amounts of Insured Payments and Guaranteed Supplemental Payments due from the Trust Fund in respect of such Class A Certificates. The Trustee hereby agrees on behalf of each Holder of Pool I or Pool IV Certificates a Class A Certificate for the benefit of the Certificate Insurer that it recognizes that to the extent the Certificate Insurer makes Insured Payments or Guaranteed Supplemental Payments, either directly or indirectly (as by paying through the Insurance Paying AgentTrustee), to the Pool I or Pool IV Class A Certificateholders, the Certificate Insurer will be subrogated to the rights of the such Pool I or Pool IV Certificateholders Class A Certificateholders, as applicable, with respect to such Insured Payment or Guaranteed Supplemental Payments, and shall be deemed to the extent of the payments so made to be a registered Class A Certificateholder of the related Class, and shall receive all future Class A Remittance Amounts, as the Pool Carry-Forward Amounts of the related Pools in accordance with Section 6.08(d)(X) below case may be, until all such Insured Payments and Guaranteed Supplemental Payments by the Certificate Insurer have been fully reimbursed (including reimbursements received from TMStogether with interest thereon at the applicable Pass-Cap Trust 1997-1)Through Rate, subject to the following paragraph. To evidence such subrogation, the Trustee shall, or shall cause the Certificate Registrar to, note the Certificate Insurer's rights as subrogee on the registration books maintained by the Trustee or the Certificate Registrar upon receipt from the Certificate Insurer of proof of payment of any Insured Payment. Except as otherwise described herein, the Certificate Insurer shall not acquire any voting rights hereunder as a result of such subrogation. It is understood and agreed that the intention of the parties is that the Certificate Insurer shall not be entitled to reimbursement on any Payment or Guaranteed Supplemental Date for amounts previously paid by it unless on such Payment Date the Class A Certificateholders shall also have received the full amount of the Class A Remittance Amount (exclusive of the principal portion of any Class A Carry-Forward Amount representing amounts previously paid to the Class A Certificateholders as Insured Payments. Each Pool I or Pool IV Certificateholder ), for such Payment Date.
(d) Not later than 11:00 a.m. New York time on each Payment Date, with respect to the Fixed Rate Certificates and the Adjustable Rate Certificates, the Trustee shall promptly withdraw from the Collection Account from the amounts available therein as set forth in this Article VI, if any, and shall, to the extent available, distribute (without duplication) such amount in the priority indicated:
(i) notify first, for deposit into the Trustee Insurance Account for the benefit of the Certificate Insurer, the Monthly Premium with respect to such Certificates (as set forth in writing upon the receipt of a court order clause (e) below) payable to the effect that any amounts described in Clause Certificate Insurer;
(ii) second, for deposit into the Spread Account, the Excess Spread with respect to the related Mortgage Loan Group;
(iii) third, for deposit into the Letter of Credit Fee Account, the Letter of Credit Fee Amount with respect to such Certificates;
(iv) fourth, from amounts attributable to the related Mortgage Loan Group, (A) to each of the definition of Pool Fixed Rate Certificateholders, the Fixed Rate Interest Remittance Amount constitute a voidable preference Amount; and (B) to the Adjustable Rate Certificateholders, the Adjustable Rate Interest Remittance Amount;
(v) fifth, to the extent not payable pursuant to clause (i) above, for deposit into the United States Bankruptcy Code Insurance Account for the benefit of the Certificate Insurer, the Monthly Premium with respect to the Class A Certificates payable to the Certificate Insurer (as set forth in clause (e) below);
(vi) sixth, from amounts attributable to the related Mortgage Loan Group, to the Class A Certificates, as follows:
(A) first, to the Class A-7 Certificates, the Class A-7 Lock-Out Remittance Amount; and then, to the Class A-1, Class A-2, Class A-3, Class A-0, Xxxxx X-0, Xxxxx X-0 xxx Class A-7 Certificates (iiwithout regard to the Class A-7 Lockout Remittance Amount), in that order, until the Principal Balance of each such Class has been reduced to zero, the Fixed Rate Principal Remittance Amount; and
(B) shall enclose a certified copy concurrently, to the Class A-8 Certificates, until the Principal Balance of such order with such notice Class has been reduced to zero, the Adjustable Rate Principal Remittance Amount;
(vii) seventh, to the Trustee, any amounts then due and owing representing fees of the Trustee (without regard to amounts attributable to either Mortgage Loan Group); provided, that the Trustee certifies in writing that such amount is due and owing and has not been paid by the Servicer within 30 days after written demand therefor;
(viii) eighth, to the Servicer and/or the Representative, as applicable, any Reimbursable Amount (without regard to amounts attributable to either Mortgage Loan Group);
(ix) ninth, to the Servicer an amount equal to Nonrecoverable Advances previously made by the Servicer and not previously reimbursed (without regard to amounts attributable to either Mortgage Loan Group); and
(x) tenth, to the Class R Certificateholders, the balance, if any.
(e) On each Payment Date, the portion of the Monthly Premium payable to the Certificate Insurer with respect to the Class A Certificates equal to the product of (x) the Monthly Premium with respect to such Certificates for such Payment Date and (y) the Premium Factor shall not be payable pursuant to clause (i) of paragraph (d) above, but shall instead be payable pursuant to clause (v) of paragraph (d) above.
(f) All distributions made to the Class A Certificate holders or the Class R Certificateholders as a Class on each Payment Date will be made on a pro rata basis among the Certificateholders of the respective Class of record on the next preceding Record Date based on the Percentage Interest represented by their respective Certificates, and shall be made by wire transfer of immediately available funds to the account of such Certificateholder at a bank or other entity having appropriate facilities therefor, if such Certificateholder shall own of record Class A Certificates which have denominations aggregating at least $1,000,000 appearing in the Certificate Register, and in all cases with respect to the Class R Certificates, and shall have provided complete wiring instructions at least five Business Days prior to the Record Date, and otherwise by check mailed to the address of such Certificateholder appearing in the Certificate Register.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Eqcc Asset Backed Corp)
