The Certificate Insurance Policy. (a) Within two (2) days of each Servicer Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds". (b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete a Notice in the form of Exhibit A to the Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Business Day preceding such Distribution Date as a claim for an Insured Payment in an amount equal to such Available Funds Shortfall. (c) The Trustee shall establish a separate Eligible Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Payment Account and distribute such amount only for purposes of payment to the Certificateholders of the Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount shall be transferred to the Certificate Account on the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Amount with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day. (d) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee. (e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made. (f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim. (g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Prudential Securities Secured Financing Corp), Pooling and Servicing Agreement (Prudential Securities Secured Financing Corp), Pooling and Servicing Agreement (Prudential Securities Secured Financing Corp)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer Distribution DateRemittance Date and based solely on the Servicer's Remittance Report delivered to the Trustee, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Net Available Funds"Amount.
(b) If on any Distribution Date there is an Available Funds Shortfalla Class M Deficiency Amount, the Trustee shall complete a Notice notice and certificate in the form of Exhibit A to the Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon 10:00 a.m. New York, New York City time on the second Business Day preceding such Distribution Date as a claim for an Class M Insured Payment in an amount equal to such Available Funds ShortfallClass M Deficiency Amount.
(c) The Trustee shall establish a separate Eligible Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Payment Account and distribute such amount only for purposes of payment to the Class M Certificateholders of the Class M Insured Distribution Amount Payment for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Class M Deficiency Amount shall be transferred to the Certificate Distribution Account on the related Distribution Date and disbursed by the Trustee to the Class M Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Class M Deficiency Amount with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Class M Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Class M Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(d) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Class M Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Class M Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Class M Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Class M Certificates that, in the event any Certificateholder's Class M Insured Payment is so recoveredvoided, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Class M Preference Claim") of any distribution made with respect to the Class M Certificates. Each Class M Certificateholder, by its purchase of Certificatesa Class M Certificate, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) may at any time during the continuation of any proceeding relating to a Class M Preference Claim direct all matters relating to such Class M Preference Claim, including, without limitation, (i) the direction of any appeal of any order relating to such Class M Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Class M Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Class M Certificateholder in the conduct of any such Class M Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Class M Preference Claim.
(g) The Trustee shall, upon retirement of the Class M Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Class M Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Bear Stearns Asset Backed Securities Inc), Pooling and Servicing Agreement (American Business Financial Services Inc /De/)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer Distribution DateRemittance Date and based solely on the Servicer's Remittance Report delivered to the Trustee, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Distribution Account on such Distribution Date as a result of the (i) the Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, Remittance Date and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior after giving effect to the application of the amounts described in clauses (a)(i) through and (a)(iiia)(ii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfalla Deficiency Amount, the Trustee shall complete a Notice in the form of Exhibit A to the Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon New York, New York City time on the second third Business Day preceding such Distribution Date as a claim for an Insured Payment in an amount equal to such Available Funds ShortfallDeficiency Amount.
(c) The Trustee shall establish a separate Eligible Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Payment Account and distribute such amount only for purposes of payment to the Class A Certificateholders of the Insured Required Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Required Distribution Amount shall be transferred to the Certificate Distribution Account on the related Distribution Date and disbursed by the Trustee to the Class A Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Required Distribution Amount with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Class A Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(d) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment Required Distribution has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured PaymentRequired Distribution, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment Required Distribution is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Bear Stearns Asset Backed Securities Inc), Pooling and Servicing Agreement (American Business Financial Services Inc /De/)
The Certificate Insurance Policy. (a) Within two (2) days of Business Days after each Master Servicer Distribution Date, Remittance Date the Trustee shall determine with respect to the immediately following Distribution Date, Date the amount to be on deposit in the Certificate Account Accounts on such Distribution Date as a result of the (i) Master Servicer's remittance of the Master Servicer Remittance Amount on the related Master Servicer Remittance Date plus the amount of any amounts deposited into the Certificate Accounts, less the amounts described in clause (f) of Section 6.02 to be withdrawn on such Distribution Date and clauses (i) through (ii) of Section 6.05(b) or 6.05(c) for the related Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding not including the amount of any Insured Payment and prior which is required to the application of the amounts described be deposited in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Certificate Account for such Distribution Date. The amounts described above in the preceding sentence sentence, as determined separately with respect to the Group I Loans and Group II Loans, with respect to each Distribution Date are the "Group I Available Funds" and "Group II Available Funds" for such Distribution Date.
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete a Notice in the form of Exhibit A to the related Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Policy Business Day preceding such Distribution Date as a claim for an Insured Payment in an amount equal to such Available Funds Shortfall.
(c) The Trustee shall establish a separate Eligible Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Payments Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Payment Payments Account and distribute such amount only for purposes of payment to the Certificateholders of the Group I or Group II Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Master Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Group I or Group II Insured Distribution Amount shall be transferred by the Trustee from the Certificate Insurance Payments Account to the related Certificate Account on the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments made under the Certificate Insurance Policy to be made by checks or wire transfers separate from the checks or wire transfers used other amounts distributed pursuant to pay the Insured Distribution Amount with other funds available to make such paymentSection 6.05. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Payments Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Payments Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Payments Account on the first Policy Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Policy Business Day.
(d) The Trustee Remittance Report shall keep a complete and accurate record of indicate the amount of interest and principal paid in respect of any Certificate the Group I and Group II Class A Certificates from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Master Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Master Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Master Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Southern Pacific Secured Assets Corp), Pooling and Servicing Agreement (Southern Pacific Secured Assets Corp)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer If, on the Business Day before any Distribution Date, the Trustee determines that an Insured Amount is required to be made by the Certificate Insurer on such Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any such Insured Payment Amount and prior shall give written notice to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete Certificate Insurer by completing a Notice of Nonpayment in the form of Exhibit A to the Certificate Insurance Policy and submit submitting such notice to the Certificate Insurer no later than Notice of Nonpayment by 12:00 noon noon, New York City time on the second such Business Day preceding such Distribution Date as a claim for an Insured Payment Amount. The Trustee’s responsibility for delivering a Notice of Nonpayment to the Certificate Insurer, as provided in the preceding sentence, is limited to the availability, timeliness and accuracy of the information provided to it by the Master Servicer. In the event the Trustee receives a certified copy of an amount equal order of the appropriate court that any scheduled payment of principal or interest on a Guaranteed Certificate has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall promptly notify the Certificate Insurer in writing, as appropriate, and the fiscal agent, if any, and the Trustee shall make a claim on the Certificate Insurance Policy in accordance with the provisions thereof to obtain payment by the Certificate Insurer of such voided scheduled payment. In addition, the Trustee shall mail notice to all Holders of the Guaranteed Certificates so affected that, in the event that any such Holder’s scheduled payment is so recovered, such Holder will be entitled to payment pursuant to the terms of the Certificate Insurance Policy, a copy of which shall be made available to such Available Funds ShortfallHolders by the Trustee. The Trustee shall furnish to the Certificate Insurer and the appropriate fiscal agent, if any, its records listing the payments on the affected Guaranteed Certificates, if any, that have been made by the Trustee and subsequently recovered from the affected Holders, and the dates on which such payments were made by the Trustee.
(cb) The At the time of the execution hereof, and for the purposes hereof, the Trustee shall establish a separate Eligible the Policy Payments Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Policy Payments Account shall be an Eligible Account. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for the purposes of payment making payments to Holders of the Guaranteed Certificates in respect of the Guaranteed Distributions (or other amounts payable pursuant to the Certificateholders second paragraph of subsection (a) above on the Insured Distribution Amount Guaranteed Certificates by the Certificate Insurer pursuant to the Certificate Insurance Policy) for which a the related claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount . Such amounts shall be transferred to the Certificate Account on the related Distribution Date and disbursed allocated by the Trustee to Holders of Guaranteed Certificates entitled to such payments in the Certificateholders in accordance same manner as principal and interest distributions are to be allocated with respect to such Certificates pursuant to Section 6.055.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay make regular payments hereunder with funds withdrawn from the Insured Distribution Amount with other funds available to make such paymentCertificate Account. However, the amount of any payment of principal or of interest payments made on the Guaranteed Certificates to be paid from funds transferred from in the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph subsection (de) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Trustee.
(c) Any funds received from the Certificate Insurer for deposit into the Policy Payments Account pursuant to the Certificate Insurance Policy in respect of a Distribution Date or otherwise as a result of any claim under such Certificate Insurance Policy shall be applied by the Trustee directly to the payment in full (i) of the Insured Amounts due on such Distribution Date on the Guaranteed Certificates or (ii) of other amounts to which payments under the Certificate Insurance Policy are to be applied. Funds received by the Trustee as a result of any claim under the Certificate Insurance Policy shall be used solely for payment to the Holders of the Guaranteed Certificates and may not be applied for any other purpose, including, without limitation, satisfaction of any costs, expenses or liabilities of the Trustee or the Trust Fund. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a after each Distribution Date (other than the final Distribution Date to the extent of funds remaining in the Policy Payments Account required to be paid to Holders of the Guaranteed Certificates) shall be returned remitted promptly to the Certificate Insurer pursuant to the written instructions instruction of the Certificate Insurer by the end of such Business DayInsurer.
(d) The Trustee shall keep a complete and accurate record records in respect of (i) all funds remitted to the amount Trustee by the Certificate Insurer and deposited into the Policy Payments Account and (ii) the allocation of such funds to (A) payments of interest on and principal paid in respect of any Certificate from moneys received under Guaranteed Certificates (B) any Applied Loss Amount allocated to the Certificate Insurance PolicyGuaranteed Certificates and (C) payments in respect of Preference Amounts. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one three Business Day's Days’ prior notice to the Trustee. Any Insured Amounts disbursed by the Trustee from proceeds of the Certificate Insurance Policy shall be considered payment by the Certificate Insurer and not by the Trust Fund with respect to the Guaranteed Certificates and the Certificate Insurer will be entitled to receive the related Reimbursement Amount as provided in Section 5.02.
(e) In The Trustee acknowledges, and each Holder of a Guaranteed Certificate by their acceptance of such Certificate agree, that, without the event that need for any further action on the Trustee has received a certified copy of an order part of the appropriate court that Certificate Insurer or the Trustee, to the extent the Certificate Insurer pays Insured Amounts or Preference Amounts, directly or indirectly, on account of principal of or interest on any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy lawsuch Class of Certificates, the Trustee shall so notify Certificate Insurer will be fully subrogated to the rights of the Holders of such Class to receive the related Reimbursement Amount as provided in Section 5.02. The Holders of each Guaranteed Certificate, by acceptance of their respective Classes of Certificates assign their rights as Holders of such Class of Certificates to the extent of the Certificate Insurer’s interest with respect to amounts paid under the Certificate Insurance Policy. Each of the Depositor and Trustee agrees to such subrogation and, shall comply further agrees to execute such instruments and to take such actions as, in the sole judgment of the Certificate Insurer are necessary to evidence such subrogation and, subject to the priority of payment provisions of this Agreement, to perfect the rights of the Certificate Insurer to receive any moneys paid or payable in respect of the Guaranteed Certificates under this Agreement or otherwise. Anything herein to the contrary notwithstanding, solely for purposes of determining the Certificate Insurer’s rights as subrogee for payments distributable pursuant to Section 5.02, any payment with respect to distributions to the provisions Guaranteed Certificates that is made with funds received pursuant to the terms of the Certificate Insurance Policy to obtain shall not be considered payment by the Certificate Insurer of such voided Insured Payment, Class of Certificates from the Trust Fund and shall, at shall not result in the time it provides notice to distribution or the Certificate Insurer, notify, by mail to provision for the Certificateholders distribution in reduction of the affected Class Principal Amount of such Class of Certificates thator Current Interest thereon, in within the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy meaning of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.Article V.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or either of the institution of any action, of following as to which a Responsible Officer of the Trustee has actual knowledge: (A) the commencement of any proceeding by or against the Depositor commenced under the Bankruptcy Code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an “Insolvency Proceeding”) and (B) the making of any claim in connection with any Insolvency Proceeding seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "“Preference Claim"”) of any distribution made with respect to the Guaranteed Certificates. Each CertificateholderHolder of a Guaranteed Certificate, by its purchase of Certificatesits respective Class of Certificate, the Servicer and the Trustee hereby agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such any Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder Holder of a Guaranteed Certificate in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any an adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, shall surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationcancellation upon the termination of the Trust Fund pursuant to Article VII hereof.
Appears in 2 contracts
Samples: Trust Agreement (Lehman XS Trust Series 2007-7n), Trust Agreement (Lehman XS Trust Series 2007-15n)
The Certificate Insurance Policy. (a) Within Not later than two (2) days of each Servicer Distribution Business Days prior to the Remittance Date, the Trustee Trustee, based on the information provided to it by the Master Servicer pursuant to Section 6.5 hereof, shall determine with respect to the immediately following Distribution Date, Remittance Date the amount to be on deposit in the Certificate Account on such Distribution Date as a result of reduced by (x) the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application sum of the amounts described in clauses (a)(ii) through and (a)(iiiii) of Section 6.05 6.5(a) and the amounts described in clauses (i) and (ii) of Section 6.5(b) for the related Distribution Remittance Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds", and further not including (y) any Insured Payment.
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete a Notice in the form of Exhibit A to the Certificate Insurance Policy and submit such notice to the Certificate Insurer no Not later than 12:00 noon New York City time on the second Business Day preceding each Remittance Date, the Trustee shall, if the Trustee, based solely on information provided by the Master Servicer, determines that the Available Amount for the related Remittance Date is less than the sum of the Class A-1 Interest Distribution Amount, Class A-2 Interest Distribution Amount, Class A-3 Interest Distribution Amount, Class A-4 Interest Distribution Amount and Class A-5 Interest Distribution Amount and any Subordination Deficit for such Distribution Date Remittance Date, complete a Notice in the form of Exhibit A to the Class A Certificate Insurance Policy, and submit such notice to the Certificate Insurer and such notice shall serve as a claim for an Insured Payment in an amount equal to the Insured Payment due with respect to the Class A Certificates for and on such Available Funds ShortfallRemittance Date. The Insured Payment shall be deposited directly into the Certificate Account in accordance with the Notice and the Certificate Insurance Policy.
(c) The Trustee shall establish a separate Eligible Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Payment Account and distribute such amount only for purposes of payment to the Certificateholders of the Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount shall be transferred to the Certificate Account on the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Amount with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(d) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(ed) In the event that the Trustee has received a certified copy of an order of the appropriate court that any amount distributed on the Class A Certificates, including any amounts represented by an Insured Payment Payment, has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Paymentamount distributed, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment amount distributed is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(fe) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Master Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i1) the direction of any appeal of any order relating to such Preference Claim and (ii2) the posting of any surety, supersedas supersedes or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Master Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Master Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.]
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Bcap LLC), Pooling and Servicing Agreement (Painewebber Mortgage Acceptance Corporation Iv)
The Certificate Insurance Policy. (a) Within two (2) days of Business Days after each Master Servicer Distribution Date, Remittance Date the Trustee shall determine with respect to the immediately following Distribution Date, Date the amount to be on deposit in the Certificate Account Accounts on such Distribution Date as a result of the (i) Master Servicer's remittance of the Master Servicer Remittance Amount on the related Master Servicer Remittance Date plus the amount of any amounts deposited into the Certificate Accounts from the related Pre-Funding Account pursuant to Section 6.12 and any Interest Coverage Additions to be deposited pursuant to Section 6.13 for such Distribution Date, less the amounts described in clauses (i) through (ii) of Section 6.05(b) or (c) for the related Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding not including the amount of any Insured Payment and prior which is required to the application of the amounts described be deposited in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Certificate Account for such Distribution Date. The amounts described above in the preceding sentence sentence, as determined separately with respect to the Group I Loans, and Group II Loans, with respect to each Distribution Date are the "Group I Available Funds" and "Group II Available Funds" for such Distribution Date.
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete a Notice in the form of Exhibit A to the related Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Policy Business Day preceding such Distribution Date as a claim for an Insured Payment in an amount equal to such Available Funds Shortfall.. 76
(c) The Trustee shall establish a separate Eligible Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Payments Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Payment Payments Account and distribute such amount only for purposes of payment to the Certificateholders of the Group I Insured Distribution Amount or Group II Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Master Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Group I Insured Distribution Amount or Group II Insured Distribution Amount shall be transferred by the Trustee from the Certificate Insurance Payments Account to the related Certificate Account on the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments made under the Certificate Insurance Policy to be made by checks or wire transfers separate from the checks or wire transfers used other amounts distributed pursuant to pay the Insured Distribution Amount with other funds available to make such paymentSection 6.05. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Payments Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Payments Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Payments Account on the first Policy Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Policy Business Day.
(d) The Trustee Remittance Report shall keep a complete and accurate record of indicate the amount of interest and principal paid in respect of any Certificate the Class A-1 Certificates and the Class A-2 Certificates from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Master Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) 77 the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Master Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Master Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Southern Pacific Secured Assets Corp), Pooling and Servicing Agreement (Southern Pacific Secured Assets Corp)
The Certificate Insurance Policy. (ai) Within two (2) days of By 12:00 noon New York City time on each Servicer Distribution Date, Determination Date the Trustee shall determine with respect to the immediately following Distribution Date, Payment Date the amount (after taking into account investment earnings) expected to be on deposit in the Certificate Account on such Distribution Payment Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, with respect to Group I and (ii) any transfers equal to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to sum of (A) such Distribution Date pursuant to Section 6.01 hereof, amount excluding the amount of any Total Monthly Excess Cash Flow relating to Group I included in such amount for the related Payment Date plus (B) any amount of Total Monthly Excess Cash Flow from either Group to be applied on account of Group I on such Payment Date. The amount described in clause (A) of the preceding sentence with respect to each Payment Date, after taking into account the portion of the Group I Principal Distribution Amount to be actually distributed on such Payment Date without regard to any Insured Payment and prior to be made with respect to Group I on such Payment Date, is the application "Group I Available Funds"; the sum of the amounts described in clauses (a)(iA) through and (a)(iiiB) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution each Payment Date are is the "Group I Total Available Funds.".
(bii) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete a Notice in the form of Exhibit A to the Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than By 12:00 noon Noon New York City time on the second Business Day preceding such Distribution each Determination Date as a claim for an Insured Payment in an amount equal to such Available Funds Shortfall.
(c) The Trustee shall establish a separate Eligible Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Payment Account and distribute such amount only for purposes of payment determine with respect to the Certificateholders of immediately following Payment Date the Insured Distribution Amount for which a claim was made and such amount may not (after taking into account investment earnings) expected to be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount shall be transferred to on deposit in the Certificate Account on the related Distribution such Payment Date with respect to Group II and disbursed by the Trustee equal to the Certificateholders in accordance with Section 6.05. It shall not be necessary for sum of (A) such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Amount with other funds available to make such payment. However, amount excluding the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(d) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) may at any time during the continuation of any proceeding Total Monthly Excess Cash Flow relating to a Preference Claim direct all matters relating Group II included in such amount for the related Payment Date plus (B) any amounts of Total Monthly Excess Cash Flow from either Group to such Preference Claim, including, without limitation, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.be
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Equivantage Acceptance Corp), Pooling and Servicing Agreement (Equivantage Acceptance Corp)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer If, on the Business Day before any Distribution Date, the Trustee determines that an Insured Amount is required to be made by the Certificate Insurer on such Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any such Insured Payment Amount and prior shall give written notice to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete Certificate Insurer by completing a Notice of Nonpayment in the form of Exhibit A to the Certificate Insurance Policy and submit submitting such notice to the Certificate Insurer no later than Notice of Nonpayment by 12:00 noon noon, New York City time on the second such Business Day preceding such Distribution Date as a claim for an Insured Payment Amount. The Trustee’s responsibility for delivering a Notice of Nonpayment to the Certificate Insurer, as provided in the preceding sentence, is subject to the availability, timeliness and accuracy of the information provided to it by the Master Servicer in accordance with Section 4.03(a). In the event the Trustee receives a certified copy of an amount equal order of the appropriate court that any scheduled payment of principal or interest on a Insured Certificate has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall promptly notify the Certificate Insurer in writing, as appropriate, and the fiscal agent, if any, and the Trustee shall make a claim on the Certificate Insurance Policy in accordance with the provisions thereof to obtain payment by the Certificate Insurer of such voided scheduled payment. In addition, the Trustee shall mail notice to all Holders of the Insured Certificates so affected that, in the event that any such Holder’s scheduled payment is so recovered, such Holder will be entitled to payment pursuant to the terms of the Certificate Insurance Policy, a copy of which shall be made available to such Available Funds ShortfallHolders by the Trustee. The Trustee shall furnish to the Certificate Insurer and the appropriate fiscal agent, if any, its records listing the payments on the affected Insured Certificates, if any, that have been made by the Trustee and subsequently recovered from the affected Holders, and the dates on which such payments were made by the Trustee.
(cb) The At the time of the execution hereof, and for the purposes hereof, the Trustee shall establish a separate Eligible the Policy Payments Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Policy Payments Account shall be an Eligible Account. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for the purposes of payment making payments to the Certificateholders Holders of the Insured Distribution Amount Certificates in respect of the Insured Distributions (or other amounts payable pursuant to the second paragraph of subsection (a) above on the Insured Certificates by the Certificate Insurer pursuant to the Certificate Insurance Policy) for which a the related claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount . Such amounts shall be transferred to the Certificate Account on the related Distribution Date and disbursed allocated by the Trustee to Holders of Insured Certificates entitled to such payments in the Certificateholders in accordance same manner as principal and interest distributions are to be allocated with respect to such Certificates pursuant to Section 6.055.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay make regular payments hereunder with funds withdrawn from the Insured Distribution Amount with other funds available to make such paymentCertificate Account. However, the amount of any payment of principal or of interest payments made on the Insured Certificates to be paid from funds transferred from in the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph subsection (de) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Trustee.
(c) Any funds received from the Certificate Insurer for deposit into the Policy Payments Account pursuant to the Certificate Insurance Policy in respect of a Distribution Date or otherwise as a result of any claim under such Certificate Insurance Policy shall be applied by the Trustee directly to the payment in full (i) of the Insured Amounts due on such Distribution Date on the Insured Certificates or (ii) of other amounts to which payments under the Certificate Insurance Policy are to be applied. Funds received by the Trustee as a result of any claim under the Certificate Insurance Policy shall be used solely for payment to the Holders of the Insured Certificates and may not be applied for any other purpose, including, without limitation, satisfaction of any costs, expenses or liabilities of the Trustee or the Trust Fund. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a after each Distribution Date (other than the final Distribution Date to the extent of funds remaining in the Policy Payments Account required to be paid to Holders of the Insured Certificates) shall be returned remitted promptly to the Certificate Insurer pursuant to the written instructions instruction of the Certificate Insurer by the end of such Business DayInsurer.
(d) The Trustee shall keep a complete and accurate record records in respect of (i) all funds remitted to the amount Trustee by the Certificate Insurer and deposited into the Policy Payments Account and (ii) the allocation of such funds to (A) payments of interest on and principal paid in respect of any Certificate from moneys received under Insured Certificates (B) any Pool 1 Applied Loss Amount allocated to the Certificate Insurance PolicyInsured Certificates and (C) payments in respect of Preference Amounts. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one three Business Day's Days’ prior notice to the Trustee. Any Insured Amounts disbursed by the Trustee from proceeds of the Certificate Insurance Policy shall be considered payment by the Certificate Insurer and not by the Trust Fund with respect to the Insured Certificates and the Certificate Insurer will be entitled to receive the related Reimbursement Amount pursuant to Section 5.02(b)(iv), 5.02(d)(i)(C) or 5.02(d)(ii)(C), as applicable.
(e) In The Trustee acknowledges, and each Holder of a Insured Certificate by their acceptance of such Certificate agree, that, without the event that need for any further action on the Trustee has received a certified copy of an order part of the appropriate court that Certificate Insurer or the Trustee, to the extent the Certificate Insurer pays Insured Amounts or Preference Amounts, directly or indirectly, on account of principal of or interest on any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy lawsuch Class of Certificates, the Trustee shall so notify Certificate Insurer will be fully subrogated to the rights of the Holders of such Class to receive the related Reimbursement Amount pursuant to Section 5.02(b)(iv), 5.02(d)(i)(C) or 5.02(d)(ii)(C), as applicable. The Holders of each Insured Certificate, by acceptance of their respective Classes of Certificates assign their rights as Holders of such Class of Certificates to the extent of the Certificate Insurer’s interest with respect to amounts paid under the Certificate Insurance Policy. Each of the Depositor and Trustee agrees to such subrogation and, shall comply further agrees to execute such instruments and to take such actions as, in the sole judgment of the Certificate Insurer are necessary to evidence such subrogation and, subject to the priority of payment provisions of this Agreement, to perfect the rights of the Certificate Insurer to receive any moneys paid or payable in respect of the Insured Certificates under this Agreement or otherwise. Anything herein to the contrary notwithstanding, solely for purposes of determining the Certificate Insurer’s rights as subrogee for payments distributable pursuant to Section 5.02, any payment with respect to distributions to the provisions Insured Certificates that is made with funds received pursuant to the terms of the Certificate Insurance Policy to obtain shall not be considered payment by the Certificate Insurer of such voided Insured Payment, Class of Certificates from the Trust Fund and shall, at shall not result in the time it provides notice to distribution or the Certificate Insurer, notify, by mail to provision for the Certificateholders distribution in reduction of the affected Class Principal Amount of such Class of Certificates thator Current Interest thereon, in within the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy meaning of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.Article V.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or either of the institution of any action, of following as to which a Responsible Officer of the Trustee has actual knowledge: (A) the commencement of any proceeding by or against the Depositor commenced under the Bankruptcy Code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an “Insolvency Proceeding”) and (B) the making of any claim in connection with any Insolvency Proceeding seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "“Preference Claim"”) of any distribution made with respect to the Insured Certificates. Each CertificateholderHolder of a Insured Certificate, by its purchase of Certificatesits respective Class of Certificate, the Servicer and the Trustee hereby agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such any Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder Holder of a Insured Certificate in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any an adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, shall surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationcancellation upon the termination of the Trust Fund with respect to Pool 1 pursuant to Article VII hereof.
Appears in 2 contracts
Samples: Trust Agreement (Lehman XS Trust 2007-10h), Trust Agreement (Lehman XS Trust 2007-10h)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer If the statement -------------------------------- delivered to the Trustee pursuant to Section 6.02 indicates that there will be a Distribution Account Shortfall for the related Distribution Date, the Trustee shall determine with respect to complete the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete a Notice notice in the form of Exhibit A to the Certificate Insurance Policy and Policy. The Trustee shall submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Business Day preceding such Distribution Date as a claim for an Insured Payment Amount in an amount equal to the sum of the Distribution Account Shortfall.
(b) Upon receipt of Insured Payments from the Certificate Insurer on behalf of Class A Certificateholders, the Trustee shall deposit such Available Funds ShortfallInsured Payments in the Distribution Account and shall distribute such Insured Payments, or the proceeds thereof, to the Class A Certificateholders in accordance with Sections 6.01(a).
(c) The Trustee shall establish (i) receive as attorney-in-fact of each Holder of any Class A Certificates any Insured Payment from the Certificate Insurer and (ii) disburse the same to the Holders of such Certificates as set forth in Section 6.01(b). Insured Payments disbursed by the Trustee from proceeds of a separate Eligible Account Certificate Insurance Policy shall be considered payment by the Certificate Insurer and not by the Trust Fund with respect to such Certificates, and the Certificate Insurer shall be entitled to receive the related Reimbursement Amount pursuant to Section 6.01(a)(iv). The Trustee hereby agrees on behalf of each Class A Certificateholder and the Trust Fund for the benefit of Holders of the Certificates and the Certificate Insurer referred that it recognizes that to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under extent the Certificate Insurance Policy in Insurer makes Insured Payments, either directly or indirectly (as by paying through the Certificate Insurance Payment Account and distribute such amount only for purposes of payment to the Certificateholders of the Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance PolicyTrustee), to the extent needed to pay the Insured Distribution Amount shall be transferred to Holders of such Certificates, the Certificate Account on Insurer will be entitled to receive the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Reimbursement Amount with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day6.01(a)(iv).
(d) The Trustee shall keep a complete and accurate record Subject only to the priority of payment provisions of this Agreement, each of the amount of interest Company and principal paid in respect the Trustee acknowledges that, to the extent of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment made by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish is to be fully subrogated to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee extent of such payment and subsequently recovered from the Certificateholders, and dates any additional interest due on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurerlate payment, to the fullest extent permitted by law, the rights of the Servicer, Holders of the Class A Certificates to any moneys paid or payable in respect of the Class A Certificates under this Agreement or otherwise. Each of the Company and the Trustee agrees to such subrogation and, further, agrees to execute such instruments and each Certificateholder to take such actions as, in the conduct sole judgment of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of are necessary to evidence such retirement, subrogation and, upon retirement subject to the priority of payment provision of this Agreement, to perfect the Certificates and the expiration of the term rights of the Certificate Insurance Policy, surrender Insurer to receive any moneys paid or payable in respect of the Certificate Insurance Policy to the Certificate Insurer for cancellationClass A Certificates under this Agreement or otherwise.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (MLCC Mort Inv Inc Mort Loan Asst Bk Pass Thru Cert Se 1997-A), Pooling and Servicing Agreement (MLCC Mortgage Investors Inc)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer Distribution DateDate and based solely on the Servicer's Remittance Report delivered to the Trustee, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior after giving effect to the application of the amounts described in clauses (a)(i) through and (a)(iiia)(ii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete a Notice in the form of Exhibit A to the Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second third Business Day preceding such Distribution Date as a claim for an Insured Payment in an amount equal to such Available Funds Shortfall.
(c) The Trustee shall establish a separate Eligible Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Payment Account and distribute such amount only for purposes of payment to the Class A Certificateholders of the Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount shall be transferred to the Certificate Account on the related Distribution Date and disbursed by the Trustee to the Class A Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Amount with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Class A Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(d) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment Distribution Amount has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured PaymentDistribution Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment Distribution Amount is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (American Business Financial Services Inc /De/), Pooling and Servicing Agreement (Morgan Stanley Abs Capital I Inc)
The Certificate Insurance Policy. (a) Within two (2) days of On each Servicer Distribution Date, Determination Date the Trustee shall determine with respect to the immediately following Distribution Payment Date, the amount :
(a) The amounts to be on deposit in the Certificate Account on each Payment Date with respect to each Mortgage Loan Group (disregarding the amounts of any net investment earnings and any Insured Payments with respect to such Distribution Date Mortgage Loan Group and any investment earnings withdrawn from the Certificate Account in accordance with Section 7.5(b) hereof) excluding an amount equal to the sum of the Premium Amount, the Servicing Fees and the Trustee's Fees each with respect to such Mortgage Loan Group for the related Payment Date; such amounts with respect to Group I, are the "Group I Available Funds" and with respect to Group II are the "Group II Available Funds"; provided, however, that the amounts which cannot be distributed to the Owners of the Class A Certificates as a result of proceedings under the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding United States Bankruptcy Code or similar insolvency laws will not be considered in determining the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".;
(b) If on the Trustee determines that a Group I Deficiency Amount or a Group II Deficiency Amount will exist with respect to any Distribution Date there is an Available Funds ShortfallPayment Date, the Trustee shall complete a Notice in the form of Exhibit A to the Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Business Day preceding such Distribution Payment Date as a claim for an Insured Payment Amount in an amount equal to such Available Funds ShortfallGroup I Deficiency Amount or Group II Deficiency Amount. Upon receipt of Insured Payments from the Certificate Insurer under the Certificate Insurance Policy, the Trustee shall deposit such Insured Payments in the Certificate Account.
(c) The Trustee shall establish a separate Eligible Account (i) receive Insured Payments as attorney-in-fact of each Owner of the Class A Certificates of the related Class receiving any Insured Payment from the Certificate Insurer and (ii) disburse such Insured Payment to the Owners of the related Class A Certificates as set forth in Section 7.5(b). The Certificate Insurer shall be entitled to receive the Group I Reimbursement Amount or Group II Reimbursement Amount, as applicable, pursuant to Sections 7.5(x) and (xi) hereof with respect to each Insured Payment made by the Certificate Insurer. The Trustee hereby agrees on behalf of each Owner of Class A Certificates and the Trust for the benefit of Holders of the Certificates and the Certificate Insurer referred that it recognizes that to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under extent the Certificate Insurance Policy in Insurer makes Insured Payments, either directly or indirectly (as by paying through the Certificate Insurance Payment Account and distribute such amount only for purposes of payment to the Certificateholders of the Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance PolicyTrustee), to the extent needed to pay the Insured Distribution Amount shall be transferred to the Certificate Account on the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for Owners of such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Amount with other funds available to make such payment. HoweverClass A Certificates, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer will be entitled to receive the related Reimbursement Amount pursuant to the written instructions of the Certificate Insurer by the end of such Business DaySections 7.5(x) and (xi) hereof.
(d) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that Insured Payments disbursed by the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions from proceeds of the Certificate Insurance Policy to obtain shall not be considered payment by the Certificate Insurer of Trust Estate nor shall such voided Insured Payment, and shall, at payments discharge the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders obligation of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made Trust Estate with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.Class A
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Advanta Mortgage Loan Trust 1999-3)
The Certificate Insurance Policy. (a) Within two (2) days of Not later than 3:00 p.m., New York time, on the third Business Day immediately preceding each Servicer Distribution Date, the Trustee Trust Administrator shall determine with respect the Available Funds for such Distribution Date. To the extent any Available Funds Shortfall will exist for any Distribution Date after giving effect to the immediately following Distribution Date, the amount distributions specified in Section 4.04(a) hereof (calculating such distributions without giving effect to any Insured Payment to be on deposit in the Certificate Account made on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall), the Trustee Trust Administrator shall complete a Notice notice in the form of Exhibit A attached to the Certificate Insurance Policy (the "Notice") and shall submit such notice Notice to the Certificate Insurer no later than 12:00 noon 10:00 a.m., New York City time time, on the second Business Day preceding such Distribution Date as Date. Such Notice may be delivered by electronic facsimile (in which case the original shall be sent by overnight courier). The Notice shall constitute a claim for an Insured Payment in pursuant to the Policy for an amount equal to such the Available Funds Shortfall. Upon receipt of Insured Payments on behalf of the Certificateholders, the Trust Administrator shall deposit such Insured Payments in the Policy Payments Account, and shall thereafter transfer such Insured Payments to the Certificate Account for distribution solely to the related Certificateholders in accordance with Section 4.04(a).
(cb) The Trustee Trust Administrator, on behalf of the Trust and as agent for the Trustee, shall establish a separate Eligible Account special purpose trust account for the benefit of the Holders of the Offered Certificates and the Certificate Insurer referred to herein as (the "Certificate Insurance Payment Policy Payments Account" ") over which the Trustee Trust Administrator shall have exclusive control and sole right of withdrawal. The Trustee Trust Administrator shall deposit upon receipt any amount paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for purposes of payment to the Certificateholders Holders of Offered Certificates of the Insured Distribution Amount Payment for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Master Servicer, the Trustee Trustee, the Trust Administrator or the Trust FundTrust. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount Policy shall be transferred to the Certificate Account on in accordance with the related Distribution Date next succeeding paragraph and thereafter disbursed by the Trustee Trust Administrator to the Certificateholders Holders of the Offered Certificates in accordance with Section 6.054.04(a). It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Amount with any other funds available amounts distributed pursuant to make such paymentSection 4.04(a). However, the amount of any payment of principal of or of interest on the Offered Certificates to be paid from funds transferred from the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to related Holders of the Offered Certificates pursuant to Section 6.074.06. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Trust Administrator. On any Distribution Date with respect to which a claim has been made under the Policy, the amount of any funds received by the Trust Administrator as a result of such claim, to the extent required to pay amounts owed to Certificateholders on such Distribution Date, shall be withdrawn from the Policy Payments Account and deposited in the Certificate Account and applied by the Trust Administrator, together with the other funds to be deposited in the Certificate Account, directly to the amounts owed to Certificateholders on the related Certificates. Funds received by the Trust Administrator as a result of any claim under the Policy shall be deposited by the Trust Administrator in the Policy Payments Account and then transferred to the Certificate Account and used solely for payment to the related Holders of the related Certificates and may not be applied to satisfy any costs, expenses or liabilities of the Master Servicer, the Trustee, the Trust Administrator or the Trust. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a Distribution Date shall be returned remitted to the Certificate Insurer Insurer, pursuant to the written instructions of the Certificate Insurer Insurer, by the end of such Business Day.
(dc) The Trustee Trust Administrator shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(d) The Trust Administrator shall receive, as attorney-in-fact of each Holder of a Class A Certificate, any Insured Payment from the Certificate Insurer and disburse the same to each Holder of a Class A Certificate in accordance with the provisions of this Article IV. Insured Payments disbursed by the Trust Administrator from proceeds of the Policy shall not be considered payment by the Trust nor shall such payments discharge the obligation of the Trust with respect to such Offered Certificates, and the Certificate Insurer shall be subrogated to the rights of the Certificateholders to the extent of the payment and shall be entitled to receive the Reimbursement Amount pursuant to Section 4.04(a)(I)(vi) or (II)(vi). By acceptance of a Certificate, each Holder of a Certificate agrees and recognizes that to the extent the Certificate Insurer makes Insured Payments, either directly or indirectly (as by paying through the Trustee), to the Class A Certificateholders, the Certificate Insurer will be entitled to receive the Reimbursement Amount pursuant to Section 4.04(a)(I)(vi) and (II)(vi).
(e) In If the event that the Trustee has received Trust Administrator receives a certified copy of an order of the appropriate court (an "Order") that any Insured Payment prior distribution made on the Offered Certificates of principal or current interest has been voided in whole or in part as a preference payment Preference Payment under applicable bankruptcy bankruptcy, insolvency, receivership or similar law, the Trustee Trust Administrator shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, distribution and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders notify each Holder of the affected Certificates by mail (i) that, subject to the terms of the Policy, the Certificate Insurer will disburse the voided distribution directly to the receiver, conservator, debtor- in-possession or trustee in bankruptcy named in the event any Order following such Certificateholder's Insured Payment making timely delivery to the Trust Administrator of (a) a certificate of such Certificateholder that such Order has been entered and is so recoverednot subject to any stay and (b) an assignment duly executed and delivered by such Certificateholder, in such form as is reasonably required by the Certificate Insurer and provided to such Certificateholder by the Certificate Insurer, irrevocably assigning to the Certificate Insurer all rights and claims of such Certificateholder relating to or arising under the affected Certificates against the debtor that made such Preference Payment, or otherwise with respect to such preference payment, and (ii) that, if any such voided distribution payment is recovered from such Certificateholder pursuant to such Order, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a . A copy of which the Policy shall be made available to each affected Certificateholder through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if anyTrust Administrator, and the Trustee Trust Administrator shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which that have been made by the Trustee Trust Administrator and subsequently recovered from Certificateholders and the Certificateholders, and dates on which such payments were made.
(f) The Trustee Trust Administrator shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee Trust Administrator has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Offered Certificates. Each CertificateholderHolder of a Class A Certificate, by its purchase of Certificatessuch Certificate, the Servicer Master Servicer, the Trust Administrator and the Trustee agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas supersede as or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each CertificateholderHolder, the Servicer Master Servicer, the Trust Administrator and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Master Servicer, the Trustee Trustee, the Trust Administrator and each Certificateholder Holder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement It is understood and agreed that the intention of the Certificates, furnish to parties is that the Certificate Insurer a notice of shall not be entitled to reimbursement on any Distribution Date for amounts previously paid by it unless on such retirement, and, upon retirement Distribution Date the Class A Certificateholders shall also have received the full amount of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer Insured Distribution Amount for cancellationsuch Distribution Date.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (New Century Mort Sec Inc New Cent Hm Eq Ln Tr Ser 2000-Nca)
The Certificate Insurance Policy. (a) Within two (2) days The Trustee hereby appoints the Securities Administrator as its agent in connection with the receipt and distribution of each Servicer Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount all amounts required to be on deposit in paid by the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete a Notice in the form of Exhibit A to Insurer under the Certificate Insurance Policy and submit such notice the providing of any notices required to the Certificate Insurer no later than 12:00 noon New York City time on the second Business Day preceding such Distribution Date as a claim for an Insured Payment in an amount equal to such Available Funds Shortfall.
(c) be provided thereunder. The Trustee Securities Administrator shall establish a separate non-interest bearing trust account which shall be an Eligible Account for the benefit of Holders of the Class A-1 Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Policy Payment Account" over which the Trustee Securities Administrator shall have exclusive control and sole right of withdrawal. The Trustee Securities Administrator shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Policy Payment Account and distribute such amount only for purposes of payment to the Certificateholders Class A-1 Certificates of the Insured Distribution Amount Policy Payment for which a claim was made and 126 such amount may not be applied to satisfy any costs, expenses or liabilities of the Master Servicer, the Trustee or the Trust FundFund or to pay any other Class of Certificates. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount any Class A-1 Certificate Deficiency Amount, shall be transferred to the Certificate Distribution Account on the related Distribution Date Date, and the portion thereof representing the Class A-1 Certificate Deficiency Amount shall be disbursed by the Trustee Securities Administrator to the Certificateholders Class A-1 Certificateholders, in accordance with each case as if it were a distribution to the Holders of such Certificates pursuant to Section 6.055.01. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay other distributions to the Insured Distribution Amount Class A-1 Certificateholders, as applicable, with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Class A-1 Certificates to be paid from funds transferred from the Certificate Insurance Policy Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the such Class of Certificates pursuant to Section 6.075.02. Funds held in the Certificate Insurance Policy Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Policy Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(b) If the Securities Administrator has determined that a Class A-1 Certificate Deficiency Amount is required to be paid under the Certificate Insurance Policy with respect to such Distribution Date, it shall deliver a Notice of Claim (in the form attached as Exhibit A to the Certificate Insurance Policy) to the Certificate Insurer no later than noon, New York, New York time on the second Business Day preceding such Distribution Date and shall provide a copy thereof to the Master Servicer at or prior to the time such Notice of Claim is received by the Certificate Insurer. The Notice of Claim shall constitute a claim therefor pursuant to the Certificate Insurance Policy.
(c) If the Securities Administrator receives a certified copy of a final order of the appropriate court exercising jurisdiction in an Insolvency Proceeding with respect to which the appeal period as expired without an appeal having been filed (an "Order") that any prior distribution made on the Insured Certificates constitutes an Avoided Payment and must be returned by the Certificate Owner, the Securities Administrator shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such Avoided Payment and shall, at the time it provides notice to the Certificate Insurer, notify each holder of the affected Insured Certificates by mail that (i) subject to the terms of the Certificate Insurance Policy, the Certificate Insurer will disburse the Avoided Payment directly to the receiver, conservator, debtor-in-possession or trustee in bankruptcy named in the Order on the Business Day following such Certificateholder's making timely delivery to the Securities Administrator of (a) a certified copy of the Order of such Certificateholder that such Order has been entered and is not subject to any stay, (b) an assignment duly executed and delivered by such Certificate Owner, in such form as is reasonably required by the Certificate Insurer and provided to such Certificateholder by the Certificate Insurer, irrevocably assigning to the Certificate Insurer all rights and claims of such Certificate Owner relating to or arising under the affected Insured Certificates against the debtor that made a payment of such Avoided Payment, or otherwise with respect to such payment and (c) a payment notice in the form required by the Certificate Insurance Policy, appropriately completed and executed by the Securities Administrator, provided that if such documents are received after 10:00 a.m., New York time, on such Business Day, they will be deemed to be received on the following Business Day. A copy of the Certificate Insurance Policy shall be made available to each affected Certificateholder through the Trustee, and the Securities Administrator shall furnish to the Certificate Insurer or its fiscal agent, if any, a copy of its records evidencing the payments that have been made by the Securities Administrator and subsequently recovered from Certificateholders and the dates on which such payments were made.
(d) The Trustee Securities Administrator shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate Class A-1 Certificates from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one two Business Day's prior notice to the TrusteeSecurities Administrator.
(e) In the event that the Trustee has received a certified copy of an order The Holders of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify Certificates are not entitled to institute proceedings directly against the Certificate Insurer, shall comply with the provisions . Each Holder of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, Insured Certificates hereby agrees that the Certificate Insurer (so long as no Certificate Insurer Default exists) may at any time during the continuation of any proceeding relating to a Preference Claim an Avoided Payment, direct all matters relating to such Preference ClaimAvoided Payment on their behalf, including, without limitation, (i) the direction of any appeal of any order relating to such Preference Claim preference claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, .
(f) Any payments to the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign made by wire transfer of immediately available funds to the following Federal Reserve Account (unless and until the Certificate InsurerInsurer notifies the Securities Administrator of a change in such account information in writing): Fleet Bank, to N.A. 777 Main Street Xxxxxxxx, XX 00000-0000 XXA Number: 04900571 For the fullest extent permitted by law, the rights Account of: XL Capital Assurance Inc. 1221 Avenue of the ServicerAmericas, the Trustee and each Certificateholder in the conduct of any such Preference Claim30xx Xxxxx Xxx Xxxx, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.XX 00000-0000 Xxcount #: 942-783-5841 Xxference: Policy Number CA01177A
(g) The Trustee Securities Administrator shall, upon retirement of the Class A-1 Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon after retirement of the Class A-1 Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
(h) The Trustee shall hold the Certificate Insurance Policy in trust as agent for the Holders of the Class A-1 Certificates for the purpose of making claims thereon and distributing the proceeds thereof. Neither the Certificate Insurance Policy nor the amounts paid on the Certificate Insurance Policy shall constitute part of the Trust Fund created by this Agreement. Each Holder of Class A-1 Certificates, by accepting its Class A-1 Certificates, appoints the Securities Administrator as attorney-in-fact for the purpose of making claims on the Certificate Insurance Policy.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ace Securities Corp Series HE2)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer If, on the second Business Day before any Distribution Date, the Trustee determines that an Insured Payment is required to be made by the Certificate Insurer on such Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any such Insured Payment and prior shall give written notice to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete Certificate Insurer by completing a Notice in the form of Exhibit A to the Certificate Insurance Policy and submit submitting such notice to the Certificate Insurer no later than Notice by 12:00 noon noon, New York City time on the such second Business Day preceding such Distribution Date as a claim for an Insured Payment Payment. The Trustee’s responsibility for delivering a Notice to the Certificate Insurer, as provided in the preceding sentence, is limited to the availability, timeliness and accuracy of the information provided to it by the Servicer. In the event the Trustee receives a certified copy of an amount equal order of the appropriate court that any scheduled payment of principal or interest on the Class A Certificates has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall promptly notify the Certificate Insurer in writing and the fiscal agent, if any, and the Trustee shall, on behalf of the Trust and the Class A Certificateholders, make a claim on the Certificate Insurance Policy in accordance with the provisions thereof to obtain payment by the Certificate Insurer of such voided scheduled payment. In addition, the Trustee shall mail notice to all Holders of the Class A Certificates so affected that, in the event that any such Holder’s scheduled payment is so recovered, such Holder will be entitled to payment pursuant to the terms of the Certificate Insurance Policy, a copy of which shall be made available to such Available Funds ShortfallHolders by the Trustee. The Trustee shall furnish to the Certificate Insurer and the appropriate fiscal agent, if any, its records listing the payments on the affected Class A Certificates, if any, that have been made by the Trustee and subsequently recovered from the affected Holders, and the dates on which such payments were made by the Trustee.
(cb) The At the time of the execution hereof, and for the purposes hereof, the Trustee shall establish a separate Eligible the Policy Payments Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Policy Payments Account shall be an Eligible Account. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for the purposes of payment making payments to Holders of the Class A Certificates in respect of the Guaranteed Distributions (or other amounts payable pursuant to the Certificateholders second paragraph of subsection (a) above on such Class A Certificates by the Insured Distribution Amount Certificate Insurer pursuant to the Certificate Insurance Policy) for which a the related claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount . Such amounts shall be transferred to the Certificate Account on the related Distribution Date and disbursed allocated by the Trustee to Holders of Class A Certificates entitled to such payments in the Certificateholders in accordance same manner as principal and interest distributions are to be allocated with respect to such Certificates pursuant to Section 6.055.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay make regular payments hereunder with funds withdrawn from the Insured Distribution Amount with other funds available to make such paymentAccount. However, the amount of any payment of principal or of interest payments made on the Class A Certificates to be paid from funds transferred from in the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph subsection (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Trustee.
(c) Any funds received from the Certificate Insurer for deposit into the Policy Payments Account pursuant to this Agreement and the Certificate Insurance Policy in respect of a Distribution Date or otherwise as a result of any claim under such Certificate Insurance Policy shall be applied by the Trustee directly to the payment in full (i) of the Insured Payments due on such Distribution Date on the Class A Certificates, or (ii) of other amounts to which payments under the Certificate Insurance Policy are to be applied. Funds received by the Trustee as a result of any claim under the Certificate Insurance Policy shall be used solely for payment to the Holders of the Class A Certificates and may not be applied for any other purpose, including, without limitation, satisfaction of any costs, expenses or liabilities of the Trust, the Trustee, the Depositor, the Seller, the Custodian, any Originator or the Trust Fund. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a after each Distribution Date (other than the final Distribution Date to the extent of funds remaining in the Policy Payments Account required to be paid to Holders of the Class A Certificates) shall be returned remitted promptly to the Certificate Insurer pursuant to the written instructions instruction of the Certificate Insurer by the end of such Business DayInsurer.
(d) The Trustee shall keep a complete and accurate record records in respect of (i) all funds remitted to the amount Trustee by the Certificate Insurer and deposited into the Policy Payments Account and (ii) the allocation of such funds to (A) payments of interest on and principal paid in respect of any Certificate from moneys received under Class A Certificates, (B) Applied Loss Amounts allocated to the Certificate Insurance PolicyClass A Certificates, and (C) payments in respect of Preference Amounts. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one three (3) Business Day's Days’ prior notice to the Trustee. Any Insured Payments disbursed by the Trustee from proceeds of the Certificate Insurance Policy shall be considered payment by the Certificate Insurer and not by the Trust Fund with respect to the Class A Certificates, and the Certificate Insurer will be entitled to receive the related Reimbursement Amount pursuant to Section 5.02.
(e) In The Trustee acknowledges, and each Holder of a Class A Certificate by their acceptance of such Certificates agrees, that without the event that need for any further action on the part of the Certificate Insurer or the Trustee, to the extent the Certificate Insurer pays Insured Payments, directly or indirectly, on account of principal of or interest on any such Class of Certificates, the Certificate Insurer will be fully subrogated to the rights of the Holders of such Class to receive the related Reimbursement Amount pursuant to Section 5.02 and the Certificate Insurer shall also have the rights conferred upon the Certificate Insurer pursuant to the Insurance Agreement, as if fully set forth herein. The Class A Certificateholders, by acceptance of their Certificates assign their rights as Holders of such Class of Certificates to the extent of the Certificate Insurer’s interest with respect to amounts paid under the Certificate Insurance Policy. Each of the Depositor and the Trustee has received a certified copy agrees to such subrogation and further agrees to execute such instruments and to take such actions as, in the sole judgment of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply are necessary to evidence such subrogation and, subject to the priority of payment provisions of this Agreement, to perfect the rights of the Certificate Insurer to receive any moneys paid or payable in respect of the Class A Certificates under this Agreement or otherwise. Anything herein to the contrary notwithstanding, solely for purposes of determining the Certificate Insurer’s rights as subrogee for payments distributable pursuant to Section 5.02, any payment with respect to distributions to the provisions Class A Certificates that is made with funds received pursuant to the terms of the Certificate Insurance Policy to obtain shall not be considered payment by the Certificate Insurer of such voided Insured Payment, Class of Certificates from the Trust Fund and shall, at shall not result in the time it provides notice to distribution or the Certificate Insurer, notify, by mail to provision for the Certificateholders distribution in reduction of the affected Class Principal Amount of such Class of Certificates thator Interest Distribution Amounts thereon, in within the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy meaning of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.Article V.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or either of the institution of any action, of following as to which a Responsible Officer of the Trustee has actual knowledge: (A) the commencement of any proceeding by or against the Depositor commenced under the Bankruptcy Code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an “Insolvency Proceeding”) and (B) the making of any claim in connection with any Insolvency Proceeding seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "“Preference Claim"”) of any distribution made with respect to the Class A Certificates. Each CertificateholderHolder of a Class A Certificates, by its purchase of Certificatesits respective Certificate, the Servicer and the Trustee hereby agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such any Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder Holder of a Class A Certificates in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any an adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, shall surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationcancellation upon the termination of the Trust Fund pursuant to Article VII hereof.
Appears in 1 contract
Samples: Trust Agreement (Morgan Stanley Mortgage Loan Trust 2007-9sl)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete a Notice in the form of Exhibit A to the Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Business Day preceding such Distribution Date as a claim for an Insured Payment in an amount equal to such Available Funds Shortfall.
(c) The Trustee shall establish a separate non-interest bearing trust account which shall be an Eligible Account for the benefit of Holders of the Class A Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Policy Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Policy Payment Account and distribute such amount only for purposes of payment to the Certificateholders Class A Certificates of the Insured Distribution Amount Policy Payment for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Master Servicer, the Trustee or the Trust FundFund or to pay any other Class of Certificates. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount any Class A 104 Certificate Deficiency Amount, shall be transferred to the Certificate Distribution Account on the related Distribution Date Date, and the portion thereof representing the Class A Certificate Deficiency Amount shall be disbursed by the Trustee to the Certificateholders Class A Certificateholders, in accordance with each case as if it were a distribution to the Holders of such Certificates pursuant to Section 6.054.01. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay other distributions to the Insured Distribution Amount Class A Certificateholders, as applicable, with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Class A Certificates to be paid from funds transferred from the Certificate Insurance Policy Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the such Class of Certificates pursuant to Section 6.074.02. Funds held in the Certificate Insurance Policy Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Policy Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(db) The If the Trustee shall keep has determined that a complete and accurate record of the amount of interest and principal Class A Certificate Deficiency Amount is required to be paid in respect of any Certificate from moneys received under the Certificate Insurance Policy with respect to such Distribution Date, it shall deliver a Notice of Claim (in the form attached as EXHIBIT A to the Certificate Insurance Policy) to the Certificate Insurer no later than noon, New York, New York time on the second Business Day preceding such Distribution Date and shall provide a copy thereof to the Master Servicer at or prior to the time such Notice of Claim is received by the Certificate Insurer. The Certificate Insurer Notice of Claim shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice constitute a claim therefor pursuant to the TrusteeCertificate Insurance Policy.
(ec) In the event that If the Trustee has received receives a certified copy of an order of the appropriate court (an "Order") that any prior distribution made on the Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy lawCertificates constitutes an Avoided Payment, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, Avoided Payment and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders notify each holder of the affected Insured Certificates thatby mail that (i) subject to the terms of the Certificate Insurance Policy, the Certificate Insurer will disburse the Avoided Payment directly to the receiver, conservator, debtor-in- possession or trustee in bankruptcy named in the Order on the fourth Business Day following such Certificateholder's making timely delivery to the Trustee of (a) a certificate of such Certificateholder that such Order has been entered and is not subject to any stay, (b) an opinion of counsel satisfactory to the Certificate Insurer that such Order is final and is not subject to appeal and (c) an assignment duly executed and delivered by such Certificateholder, in such from as is reasonably required by the event Certificate Insurer and provided to such Certificateholder by the Certificate Insurer, irrevocably assigning to the Certificate Insurer all rights and claims of such Certificateholder relating to or arising under the affected Insured Certificates against the debtor that made a payment of such Avoided Payment, or otherwise with respect to such payment, provided that if such documents are received after 10:00 a.m., New York time, on such Business Day, they will be deemed to be received on the following Business Day, and (ii) if any Certificateholder's Insured such Avoided Payment is so recoveredrecovered from such Certificateholder pursuant to such Order, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a . A copy of which the Certificate Insurance Policy shall be made available to each affected Certificateholder through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, a copy of its records evidencing the payments which that have been made by the Trustee and subsequently recovered from Certificateholders and the Certificateholders, and dates on which such payments were made.. 105
(fd) The Trustee shall promptly notify keep a complete and accurate record of the amount of interest and principal paid in respect of any Class A Certificates from moneys received under the Certificate Insurance Policy. The Certificate Insurer of any proceeding or shall have the institution of any action, of which a Responsible Officer right to inspect such records at reasonable times during normal business hours upon two Business Day's prior notice to the Trustee.
(e) The Holders of the Trustee has actual knowledge, seeking Insured Certificates are not entitled to institute proceedings directly against the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the CertificatesCertificate Insurer. Each CertificateholderHolder of the Insured Certificates, by its purchase of Certificates, the Servicer and the Trustee agree that, Insured Certificates hereby agrees that the Certificate Insurer (so long as no Certificate Insurer Default exists) may at any time during the continuation of any proceeding relating to a Preference Claim an Avoided Payment, direct all matters relating to such Preference ClaimAvoided Payment on their behalf, including, without limitation, (i) the direction of any appeal of any order relating to such Preference Claim preference claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, .
(f) Any payments to the Certificate Insurer shall be subrogated to, made by wire transfer of immediately available funds to the following Federal Reserve Account (unless and each Certificateholder, until the Servicer and Certificate Insurer notifies the Trustee hereby delegate and assign to of a change in such account information in wriring): Fleet Bank, N.A. 777 Main Street Hartfxxx, XX 00000-0000 XXX Xxxxxx: 000000001 For the Certificate Insurer, to the fullest extent permitted by law, the rights Accxxxx xx: XL Capital Assurance Inc. 1221 Avenue of the ServicerAmericas, the Trustee and each Certificateholder in the conduct of any such Preference Claim30xx Xxxxx Xxx Xxxx, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.XX 00000-0000 Xxxxxxx #: 000-000-0841 Referencx: Xxxxxx Xxmber CA00867A-ARSI 2004-W4
(g) The Trustee shall, upon retirement of the Class A Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon after retirement of the Class A Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
(h) The Trustee shall hold the Certificate Insurance Policy in trust as agent for the Holders of the Class A Certificates for the purpose of making claims thereon and distributing the proceeds thereof. Neither the Certificate Insurance Policy nor the amounts paid on the Certificate Insurance Policy shall constitute part of the Trust Fund created by this Agreement. Each Holder of Class A Certificates, by accepting its Class A Certificates, appoints the Trustee as attorney-in-fact for the purpose of making claims on the Certificate Insurance Policy.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Argent Securities Asset Bcked Pass Through Certs Ser 2004-W4)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer If, on the second Business Day before any Distribution Date, the Trustee determines that an Insured Amount is required to be made by the Certificate Insurer on such Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any such Insured Payment Amount and prior shall give written notice to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete Certificate Insurer by completing a Notice of Nonpayment in the form of Exhibit A to the Certificate Insurance Policy and submit submitting such notice to the Certificate Insurer no later than Notice of Nonpayment by 12:00 noon noon, New York City time on the such second Business Day preceding such Distribution Date as a claim for an Insured Payment Amount. The Trustee’s responsibility for delivering a Notice of Nonpayment to the Certificate Insurer, as provided in the preceding sentence, is limited to the availability, timeliness and accuracy of the information provided to it by the Master Servicer. In the event the Trustee receives a certified copy of an amount equal order of the appropriate court that any scheduled payment of principal or interest on a Guaranteed Certificate has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall promptly notify the Certificate Insurer in writing, as appropriate, and the fiscal agent, if any, and the Trustee shall make a claim on the Certificate Insurance Policy in accordance with the provisions thereof to obtain payment by the Certificate Insurer of such voided scheduled payment. In addition, the Trustee shall mail notice to all Holders of the Guaranteed Certificates so affected that, in the event that any such Holder’s scheduled payment is so recovered, such Holder will be entitled to payment pursuant to the terms of the Certificate Insurance Policy, a copy of which shall be made available to such Available Funds ShortfallHolders by the Trustee. The Trustee shall furnish to the Certificate Insurer and the appropriate fiscal agent, if any, its records listing the payments on the affected Guaranteed Certificates, if any, that have been made by the Trustee and subsequently recovered from the affected Holders, and the dates on which such payments were made by the Trustee.
(cb) The At the time of the execution hereof, and for the purposes hereof, the Trustee shall establish a separate Eligible the Policy Payments Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Policy Payments Account shall be an Eligible Account. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for the purposes of payment making payments to Holders of the Guaranteed Certificates in respect of the Guaranteed Distributions (or other amounts payable pursuant to the Certificateholders second paragraph of subsection (a) above on either Class of Certificates by the Insured Distribution Amount Certificate Insurer pursuant to the Certificate Insurance Policy) for which a the related claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount . Such amounts shall be transferred to the Certificate Account on the related Distribution Date and disbursed allocated by the Trustee to Holders of Guaranteed Certificates entitled to such payments in the Certificateholders in accordance same manner as principal and interest distributions are to be allocated with respect to such Certificates pursuant to Section 6.055.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay make regular payments hereunder with funds withdrawn from the Insured Distribution Amount with other funds available to make such paymentCertificate Account. However, the amount of any payment of principal or of interest payments made on the Guaranteed Certificates to be paid from funds transferred from in the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph subsection (de) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Trustee.
(c) Any funds received from the Certificate Insurer for deposit into the Policy Payments Account pursuant to the Certificate Insurance Policy in respect of a Distribution Date or otherwise as a result of any claim under such Certificate Insurance Policy shall be applied by the Trustee directly to the payment in full (i) of the Insured Amounts due on such Distribution Date on the Guaranteed Certificates or (ii) of other amounts to which payments under the Certificate Insurance Policy are to be applied. Funds received by the Trustee as a result of any claim under the Certificate Insurance Policy shall be used solely for payment to the Holders of the Guaranteed Certificates and may not be applied for any other purpose, including, without limitation, satisfaction of any costs, expenses or liabilities of the Trustee or the Trust Fund. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a after each Distribution Date (other than the final Distribution Date to the extent of funds remaining in the Policy Payments Account required to be paid to Holders of the Guaranteed Certificates) shall be returned remitted promptly to the Certificate Insurer pursuant to the written instructions instruction of the Certificate Insurer by the end of such Business DayInsurer.
(d) The Trustee shall keep a complete and accurate record records in respect of (i) all funds remitted to the amount Trustee by the Certificate Insurer and deposited into the Policy Payments Account and (ii) the allocation of such funds to (A) payments of interest on and principal paid in respect of any Certificate from moneys received under Guaranteed Certificates (B) Applied Loss Amounts allocated to the Certificate Insurance PolicyGuaranteed Certificates and (C) payments in respect of Preference Amounts. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one three Business Day's Days’ prior notice to the Trustee. Any Insured Amounts disbursed by the Trustee from proceeds of the Certificate Insurance Policy shall be considered payment by the Certificate Insurer and not by the Trust Fund with respect to the Guaranteed Certificates and the Certificate Insurer will be entitled to receive the related Reimbursement Amount pursuant to Section 5.02(b)(iii).
(e) In The Trustee acknowledges, and each Holder of a Guaranteed Certificate by their acceptance of such Certificate agree, that, without the event that need for any further action on the Trustee has received a certified copy of an order part of the appropriate court that Certificate Insurer or the Trustee, to the extent the Certificate Insurer pays Insured Amounts or Preference Amounts, directly or indirectly, on account of principal of or interest on any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy lawsuch Class of Certificates, the Trustee shall so notify Certificate Insurer will be fully subrogated to the rights of the Holders of such Class to receive the related Reimbursement Amount pursuant to Section 5.02(b)(iii). The Holders of each Guaranteed Certificate, by acceptance of their respective Classes of Certificates assign their rights as Holders of such Class of Certificates to the extent of the Certificate Insurer’s interest with respect to amounts paid under the Certificate Insurance Policy. Each of the Depositor and Trustee agrees to such subrogation and, shall comply further agrees to execute such instruments and to take such actions as, in the sole judgment of the Certificate Insurer are necessary to evidence such subrogation and, subject to the priority of payment provisions of this Agreement, to perfect the rights of the Certificate Insurer to receive any moneys paid or payable in respect of the Guaranteed Certificates under this Agreement or otherwise. Anything herein to the contrary notwithstanding, solely for purposes of determining the Certificate Insurer’s rights as subrogee for payments distributable pursuant to Section 5.02, any payment with respect to distributions to the provisions Guaranteed Certificates that is made with funds received pursuant to the terms of the Certificate Insurance Policy to obtain shall not be considered payment by the Certificate Insurer of such voided Insured Payment, Class of Certificates from the Trust Fund and shall, at shall not result in the time it provides notice to distribution or the Certificate Insurer, notify, by mail to provision for the Certificateholders distribution in reduction of the affected Class Principal Amount of such Class of Certificates thator Current Interest thereon, in within the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy meaning of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.Article V.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or either of the institution of any action, of following as to which a Responsible Officer of the Trustee has actual knowledge: (A) the commencement of any proceeding by or against the Depositor commenced under the Bankruptcy Code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an “Insolvency Proceeding”) and (B) the making of any claim in connection with any Insolvency Proceeding seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "“Preference Claim"”) of any distribution made with respect to the Guaranteed Certificates. Each CertificateholderHolder of a Guaranteed Certificate, by its purchase of Certificatesits respective Class of Certificate, the Servicer and the Trustee hereby agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such any Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder Holder of a Guaranteed Certificate in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any an adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, shall surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationcancellation upon the termination of the Trust Fund pursuant to Article VII hereof.
Appears in 1 contract
Samples: Trust Agreement (Structured Asset Securities Corp. Mortgage Loan Trust 2005-7xs)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer If, on the second Business Day before any Distribution Date, the Trustee determines that an Insured Amount is required to be made by the Certificate Insurer on such Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any such Insured Payment Amount and prior shall give written notice to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete Certificate Insurer by completing a Notice of Nonpayment in the form of Exhibit A to the Certificate Insurance Policy and submit submitting such notice to the Certificate Insurer no later than Notice of Nonpayment by 12:00 noon noon, New York City time on the such second Business Day preceding such Distribution Date as a claim for an Insured Payment Amount. The Trustee’s responsibility for delivering a Notice of Nonpayment to the Certificate Insurer, as provided in the preceding sentence, is limited to the availability, timeliness and accuracy of the information provided to it by the Master Servicer. In the event the Trustee receives a certified copy of an amount equal order of the appropriate court that any scheduled payment of principal or interest on a Guaranteed Certificate has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall promptly notify the Certificate Insurer in writing, as appropriate, and the fiscal agent, if any, and the Trustee shall make a claim on the Certificate Insurance Policy in accordance with the provisions thereof to obtain payment by the Certificate Insurer of such voided scheduled payment. In addition, the Trustee shall mail notice to all Holders of the Guaranteed Certificates so affected that, in the event that any such Holder’s scheduled payment is so recovered, such Holder will be entitled to payment pursuant to the terms of the Certificate Insurance Policy, a copy of which shall be made available to such Available Funds ShortfallHolders by the Trustee. The Trustee shall furnish to the Certificate Insurer and the appropriate fiscal agent, if any, its records listing the payments on the affected Guaranteed Certificates, if any, that have been made by the Trustee and subsequently recovered from the affected Holders, and the dates on which such payments were made by the Trustee.
(cb) The At the time of the execution hereof, and for the purposes hereof, the Trustee shall establish a separate Eligible the Policy Payments Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Policy Payments Account shall be an Eligible Account. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for the purposes of payment making payments to Holders of the Guaranteed Certificates in respect of the Guaranteed Distributions (or other amounts payable pursuant to the Certificateholders second paragraph of subsection (a) above on the Insured Distribution Amount Guaranteed Certificates by the Certificate Insurer pursuant to the Certificate Insurance Policy) for which a the related claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount . Such amounts shall be transferred to the Certificate Account on the related Distribution Date and disbursed allocated by the Trustee to Holders of Guaranteed Certificates entitled to such payments in the Certificateholders in accordance same manner as principal and interest distributions are to be allocated with respect to such Certificates pursuant to Section 6.055.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay make regular payments hereunder with funds withdrawn from the Insured Distribution Amount with other funds available to make such paymentCertificate Account. However, the amount of any payment of principal or of interest payments made on the Guaranteed Certificates to be paid from funds transferred from in the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph subsection (de) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Trustee.
(c) Any funds received from the Certificate Insurer for deposit into the Policy Payments Account pursuant to the Certificate Insurance Policy in respect of a Distribution Date or otherwise as a result of any claim under such Certificate Insurance Policy shall be applied by the Trustee directly to the payment in full (i) of the Insured Amounts due on such Distribution Date on the Guaranteed Certificates or (ii) of other amounts to which payments under the Certificate Insurance Policy are to be applied. Funds received by the Trustee as a result of any claim under the Certificate Insurance Policy shall be used solely for payment to the Holders of the Guaranteed Certificates and may not be applied for any other purpose, including, without limitation, satisfaction of any costs, expenses or liabilities of the Trustee or the Trust Fund. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a after each Distribution Date (other than the final Distribution Date to the extent of funds remaining in the Policy Payments Account required to be paid to Holders of the Guaranteed Certificates) shall be returned remitted promptly to the Certificate Insurer pursuant to the written instructions instruction of the Certificate Insurer by the end of such Business DayInsurer.
(d) The Trustee shall keep a complete and accurate record records in respect of (i) all funds remitted to the amount Trustee by the Certificate Insurer and deposited into the Policy Payments Account and (ii) the allocation of such funds to (A) payments of interest on and principal paid in respect of any Certificate from moneys received under Guaranteed Certificates (B) Applied Loss Amounts allocated to the Certificate Insurance PolicyGuaranteed Certificates and (C) payments in respect of Preference Amounts. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one three Business Day's Days’ prior notice to the Trustee. Any Insured Amounts disbursed by the Trustee from proceeds of the Certificate Insurance Policy shall be considered payment by the Certificate Insurer and not by the Trust Fund with respect to the Guaranteed Certificates and the Certificate Insurer will be entitled to receive the related Reimbursement Amount pursuant to Section 5.02(b)(iii).
(e) In The Trustee acknowledges, and each Holder of a Guaranteed Certificate by their acceptance of such Certificate agree, that, without the event that need for any further action on the Trustee has received a certified copy of an order part of the appropriate court that Certificate Insurer or the Trustee, to the extent the Certificate Insurer pays Insured Amounts or Preference Amounts, directly or indirectly, on account of principal of or interest on any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy lawsuch Class of Certificates, the Trustee shall so notify Certificate Insurer will be fully subrogated to the rights of the Holders of such Class to receive the related Reimbursement Amount pursuant to Section 5.02(b)(iii). The Holders of each Guaranteed Certificate, by acceptance of their respective Classes of Certificates assign their rights as Holders of such Class of Certificates to the extent of the Certificate Insurer’s interest with respect to amounts paid under the Certificate Insurance Policy. Each of the Depositor and Trustee agrees to such subrogation and, shall comply further agrees to execute such instruments and to take such actions as, in the sole judgment of the Certificate Insurer are necessary to evidence such subrogation and, subject to the priority of payment provisions of this Agreement, to perfect the rights of the Certificate Insurer to receive any moneys paid or payable in respect of the Guaranteed Certificates under this Agreement or otherwise. Anything herein to the contrary notwithstanding, solely for purposes of determining the Certificate Insurer’s rights as subrogee for payments distributable pursuant to Section 5.02, any payment with respect to distributions to the provisions Guaranteed Certificates that is made with funds received pursuant to the terms of the Certificate Insurance Policy to obtain shall not be considered payment by the Certificate Insurer of such voided Insured Payment, Class of Certificates from the Trust Fund and shall, at shall not result in the time it provides notice to distribution or the Certificate Insurer, notify, by mail to provision for the Certificateholders distribution in reduction of the affected Class Principal Amount of such Class of Certificates thator Current Interest thereon, in within the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy meaning of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.Article V.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or either of the institution of any action, of following as to which a Responsible Officer of the Trustee has actual knowledge: (A) the commencement of any proceeding by or against the Depositor commenced under the Bankruptcy Code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an “Insolvency Proceeding”) and (B) the making of any claim in connection with any Insolvency Proceeding seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "“Preference Claim"”) of any distribution made with respect to the Guaranteed Certificates. Each CertificateholderHolder of a Guaranteed Certificate, by its purchase of Certificatesits respective Class of Certificate, the Servicer and the Trustee hereby agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such any Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder Holder of a Guaranteed Certificate in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any an adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, shall surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationcancellation upon the termination of the Trust Fund pursuant to Article VII hereof.
Appears in 1 contract
Samples: Trust Agreement (Structured Asset Securities Corp. 2005-9xs)
The Certificate Insurance Policy. (a) Within two (2) days of Business Days after each Master Servicer Distribution Date, Remittance Date the Trustee shall determine with respect to the immediately following Distribution Date, Date the amount to be on deposit in the Certificate Account Accounts on such Distribution Date as a result of the (i) Master Servicer's remittance of the Master Servicer Remittance Amount on the related Master Servicer Remittance Date plus the amount of any amounts deposited into the Certificate Accounts from the related Pre-Funding Account pursuant to Section 6.12 and any Interest Coverage Additions to be deposited pursuant to Section 6.13 for such Distribution Date, less the amounts described in clauses (i) through (ii) of Section 6.05(b) or (c) for the related Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding not including the amount of any Insured Payment and prior which is required to the application of the amounts described be deposited in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Certificate Account for such Distribution Date. The amounts described above in the preceding sentence sentence, as determined separately with respect to the Group I Loans, and Group II Loans, with respect to each Distribution Date are the "Group I Available Funds" and "Group II Available Funds" for such Distribution Date.
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete a Notice in the form of Exhibit A ___ to the related Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Policy Business Day preceding such Distribution Date as a claim for an Insured Payment in an amount equal to such Available Funds Shortfall.
(c) The Trustee shall establish a separate Eligible Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Payments Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Payment Payments Account and distribute such amount only for purposes of payment to the Certificateholders of the Group I Insured Distribution Amount or Group II Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Master Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Group I Insured Distribution Amount or Group II Insured Distribution Amount shall be transferred by the Trustee from the Certificate Insurance Payments Account to the related Certificate Account on the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments made under the Certificate Insurance Policy to be made by checks or wire transfers separate from the checks or wire transfers used other amounts distributed pursuant to pay the Insured Distribution Amount with other funds available to make such paymentSection 6.05. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Payments Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Payments Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Payments Account on the first Policy Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Policy Business Day.
(d) The Trustee Remittance Report shall keep a complete and accurate record of indicate the amount of interest and principal paid in respect of any Certificate the Class A-1 Certificates and the Class A-2 Certificates from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such 67 73 voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Master Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Master Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Master Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Abs Capital I Inc)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer If the Trustee determines that an Insured Amount is required to be made by the Certificate Insurer on such Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any such Insured Payment Amount and prior shall give written notice to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete Certificate Insurer by completing a Notice of Nonpayment in the form of Exhibit A to the Certificate Insurance Policy and submit submitting such notice to the Certificate Insurer no later than Notice of Nonpayment by 12:00 noon noon, New York City time on prior to the second third Business Day preceding such before the related Distribution Date as a claim for an Insured Payment Amount. The Trustee’s responsibility for delivering a Notice of Nonpayment to the Certificate Insurer, as provided in the preceding sentence, is limited to the availability, timeliness and accuracy of the information provided to it by the Master Servicer. In the event the Trustee receives a certified copy of an amount equal order of the appropriate court that any scheduled payment of principal or interest on a Guaranteed Certificate has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall promptly notify the Certificate Insurer in writing, as appropriate, and the fiscal agent, if any, and the Trustee shall make a claim on the Certificate Insurance Policy in accordance with the provisions thereof to obtain payment by the Certificate Insurer of such voided scheduled payment. In addition, the Trustee shall mail notice to all Holders of the Guaranteed Certificates so affected that, in the event that any such Holder’s scheduled payment is so recovered, such Holder will be entitled to payment pursuant to the terms of the Certificate Insurance Policy, a copy of which shall be made available to such Available Funds ShortfallHolders by the Trustee. The Trustee shall furnish to the Certificate Insurer and the appropriate fiscal agent, if any, its records listing the payments on the affected Guaranteed Certificates, if any, that have been made by the Trustee and subsequently recovered from the affected Holders, and the dates on which such payments were made by the Trustee.
(cb) The At the time of the execution hereof, and for the purposes hereof, the Trustee shall establish a separate Eligible the Policy Payments Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Policy Payments Account shall be an Eligible Account. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for the purposes of payment making payments to Holders of the Guaranteed Certificates in respect of the Guaranteed Distributions (or other amounts payable pursuant to the Certificateholders second paragraph of subsection (a) above on the Insured Distribution Amount Guaranteed Certificates by the Certificate Insurer pursuant to the Certificate Insurance Policy) for which a the related claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount . Such amounts shall be transferred to the Certificate Account on the related Distribution Date and disbursed allocated by the Trustee to Holders of Guaranteed Certificates entitled to such payments in the Certificateholders in accordance same manner as principal and interest distributions are to be allocated with respect to such Certificates pursuant to Section 6.055.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay make regular payments hereunder with funds withdrawn from the Insured Distribution Amount with other funds available to make such paymentCertificate Account. However, the amount of any payment of principal or of interest payments made on the Guaranteed Certificates to be paid from funds transferred from in the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph subsection (de) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Trustee.
(c) Any funds received from the Certificate Insurer for deposit into the Policy Payments Account pursuant to the Certificate Insurance Policy in respect of a Distribution Date or otherwise as a result of any claim under such Certificate Insurance Policy shall be applied by the Trustee directly to the payment in full (i) of the Insured Amounts due on such Distribution Date on the Guaranteed Certificates or (ii) of other amounts to which payments under the Certificate Insurance Policy are to be applied. Funds received by the Trustee as a result of any claim under the Certificate Insurance Policy shall be used solely for payment to the Holders of the Guaranteed Certificates and may not be applied for any other purpose, including, without limitation, satisfaction of any costs, expenses or liabilities of the Trustee or the Trust Fund. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a after each Distribution Date (other than the final Distribution Date to the extent of funds remaining in the Policy Payments Account required to be paid to Holders of the Guaranteed Certificates) shall be returned remitted promptly to the Certificate Insurer pursuant to the written instructions instruction of the Certificate Insurer by the end of such Business DayInsurer.
(d) The Trustee shall keep a complete and accurate record records in respect of (i) all funds remitted to the amount Trustee by the Certificate Insurer and deposited into the Policy Payments Account and (ii) the allocation of such funds to (A) payments of interest on and principal paid in respect of any Certificate from moneys received under Guaranteed Certificates (B) any Applied Loss Amount allocated to the Certificate Insurance PolicyGuaranteed Certificates and (C) payments in respect of Preference Amounts. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one three Business Day's Days’ prior notice to the Trustee. Any Insured Amounts disbursed by the Trustee from proceeds of the Certificate Insurance Policy shall be considered payment by the Certificate Insurer and not by the Trust Fund with respect to the Guaranteed Certificates and the Certificate Insurer will be entitled to receive the related Reimbursement Amount as provided in Section 5.02.
(e) In The Trustee acknowledges, and each Holder of a Guaranteed Certificate by their acceptance of such Certificate agree, that, without the event that need for any further action on the Trustee has received a certified copy of an order part of the appropriate court that Certificate Insurer or the Trustee, to the extent the Certificate Insurer pays Insured Amounts or Preference Amounts, directly or indirectly, on account of principal of or interest on any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy lawsuch Class of Certificates, the Trustee shall so notify Certificate Insurer will be fully subrogated to the rights of the Holders of such Class to receive the related Reimbursement Amount as provided in Section 5.02. The Holders of each Guaranteed Certificate, by acceptance of their respective Classes of Certificates assign their rights as Holders of such Class of Certificates to the extent of the Certificate Insurer’s interest with respect to amounts paid under the Certificate Insurance Policy. Each of the Depositor and Trustee agrees to such subrogation and, shall comply further agrees to execute such instruments and to take such actions as, in the sole judgment of the Certificate Insurer are necessary to evidence such subrogation and, subject to the priority of payment provisions of this Agreement, to perfect the rights of the Certificate Insurer to receive any moneys paid or payable in respect of the Guaranteed Certificates under this Agreement or otherwise. Anything herein to the contrary notwithstanding, solely for purposes of determining the Certificate Insurer’s rights as subrogee for payments distributable pursuant to Section 5.02, any payment with respect to distributions to the provisions Guaranteed Certificates that is made with funds received pursuant to the terms of the Certificate Insurance Policy to obtain shall not be considered payment by the Certificate Insurer of such voided Insured Payment, Class of Certificates from the Trust Fund and shall, at shall not result in the time it provides notice to distribution or the Certificate Insurer, notify, by mail to provision for the Certificateholders distribution in reduction of the affected Class Principal Amount of such Class of Certificates thator Current Interest thereon, in within the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy meaning of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.Article V.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or either of the institution of any action, of following as to which a Responsible Officer of the Trustee has actual knowledge: (A) the commencement of any proceeding by or against the Depositor commenced under the Bankruptcy Code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an “Insolvency Proceeding”) and (B) the making of any claim in connection with any Insolvency Proceeding seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "“Preference Claim"”) of any distribution made with respect to the Guaranteed Certificates. Each CertificateholderHolder of a Guaranteed Certificate, by its purchase of Certificatesits respective Class of Certificate, the Servicer and the Trustee hereby agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such any Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder Holder of a Guaranteed Certificate in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any an adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, shall surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationcancellation upon the termination of the Trust Fund pursuant to Article VII hereof.
Appears in 1 contract
The Certificate Insurance Policy. (a) Within two (2) days of Business Days after each Servicer Distribution Date, Remittance Date the Trustee Certificate Administrator shall determine with respect to the immediately following Distribution Date, Date the amount to be on deposit in the Certificate Account Accounts on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Remittance Date, less the amounts described in clause (i) of Section 6.03(b) or (c) for the related Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding not including the amount of any Insured Payment and prior which is required to the application of the amounts described be deposited in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Certificate Account for such Distribution Date. The amounts described above in the preceding sentence sentence, as determined separately with respect to the Group I Loans, and Group II Loans, with respect to each Distribution Date are the "Group I Available Funds" and "Group II Available Funds" for such Distribution Date.
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee Certificate Administrator shall complete a Notice in the form of Exhibit A to the related Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Policy Business Day preceding such Distribution Date as a claim for an Insured Payment in an amount equal to such Available Funds Shortfall.
(c) The Trustee shall establish a separate Eligible Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Payments Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Payment Payments Account and distribute such amount only for purposes of payment to the Certificateholders of the Group I Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount shall be transferred to the Certificate Account on the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Amount with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(d) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.or
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Chase Manhattan Acceptance Corp /De/)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer If, on the Business Day before any Distribution Date, the Trustee determines that an Insured Amount is required to be made by the Certificate Insurer on such Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any such Insured Payment Amount and prior shall give written notice to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete Certificate Insurer by completing a Notice of Nonpayment in the form of Exhibit A to the Certificate Insurance Policy and submit submitting such notice to the Certificate Insurer no later than Notice of Nonpayment by 12:00 noon noon, New York City time on the second such Business Day preceding such Distribution Date as a claim for an Insured Payment Amount. The Trustee's responsibility for delivering a Notice of Nonpayment to the Certificate Insurer, as provided in the preceding sentence, is limited to the availability, timeliness and accuracy of the information provided to it by the Master Servicer. In the event the Trustee receives a certified copy of an amount equal order of the appropriate court that any scheduled payment of principal or interest on a Guaranteed Certificate has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall promptly notify the Certificate Insurer in writing, as appropriate, and the fiscal agent, if any, and the Trustee shall make a claim on the Certificate Insurance Policy in accordance with the provisions thereof to obtain payment by the Certificate Insurer of such voided scheduled payment. In addition, the Trustee shall mail notice to all Holders of the Guaranteed Certificates so affected that, in the event that any such Holder's scheduled payment is so recovered, such Holder will be entitled to payment pursuant to the terms of the Certificate Insurance Policy, a copy of which shall be made available to such Available Funds ShortfallHolders by the Trustee. The Trustee shall furnish to the Certificate Insurer and the appropriate fiscal agent, if any, its records listing the payments on the affected Guaranteed Certificates, if any, that have been made by the Trustee and subsequently recovered from the affected Holders, and the dates on which such payments were made by the Trustee.
(cb) The At the time of the execution hereof, and for the purposes hereof, the Trustee shall establish a separate Eligible the Policy Payments Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Policy Payments Account shall be an Eligible Account. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for the purposes of payment making payments to Holders of the Guaranteed Certificates in respect of the Guaranteed Distributions (or other amounts payable pursuant to the Certificateholders second paragraph of subsection (a) above on the Insured Distribution Amount Guaranteed Certificates by the Certificate Insurer pursuant to the Certificate Insurance Policy) for which a the related claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount . Such amounts shall be transferred to the Certificate Account on the related Distribution Date and disbursed allocated by the Trustee to Holders of Guaranteed Certificates entitled to such payments in the Certificateholders in accordance same manner as principal and interest distributions are to be allocated with respect to such Certificates pursuant to Section 6.055.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay make regular payments hereunder with funds withdrawn from the Insured Distribution Amount with other funds available to make such paymentCertificate Account. However, the amount of any payment of principal or of interest payments made on the Guaranteed Certificates to be paid from funds transferred from in the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph subsection (de) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Trustee.
(c) Any funds received from the Certificate Insurer for deposit into the Policy Payments Account pursuant to the Certificate Insurance Policy in respect of a Distribution Date or otherwise as a result of any claim under such Certificate Insurance Policy shall be applied by the Trustee directly to the payment in full (i) of the Insured Amounts due on such Distribution Date on the Guaranteed Certificates or (ii) of other amounts to which payments under the Certificate Insurance Policy are to be applied. Funds received by the Trustee as a result of any claim under the Certificate Insurance Policy shall be used solely for payment to the Holders of the Guaranteed Certificates and may not be applied for any other purpose, including, without limitation, satisfaction of any costs, expenses or liabilities of the Trustee or the Trust Fund. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a after each Distribution Date (other than the final Distribution Date to the extent of funds remaining in the Policy Payments Account required to be paid to Holders of the Guaranteed Certificates) shall be returned remitted promptly to the Certificate Insurer pursuant to the written instructions instruction of the Certificate Insurer by the end of such Business DayInsurer.
(d) The Trustee shall keep a complete and accurate record records in respect of (i) all funds remitted to the amount Trustee by the Certificate Insurer and deposited into the Policy Payments Account and (ii) the allocation of such funds to (A) payments of interest on and principal paid in respect of any Certificate from moneys received under Guaranteed Certificates (B) any Applied Loss Amount allocated to the Certificate Insurance PolicyGuaranteed Certificates and (C) payments in respect of Preference Amounts. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one three Business Day's Days' prior notice to the Trustee. Any Insured Amounts disbursed by the Trustee from proceeds of the Certificate Insurance Policy shall be considered payment by the Certificate Insurer and not by the Trust Fund with respect to the Guaranteed Certificates and the Certificate Insurer will be entitled to receive the related Reimbursement Amount pursuant to Section 5.02(b)(i)(A)(5) or Section 5.02(b)(i)(B)(5), as applicable.
(e) In The Trustee acknowledges, and each Holder of a Guaranteed Certificate by their acceptance of such Certificate agree, that, without the event that need for any further action on the Trustee has received a certified copy of an order part of the appropriate court that Certificate Insurer or the Trustee, to the extent the Certificate Insurer pays Insured Amounts or Preference Amounts, directly or indirectly, on account of principal of or interest on any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy lawsuch Class of Certificates, the Trustee shall so notify Certificate Insurer will be fully subrogated to the rights of the Holders of such Class to receive the related Reimbursement Amount pursuant to Section 5.02(b)(i)(A)(5) or Section 5.02(b)(i)(B)(5), as applicable. The Holders of each Guaranteed Certificate, by acceptance of their respective Classes of Certificates assign their rights as Holders of such Class of Certificates to the extent of the Certificate Insurer's interest with respect to amounts paid under the Certificate Insurance Policy. Each of the Depositor and Trustee agrees to such subrogation and, shall comply further agrees to execute such instruments and to take such actions as, in the sole judgment of the Certificate Insurer are necessary to evidence such subrogation and, subject to the priority of payment provisions of this Agreement, to perfect the rights of the Certificate Insurer to receive any moneys paid or payable in respect of the Guaranteed Certificates under this Agreement or otherwise. Anything herein to the contrary notwithstanding, solely for purposes of determining the Certificate Insurer's rights as subrogee for payments distributable pursuant to Section 5.02, any payment with respect to distributions to the provisions Guaranteed Certificates that is made with funds received pursuant to the terms of the Certificate Insurance Policy to obtain shall not be considered payment by the Certificate Insurer of such voided Insured Payment, Class of Certificates from the Trust Fund and shall, at shall not result in the time it provides notice to distribution or the Certificate Insurer, notify, by mail to provision for the Certificateholders distribution in reduction of the affected Class Principal Amount of such Class of Certificates thator Current Interest thereon, in within the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy meaning of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.Article V.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or either of the institution of any action, of following as to which a Responsible Officer of the Trustee has actual knowledge: (A) the commencement of any proceeding by or against the Depositor commenced under the Bankruptcy Code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an "Insolvency Proceeding") and (B) the making of any claim in connection with any Insolvency Proceeding seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Guaranteed Certificates. Each CertificateholderHolder of a Guaranteed Certificate, by its purchase of Certificatesits respective Class of Certificate, the Servicer and the Trustee hereby agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such any Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder Holder of a Guaranteed Certificate in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any an adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, shall surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationcancellation upon the termination of the Trust Fund pursuant to Article VII hereof.
Appears in 1 contract
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer Distribution DateUnless otherwise indicated, the Trustee shall determine with respect all references in this Section 5.06 to the immediately following Distribution Date, Securities Administrator shall mean the amount to be Securities Administrator acting on deposit in behalf of and with the Certificate Account on such Distribution Date as a result authorization of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds"Trustee.
(b) If If, on the second Business Day before any Distribution Date there or the Securities Administrator determines that an Insured Amount is an Available Funds Shortfallrequired to be made by the Certificate Insurer on such Distribution Date, the Trustee Securities Administrator, as applicable, shall complete determine the amount of any such Insured Amount and shall give written notice to the Certificate Insurer by completing a Notice of Nonpayment in the form of Exhibit A to the Certificate Insurance Policy and submit submitting such notice to the Certificate Insurer no later than Notice of Nonpayment by 12:00 noon noon, New York City time on the such second Business Day preceding such Distribution Date as a claim for an Insured Payment Amount. The Securities Administrator’s responsibility for delivering a Notice of Nonpayment to the Certificate Insurer, as provided in the preceding sentence, is limited to the availability, timeliness and accuracy of the information provided to it by the Master Servicer. In the event the Securities Administrator receives a certified copy of an amount equal order of the appropriate court that any scheduled payment of principal or interest on a Guaranteed Certificate has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Securities Administrator shall promptly notify the Certificate Insurer in writing, as appropriate, and the fiscal agent, if any, and the Securities Administrator shall, on behalf of the Trustee, make a claim on the Certificate Insurance Policy in accordance with the provisions thereof to obtain payment by the Certificate Insurer of such voided scheduled payment. In addition, the Securities Administrator shall mail notice to all Holders of any Class of Guaranteed Certificates, so affected that, in the event that any such Holder’s scheduled payment is so recovered, such Holder will be entitled to payment pursuant to the terms of the Certificate Insurance Policy, a copy of which shall be made available to such Available Funds ShortfallHolders by the Securities Administrator. The Securities Administrator shall furnish to the Certificate Insurer and the appropriate fiscal agent, if any, its records listing the payments on the affected Classes of Guaranteed Certificates, if any, that have been made by the Securities Administrator and subsequently recovered from the affected Holders, and the dates on which such payments were made by the Securities Administrator.
(c) The Trustee At the time of the execution hereof, and for the purposes hereof, the Securities Administrator shall establish a separate Eligible the Policy Payments Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee Securities Administrator shall have exclusive control and sole right of withdrawal. The Trustee Policy Payments Account shall be an Eligible Account. The Securities Administrator shall deposit upon receipt any amount paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for the purposes of payment making payments to Holders of the Guaranteed Certificates in respect of the Guaranteed Distributions (or other amounts payable pursuant to the Certificateholders second paragraph of subsection (a) above on any Class of Guaranteed Certificates by the Insured Distribution Amount Certificate Insurer pursuant to the Certificate Insurance Policy) for which a the related claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount . Such amounts shall be transferred to the Certificate Account on the related Distribution Date and disbursed allocated by the Trustee Securities Administrator to Holders of a Class 1-A2A, Class 1-A4B, Class 1-A5A, or Class 3-A5 Certificates entitled to such payments in the Certificateholders in accordance same manner as principal and interest distributions are to be allocated with respect to such Certificates pursuant to Section 6.055.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay make regular payments hereunder with funds withdrawn from the Insured Distribution Amount with other funds available to make such paymentCertificate Account. However, the amount any payments made on any Class of any payment of principal or of interest on the Guaranteed Certificates to be paid from funds transferred from in the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph subsection (de) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Securities Administrator.
(d) Any funds received from the Certificate Insurer for deposit into the Policy Payments Account pursuant to the Certificate Insurance Policy in respect of a Distribution Date or otherwise as a result of any claim under such Certificate Insurance Policy shall be applied by the Securities Administrator directly to the payment in full (i) of the Insured Amounts due on such Distribution Date on the Class 1-A2A, Class 1-A4B, Class 1-A5 or Class 3-A5, Certificates, as applicable, or (ii) of other amounts to which payments under the Certificate Insurance Policy are to be applied. Funds received by the Securities Administrator as a result of any claim under the Certificate Insurance Policy shall be used solely for payment to the Holders of the Class 1-A2A, 1-A4B, Class 1-A5A or Class 3-A5 Certificates, as applicable, and may not be applied for any other purpose, including, without limitation, satisfaction of any costs, expenses or liabilities of the Securities Administrator, the Trustee or the Trust Fund. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a after each Distribution Date (other than the final Distribution Date to the extent of funds remaining in the Policy Payments Account required to be paid to Holders of the Class 1-2A, Class 1-A4B, Class 1-A5A or Class 3-A5 Certificates, as applicable) shall be returned remitted promptly to the Certificate Insurer pursuant to the written instructions instruction of the Certificate Insurer by the end of such Business DayInsurer.
(de) The Trustee Securities Administrator shall keep a complete and accurate record records in respect of (i) all funds remitted to the amount Securities Administrator by the Certificate Insurer and deposited into the Policy Payments Account and (ii) the allocation of such funds to (A) payments of interest on and principal paid in respect of any Certificate from moneys received under Class 1-A2A, Class 1-A4B, Class 1-A5A or Class 3-A5 Certificates, as applicable (B) Applied Loss Amounts allocated to the Certificate Insurance PolicyClass 1-A2A, Class 1-A4B, Class 1-A5A or Class 3-A5 Certificates, as applicable and (C) payments in respect of Preference Amounts. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one three Business Day's Days’ prior notice to the Trustee.
(e) In Securities Administrator. Any Insured Amounts disbursed by the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions Securities Administrator from proceeds of the Certificate Insurance Policy to obtain shall be considered payment by the Certificate Insurer of such voided Insured Paymentand not by the Trust Fund with respect to the Class 1-A2A, Class 1-A4B, Class 1-A5A or Class 3-A5 Certificates, as applicable, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder Insurer will be entitled to payment receive the related Reimbursement Amount pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, Sections 5.02(b)(iii) and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made5.02(d)(iii).
(f) The Securities Administrator acknowledges, and each Holder of a Guaranteed Certificate by their acceptance of such Certificates agree, that, without the need for any further action on the part of the Certificate Insurer, the Securities Administrator or the Trustee, to the extent the Certificate Insurer pays Insured Amounts or Preference Amounts, directly or indirectly, on account of principal of or interest on any such Class of Certificates, the Certificate Insurer will be fully subrogated to the rights of the Holders of such Class to receive the related Reimbursement Amount pursuant to Section 5.02(b)(iii). The Class 1-A2A, Class 1-A4B, Class 1-A5A or Class 3-A5 Certificateholders, by acceptance of their respective Classes of Certificates assign their rights as Holders of such Class of Certificates to the extent of the Certificate Insurer’s interest with respect to amounts paid under the Certificate Insurance Policy. Each of the Depositor, the Securities Administrator and the Trustee agrees to such subrogation and, further agrees to execute such instruments and to take such actions as, in the sole judgment of the Certificate Insurer are necessary to evidence such subrogation and, subject to the priority of payment provisions of this Agreement, to perfect the rights of the Certificate Insurer to receive any moneys paid or payable in respect of the Class 1-A2A, Class 1-A4B, Class 1-A5A or Class 3-A5 Certificates, as applicable, under this Agreement or otherwise. Anything herein to the contrary notwithstanding, solely for purposes of determining the Certificate Insurer’s rights as subrogee for payments distributable pursuant to Section 5.02, any payment with respect to distributions to the Class 1-A2A, 1-A4B, Class 1-A5A or Class 3-A5 Certificates, as applicable, that is made with funds received pursuant to the terms of the Certificate Insurance Policy shall not be considered payment of such Class of Certificates from the Trust Fund and shall not result in the distribution or the provision for the distribution in reduction of the Class Principal Amount of such Class of Certificates or Current Interest thereon, within the meaning of Article V.
(g) The Securities Administrator shall promptly notify the Certificate Insurer of any proceeding or either of the institution of any action, of following as to which a Responsible Officer of the Trustee either has actual knowledge: (A) the commencement of any proceeding by or against the Depositor commenced under the Bankruptcy Code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an “Insolvency Proceeding”) and (B) the making of any claim in connection with any Insolvency Proceeding seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "“Preference Claim"”) of any distribution made with respect to the Class 1-A2A, 1-A4B, Class 1-A5A or Class 3-A5 Certificates, as applicable. Each CertificateholderHolder of a Guaranteed Certificate, by its purchase of Certificatesits respective Class of Certificate, the Servicer and the Trustee and the Securities Administrator hereby agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such any Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the ServicerTrustee, the Trustee Securities Administrator and each Certificateholder Holder of a Class of Guaranteed Certificate in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any an adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(gh) The Trustee shall, upon retirement or the Securities Administrator on behalf of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, Trustee shall surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationcancellation upon the termination of the Trust Fund pursuant to Article VII hereof.
Appears in 1 contract
Samples: Trust Agreement (Structured Asset Securities Corp Trust 2005-4xs)
The Certificate Insurance Policy. (a) Within two (2) days The Trustee hereby appoints the Securities Administrator as its agent in connection with the receipt and distribution of each Servicer Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount all amounts required to be on deposit in paid by the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete a Notice in the form of Exhibit A to Insurer under the Certificate Insurance Policy and submit such notice the providing of any notices required to the Certificate Insurer no later than 12:00 noon New York City time on the second Business Day preceding such Distribution Date as a claim for an Insured Payment in an amount equal to such Available Funds Shortfall.
(c) be provided thereunder. The Trustee Securities Administrator shall establish a separate non-interest bearing trust account which shall be an Eligible Account for the benefit of Holders of the Insured Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Policy Payment Account" over which the Trustee Securities Administrator shall have exclusive control and sole right of withdrawal. The Trustee Securities Administrator shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Policy Payment Account and distribute such amount only for purposes of payment to the Certificateholders Insured Certificates of the Insured Distribution Amount Policy Payment for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Master Servicer, the Trustee or the Trust FundFund or to pay any other Class of Certificates. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the any Insured Distribution Amount Certificate Deficiency Amount, shall be transferred to the Certificate Distribution Account on the related Distribution Date Date, and the portion thereof representing the Insured Certificate Deficiency Amount shall be disbursed by the Trustee Securities Administrator to the Certificateholders Holders of the Class A-1 Certificates or Class A-2 Certificates, as appropriate, in accordance with each case as if it were a distribution to the Holders of such Certificates pursuant to Section 6.055.01. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay other distributions to the Insured Distribution Amount Class A-1 Certificateholders or Class A-2 Certificateholders, as applicable, with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Insured Certificates to be paid from funds transferred from the Certificate Insurance Policy Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the related Class of Certificates pursuant to Section 6.075.02. Funds held in the Certificate Insurance Policy Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Policy Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(b) If the Securities Administrator has determined that an Insured Certificate Deficiency Amount is required to be paid under the Certificate Insurance Policy with respect to such Distribution Date, it shall deliver a Notice of Claim (in the form attached as Exhibit A to the Certificate Insurance Policy) to the Certificate Insurer no later than noon, New York, New York time on the second Business Day preceding such Distribution Date and shall provide a copy thereof to the Master Servicer at or prior to the time such Notice of Claim is received by the Certificate Insurer. The Notice of Claim shall constitute a claim therefor pursuant to the Certificate Insurance Policy.
(c) If the Securities Administrator receives a certified copy of a final order of the appropriate court exercising jurisdiction in an Insolvency Proceeding with respect to which 137 the appeal period as expired without an appeal having been filed (an "Order") that any prior distribution made on the Insured Certificates constitutes an Avoided Payment and must be returned by the Certificate Owner, the Securities Administrator shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such Avoided Payment and shall, at the time it provides notice to the Certificate Insurer, notify each holder of the affected Insured Certificates by mail that (i) subject to the terms of the Certificate Insurance Policy, the Certificate Insurer will disburse the Avoided Payment directly to the receiver, conservator, debtor-in-possession or trustee in bankruptcy named in the Order on the Business Day following such Certificateholder's making timely delivery to the Securities Administrator of (a) a certified copy of the Order of such Certificateholder that such Order has been entered and is not subject to any stay, (b) an assignment duly executed and delivered by such Certificate Owner, in such form as is reasonably required by the Certificate Insurer and provided to such Certificateholder by the Certificate Insurer, irrevocably assigning to the Certificate Insurer all rights and claims of such Certificate Owner relating to or arising under the affected Insured Certificates against the debtor that made a payment of such Avoided Payment, or otherwise with respect to such payment and (c) a payment notice in the form required by the Certificate Insurance Policy, appropriately completed and executed by the Securities Administrator, provided that if such documents are received after 10:00 a.m., New York time, on such Business Day, they will be deemed to be received on the following Business Day. A copy of the Certificate Insurance Policy shall be made available to each affected Certificateholder through the Trustee, and the Securities Administrator shall furnish to the Certificate Insurer or its fiscal agent, if any, a copy of its records evidencing the payments that have been made by the Securities Administrator and subsequently recovered from Certificateholders and the dates on which such payments were made.
(d) The Trustee Securities Administrator shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate Insured Certificates from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one two Business Day's prior notice to the TrusteeSecurities Administrator.
(e) In the event that the Trustee has received a certified copy of an order The Holders of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify Certificates are not entitled to institute proceedings directly against the Certificate Insurer, shall comply with the provisions . Each Holder of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, Insured Certificates hereby agrees that the Certificate Insurer (so long as no Certificate Insurer Default exists) may at any time during the continuation of any proceeding relating to a Preference Claim an Avoided Payment, direct all matters relating to such Preference ClaimAvoided Payment on their behalf, including, without limitation, (i) the direction of any appeal of any order relating to such Preference Claim preference claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, .
(f) Any payments to the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign made by wire transfer of immediately available funds to the following Federal Reserve Account (unless and until the Certificate InsurerInsurer notifies the Securities Administrator of a change in such account information in writing): Fleet Bank, to N.A. 000 Xxxx Xxxxxx Xxxxxxxx, XX 00000-0000 ABA Number: 04900571 For the fullest extent permitted by lawAccount of: XL Capital Assurance Inc. 0000 Xxxxxx xx xxx Xxxxxxxx, the rights of the Servicer00xx Xxxxx Xxx Xxxx, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.XX 00000-0000 Account #: 000-000-0000 Reference: Policy Number CA01177A
(g) The Trustee Securities Administrator shall, upon retirement of the each Class of Insured Certificates, furnish to the Certificate Insurer and the Trustee a notice of such retirement, and, upon after retirement of the both Classes of Insured Certificates and the expiration of the term of the Certificate Insurance Policy, and the Trustee shall surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
(h) The Trustee shall hold the Certificate Insurance Policy in trust as agent for the Holders of the Insured Certificates for the purpose of making claims thereon and distributing the proceeds thereof. Neither the Certificate Insurance Policy nor the amounts paid on the Certificate Insurance Policy shall constitute part of the Trust Fund created by this Agreement. Each Holder of Class A-1 Certificate or Class A-2 Certificate, by accepting its Class A-1 Certificate or Class A-2 Certificate, appoints the Securities Administrator as attorney-in-fact for the purpose of making claims on the Certificate Insurance Policy.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (ACE Securities Corp Series 2004-He4)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer If, on the -------------------------------- second Business Day before any Distribution Date, the Trustee determines that the amount on deposit in the Certificate Account distributable to the Class 1-A3 Certificateholders pursuant to Section 5.02, together with any amounts that may be distributable to the Class 1-A3 Certificateholders from the Class 1-A3 Reserve Fund, will be insufficient to pay the Guaranteed Distributions on such Distribution Date, the Trustee shall determine with respect the amount of any such deficiency and shall give notice to Financial Security and the appropriate Fiscal Agent (as defined in the Class 1-A3 Policy), if any, by telephone or telecopy of the amount of such deficiency, confirmed in writing by the Notice of Claim by 12:00 noon, New York City time on such second Business Day. The Trustee's responsibility for delivering the Notice of Claim to Financial Security as provided in the preceding sentence is limited to the immediately following Distribution Dateavailability, timeliness and accuracy of the information provided by the Servicer.
(b) In the event the Trustee receives a certified copy of an order of the appropriate court that any scheduled payment of principal or interest on a Class 1-A3 Certificate has been voided in whole or in part as a preference payment under applicable bankruptcy law, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the Trustee shall (i) Servicer's remittance of promptly notify Financial Security, as appropriate, and the Servicer Remittance Amount on the related Servicer Distribution DateFiscal Agent, if any, and (ii) any transfers to comply with the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application provisions of the amounts described in clauses (a)(i) through (a)(iii) Class 1-A3 Policy to obtain payment by Financial Security of Section 6.05 for the related Distribution Datesuch voided scheduled payment. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds ShortfallIn addition, the Trustee shall complete a Notice mail notice to all Holders of the Class 1-A3 Certificates so affected that, in the form of Exhibit A event that any such Holder's scheduled payment is so recovered, such Holder will be entitled to payment pursuant to the Certificate Insurance Policy terms of the Class 1-A3 Policy, a copy of which shall be made available to such Holders by the Trustee. The Trustee shall furnish to Financial Security and submit such notice to the Certificate Insurer no later than 12:00 noon New York City time appropriate Fiscal Agent, if any, its records listing the payments on the second Business Day preceding affected Class 1-A3 Certificates, if any, that have been made by the Trustee and subsequently recovered from the affected Holders, and the dates on which such Distribution Date as a claim for an Insured Payment in an amount equal to such Available Funds Shortfallpayments were made by the Trustee.
(c) The At the time of the execution hereof, and for the purposes hereof, the Trustee shall establish a separate Eligible Account special purpose trust account in the name of the Trustee for the benefit of Holders of the Class 1-A3 Certificates and the Certificate Insurer referred to herein as (the "Certificate Insurance Payment Class 1-A3 Policy Payments Account" ") over which the Trustee shall have exclusive control and sole right of withdrawal. The Class 1-A3 Policy Payments Account shall be an Eligible Account. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Class 1-A3 Policy in into the Certificate Insurance Payment Class 1-A3 Policy Payments Account and distribute such amount only for the purposes of payment making payments to Holders of the Class 1-A3 Certificates in respect of the Guaranteed Distributions (or other amounts payable pursuant to paragraph (b) above on the Class 1-A3 Certificates by Financial Security pursuant to the Certificateholders of the Insured Distribution Amount Class 1-A3 Policy) for which a the related claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount . Such amounts shall be transferred to the Certificate Account on the related Distribution Date and disbursed allocated by the Trustee to Holders of Class 1-A3 Certificates affected by such shortfalls in the Certificateholders in accordance same manner as principal and interest distributions are to be allocated with respect to such Certificates pursuant to Section 6.055.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay make regular payments hereunder with funds withdrawn from the Insured Distribution Amount with other funds available to make such paymentCertificate Account. However, the amount of any payment of principal or of interest payments made on the Class 1-A3 Certificates to be paid from funds transferred from in the Certificate Insurance Payment Class 1-A3 Policy Payments Account shall be noted as provided in paragraph subsection (de) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Class 1-A3 Policy Payments Account shall not be investedinvested by the Trustee.
(d) Any funds received from Financial Security for deposit into the Class 1-A3 Policy Payments Account pursuant to the Class 1-A3 Policy in respect of a Distribution Date or otherwise as a result of any claim under such Class 1-A3 Policy shall be applied by the Trustee directly to the payment in full (i) of the Guaranteed Distributions due on such Distribution Date on the Class 1-A3 Certificates, or (ii) of other amounts to which payments under the Class 1-A3 Policy are to be applied. Funds received by the Trustee as a result of any claim under the Class 1-A3 Policy shall be used solely for payment to the Holders of the Class 1-A3 Certificates, respectively, and may not be applied for any other purpose, including, without limitation, satisfaction of any costs, expenses or liabilities of the Trustee or the Trust Fund. Any funds remaining in the Certificate Insurance Payment Class 1-A3 Policy Payments Account on the first Business Day following a after each Distribution Date shall be returned remitted promptly to the Certificate Insurer Financial Security pursuant to the written instructions instruction of the Certificate Insurer by the end of such Business DayFinancial Security.
(de) The Trustee shall keep a complete and accurate record records in respect of (i) all funds remitted to it by Financial Security and deposited into the amount Class 1-A3 Policy Payments Account and (ii) the allocation of such funds to (A) payments of interest on and principal paid in respect of any Certificate from moneys received under Class 1-A3 Certificates, (B) Realized Losses allocated to the Certificate Insurance PolicyClass 1-A3 Certificates and (C) Net Prepayment Interest Shortfalls allocated to the Class 1-A3 Certificates. The Certificate Insurer Financial Security shall have the right to inspect such records at reasonable times during normal business hours upon one three Business Day's Days' prior notice to the Trustee.
(ef) In The Trustee acknowledges, and each Holder of a Class 1-A3 Certificate by its acceptance of such Class 1-A3 Certificate agrees, that, without the event need for any further action on the part of Financial Security or the Trustee, to the extent Financial Security makes payments, directly or indirectly, on account of principal of or interest on any Class 1-A3 Certificates, Financial Security will be fully subrogated to the rights of the Holders of such Class 1-A3 Certificates to receive such principal and interest from the Trust Fund. The Class 1-A3 Certificateholders, by acceptance of the Class 1-A3 Certificates, assign their rights as Holders of the Class 1-A3 Certificates to the extent of Financial Security's interest with respect to amounts paid under the Class 1-A3 Policy. Anything herein to the contrary notwithstanding, solely for purposes of determining Financial Security's rights as subrogee for payments distributable pursuant to Section 5.02, any payment with respect to distributions to the Class 1-A3 Certificates that is made with funds received pursuant to the Trustee has received a certified copy terms of the Class 1-A3 Policy shall not be considered payment of the Class 1-A3 Certificates from the Trust Fund and shall not result in the distribution or the provision for the distribution in reduction of the Class Certificate Principal Amount of the Class 1-A3 Certificates within the meaning of Article V.
(g) Upon its becoming aware of the occurrence of an order Event of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy lawDefault, the Trustee shall so promptly notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer Financial Security of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders Event of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were madeDefault.
(fh) The Trustee shall promptly notify Financial Security of either of the Certificate Insurer following as to which it has actual knowledge: (A) the commencement of any proceeding by or against the institution Depositor commenced under the United States bankruptcy code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an "Insolvency Proceeding") and (B) the making of any action, of which a Responsible Officer of the Trustee has actual knowledge, claim in connection with any Insolvency Proceeding seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Class 1-A3 Certificates. Each CertificateholderHolder of a Class 1-A3 Certificate, by its purchase of Class 1-A3 Certificates, the Servicer and the Trustee hereby agree that, the Certificate Insurer that Financial Security (so long as no Certificate Insurer Financial Security Default exists) 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, (i) the direction of any appeal of any order relating to such any Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer Financial Security shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder Holder of a Class 1-A3 Certificate in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any an adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(gi) The Trustee shall, shall surrender the Class 1-A3 Policy to Financial Security for cancellation upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance PolicyClass 1- A3 Policy as provided therein.
(j) With respect to this Section 5.06, surrender (i) the Certificate Insurance Policy terms "Receipt" and "Received" shall mean actual delivery to Financial Security and Financial Security's Fiscal Agent, if any, prior to 12:00 noon, New York City time, on a Business Day; delivery either on a day that is not a Business Day or after 12:00 noon, New York City time, shall be deemed to be Receipt on the Certificate Insurer for cancellationnext succeeding Business Day. If any notice or certificate given under the Policies by the Trustee is not in proper form or is not properly completed, executed or delivered, it shall be deemed not to have been Received. Financial Security or its Fiscal Agent, if any, shall promptly so advise the Trustee and the Trustee may submit an amended notice and (ii) "Business Day" means any day other than (A) a Saturday or Sunday or (B) a day on which banking institutions in the City of New York, New York are authorized or obligated by law or executive order to be closed.
Appears in 1 contract
Samples: Trust Agreement (Structured Asset Securities Corporation)
The Certificate Insurance Policy. (a) Within two (2) days If, on any Determination Date, the statement delivered to the Trustee pursuant to Section 4.01 indicates that there will be the payment of each Servicer an Insured Amount for the related Distribution Date, the Trustee shall determine with respect to complete the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date Notice for Payment (as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, defined and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete a Notice included in the form of Exhibit A to specified by the Certificate Insurance Policy and Policy). The Trustee shall submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Business Day preceding such Distribution Date as a claim for an Insured Payment Payment.
(b) Upon receipt of Insured Payments from the Certificate Insurer on behalf of Investor Certificateholders, the Trustee shall deposit such Insured Payments in an amount equal the Certificate Account and shall distribute such Insured Payments, or the proceeds thereof, in accordance with Section 5.01(a); provided that Insured Payments shall be applied and distributed solely to such Available Funds ShortfallHolders of the Investor Certificates and any Preference Amount shall be distributed solely to the Holders of the Investor Certificates.
(c) The Trustee shall establish (i) receive as attorney-in-fact of each Holder of Investor Certificates receiving any Insured Payment from the Certificate Insurer and (ii) disburse the same to the Holders of such Certificates as set forth in Section 5.01(a). Insured Payments disbursed by the Trustee from proceeds of a separate Eligible Account Certificate Insurance Policy shall not be considered payment by the Trust Fund with respect to such Certificates, and the Certificate Insurer shall be entitled to receive the related Reimbursement Amount pursuant to Section 5.01(a)(v). The Trustee hereby agrees on behalf of each Investor Certificateholder and the Trust Fund for the benefit of Holders of the Certificates and the Certificate Insurer referred that it recognizes that to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under extent the Certificate Insurance Policy in Insurer makes Insured Payments, either directly or indirectly (as by paying through the Certificate Insurance Payment Account and distribute such amount only for purposes of payment to the Certificateholders of the Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance PolicyTrustee), to the extent needed to pay the Insured Distribution Amount shall be transferred to Holders of such Certificates, the Certificate Account on Insurer will be entitled to receive the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Reimbursement Amount with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day5.01(a)(v).
(d) The Trustee shall keep a complete and accurate record Subject only to the priority of payment provisions of this Agreement, each of the amount of interest Seller, the Servicer and principal paid in respect the Trustee acknowledges that, to the extent of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment made by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish is to be fully subrogated to the Certificate Insurer or its fiscal agentextent of such payment and any additional interest due on any late payment, if any, its records evidencing to the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer rights of the Trustee has actual knowledge, seeking Holders of the avoidance as a preferential transfer Investor Certificates to any moneys paid or payable in respect of the Investor Certificates under applicable bankruptcy, insolvency, receivership this Agreement or similar law (a "Preference Claim") of any distribution made with respect to the Certificatesotherwise. Each Certificateholder, by its purchase of Certificatesthe Seller, the Servicer and the Trustee agree thatagrees to such subrogation and, further, agrees to execute such instruments and to take such actions as, in the sole judgment of the Certificate Insurer (so long Insurer, as no Certificate Insurer Default exists) may at any time during evidenced in writing to the continuation of any proceeding relating to a Preference Claim direct all matters relating to such Preference Claim, including, without limitation, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each CertificateholderSeller, the Servicer and the Trustee hereby delegate and assign Trustee, are necessary to evidence such subrogation and, subject to the Certificate Insurerpriority of payment provisions of this Agreement, to the fullest extent permitted by law, perfect the rights of the Servicer, the Trustee and each Certificateholder Certificate Insurer to receive any moneys paid or payable in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Investor Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationunder this Agreement or otherwise.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (MLCC Mortgage Investors Inc)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer Distribution DateRemittance Date and based solely on the Servicer's Remittance Report delivered to the Trustee, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate each Distribution Account on such Distribution Date as a result of the (i) the Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, Remittance Date and (ii) any transfers to the Certificate Account made from the Capitalized Interest Cross-collateralization Reserve Account and/or in respect of the Pre-Funding Account relating to Shortfall Amount for the related Mortgage Loan Group and such Distribution Date pursuant to Section 6.01 hereof6.05 of this Agreement, excluding the amount of any Insured Payment and prior after giving effect to the application of the amounts described in clauses (a)(i) through and (a)(iiia)(ii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds"" with respect to such Mortgage Loan Group.
(b) If on any Distribution Date there is an Available Funds Shortfalla Deficiency Amount, the Trustee shall complete a Notice in the form of Exhibit A to the Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon New York, New York City time on the second third Business Day preceding such Distribution Date as a claim for an Insured Payment in an amount equal to such Available Funds ShortfallDeficiency Amount.
(c) The Trustee shall establish a separate Eligible Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Payment Account and distribute such amount only for purposes of payment to the Class A Certificateholders of the Insured Required Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Required Distribution Amount shall be transferred to the Certificate related Distribution Account on the related Distribution Date and disbursed by the Trustee to the Class A Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Required Distribution Amount with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Class A Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(d) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment Required Distribution has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured PaymentRequired Distribution, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment Required Distribution is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (American Business Financial Services Inc /De/)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete a Notice in the form of Exhibit A to the Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Business Day preceding such Distribution Date as a claim for an Insured Payment in an amount equal to such Available Funds Shortfall.
(c) The Trustee shall establish a separate non-interest bearing trust account which shall be an Eligible Account for the benefit of Holders of the Class A Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Policy Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Policy Payment Account and distribute such amount only for purposes of payment to the Certificateholders Class A Certificates of the Insured Distribution Amount Policy Payment for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Master Servicer, the Trustee or the Trust FundFund or to pay any other Class of Certificates. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount any Class A Certificate Deficiency Amount, shall be transferred to the Certificate Distribution Account on the related Distribution Date Date, and the portion thereof representing the Class A Certificate Deficiency Amount shall be disbursed by the Trustee to the Certificateholders Class A Certificateholders, in accordance with each case as if it were a distribution to the Holders of such Certificates pursuant to Section 6.054.01. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay other distributions to the Insured Distribution Amount Class A Certificateholders, as applicable, with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Class A Certificates to be paid from funds transferred from the Certificate Insurance Policy Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the such Class of Certificates pursuant to Section 6.074.02. Funds held in the Certificate Insurance Policy Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Policy Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(db) The If the Trustee shall keep has determined that a complete and accurate record of the amount of interest and principal Class A Certificate Deficiency Amount is required to be paid in respect of any Certificate from moneys received under the Certificate Insurance Policy with respect to such Distribution Date, it shall deliver a Notice of Claim (in the form attached as EXHIBIT A to the Certificate Insurance Policy) to the Certificate Insurer no later than noon, New York, New York time on the second Business Day preceding such Distribution Date and shall provide a copy thereof to the Master Servicer at or prior to the time such Notice of Claim is received by the Certificate Insurer. The Certificate Insurer Notice of Claim shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice constitute a claim therefor pursuant to the TrusteeCertificate Insurance Policy.
(ec) In the event that If the Trustee has received receives a certified copy of an order of the appropriate court (an "Order") that any prior distribution made on the Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy lawCertificates constitutes an Avoided Payment, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, Avoided Payment and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders notify each holder of the affected Insured Certificates thatby mail that (i) subject to the terms of the Certificate Insurance Policy, the Certificate Insurer will disburse the Avoided Payment directly to the receiver, conservator, debtor-in- possession or trustee in bankruptcy named in the Order on the fourth Business Day following such Certificateholder's making timely delivery to the Trustee of (a) a certificate of such Certificateholder that such Order has been entered and is not subject to any stay, (b) an opinion of counsel satisfactory to the Certificate Insurer that such Order is final and is not subject to appeal and (c) an assignment duly executed and delivered by such Certificateholder, in such from as is reasonably required by the event Certificate Insurer and provided to such Certificateholder by the Certificate Insurer, irrevocably assigning to the Certificate Insurer all rights and claims of such Certificateholder relating to or arising under the affected Insured Certificates against the debtor that made a payment of such Avoided Payment, or otherwise with respect to such payment, provided that if such documents are received after 10:00 a.m., New York time, on such Business Day, they will be deemed to be received on the following Business Day, and (ii) if any Certificateholder's Insured such Avoided Payment is so recoveredrecovered from such Certificateholder pursuant to such Order, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a . A copy of which the Certificate Insurance Policy shall be made available to each affected Certificateholder through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, a copy of its records evidencing the payments which that have been made by the Trustee and subsequently recovered from Certificateholders and the Certificateholders, and dates on which such payments were made.
(fd) The Trustee shall promptly notify keep a complete and accurate record of the amount of interest and principal paid in respect of any Class A Certificates from moneys received under the Certificate Insurance Policy. The Certificate Insurer of any proceeding or shall have the institution of any action, of which a Responsible Officer right to inspect such records at reasonable times during normal business hours upon two Business Day's prior notice to the Trustee.
(e) The Holders of the Trustee has actual knowledge, seeking Insured Certificates are not entitled to institute proceedings directly against the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the CertificatesCertificate Insurer. Each CertificateholderHolder of the Insured Certificates, by its purchase of Certificates, the Servicer and the Trustee agree that, Insured Certificates hereby agrees that the Certificate Insurer (so long as no Certificate Insurer Default exists) may at any time during the continuation of any proceeding relating to a Preference Claim an Avoided Payment, direct all matters relating to such Preference ClaimAvoided Payment on their behalf, including, without limitation, (i) the direction of any appeal of any order relating to such Preference Claim preference claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, .
(f) Any payments to the Certificate Insurer shall be subrogated to, made by wire transfer of immediately available funds to the following Federal Reserve Account (unless and each Certificateholder, until the Servicer and Certificate Insurer notifies the Trustee hereby delegate and assign to the Certificate Insurerof a change in such account information in wriring): Fleet Bank, to the fullest extent permitted by lawN.A. 777 Main Street Xxxxxxxx, the rights XX 00000-0000 XXX Xxxxxx: 011900571 For xxx Xxxxxnt of: XL Capital Assurance Inc. 1221 Avenue of the ServicerAmerxxxx, the Trustee and each Certificateholder in the conduct of any such Preference Claim00xx Xxxxx Xxx Xxxx, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.XX 00000-0000 Xxxxxxx #: 002-783-5841 Rxxxxxxxx: Xxlicy Number CA01005A-AMSI 2004-R6
(g) The Trustee shall, upon retirement of the Class A Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon after retirement of the Class A Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation. 112
(h) The Trustee shall hold the Certificate Insurance Policy in trust as agent for the Holders of the Class A Certificates for the purpose of making claims thereon and distributing the proceeds thereof. Neither the Certificate Insurance Policy nor the amounts paid on the Certificate Insurance Policy shall constitute part of the Trust Fund created by this Agreement. Each Holder of Class A Certificates, by accepting its Class A Certificates, appoints the Trustee as attorney-in-fact for the purpose of making claims on the Certificate Insurance Policy.
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The Certificate Insurance Policy. (a) Within two (2) days of each Servicer If, on the second Business Day before any Distribution Date, the Trustee shall determine with respect Securities Administrator determines that an Insured Payment is required to be made by the immediately following Certificate Insurer on such Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding Securities Administrator shall determine the amount of any such Insured Payment and prior to the application shall, on behalf of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds ShortfallTrustee, the Trustee shall complete prepare a Notice of Nonpayment in the form of Exhibit A to the Certificate Insurance Policy and submit furnish such notice Notice of Nonpayment to the Certificate Insurer no later than 12:00 noon Trustee by 10:00 a.m. New York City time on such second Business Day. The Trustee shall execute such Notice of Nonpayment and submit such Notice of Nonpayment to the Certificate Insurer by 12:00 noon, New York City time on such second Business Day preceding such Distribution Date as a claim for an Insured Payment Payment. The Trustee’s responsibility for delivering a Notice of Nonpayment to the Certificate Insurer, as provided in the preceding sentence, is limited to the availability, timeliness and accuracy of the Notice of Nonpayment and information therein provided to it by the Securities Administrator. In the event the Trustee receives a certified copy of an amount equal order of the appropriate court that any scheduled payment of principal or interest on a Class 3-A2 Certificate has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall promptly notify the Certificate Insurer in writing, as appropriate, and the fiscal agent, if any, and the Trustee shall make a claim on the Certificate Insurance Policy in accordance with the provisions thereof to obtain payment by the Certificate Insurer of such voided scheduled payment. In addition, the Trustee shall mail notice to all Holders of the Class 3-A2 Certificates so affected that, in the event that any such Holder’s scheduled payment is so recovered, such Holder will be entitled to payment pursuant to the terms of the Certificate Insurance Policy, a copy of which shall be made available to such Available Funds ShortfallHolders by the Trustee. The Trustee shall furnish to the Certificate Insurer and the appropriate fiscal agent, if any, its records listing the payments on the affected Class 3-A2 Certificates, if any, that have been made by the Trustee and subsequently recovered from the affected Holders, and the dates on which such payments were made by the Trustee.
(cb) The At the time of the execution hereof, and for the purposes hereof, the Trustee shall establish a separate Eligible Account special purpose trust account in the name of the Trustee for the benefit of Holders of the Class 3-A2 Certificates and (the Certificate Insurer referred to herein as the "Certificate Insurance Payment “Policy Payments Account" ”) over which the Trustee shall have exclusive control and sole right of withdrawal. The Policy Payments Account shall be an Eligible Account. The Trustee shall deposit upon receipt any amount received by it and paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for the purposes of payment making payments to Holders of the Class 3-A2 Certificates, in respect of the related Guaranteed Distributions (or other amounts payable pursuant to paragraph (b) above on the Class 3-A2 Certificates, by the Certificate Insurer pursuant to the Certificateholders of the Insured Distribution Amount Certificate Insurance Policy) for which a the related claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount . Such amounts shall be transferred to the Certificate Account on the related Distribution Date and disbursed allocated by the Trustee to Holders of Class 3-A2 Certificates entitled to such payments in the Certificateholders in accordance same manner as principal and interest distributions are to be allocated with respect to such Certificates pursuant to Section 6.055.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay make regular payments hereunder with funds withdrawn from the Insured Distribution Amount with other funds available to make such paymentCertificate Account. However, the amount of any payment of principal or of interest payments made on the Class 3-A2 Certificates to be paid from funds transferred from in the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph subsection (de) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Trustee.
(c) Any funds received by the Trustee from the Certificate Insurer for deposit into the Policy Payments Account pursuant to the Certificate Insurance Policy in respect of a Distribution Date or otherwise as a result of any claim under such Certificate Insurance Policy shall be applied by the Trustee directly to the payment in full (i) of the Insured Payments due on such Distribution Date on the Class 3-A2 Certificates or (ii) of other amounts to which payments under the Certificate Insurance Policy are to be applied. Funds received by the Trustee as a result of any claim under the Certificate Insurance Policy shall be used solely for payment to the Holders of the Class 3-A2 Certificates and may not be applied for any other purpose, including, without limitation, satisfaction of any costs, expenses or liabilities of the Trustee or the Trust Fund. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a after each Distribution Date (other than the final Distribution Date to the extent of funds remaining in the Policy Payments Account required to be paid to Holders of the Class 3-A2 Certificates) shall be returned remitted promptly by the Trustee to the Certificate Insurer pursuant to the written instructions instruction of the Certificate Insurer by the end of such Business DayInsurer.
(d) The Trustee shall keep a complete and accurate record records in respect of (i) all funds remitted to the amount Trustee by the Certificate Insurer and deposited into the Policy Payments Account and (ii) the allocation of such funds to (A) payments of interest on and principal paid in respect of any Certificate from moneys received under the Certificate Insurance PolicyClass 3-A2 Certificates and (B) payments in respect of Preference Amounts. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one three Business Day's Days’ prior written notice to the Trustee. Any Insured Payments disbursed by the Trustee from proceeds of the Certificate Insurance Policy shall be considered payment by the Certificate Insurer and not by the Trust Fund with respect to the Class 3-A2 Certificates and the Certificate Insurer will be entitled to receive the related Reimbursement Amount pursuant to Section 5.02.
(e) In The Trustee acknowledges, and each Holder of a Class 3-A2 Certificate by its acceptance of such Certificate agrees that, without the event that need for any further action on the Trustee has received a certified copy of an order part of the appropriate court that Certificate Insurer or the Trustee, to the extent the Certificate Insurer makes Insured Payments, directly or indirectly, on account of principal of or interest on any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy lawClass 3-A2 Certificates, the Trustee Certificate Insurer will be fully subrogated to the rights of the Holders of such Class 3-A2 Certificates to receive the related Reimbursement Amount pursuant to Section 5.02 and the Certificate Insurer shall so notify also have the rights conferred to the Certificate Insurer under Sections 4.06 and 5.02 of the Insurance Agreement, as if fully set forth herein. The Class 3-A2 Certificateholders, by acceptance of such Certificates, assign to the Certificate Insurer their rights as Holders of the Class 3-A2 Certificates, to the extent of the Certificate Insurer’s interest with respect to amounts paid under the Certificate Insurance Policy. Each of the Depositor and Trustee agrees to such subrogation and, shall comply further agrees to execute such instruments and to take such actions as, in the sole judgment of the Certificate Insurer are necessary to evidence such subrogation and, subject to the priority of payment provisions of this Agreement, to perfect the rights of the Certificate Insurer to receive any moneys paid or payable in respect of the Class 3-A2 Certificates under this Agreement or otherwise. Anything herein to the contrary notwithstanding, solely for purposes of determining the Certificate Insurer’s rights as subrogee for payments distributable pursuant to Section 5.02, any payment with respect to distributions to the provisions Class 3-A2 Certificates that is made with funds received pursuant to the terms of the Certificate Insurance Policy to obtain shall not be considered payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Class 3-A2 Certificates that, from the Trust Fund and shall not result in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer distribution or the Certificate Insurer's fiscal agentprovision for the distribution in reduction of the Class Principal Amount of the Class 3-A2 Certificates or Current Interest thereon, if any, and within the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.meaning of Article V.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or either of the institution of any action, of following as to which a Responsible Officer of the Trustee has actual knowledge: (A) the commencement of any proceeding by or against the Depositor commenced under the United States bankruptcy code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an “Insolvency Proceeding”) and (B) the making of any claim in connection with any Insolvency Proceeding seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "“Preference Claim"”) of any distribution made with respect to the Class 3-A2 Certificates. Each CertificateholderHolder of a Class 3-A2 Certificate, by its purchase of Certificatessuch Certificate, the Servicer and the Trustee hereby agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such any Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder Holder of a Class 3-A2 Certificate, in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any an adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, shall surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationcancellation upon the termination of the Trust Fund pursuant to Section 7.01 hereof.
Appears in 1 contract
Samples: Trust Agreement (Structured Asset Sec Corp Mort Pas THR Certs Ser 2003 Bc8)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer If, on the second Business Day before any Distribution Date, the Trustee determines that an Insured Payment is required to be made by the Certificate Insurer on such Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any such Insured Payment and prior shall give written notice to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete Certificate Insurer by completing a Notice of Nonpayment in the form of Exhibit A to the Certificate Insurance Policy and submit submitting such notice to the Certificate Insurer no later than Notice of Nonpayment by 12:00 noon noon, New York City time on the such second Business Day preceding such Distribution Date as a claim for an Insured Payment Payment. The Trustee’s responsibility for delivering a Notice of Nonpayment to the Certificate Insurer, as provided in the preceding sentence, is limited to the availability, timeliness and accuracy of the information provided to it by the Master Servicer. In the event the Trustee receives a certified copy of an amount equal order of the appropriate court that any scheduled payment of principal or interest on the Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall promptly notify the Certificate Insurer in writing and the fiscal agent, if any, and the Trustee shall, on behalf of the Trust and the Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificateholders, make a claim on the Certificate Insurance Policy in accordance with the provisions thereof to obtain payment by the Certificate Insurer of such voided scheduled payment. In addition, the Trustee shall mail notice to all Holders of the Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates so affected that, in the event that any such Holder’s scheduled payment is so recovered, such Holder will be entitled to payment pursuant to the terms of the Certificate Insurance Policy, a copy of which shall be made available to such Available Funds ShortfallHolders by the Trustee. The Trustee shall furnish to the Certificate Insurer and the appropriate fiscal agent, if any, its records listing the payments on the affected Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates, if any, that have been made by the Trustee and subsequently recovered from the affected Holders, and the dates on which such payments were made by the Trustee.
(cb) The At the time of the execution hereof, and for the purposes hereof, the Trustee shall establish a separate Eligible the Policy Payments Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Policy Payments Account shall be an Eligible Account. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for the purposes of payment making payments to Holders of the Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates in respect of the Guaranteed Distributions (or other amounts payable pursuant to the Certificateholders second paragraph of subsection (a) above on such Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates by the Insured Distribution Amount Certificate Insurer pursuant to the Certificate Insurance Policy) for which a the related claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount . Such amounts shall be transferred to the Certificate Account on the related Distribution Date and disbursed allocated by the Trustee to Holders of Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates entitled to such payments in the Certificateholders in accordance same manner as principal and interest distributions are to be allocated with respect to such Certificates pursuant to Section 6.055.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay make regular payments hereunder with funds withdrawn from the Insured Distribution Amount with other funds available to make such paymentCertificate Account. However, the amount of any payment of principal or of interest payments made on the Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates to be paid from funds transferred from in the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph subsection (de) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Trustee.
(c) Any funds received from the Certificate Insurer for deposit into the Policy Payments Account pursuant to this Agreement and the Certificate Insurance Policy in respect of a Distribution Date or otherwise as a result of any claim under such Certificate Insurance Policy shall be applied by the Trustee directly to the payment in full (i) of the Insured Payments due on such Distribution Date on the Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates, or (ii) of other amounts to which payments under the Certificate Insurance Policy are to be applied. Funds received by the Trustee as a result of any claim under the Certificate Insurance Policy shall be used solely for payment to the Holders of the Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates and may not be applied for any other purpose, including, without limitation, satisfaction of any costs, expenses or liabilities of the Trust, the Trustee or the Trust Fund. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a after each Distribution Date (other than the final Distribution Date to the extent of funds remaining in the Policy Payments Account required to be paid to Holders of the Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates) shall be returned remitted promptly to the Certificate Insurer pursuant to the written instructions instruction of the Certificate Insurer by the end of such Business DayInsurer.
(d) The Trustee shall keep a complete and accurate record records in respect of (i) all funds remitted to the amount Trustee by the Certificate Insurer and deposited into the Policy Payments Account and (ii) the allocation of such funds to (A) payments of interest on and principal paid in respect of any Certificate from moneys received under Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates, (B) Pool 2 Applied Loss Amounts allocated to the Certificate Insurance PolicyClass WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates, and (C) payments in respect of Preference Amounts. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one three Business Day's Days’ prior notice to the Trustee. Any Insured Payments disbursed by the Trustee from proceeds of the Certificate Insurance Policy shall be considered payment by the Certificate Insurer and not by the Trust Fund with respect to the Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates, and the Certificate Insurer will be entitled to receive the related Reimbursement Amount pursuant to Section 5.02.
(e) In The Trustee acknowledges, and each Holder of a Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates by their acceptance of such Certificates agrees, that without the event that need for any further action on the part of the Certificate Insurer or the Trustee, to the extent the Certificate Insurer pays Insured Payments, directly or indirectly, on account of principal of or interest on any such Class of Certificates, the Certificate Insurer will be fully subrogated to the rights of the Holders of such Class to receive the related Reimbursement Amount pursuant to Section 5.02 and the Certificate Insurer shall also have the rights conferred upon the Certificate Insurer pursuant to Sections 4.06 and 5.02 of the Insurance Agreement, as if fully set forth herein. The Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificateholders, by acceptance of their Certificates assign their rights as Holders of such Class of Certificates to the extent of the Certificate Insurer’s interest with respect to amounts paid under the Certificate Insurance Policy. Each of the Depositor and the Trustee has received a certified copy agrees to such subrogation and further agrees to execute such instruments and to take such actions as, in the sole judgment of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply are necessary to evidence such subrogation and, subject to the priority of payment provisions of this Agreement, to perfect the rights of the Certificate Insurer to receive any moneys paid or payable in respect of the Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates under this Agreement or otherwise. Anything herein to the contrary notwithstanding, solely for purposes of determining the Certificate Insurer’s rights as subrogee for payments distributable pursuant to Section 5.02, any payment with respect to distributions to the provisions Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates that is made with funds received pursuant to the terms of the Certificate Insurance Policy to obtain shall not be considered payment by the Certificate Insurer of such voided Insured Payment, Class of Certificates from the Trust Fund and shall, at shall not result in the time it provides notice to distribution or the Certificate Insurer, notify, by mail to provision for the Certificateholders distribution in reduction of the affected Class Principal Amount of such Class of Certificates thator Current Interest thereon, in within the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy meaning of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.Article V.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or either of the institution of any action, of following as to which a Responsible Officer of the Trustee has actual knowledge: (A) the commencement of any proceeding by or against the Depositor commenced under the Bankruptcy Code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an “Insolvency Proceeding”) and (B) the making of any claim in connection with any Insolvency Proceeding seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "“Preference Claim"”) of any distribution made with respect to the Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates. Each CertificateholderHolder of a Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates, by its purchase of Certificatesits respective Class of Certificate, the Servicer and the Trustee hereby agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such any Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder Holder of a Class WF-3-1, Class WF-4-1 and Class WF-6-1 Certificates in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any an adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, shall surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationcancellation upon the termination of the Trust Fund pursuant to Article VII hereof.
Appears in 1 contract
The Certificate Insurance Policy. (a) Within two (2) days of Business Days after each Servicer Distribution Date, Remittance Date the Trustee shall determine with respect to the immediately following Distribution Date, Date the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) Remittance Date plus the amount of any transfers to amounts deposited into the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating pursuant to Section 6.12 and any Capitalized Interest Amount to be deposited pursuant to Section 6.13 for such Distribution Date pursuant to less the amounts described in clauses (i) through (ii) of Section 6.01 hereof6.05(b) or (c) for the related Distribution Date, excluding and not including the amount of any Insured Payment and prior which is required to be deposited in the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 Certificate Account for the related such Distribution Date. The amounts described above in the preceding sentence sentence, with respect to the each Distribution Date are the "Available Funds"" for such Distribution Date.
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete a Notice in the form of Exhibit A to the related Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Policy Business Day preceding such Distribution Date as a claim for an Insured Payment in an amount equal to such Available Funds Shortfall.
(c) The Trustee shall establish a separate Eligible Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Payments Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Payment Payments Account and distribute such amount only for purposes of payment to the Certificateholders of the Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount shall be transferred by the Trustee from the Certificate Insurance Payments Account to the Certificate Account on the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments made under the Certificate Insurance Policy to be made by checks or wire transfers separate from the checks or wire transfers used other amounts distributed pursuant to pay the Insured Distribution Amount with other funds available to make such paymentSection 6.05. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Payments Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Payments Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Payments Account on the first Policy Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Policy Business Day.
(d) The Trustee Remittance Report shall keep a complete and accurate record of indicate the amount of interest and principal paid in respect of any Certificate the Class A Certificates from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ace Securities Corp)
The Certificate Insurance Policy. (a) Within two (2) days of Not later than 3:00 p.m., New York time, on the third Business Day immediately preceding each Servicer Distribution Date, the Trustee Trust Administrator shall determine with respect the Available Funds for such Distribution Date. To the extent any Available Funds Shortfall will exist for any Distribution Date after giving effect to the immediately following Distribution Date, the amount distributions specified in Section 4.04(b) hereof (calculating such distributions without giving effect to any Insured Payment to be on deposit in the Certificate Account made on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall), the Trustee Trust Administrator shall complete a Notice notice in the form of Exhibit A attached to the Certificate Insurance Policy (the "Notice") and shall submit such notice Notice to the Certificate Insurer no later than 12:00 noon 10:00 a.m., New York City time time, on the second Business Day preceding such Distribution Date as Date. Such Notice may be delivered by electronic facsimile (in which case the original shall be sent by overnight courier). The Notice shall constitute a claim for an Insured Payment in pursuant to the Policy for an amount equal to such the Available Funds Shortfall. Upon receipt of Insured Payments on behalf of the Certificateholders, the Trust Administrator shall deposit such Insured Payments in the Policy Payments Account, and shall thereafter transfer such Insured Payments to the Certificate Account for distribution solely to the related Certificateholders in accordance with Section 4.04(b).
(cb) The Trustee Trust Administrator, on behalf of the Trust and as agent for the Trustee, shall establish a separate Eligible Account special purpose trust account for the benefit of the Holders of the Offered Certificates and the Certificate Insurer referred to herein as (the "Certificate Insurance Payment Policy Payments Account" ") over which the Trustee Trust Administrator shall have exclusive control and sole right of withdrawal. The Trustee Trust Administrator shall deposit upon receipt any amount paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for purposes of payment to the Certificateholders Holders of Offered Certificates of the Insured Distribution Amount Payment for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee Trustee, the Trust Administrator or the Trust FundTrust. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount Policy shall be transferred to the Certificate Account on in accordance with the related Distribution Date next succeeding paragraph and thereafter disbursed by the Trustee Trust Administrator to the Certificateholders Holders of the Offered Certificates in accordance with Section 6.054.04(b). It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Amount with any other funds available amounts distributed pursuant to make such paymentSection 4.04(b). However, the amount of any payment of principal of or of interest on the Offered Certificates to be paid from funds transferred from the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to related Holders of the Offered Certificates pursuant to Section 6.074.05. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Trust Administrator. On any Distribution Date with respect to which a claim has been made under the Policy, the amount of any funds received by the Trust Administrator as a result of such claim, to the extent required to pay amounts owed to Certificateholders on such Distribution Date, shall be withdrawn from the Policy Payments Account and deposited in the Certificate Account and applied by the Trust Administrator, together with the other funds to be deposited in the Certificate Account, directly to the amounts owed to Certificateholders on the related Certificates. Funds received by the Trust Administrator as a result of any claim under the Policy shall be deposited by the Trust Administrator in the Policy Payments Account and then transferred to the Certificate Account and used solely for payment to the related Holders of the related Certificates and may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee, the Trust Administrator or the Trust. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a Distribution Date shall be returned remitted to the Certificate Insurer Insurer, pursuant to the written instructions of the Certificate Insurer Insurer, by the end of such Business Day.
(dc) The Trustee Trust Administrator shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(ed) In the event that the Trustee has received The Trust Administrator shall receive, as attorney-in-fact of each Holder of a certified copy of an order of the appropriate court that Class A Certificate, any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify from the Certificate Insurer, shall comply Insurer and disburse the same to each Holder of a Class A Certificate in accordance with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were madethis Article IV.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Financial Asset Securities Corp)
The Certificate Insurance Policy. (ai) Within two (2) days of On each Servicer Distribution Date, Determination Date the Trustee shall determine with respect to the immediately following Distribution Payment Date, the amount (the "Available Funds") to be on deposit in the Certificate Account on such Distribution Payment Date as a result (excluding the amounts of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers payments made pursuant to the Certificate Account made from Insurance Policy, the Capitalized Interest Account and/or Trustee's Fee, the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding Servicing Fee and the amount of any Insured Payment Premium Amount) and prior equal to the application sum of the amounts described in clauses (a)(iSection 7.5(a) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds"such immediately following Payment Date.
(b) If (i) the Available Funds for such Payment Date are not sufficient to pay the Class A Interest Distribution Amount and/or (ii) following the application of all Available Funds, on any Distribution Date there is Overcollateralization Deficit would exist (either such event being an "Available Funds Shortfall"), the Trustee shall complete a Notice in the form of Exhibit A to the Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Business Day preceding such Distribution Payment Date as a claim for an Insured Payment a payment in an amount equal to such the aggregate Available Funds Shortfall.
(c) The Trustee shall establish a separate Eligible Account for the benefit Upon receipt of Holders of the Certificates and the Certificate Insurer referred payments made pursuant to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy from the Certificate Insurer on behalf of Owners, the Trustee shall deposit such payments in the Certificate Insurance Payment Account and shall distribute such amount only for purposes of payment to the Certificateholders of the Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costspayments, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policyproceeds thereof, to the extent needed to pay the Insured Distribution Amount shall be transferred to the Certificate Account on the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments 7.5 hereof to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Amount with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders Owners of the Class A Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Dayrelated Class.
(d) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate from moneys received under (i) receive payments made pursuant to the Certificate Insurance PolicyPolicy as attorney-in-fact of each Owner of the Class A Certificates receiving any Insured Payment from the Certificate Insurer and (ii) disburse such Insured Payment to the Owners of such Class A Certificates as set forth in Section 7.5 hereof. The Certificate Insurer shall have be entitled to receive the right related Reimbursement Amount pursuant to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice Section 7.5(b)(ix) hereof with respect to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any each Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify made by the Certificate Insurer, shall comply with . The Trustee hereby agrees on behalf of each Owner of Class A Certificates and the provisions Trust for the benefit of the Certificate Insurance Policy Insurer that it recognizes that to obtain payment by the extent the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment makes payments made pursuant to the Certificate Insurance Policy, a copy of which shall be made available either directly or indirectly (as by paying through the Trustee), to the Owners of such Class A Certificates, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish will be entitled to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which receive such payments were maderelated Reimbursement Amount.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Advanta Revolving Home Equity Loan Trust 1996-A)
The Certificate Insurance Policy. (a) Within two (2) days of On each Servicer Distribution Date, Determination Date the Trustee shall determine with respect to the immediately following Distribution Payment Date, the amount :
(a) The amounts to be on deposit in the Certificate Account on such Distribution each Payment Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to each Mortgage Loan Group (disregarding the Distribution Date are the "Available Funds".amounts of any net investment earnings and any Insured Payments with respect to
(b) If on the Trustee determines that a Deficiency Amount will exist with respect to any Distribution Date there is an Available Funds ShortfallPayment Date, the Trustee shall complete a Notice in the form of Exhibit A to the Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Business Day preceding such Distribution Payment Date as a claim for an Insured Payment Amount in an amount equal to such Available Funds ShortfallDeficiency Amount. Upon receipt of Insured Payments from the Certificate Insurer under the Certificate Insurance Policy, the Trustee shall deposit such Insured Payments in the Certificate Account.
(c) The Trustee shall establish a separate Eligible Account (i) receive Insured Payments as attorney-in-fact of each Owner of the Class A Certificates of the related Class receiving any Insured Payment from the Certificate Insurer and (ii) disburse such Insured Payment to the Owners of the related Class A Certificates as set forth in Section 7.05(c). The Certificate Insurer shall be entitled to receive the Reimbursement Amount, as applicable, pursuant to Sections 7.05(c)(xii) and (xiii) hereof with respect to each Insured Payment made by the Certificate Insurer. The Trustee hereby agrees on behalf of each Owner of Class A Certificates and the Trust for the benefit of Holders of the Certificates and the Certificate Insurer referred that it recognizes that to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under extent the Certificate Insurance Policy in Insurer makes Insured Payments, either directly or indirectly (as by paying through the Certificate Insurance Payment Account and distribute such amount only for purposes of payment to the Certificateholders of the Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance PolicyTrustee), to the extent needed to pay the Insured Distribution Amount shall be transferred to the Certificate Account on the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for Owners of such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Amount with other funds available to make such payment. HoweverClass A Certificates, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer will be entitled to receive the related Reimbursement Amount pursuant to the written instructions of the Certificate Insurer by the end of such Business DaySections 7.05(c)(xii) and (xiii) hereof.
(d) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that Insured Payments disbursed by the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions from proceeds of the Certificate Insurance Policy to obtain shall not be considered payment by the Trust Estate nor shall such payments discharge the obligation of the Trust Estate with respect to such Class A Certificates, and the Certificate Insurer shall become the owner of such voided unpaid amounts due from the Trust Estate in respect of the Class A Certificates. The Trustee hereby agrees on behalf of each Owner of a Class A Certificate for the benefit of the Certificate Insurer that it recognizes that to the extent the Certificate Insurer makes any Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, either directly or indirectly (as by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available paying through the Trustee), to the Class A Certificateholders, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall will be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action Class A Certificateholders with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shallInsured Payment, upon retirement of the Certificates, furnish shall be deemed to the Certificate Insurer extent of payments so made to be a notice of registered Class A Certificateholder and shall receive all future distributions until all such retirement, and, upon retirement of Insured Payments by the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.Certificate
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Advanta Mortgage Loan Trust 2000-1)
The Certificate Insurance Policy. (a) Within two (2) days If, on any Determination Date, the statement delivered to the Trustee pursuant to Section 4.01 indicates that there will be the payment of each Servicer an Insured Amount for the related Distribution Date, the Trustee shall determine with respect to complete the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date Notice for Payment (as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, defined and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete a Notice included in the form of Exhibit A to specified by the Certificate Insurance Policy and Policy). The Trustee shall submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Business Day preceding such Distribution Date as a claim for an Insured Payment Payment.
(b) Upon receipt of Insured Payments from the Certificate Insurer on behalf of Investor Certificateholders, the Trustee shall deposit such Insured Payments in an amount equal the Certificate Account and shall distribute such Insured Payments, or the proceeds thereof, in accordance with Section 5.01(a); provided that Insured Payments shall be applied and distributed solely to such Available Funds ShortfallHolders of the Investor Certificates and any Preference Amount shall be distributed solely to the Holders of the Investor Certificates.
(c) The Trustee shall establish (i) receive as attorney-in-fact of each Holder of Investor Certificates receiving any Insured Payment from the Certificate Insurer and (ii) disburse the same to the Holders of such Certificates as set forth in Section 5.01(a). Insured Payments disbursed by the Trustee from proceeds of a separate Eligible Account Certificate Insurance Policy shall not be considered payment by the Trust Fund with respect to such Certificates, and the Certificate Insurer shall be entitled to receive the related Reimbursement Amount pursuant to Section 5.01(a)(v). The Trustee hereby agrees on behalf of each Investor Certificateholder and the Trust Fund for the benefit of Holders of the Certificates and the Certificate Insurer referred that it recognizes that to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under extent the Certificate Insurance Policy in Insurer makes Insured Payments, either directly or indirectly (as by paying through the Certificate Insurance Payment Account and distribute such amount only for purposes of payment to the Certificateholders of the Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance PolicyTrustee), to the extent needed to pay the Insured Distribution Amount shall be transferred to Holders of such Certificates, the Certificate Account on Insurer will be entitled to receive the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Reimbursement Amount with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day5.01(a)(v).
(d) The Trustee shall keep a complete and accurate record Subject only to the priority of payment provisions of this Agreement, each of the amount of interest Transferor, the Servicer and principal paid in respect the Trustee acknowledges that, to the extent of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment made by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish is to be fully subrogated to the Certificate Insurer or its fiscal agentextent of such payment and any additional interest due on any late payment, if any, its records evidencing to the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer rights of the Trustee has actual knowledge, seeking Holders of the avoidance as a preferential transfer Investor Certificates to any moneys paid or payable in respect of the Investor Certificates under applicable bankruptcy, insolvency, receivership this Agreement or similar law (a "Preference Claim") of any distribution made with respect to the Certificatesotherwise. Each Certificateholder, by its purchase of Certificatesthe Transferor, the Servicer and the Trustee agree thatagrees to such subrogation and, further, agrees to execute such instruments and to take such actions as, in the sole judgment of the Certificate Insurer (so long Insurer, as no Certificate Insurer Default exists) may at any time during evidenced in writing to the continuation of any proceeding relating to a Preference Claim direct all matters relating to such Preference Claim, including, without limitation, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each CertificateholderTransferor, the Servicer and the Trustee hereby delegate and assign Trustee, are necessary to evidence such subrogation and, subject to the Certificate Insurerpriority of payment provisions of this Agreement, to the fullest extent permitted by law, perfect the rights of the Servicer, the Trustee and each Certificateholder Certificate Insurer to receive any moneys paid or payable in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Investor Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationunder this Agreement or otherwise.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (MLCC Mortgage Investors Inc)
The Certificate Insurance Policy. (a) Within two (2) days of Not later than 3:00 p.m., New York time, on the third Business Day immediately preceding each Servicer Distribution Date, the Trustee Trust Administrator shall determine with respect the Available Funds for such Distribution Date. To the extent any Available Funds Shortfall will exist for any Distribution Date after giving effect to the immediately following Distribution Date, the amount distributions specified in Section 4.04(b) hereof (calculating such distributions without giving effect to any Insured Payment to be on deposit in the Certificate Account made on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall), the Trustee Trust Administrator shall complete a Notice notice in the form of Exhibit A attached to the Certificate Insurance Policy (the "Notice") and shall submit such notice Notice to the Certificate Insurer no later than 12:00 noon 10:00 a.m., New York City time time, on the second Business Day preceding such Distribution Date as Date. Such Notice may be delivered by electronic facsimile (in which case the original shall be sent by overnight courier). The Notice shall constitute a claim for an Insured Payment in pursuant to the Policy for an amount equal to such the Available Funds Shortfall. Upon receipt of Insured Payments on behalf of the Certificateholders, the Trust Administrator shall deposit such Insured Payments in the Policy Payments Account, and shall thereafter transfer such Insured Payments to the Certificate Account for distribution solely to the related Certificateholders in accordance with Section 4.04(b).
(cb) The Trustee Trust Administrator, on behalf of the Trust and as agent for the Trustee, shall establish a separate Eligible Account special purpose trust account for the benefit of the Holders of the Offered Certificates and the Certificate Insurer referred to herein as (the "Certificate Insurance Payment Policy Payments Account" ") over which the Trustee Trust Administrator shall have exclusive control and sole right of withdrawal. The Trustee Trust Administrator shall deposit upon receipt any amount paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for purposes of payment to the Certificateholders Holders of Offered Certificates of the Insured Distribution Amount Payment for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Master Servicer, the Trustee Trustee, the Trust Administrator or the Trust FundTrust. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount Policy shall be transferred to the Certificate Account on in accordance with the related Distribution Date next succeeding paragraph and thereafter disbursed by the Trustee Trust Administrator to the Certificateholders Holders of the Offered Certificates in accordance with Section 6.054.04(b). It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Amount with any other funds available amounts distributed pursuant to make such paymentSection 4.04(b). However, the amount of any payment of principal of or of interest on the Offered Certificates to be paid from funds transferred from the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to related Holders of the Offered Certificates pursuant to Section 6.074.05. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Trust Administrator. On any Distribution Date with respect to which a claim has been made under the Policy, the amount of any funds received by the Trust Administrator as a result of such claim, to the extent required to pay amounts owed to Certificateholders on such Distribution Date, shall be withdrawn from the Policy Payments Account and deposited in the Certificate Account and applied by the Trust Administrator, together with the other funds to be deposited in the Certificate Account, directly to the amounts owed to Certificateholders on the related Certificates. Funds received by the Trust Administrator as a result of any claim under the Policy shall be deposited by the Trust Administrator in the Policy Payments Account and then transferred to the Certificate Account and used solely for payment to the Holders of the Certificates and may not be applied to satisfy any costs, expenses or liabilities of the Master Servicer, the Trustee, the Trust Administrator or the Trust. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a Distribution Date shall be returned remitted to the Certificate Insurer Insurer, pursuant to the written instructions of the Certificate Insurer Insurer, by the end of such Business Day.
(dc) The Trustee Trust Administrator shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(d) The Trust Administrator shall receive, as attorney-in-fact of each Holder of a Class A Certificate, any Insured Payment from the Certificate Insurer and disburse the same to each Holder of a Class A Certificate in accordance with the provisions of this Article IV. Insured Payments disbursed by the Trust Administrator from proceeds of the Policy shall not be considered payment by the Trust nor shall such payments discharge the obligation of the Trust with respect to such Offered Certificates, and the Certificate Insurer shall be subrogated to the rights of the Certificateholders to the extent of the payment and shall be entitled to receive the Reimbursement Amount pursuant to Section 4.04(b)(iv). By acceptance of a Certificate, each Holder of a Certificate agrees and recognizes that to the extent the Certificate Insurer makes Insured Payments, either directly or indirectly (as by paying through the Trustee), to the Class A Certificateholders, the Certificate Insurer will be entitled to receive the Reimbursement Amount pursuant to Section 4.04(b)(iv).
(e) In If the event that the Trustee has received Trust Administrator receives a certified copy of an order of the appropriate court (an "Order") that any Insured Payment prior distribution made on the Offered Certificates of principal or current interest has been voided in whole or in part as a preference payment Preference Payment under applicable bankruptcy bankruptcy, insolvency, receivership or similar law, the Trustee Trust Administrator shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer 84 of such voided Insured Payment, distribution and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders notify each Holder of the affected Certificates by mail (i) that, subject to the terms of the Policy, the Certificate Insurer will disburse the voided distribution directly to the receiver, conservator, debtor- in-possession or trustee in bankruptcy named in the event any Order following such Certificateholder's Insured Payment making timely delivery to the Trust Administrator of (a) a certificate of such Certificateholder that such Order has been entered and is so recoverednot subject to any stay and (b) an assignment duly executed and delivered by such Certificateholder, in such form as is reasonably required by the Certificate Insurer and provided to such Certificateholder by the Certificate Insurer, irrevocably assigning to the Certificate Insurer all rights and claims of such Certificateholder relating to or arising under the affected Certificates against the debtor that made such Preference Payment, or otherwise with respect to such preference payment, and (ii) that, if any such voided distribution payment is recovered from such Certificateholder pursuant to such Order, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a . A copy of which the Policy shall be made available to each affected Certificateholder through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if anyTrust Administrator, and the Trustee Trust Administrator shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which that have been made by the Trustee Trust Administrator and subsequently recovered from Certificateholders and the Certificateholders, and dates on which such payments were made.
(f) The Trustee Trust Administrator shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee Trust Administrator has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Offered Certificates. Each CertificateholderHolder of a Class A Certificate, by its purchase of Certificatessuch Certificate, the Servicer Master Servicer, the Trust Administrator and the Trustee agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas supersede as or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each CertificateholderHolder, the Servicer Master Servicer, the Trust Administrator and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Master Servicer, the Trustee Trustee, the Trust Administrator and each Certificateholder Holder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement It is understood and agreed that the intention of the Certificates, furnish to parties is that the Certificate Insurer a notice of shall not be entitled to reimbursement on any Distribution Date for amounts previously paid by it unless on such retirement, and, upon retirement Distribution Date the Class A Certificateholders shall also have received the full amount of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer Insured Distribution Amount for cancellationsuch Distribution Date.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (New Century Mort Sec Inc Home Equity Loan Trust Ser 1999 NCD)
The Certificate Insurance Policy. (a) Within two (2) days of By 12:00 noon New York City time on each Servicer Distribution Date, Determination Date the Trustee shall determine with respect to the immediately following Distribution Date, Payment Date the amount (after taking into account investment earnings) to be on deposit in the Certificate Account on such Distribution Payment Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers with respect to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Class A Certificates excluding any amounts payable under Section 6.01 hereof, 7.5(b)(iii) and excluding the an amount of any Insured Payment and prior equal to the application sum of Premium Amount and the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 Monthly Trustee Fee Amount for the related Distribution Payment Date. The amounts amount described above in the preceding sentence with respect to each Payment Date, after taking into account the portion of the Principal Distribution Amount to be actually distributed on such Payment Date are without regard to any Insured Payment to be made with respect to such Payment Date, is the "Available Funds.".
(b) If on the Insured Distribution Amount for any Distribution Payment Date there is exceeds the Available Funds for such Payment Date (such event being an "Available Funds Shortfall"), the Trustee shall complete a Notice in the form of Exhibit A attached to the Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon 5:00 p.m. New York City time on the second Business Day preceding such Distribution Determination Date as a claim for an Insured Payment in an amount equal to such Available Funds Shortfall. The Notice shall specify the amount of the Insured Payment and shall constitute a claim for an Insured Payment pursuant to the Certificate Insurance Policy.
(c) The Trustee shall establish a separate Eligible report to the Sponsor, the Certificate Insurer and the Servicer with respect to the amounts then held in each Account held by the Trustee and the identity of the investments included therein, as the Sponsor, the Certificate Insurer or the Servicer may from time to time request. Without limiting the generality of the foregoing, the Trustee shall, at the request of the Sponsor, the Certificate Insurer or the Servicer, transmit promptly to the Certificate Insurer, the Sponsor and the Servicer copies of all accountings of receipts in respect of the Mortgage Loans furnished to it by the Servicer.
(d) The Trustee shall (i) receive as attorney-in-fact of the Owners of the Class A Certificates any Insured Payment from the Certificate Insurer and (ii) disburse the same to such Owners as set forth in Section 7.5(b)(iv). Insured Payments disbursed by the Trustee from proceeds of the Certificate Insurance Policies shall not be considered payment by the Trust with respect to the Class A Certificates, and the Certificate Insurer shall become the owner of such unpaid amounts due from the Trust in respect of Insured Payments as the deemed assignee of such Owners, as hereinafter provided. The Trust and the Trustee hereby agree on behalf of each Owner of Class A Certificates for the benefit of Holders the Certificate Insurer that they recognize that to the extent the Certificate Insurer pays Insured Payments, either directly or indirectly (as by paying through the Trustee), to the Owners of the Class A Certificates, the Certificate Insurer will be entitled to receive the amount of any Class A Interest Carry-Forward Amount and Class A Principal Carry-Forward Amount and will be subrogated to the rights of the Owners of the Class A Certificates with respect to such Insured Payment, shall be deemed to the extent of the payments so made to be an Owner of such Class A Certificates and shall receive future distributions of the Class A Distribution Amount until all such Insured Payments by the Certificate Insurer have been fully reimbursed, as described in the following paragraph. To evidence such subrogation, the Trustee shall note the Certificate Insurer's rights as subrogee on the Register upon receipt from the Certificate Insurer of proof of the payment of any Insured Payment, after making the distribution on any such future Payment Date to Owners of the Class A Certificates other than to the Certificate Insurer. 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 Date for amounts previously paid by it unless on such Payment Date the Owners of the Class A Certificates shall also have received the full amount of the Class A Distribution Amount (exclusive of any Class A Interest Carry-Forward Amount and Class A Principal Carry Forward Amount, representing amounts previously paid to the Owners of the Class A Certificates as Insured Payments) for such Payment Date. The Certificate Insurer shall be entitled to receive the related Reimbursement Amount pursuant to Sections 7.5(b)(iii) hereof with respect to each Insured Payment made by the Certificate Insurer. The Trustee hereby agrees on behalf of each Owner of Class A Certificates and the Trust for the benefit of the Certificate Insurer referred that it recognizes that to herein the extent the Certificate Insurer makes Insured Payments, either directly or indirectly (as by paying through the "Trustee), to the Owners of such Class A Certificates, the Certificate Insurance Payment Account" over Insurer will be entitled to receive the related Reimbursement Amount pursuant to Sections 7.5(b)(iii).
(e) Each Owner of a Class A Certificate which pays any Preference Amounts theretofore received by such Owner on account of such Class A Certificate will be entitled to receive reimbursement for such amounts from the Trustee shall have exclusive control and sole right Certificate Insurer in accordance with the terms of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in Policy, but only after (i) delivering a copy to the Certificate Insurance Payment Account and distribute Insurer of a final, nonappealable order (a "Preference Order") of a court having competent jurisdiction under the United States Bankruptcy Code demanding payment of such amount only for purposes of payment to the Certificateholders bankruptcy court, (ii) irrevocably assigning such Owner's rights and claim with respect to such Preference Order to the Certificate Insurer in such form as is required by the Certificate Insurer, and (iii) appointing the Certificate Insurer as such Certificateholder's agent in respect of such claim or amount in such form as required by the Insured Distribution Amount Certificate Insurer. In no event, however, shall any Class A Certificateholder be entitled to reimbursement for any payment avoided under a Preference Order as to which the Certificate Insurer previously has made a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid payment under the Certificate Insurance Policy, nor is the Certificate Insurer obligated to make any payment in respect of any payment avoided under a Preference Order which 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 respect of such principal. The Trustee, for itself and on behalf of the Owners, agrees that the Certificate Insurer may at any time during the continuation of any proceeding relating to a Preference Order direct all matters relating to such Preference Order, including, without limitation, the direction of any appeal of any order relating to such Preference Order and the posting of any surety, supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated, to the extent needed to pay the of Insured Distribution Amount shall be transferred Payments, to the Certificate Account on rights of the related Distribution Date and disbursed by Sponsor, the Servicer, the Trustee to and each Owner in the Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Amount with other funds available to make such payment. However, the amount conduct of any payment such preference claim, including without limitation, all rights of principal any party to any adversarial proceeding or of interest on the Certificates action with respect to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided any court order issued in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of connection with any such Business Daypreference claim.
(df) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Equivantage Acceptance Corp)
The Certificate Insurance Policy. (a) Within two (2) days of On each Servicer Distribution Date, Determination Date the Trustee shall determine with respect to the immediately following Distribution Date, the amount Date whether a Shortfall Amount will exist with respect to be either Mortgage Loan Group on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, and, if so, the Trustee shall complete a Notice of Claim in the form of Exhibit A to the Certificate Insurance Policy and submit such notice Notice of Claim to the Certificate Insurer no later than 12:00 noon New York City time on the second Business Day preceding such Distribution Date as a claim for an the related Insured Payment Payment. Upon receipt of Insured Payments from the Certificate Insurer under the Certificate Insurance Policy, the Trustee shall deposit such Insured Payments in an amount equal the Policy Payments Account.
(b) The Trustee shall distribute all Insured Payments received, or the proceeds thereof, in accordance with Section 7.5(d) to such Available Funds Shortfallthe Owners of the Class A Certificates of the related Class.
(c) The Trustee shall establish a separate Eligible Account (i) receive Insured Payments as attorney-in-fact of each Owner of the Class A Certificates of the related Class receiving any Insured Payment from the Certificate Insurer and (ii) disburse such Insured Payment to the Owners of the related Class A Certificates as set forth in Section 7.5(d). The Certificate Insurer shall be entitled to receive the related Reimbursement Amount pursuant to Sections 7.5(c)(vi) and 7.5(c)(vii) hereof with respect to each Insured Payment made by the Certificate Insurer. The Trustee hereby agrees on behalf of each Owner of Class A Certificates and the Trust for the benefit of Holders of the Certificates and the Certificate Insurer referred that it recognizes that to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under extent the Certificate Insurance Policy in Insurer makes Insured Payments, either directly or indirectly (as by paying through the Certificate Insurance Payment Account and distribute such amount only for purposes of payment to the Certificateholders of the Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance PolicyTrustee), to the extent needed to pay the Insured Distribution Amount shall be transferred to the Certificate Account on the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for Owners of such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Amount with other funds available to make such payment. HoweverClass A Certificates, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer will be entitled to receive the related Reimbursement Amount pursuant to the written instructions of the Certificate Insurer by the end of such Business DaySections 7.5(c)(vi) and 7.5(c)(vii) hereof.
(d) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that Insured Payments disbursed by the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions from proceeds of the Certificate Insurance Policy to obtain shall not be considered payment by the Trust Fund nor shall such payments discharge the obligation of the Trust Fund with respect to the related Class A Certificates, and the Certificate Insurer shall become the owner of such unpaid amounts due from the Trust Fund in respect of the related Class A Certificates. The Trustee hereby agrees on behalf of each Holder of a related Class A Certificate for the benefit of the Certificate Insurer that it recognizes that to the extent the Certificate Insurer makes Insured Payments, either directly or indirectly (as by paying through the Trustee), to the Owners of any Class A Certificates, the Certificate Insurer will be subrogated to the rights of such Owners with respect to such Insured Payment, shall be deemed to the extent of payments so made to be a registered Owner of such Class A Certificates and shall receive all future distributions until all such Insured Payments by the Certificate Insurer, together with interest thereon at the interest rate borne by the related Class A Certificates, have been fully reimbursed. To evidence such subrogation, the Trustee shall, or shall cause the Registrar to, note the Certificate Insurer's rights as subrogee on the registration books maintained by the Trustee or the Registrar upon receipt from the Certificate Insurer of such voided proof of payment of any Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Accredited Home Lenders Inc)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer If, on the second Business Day before any Distribution Date, the Trustee determines that an Insured Amount is required to be made by the Certificate Insurer on such Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any such Insured Payment Amount and prior shall give written notice to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete Certificate Insurer by completing a Notice of Nonpayment in the form of Exhibit A to the Certificate Insurance Policy and submit submitting such notice to the Certificate Insurer no later than Notice of Nonpayment by 12:00 noon noon, New York City time on the such second Business Day preceding such Distribution Date as a claim for an Insured Payment Amount. The Trustee’s responsibility for delivering a Notice of Nonpayment to the Certificate Insurer, as provided in the preceding sentence, is limited to the availability, timeliness and accuracy of the information provided to it by the Master Servicer. In the event the Trustee receives a certified copy of an amount equal order of the appropriate court that any scheduled payment of principal or interest on a Guaranteed Certificate has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall promptly notify the Certificate Insurer in writing, as appropriate, and the fiscal agent, if any, and the Trustee shall make a claim on the Certificate Insurance Policy in accordance with the provisions thereof to obtain payment by the Certificate Insurer of such voided scheduled payment. In addition, the Trustee shall mail notice to all Holders of the Insured Certificates so affected that, in the event that any such Holder’s scheduled payment is so recovered, such Holder will be entitled to payment pursuant to the terms of the Certificate Insurance Policy, a copy of which shall be made available to such Available Funds ShortfallHolders by the Trustee. The Trustee shall furnish to the Certificate Insurer and the appropriate fiscal agent, if any, its records listing the payments on the affected Insured Certificates, if any, that have been made by the Trustee and subsequently recovered from the affected Holders, and the dates on which such payments were made by the Trustee.
(cb) The At the time of the execution hereof, and for the purposes hereof, the Trustee shall establish a separate Eligible the Policy Payments Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Policy Payments Account shall be an Eligible Account. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for the purposes of payment making payments to the Certificateholders Holders of the Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities Certificates in respect of the Servicer, Guaranteed Distributions (or other amounts payable pursuant to the Trustee or second paragraph of subsection (a) above on the Trust Fund. Amounts paid under Insured Certificates by the Certificate Insurer pursuant to the Certificate Insurance Policy, to ) for which the extent needed to pay the Insured Distribution Amount related claim was made under such Certificate Insurance Policy. Such amounts shall be transferred to the Certificate Account on the related Distribution Date and disbursed allocated by the Trustee to Holders of Insured Certificates entitled to such payments in the Certificateholders in accordance same manner as principal and interest distributions are to be allocated with respect to such Certificates pursuant to Section 6.055.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay make regular payments hereunder with funds withdrawn from the Insured Distribution Amount with other funds available to make such paymentCertificate Account. However, the amount of any payment of principal or of interest payments made on the Insured Certificates to be paid from funds transferred from in the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph subsection (de) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Trustee.
(c) Any funds received from the Certificate Insurer for deposit into the Policy Payments Account pursuant to the Certificate Insurance Policy in respect of a Distribution Date or otherwise as a result of any claim under such Certificate Insurance Policy shall be applied by the Trustee directly to the payment in full (i) of the Insured Amounts due on such Distribution Date on the Insured Certificates or (ii) of other amounts to which payments under such Certificate Insurance Policy are to be applied. Funds received by the Trustee as a result of any claim under the Certificate Insurance Policy shall be used solely for payment to the Holders of the related Insured Certificates and may not be applied for any other purpose, including, without limitation, satisfaction of any costs, expenses or liabilities of the Trustee or the Trust Fund. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a after each Distribution Date (other than the final Distribution Date to the extent of funds remaining in the Policy Payments Account required to be paid to Holders of the Insured Certificates) shall be returned remitted promptly to the Certificate Insurer pursuant to the written instructions instruction of the Certificate Insurer by the end of such Business DayInsurer.
(d) The Trustee shall keep a complete and accurate record records in respect of (i) all funds remitted to the amount Trustee by the Certificate Insurer and deposited into the Policy Payments Account and (ii) the allocation of such funds to (A) payments of interest on and principal paid in respect of any Certificate from moneys received under Insured Certificates (B) Applied Loss Amounts allocated to the Certificate Insurance PolicyInsured Certificates and (C) payments in respect of Preference Amounts. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one three Business Day's Days’ prior notice to the Trustee. Any Insured Amounts disbursed by the Trustee from proceeds of the Certificate Insurance Policy shall be considered payment by the Certificate Insurer and not by the Trust Fund with respect to the Insured Certificates and the Certificate Insurer will be entitled to receive the related Reimbursement Amount pursuant to Section 5.02(b)(iv) or Section 5.02(c)(iii), as applicable.
(e) In The Trustee acknowledges, and each Holder of a Guaranteed Certificate by their acceptance of such Certificate agree, that, without the event that need for any further action on the Trustee has received a certified copy of an order part of the appropriate court that Certificate Insurer or the Trustee, to the extent the Certificate Insurer pays Insured Amounts or Preference Amounts, directly or indirectly, on account of principal of or interest on any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy lawsuch Class of Certificates, the Trustee shall so notify Certificate Insurer will be fully subrogated to the rights of the Holders of such Class to receive the related Reimbursement Amount pursuant to Section 5.02(b)(iv) or Section 5.02(c)(iii), as applicable. The Holders of each Guaranteed Certificate, by acceptance of their respective Classes of Certificates assign their rights as Holders of such Class of Certificates to the extent of the Certificate Insurer’s interest with respect to amounts paid under the Certificate Insurance Policy. Each of the Depositor and Trustee agrees to such subrogation and, shall comply further agrees to execute such instruments and to take such actions as, in the sole judgment of the Certificate Insurer are necessary to evidence such subrogation and, subject to the priority of payment provisions of this Agreement, to perfect the rights of the Certificate Insurer to receive any moneys paid or payable in respect of the Insured Certificates under this Agreement or otherwise. Anything herein to the contrary notwithstanding, solely for purposes of determining the Certificate Insurer’s rights as subrogee for payments distributable pursuant to Section 5.02, any payment with respect to distributions to the provisions Insured Certificates that is made with funds received pursuant to the terms of the Certificate Insurance Policy to obtain shall not be considered payment by the Certificate Insurer of such voided Insured Payment, Class of Certificates from the Trust Fund and shall, at shall not result in the time it provides notice to distribution or the Certificate Insurer, notify, by mail to provision for the Certificateholders distribution in reduction of the affected Class Principal Amount of such Class of Certificates thator Current Interest thereon, in within the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy meaning of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.Article V.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or either of the institution of any action, of following as to which a Responsible Officer of the Trustee has actual knowledge: (A) the commencement of any proceeding by or against the Depositor commenced under the Bankruptcy Code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an “Insolvency Proceeding”) and (B) the making of any claim in connection with any Insolvency Proceeding seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "“Preference Claim"”) of any distribution made with respect to the Insured Certificates. Each CertificateholderHolder of a Guaranteed Certificate, by its purchase of Certificatesits respective Class of Certificate, the Servicer and the Trustee hereby agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such any Preference Claim and (ii) the posting of any surety, supersedas supersedes or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder Holder of a Guaranteed Certificate in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any an adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, shall surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationcancellation upon the termination of the Trust Fund pursuant to Article VII hereof.
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The Certificate Insurance Policy. (a) Within two (2) days of each Servicer Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete a Notice in the form of Exhibit A to the Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Business Day preceding such Distribution Date as a claim for an Insured Payment in an amount equal to such Available Funds Shortfall.
(c) The Trustee shall establish a separate Eligible Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Payment Account and distribute such amount only for purposes of payment to the Certificateholders of the Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount shall be transferred to the Certificate Account on the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Amount with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(d) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Prudential Securities Secured Financing Corp)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer If, on the second Business Day before any Distribution Date, the Trustee determines that an Insured Payment is required to be made by the Certificate Insurer on such Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any such Insured Payment and prior shall give written notice to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete Certificate Insurer by completing a Notice of Nonpayment in the form of Exhibit A to the Certificate Insurance Policy and submit submitting such notice to the Certificate Insurer no later than Notice of Nonpayment by 12:00 noon noon, New York City time on the such second Business Day preceding such Distribution Date as a claim for an Insured Payment Payment. The Trustee’s responsibility for delivering a Notice of Nonpayment to the Certificate Insurer, as provided in the preceding sentence, is limited to the availability, timeliness and accuracy of the information provided to it by the Master Servicer.
(b) In the event the Trustee receives a certified copy of an amount equal order of the appropriate court that any scheduled payment of principal or interest on a Class 2-A5 Certificate has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall promptly notify the Certificate Insurer in writing and the fiscal agent, if any, and the Trustee shall, on behalf of the Trust and the Class 2-A5 Certificateholders, make a claim on the Certificate Insurance Policy in accordance with the provisions thereof to obtain payment by the Certificate Insurer of such voided scheduled payment. In addition, the Trustee shall mail notice to all Holders of the Class 2-A5 Certificates so affected that, in the event that any such Holder’s scheduled payment is so recovered, such Holder will be entitled to payment pursuant to the terms of the Certificate Insurance Policy, a copy of which shall be made available to such Available Funds ShortfallHolders by the Trustee. The Trustee shall furnish to the Certificate Insurer and the appropriate fiscal agent, if any, its records listing the payments on the affected Class 2-A5 Certificates, if any, that have been made by the Trustee and subsequently recovered from the affected Holders, and the dates on which such payments were made by the Trustee.
(c) The At the time of the execution hereof, and for the purposes hereof, the Trustee shall establish a separate Eligible the Policy Payments Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Policy Payments Account shall be an Eligible Account. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for the purposes of payment making payments to Holders of the Class 2-A5 Certificates in respect of the Guaranteed Distributions (or other amounts payable pursuant to the Certificateholders second paragraph of subsection (a) above on such Class 2-A5 Certificates by the Insured Distribution Amount Certificate Insurer pursuant to the Certificate Insurance Policy) for which a the related claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount . Such amounts shall be transferred to the Certificate Account on the related Distribution Date and disbursed allocated by the Trustee to Holders of Class 2-A5 Certificates entitled to such payments in the Certificateholders in accordance same manner as principal and interest distributions are to be allocated with respect to such Certificates pursuant to Section 6.055.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay make regular payments hereunder with funds withdrawn from the Insured Distribution Amount with other funds available to make such paymentCertificate Account. However, the amount of any payment of principal or of interest payments made on the Class 2-A5 Certificates to be paid from funds transferred from in the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph subsection (de) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Trustee.
(d) Any funds received from the Certificate Insurer for deposit into the Policy Payments Account pursuant to this Agreement and the Certificate Insurance Policy in respect of a Distribution Date or otherwise as a result of any claim under such Certificate Insurance Policy shall be applied by the Trustee directly to the payment in full (i) of the Insured Payments due on such Distribution Date on the Class 2-A5 Certificates, or (ii) of other amounts to which payments under the Certificate Insurance Policy are to be applied. Funds received by the Trustee as a result of any claim under the Certificate Insurance Policy shall be used solely for payment to the Holders of the Class 2-A5 Certificates and may not be applied for any other purpose, including, without limitation, satisfaction of any costs, expenses or liabilities of the Trust, the Trustee or the Trust Fund. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a after each Distribution Date (other than the final Distribution Date to the extent of funds remaining in the Policy Payments Account required to be paid to Holders of the Class 2-A5 Certificates) shall be returned remitted promptly to the Certificate Insurer pursuant to the written instructions instruction of the Certificate Insurer by the end of such Business DayInsurer.
(de) The Trustee shall keep a complete and accurate record records in respect of (i) all funds remitted to the amount Trustee by the Certificate Insurer and deposited into the Policy Payments Account and (ii) the allocation of such funds to (A) payments of interest on and principal paid in respect of any Certificate from moneys received under Class 2-A5 Certificates, (B) Realized Losses allocated to the Certificate Insurance PolicyClass 2-A5 Certificates, and (C) payments in respect of Preference Amounts. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one three Business Day's Days’ prior notice to the Trustee.
(e) In the event that . Any Insured Payments disbursed by the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions from proceeds of the Certificate Insurance Policy to obtain shall be considered payment by the Certificate Insurer of such voided Insured Paymentand not by the Trust Fund with respect to the Class 2-A5 Certificates, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder Insurer will be entitled to payment receive unreimbursed Insured Payments and the related Reimbursement Amount pursuant to Section 5.02(a)(viii) and (x), respectively.
(f) The Trustee acknowledges, and each Holder of a Class 2-A5 Certificate by their acceptance of such Certificates agrees, that without the Certificate Insurance Policy, a copy need for any further action on the part of which shall be made available through the Trustee, the Certificate Insurer or the Trustee, to the extent the Certificate Insurer's fiscal agentInsurer pays Insured Payments, if anydirectly or indirectly, on account of principal of or interest on any such Class of Certificates, the Certificate Insurer will be fully subrogated to the rights of the Holders of such Class to receive unreimbursed Insured Payments and the related Reimbursement Amount pursuant to Section 5.02(a)(viii) and (x), respectively, and the Trustee Certificate Insurer shall furnish to also have the rights conferred upon the Certificate Insurer or its fiscal agentpursuant to Sections 4.06 and 5.02 of the Insurance Agreement, as if anyfully set forth herein. The Class 2-A5 Certificateholders, its records evidencing by acceptance of their Certificates assign their rights as Holders of such Class of Certificates to the payments which have been made by extent of the Certificate Insurer’s interest with respect to amounts paid under the Certificate Insurance Policy. Each of the Depositor and the Trustee agrees to such subrogation and subsequently recovered further agrees to execute such instruments and to take such actions as, in the sole judgment of the Certificate Insurer, are necessary to evidence such subrogation and, subject to the priority of payment provisions of this Agreement, to perfect the rights of the Certificate Insurer to receive any moneys paid or payable in respect of the Class 2-A5 Certificates under this Agreement or otherwise. Anything herein to the contrary notwithstanding, solely for purposes of determining the Certificate Insurer’s rights as subrogee for payments distributable pursuant to Section 5.02, any payment with respect to distributions to the Class 2-A5 Certificates that is made with funds received pursuant to the terms of the Certificate Insurance Policy shall not be considered payment of such Class of Certificates from the CertificateholdersTrust Fund and shall not result in the distribution or the provision for the distribution in reduction of the Class Principal Amount of such Class of Certificates or Accrued Certificate Interest thereon, and dates on which such payments were made.within the meaning of Article V.
(fg) The Trustee shall promptly notify the Certificate Insurer of any proceeding or either of the institution of any action, of following as to which a Responsible Officer of the Trustee has actual knowledge: (A) the commencement of any proceeding by or against the Depositor commenced under the Bankruptcy Code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an “Insolvency Proceeding”) and (B) the making of any claim in connection with any Insolvency Proceeding seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "“Preference Claim"”) of any distribution made with respect to the Class 2-A5 Certificates. Each CertificateholderHolder of a Class 2-A5 Certificate, by its purchase of Certificatesits respective Class of Certificate, the Servicer and the Trustee hereby agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such any Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder Holder of a Class 2-A5 Certificate in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any an adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(gh) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, shall surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationcancellation upon the termination of the Trust Fund pursuant to Article VII hereof.
Appears in 1 contract
The Certificate Insurance Policy. (a) Within Not later than two (2) days of each Servicer Distribution Business Days prior to the Remittance Date, the Trustee Trustee, based on the information provided to it by the Master Servicer pursuant to Section 6.5 hereof, shall determine with respect to the immediately following Distribution Date, Remittance Date the amount to be on deposit in the Certificate Account on such Distribution Date as a result of reduced by (x) the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application sum of the amounts described in clauses (a)(ii) through and (a)(iiiii) of Section 6.05 6.5(a) and the amounts described in clauses (i) and (ii) of Section 6.5(b) for the related Distribution Remittance Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds", and further not including (y) any Insured Payment.
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete a Notice in the form of Exhibit A to the Certificate Insurance Policy and submit such notice to the Certificate Insurer no Not later than 12:00 noon New York City time on the second Business Day preceding each Remittance Date, the Trustee shall, if the Trustee, based solely on information provided by the Master Servicer, determines that the Available Amount for the related Remittance Date is less than the sum of the Class A-1 Interest Distribution Amount, Class A-2 Interest Distribution Amount, Class A-3 Interest Distribution Amount, Class A-4 Interest Distribution Amount and Class A-5 Interest Distribution Amount and any Subordination Deficit for such Distribution Date Remittance Date, complete a Notice in the form of Exhibit A to the Class A Certificate Insurance Policy, and submit such notice to the Certificate Insurer and such notice shall serve as a claim for an Insured Payment in an amount equal to the Insured Payment due with respect to the Class A Certificates for and on such Available Funds ShortfallRemittance Date. The Insured Payment shall be deposited directly into the Certificate Account in accordance with the Notice and the Certificate Insurance Policy.
(c) The Trustee shall establish a separate Eligible Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Payment Account and distribute such amount only for purposes of payment to the Certificateholders of the Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount shall be transferred to the Certificate Account on the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Amount with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(d) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(ed) In the event that the Trustee has received a certified copy of an order of the appropriate court that any amount distributed on the Class A Certificates, including any amounts represented by an Insured Payment Payment, has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Paymentamount distributed, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment amount distributed is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(fe) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Master Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i1) the direction of any appeal of any order relating to such Preference Claim and (ii2) the posting of any surety, supersedas supersedes or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Master Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Master Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Asset Backed Securities Inc)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer If, on the second Business Day before any Distribution Date, the Trustee shall determine with respect Securities Administrator determines that an Insured Payment is required to be made by the immediately following Certificate Insurer on such Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding Securities Administrator shall determine the amount of any such Insured Payment and prior shall give written notice to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete Certificate Insurer by completing a Notice of Nonpayment in the form of Exhibit A to the Certificate Insurance Policy and submit submitting such notice to the Certificate Insurer no later than Notice of Nonpayment by 12:00 noon noon, New York City time on the such second Business Day preceding such Distribution Date as a claim for an Insured Payment Payment. The Securities Administrator’s responsibility for delivering a Notice of Nonpayment to the Certificate Insurer, as provided in the preceding sentence, is limited to the availability, timeliness and accuracy of the information provided to it by the Master Servicer. In the event the Securities Administrator receives a certified copy of an amount equal order of the appropriate court that any scheduled payment of principal or interest on a Class A3B or Class A4B Certificate has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Securities Administrator shall promptly notify the Certificate Insurer in writing, as appropriate, and the fiscal agent, if any, and the Securities Administrator shall, on behalf of the Trustee and the Class A3B and Class A4B Certificateholders, make a claim on the Certificate Insurance Policy in accordance with the provisions thereof to obtain payment by the Certificate Insurer of such voided scheduled payment. In addition, the Securities Administrator shall mail notice to all Holders of the Class A3B or Class A4B Certificates, as applicable, so affected that, in the event that any such Holder’s scheduled payment is so recovered, such Holder will be entitled to payment pursuant to the terms of the Certificate Insurance Policy, a copy of which shall be made available to such Available Funds ShortfallHolders by the Securities Administrator. The Securities Administrator shall furnish to the Certificate Insurer and the appropriate fiscal agent, if any, its records listing the payments on the affected Class A3B or Class A4B Certificates, if any, that have been made by the Securities Administrator and subsequently recovered from the affected Holders, and the dates on which such payments were made by the Securities Administrator.
(cb) The Trustee At the time of the execution hereof, and for the purposes hereof, the Securities Administrator shall establish a separate Eligible the Policy Payments Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee Securities Administrator shall have exclusive control and sole right of withdrawal. The Trustee Policy Payments Account shall be an Eligible Account. The Securities Administrator shall deposit upon receipt any amount paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for the purposes of payment making payments to Holders of the Class A3B or Class A4B Certificates, as applicable, in respect of the Guaranteed Distributions (or other amounts payable pursuant to the Certificateholders second paragraph of subsection (a) above on any such Class of Certificates by the Insured Distribution Amount Certificate Insurer pursuant to the Certificate Insurance Policy) for which a the related claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount . Such amounts shall be transferred to the Certificate Account on the related Distribution Date and disbursed allocated by the Trustee Securities Administrator to Holders of Class A3B or Class A4B Certificates entitled to such payments in the Certificateholders in accordance same manner as principal and interest distributions are to be allocated with respect to such Certificates pursuant to Section 6.055.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay make regular payments hereunder with funds withdrawn from the Insured Distribution Amount with other funds available to make such paymentCertificate Account. However, the amount of any payment of principal or of interest payments made on the Class A3B or Class A4B Certificates to be paid from funds transferred from in the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph subsection (de) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Securities Administrator.
(c) Any funds received from the Certificate Insurer for deposit into the Policy Payments Account pursuant to the Certificate Insurance Policy in respect of a Distribution Date or otherwise as a result of any claim under such Certificate Insurance Policy shall be applied by the Securities Administrator directly to the payment in full (i) of the Insured Payments due on such Distribution Date on the Class A3B or Class A4B Certificates, as applicable, or (ii) of other amounts to which payments under the Certificate Insurance Policy are to be applied. Funds received by the Securities Administrator as a result of any claim under the Certificate Insurance Policy shall be used solely for payment to the Holders of the Class A3B or Class A4B Certificates, as applicable, and may not be applied for any other purpose, including, without limitation, satisfaction of any costs, expenses or liabilities of the Trustee, the Securities Administrator or the Trust Fund. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a after each Distribution Date (other than the final Distribution Date to the extent of funds remaining in the Policy Payments Account required to be paid to Holders of the Class A3B or Class A4B Certificates, as applicable) shall be returned remitted promptly to the Certificate Insurer pursuant to the written instructions instruction of the Certificate Insurer by the end of such Business DayInsurer.
(d) The Trustee Securities Administrator shall keep a complete and accurate record records in respect of (i) all funds remitted to the amount Securities Administrator by the Certificate Insurer and deposited into the Policy Payments Account and (ii) the allocation of such funds to (A) payments of interest on and principal paid in respect of any Certificate from moneys received under Class A3B or Class A4B Certificates, as applicable (B) Applied Loss Amounts allocated to the Certificate Insurance PolicyClass A3B or Class A4B Certificates, as applicable and (C) payments in respect of Preference Amounts. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one three Business Day's Days’ prior notice to the TrusteeSecurities Administrator. Any Insured Payments disbursed by the Securities Administrator from proceeds of the Certificate Insurance Policy shall be considered payment by the Certificate Insurer and not by the Trust Fund with respect to the Class A3B or Class A4B Certificates, as applicable, and the Certificate Insurer will be entitled to receive the related Reimbursement Amount pursuant to Section 5.02(b)(iii).
(e) In The Securities Administrator acknowledges, and each Holder of a Class A3B or Class A4B Certificate by their acceptance of such Certificates agree, that, without the event that need for any further action on the Trustee has received a certified copy of an order part of the appropriate court that Certificate Insurer or the Securities Administrator, to the extent the Certificate Insurer pays Insured Payments, directly or indirectly, on account of principal of or interest on any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy lawsuch Class of Certificates, the Trustee Certificate Insurer will be fully subrogated to the rights of the Holders of such Class to receive the related Reimbursement Amount pursuant to Section 5.02(b)(iii) and the Certificate Insurer shall so notify also have the rights conferred to the Certificate Insurer pursuant to Sections 4.06 and 5.02 of the Insurance Agreement, as if fully set forth herein. The Class A3B or Class A4B Certificateholders, by acceptance of their respective Classes of Certificates assign their rights as Holders of such Class of Certificates to the extent of the Certificate Insurer’s interest with respect to amounts paid under the Certificate Insurance Policy. Each of the Depositor, shall comply the Securities Administrator and the Trustee agrees to such subrogation and, further agrees to execute such instruments and to take such actions as, in the sole judgment of the Certificate Insurer are necessary to evidence such subrogation and, subject to the priority of payment provisions of this Agreement, to perfect the rights of the Certificate Insurer to receive any moneys paid or payable in respect of the Class A3B or Class A4B Certificates, as applicable, under this Agreement or otherwise. Anything herein to the contrary notwithstanding, solely for purposes of determining the Certificate Insurer’s rights as subrogee for payments distributable pursuant to Section 5.02, any payment with respect to distributions to the provisions Class A3B or Class A4B Certificates, as applicable, that is made with funds received pursuant to the terms of the Certificate Insurance Policy to obtain shall not be considered payment by the Certificate Insurer of such voided Insured Payment, Class of Certificates from the Trust Fund and shall, at shall not result in the time it provides notice to distribution or the Certificate Insurer, notify, by mail to provision for the Certificateholders distribution in reduction of the affected Class Principal Amount of such Class of Certificates thator Current Interest thereon, in within the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy meaning of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.Article V.
(f) The Trustee Securities Administrator shall promptly notify the Certificate Insurer of any proceeding or either of the institution of any action, of following as to which a Responsible Officer of the Trustee has actual knowledge: (A) the commencement of any proceeding by or against the Depositor commenced under the Bankruptcy Code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an “Insolvency Proceeding”) and (B) the making of any claim in connection with any Insolvency Proceeding seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "“Preference Claim"”) of any distribution made with respect to the Class A3B or Class A4B Certificates, as applicable. Each CertificateholderHolder of a Class A3B or Class A4B Certificate, by its purchase of Certificatesits respective Class of Certificate, the Servicer Trustee and the Trustee Securities Administrator hereby agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such any Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder Holder of a Class A3B or Class A4B Certificate in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any an adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, shall surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationcancellation upon the termination of the Trust Fund pursuant to Article VII hereof.
Appears in 1 contract
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer By 12:00 noon New York City time on the second Business Day preceding the related Distribution Date, Date the Trustee shall determine with respect to the immediately following Distribution Date, Date the amount (excluding an amount equal to the Premium Amount for the related Distribution Date) to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are being the "Available Funds"" for such Distribution Date.
(b) If on the Insured Distribution Amount for any Distribution Date there is (calculated, as to the Subordination Deficit component thereof, after taking into account the distribution of the Principal Distribution Amount (other than any portion of any Insured Payment included therein)) exceeds the Available Funds for such Distribution Date (such event being an "Available Funds Shortfall"), the Trustee shall complete a Notice in the form of Exhibit A attached to the Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon p.m. New York City time on the second Business Day preceding such the related Distribution Date as a claim for an Insured Payment in an amount equal to such Available Funds Shortfall. The Notice shall specify the amount of the Insured Payment and shall constitute a claim for an Insured Payment pursuant to the Certificate Insurance Policy.
(c) The Trustee shall establish a separate Eligible report to the Unaffiliated Seller, the Certificate Insurer and the Servicer with respect to the amounts then held in each Account held by the Trustee and the identity of the investments included therein, as the Unaffiliated Seller, the Certificate Insurer or the Servicer may from time to time request. Without limiting the generality of the foregoing, the Trustee shall, at the request of the Unaffiliated Seller, the Certificate Insurer or the Servicer, transmit promptly to the Certificate Insurer, the Unaffiliated Seller and the Servicer copies of all accountings of receipts in respect of the Mortgage Loans furnished to it by the Servicer.
(d) The Trustee shall (i) receive as attorney-in-fact of the Owners of the Class A Certificates any Insured Payment from the Certificate Insurer and (ii) disburse the same to such Owners as set forth in Section 7.5(b)(i). Insured Payments disbursed by the Trustee from proceeds of the Certificate Insurance Policy shall not be considered payment by the Trust with respect to the Class A Certificates, and the Certificate Insurer shall become the owner of such unpaid amounts due from the Trust in respect of Insured Payments as the deemed assignee of such Owners, as hereinafter provided. The Certificate Insurer shall be entitled to receive the related Reimbursement Amount pursuant to Sections 7.5(b)(ii) hereof with respect to each Insured Payment made by the Certificate Insurer. The Trustee hereby agrees on behalf of each Owner of Class A Certificates and the Trust for the benefit of Holders of the Certificates and the Certificate Insurer referred that it recognizes that to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under extent the Certificate Insurance Policy in Insurer makes Insured Payments, either directly or indirectly (as by paying through the Certificate Insurance Payment Account and distribute such amount only for purposes of payment to the Certificateholders of the Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance PolicyTrustee), to the extent needed to pay the Insured Distribution Amount shall be transferred to the Certificate Account on the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for Owners of such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Amount with other funds available to make such payment. HoweverClass A Certificates, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer will be entitled to receive the related Reimbursement Amount pursuant to the written instructions of the Certificate Insurer by the end of such Business DaySections 7.5(b)(ii).
(de) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Prudential Securities Secured Financing Corp)
The Certificate Insurance Policy. (a) Within Not later than two (2) days of each Servicer Distribution Business Days prior to the Remittance Date, the Trustee Trustee, based on the information provided to it by the Master Servicer pursuant to Section 6.5 hereof, shall determine with respect to the immediately following Distribution Date, Remittance Date the amount to be on deposit in the Certificate Account on such Distribution Date as a result of reduced by (x) the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application sum of the amounts described in clauses (a)(ii) through and (a)(iiiii) of Section 6.05 6.5(a) and the amounts described in clauses (i) and (ii) of Section 6.5(b) for the related Distribution Remittance Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds", and further not including (y) any Insured Payment.
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete a Notice in the form of Exhibit A to the Certificate Insurance Policy and submit such notice to the Certificate Insurer no Not later than 12:00 noon New York City time on the second Business Day preceding each Remittance Date, the Trustee shall, if the Trustee, based solely on information provided by the Master Servicer, determines that the Available Amount for the related Remittance Date is less than the sum of the Class A-1 Interest Distribution Amount, Class A-2 Interest Distribution Amount, Class A-3 Interest Distribution Amount, Class A-4 Interest Distribution Amount and Class A-5 Interest Distribution Amount and any Subordination Deficit for such Distribution Date Remittance Date, complete a Notice in the form of Exhibit A to the Class A Certificate Insurance Policy, and submit such notice to the Certificate Insurer and such notice shall serve as a claim for an Insured Payment in an amount equal to the Insured Payment due with respect to the Class A Certificates for and on such Available Funds ShortfallRemittance Date. The Insured Payment shall be deposited directly into the Certificate Account in accordance with the Notice and the Certificate Insurance Policy.
(c) The Trustee shall establish a separate Eligible Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Payment Account and distribute such amount only for purposes of payment to the Certificateholders of the Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount shall be transferred to the Certificate Account on the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Amount with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(d) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's ’s prior notice to the Trustee.
(ed) In the event that the Trustee has received a certified copy of an order of the appropriate court that any amount distributed on the Class A Certificates, including any amounts represented by an Insured Payment Payment, has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Paymentamount distributed, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment ’s amount distributed is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's ’s fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(fe) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "“Preference Claim"”) of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Master Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i1) the direction of any appeal of any order relating to such Preference Claim and (ii2) the posting of any surety, supersedas supersedes or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Master Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Master Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.]
Appears in 1 contract
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer If, on the second Business Day before any Distribution Date, the Trustee shall determine with respect Securities Administrator determines that an Insured Payment is required to be made by the immediately following Certificate Insurer on such Distribution Date, the amount to be on deposit in Securities Administrator shall notify the Certificate Account Trustee on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, Business Day and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding shall determine the amount of any such Insured Payment and prior to the application shall, on behalf of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds ShortfallTrustee, the Trustee shall complete prepare a Notice of Nonpayment in the form of Exhibit A to the Certificate Insurance Policy and submit furnish such notice Notice of Nonpayment to the Certificate Insurer no later than 12:00 noon Trustee by 10:00 a.m. New York City time on such second Business Day. The Trustee shall execute such Notice of Nonpayment and submit such Notice of Nonpayment to the Certificate Insurer by 12:00 noon, New York City time on such second Business Day preceding such Distribution Date as a claim for an Insured Payment Payment. The Trustee’s responsibility for delivering a Notice of Nonpayment to the Certificate Insurer, as provided in the preceding sentence, is limited to the availability, timeliness and accuracy of the Notice of Nonpayment and information therein provided to it by the Securities Administrator in sole reliance upon the availability, timeliness and accuracy of information required to be provided hereunder by the Master Servicer to the Securities Administrator. In the event the Trustee receives a certified copy of an amount equal order of the appropriate court that any scheduled payment of principal or interest on a Class A2 Certificate has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall promptly notify the Certificate Insurer in writing, as appropriate, and the fiscal agent, if any, and the Trustee shall make a claim on the Certificate Insurance Policy in accordance with the provisions thereof to obtain payment by the Certificate Insurer of such voided scheduled payment. In addition, the Trustee shall mail notice to all Holders of the Class A2 Certificates so affected that, in the event that any such Holder’s scheduled payment is so recovered, such Holder will be entitled to payment pursuant to the terms of the Certificate Insurance Policy, a copy of which shall be made available to such Available Funds ShortfallHolders by the Trustee. The Trustee shall furnish to the Certificate Insurer and the appropriate fiscal agent, if any, its records listing the payments on the affected Class A2 Certificates, if any, that have been made by the Trustee and subsequently recovered from the affected Holders, and the dates on which such payments were made by the Trustee.
(cb) The At the time of the execution hereof, and for the purposes hereof, the Trustee shall establish a separate Eligible Account special purpose trust account in the name of the Trustee for the benefit of Holders of the Class A2 Certificates and (the Certificate Insurer referred to herein as the "Certificate Insurance Payment “Policy Payments Account" ”) over which the Trustee shall have exclusive control and sole right of withdrawal. The Policy Payments Account shall be an Eligible Account. The Trustee shall deposit upon receipt any amount received by it and paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for the purposes of payment making payments to Holders of the Class A2 Certificates, in respect of the related Guaranteed Distributions (or other amounts payable pursuant to paragraph (b) above on the Class A2 Certificates, by the Certificate Insurer pursuant to the Certificateholders of the Insured Distribution Amount Certificate Insurance Policy) for which a the related claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount . Such amounts shall be transferred to the Certificate Account on the related Distribution Date and disbursed allocated by the Trustee to Holders of Class A2 Certificates entitled to such payments in the Certificateholders in accordance same manner as principal and interest distributions are to be allocated with respect to such Certificates pursuant to Section 6.055.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay make regular payments hereunder with funds withdrawn from the Insured Distribution Amount with other funds available to make such paymentCertificate Account. However, the amount of any payment of principal or of interest payments made on the Class A2 Certificates to be paid from funds transferred from in the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph subsection (de) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Trustee.
(c) Any funds received by the Trustee from the Certificate Insurer for deposit into the Policy Payments Account pursuant to the Certificate Insurance Policy in respect of a Distribution Date or otherwise as a result of any claim under such Certificate Insurance Policy shall be applied by the Trustee directly to the payment in full (i) of the Insured Payments due on such Distribution Date on the Class A2 Certificates or (ii) of other amounts to which payments under the Certificate Insurance Policy are to be applied. Funds received by the Trustee as a result of any claim under the Certificate Insurance Policy shall be used solely for payment to the Holders of the Class A2 Certificates and may not be applied for any other purpose, including, without limitation, satisfaction of any costs, expenses or liabilities of the Trustee or the Trust Fund. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a after each Distribution Date (other than the final Distribution Date to the extent of funds remaining in the Policy Payments Account required to be paid to Holders of the Class A2 Certificates) shall be returned remitted promptly by the Trustee to the Certificate Insurer pursuant to the written instructions instruction of the Certificate Insurer by the end of such Business DayInsurer.
(d) The Trustee shall keep a complete and accurate record records in respect of (i) all funds remitted to the amount Trustee by the Certificate Insurer and deposited into the Policy Payments Account and (ii) the allocation of such funds to (A) payments of interest on and principal paid in respect of any Certificate from moneys received under the Certificate Insurance PolicyClass A2 Certificates and (B) payments in respect of Preference Amounts. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one three Business Day's Days’ prior written notice to the Trustee. Any Insured Payments disbursed by the Trustee from proceeds of the Certificate Insurance Policy shall be considered payment by the Certificate Insurer and not by the Trust Fund with respect to the Class A2 Certificates and the Certificate Insurer will be entitled to receive the related Reimbursement Amount pursuant to Section 5.02.
(e) In The Trustee acknowledges, and each Holder of a Class A2 Certificate by its acceptance of such Certificate agrees that, without the event that need for any further action on the Trustee has received a certified copy of an order part of the appropriate court that Certificate Insurer or the Trustee, to the extent the Certificate Insurer makes Insured Payments, directly or indirectly, on account of principal of or interest on any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy lawClass A2 Certificates, the Trustee Certificate Insurer will be fully subrogated to the rights of the Holders of such Class A2 Certificates to receive the related Reimbursement Amount pursuant to Section 5.02 and the Certificate Insurer shall so notify also have the rights conferred to the Certificate Insurer under Sections 4.06 and 5.02 of the Insurance Agreement, as if fully set forth herein. The Class A2 Certificateholders, by acceptance of such Certificates, assign to the Certificate Insurer their rights as Holders of the Class A2 Certificates, to the extent of the Certificate Insurer’s interest with respect to amounts paid under the Certificate Insurance Policy. Each of the Depositor and Trustee agrees to such subrogation and, shall comply further agrees to execute such instruments and to take such reasonable actions at the expense of the Trust Fund as, in the sole judgment of the Certificate Insurer are necessary to evidence such subrogation and, subject to the priority of payment provisions of this Agreement, to perfect the rights of the Certificate Insurer to receive any moneys paid or payable in respect of the Class A2 Certificates under this Agreement or otherwise. Anything herein to the contrary notwithstanding, solely for purposes of determining the Certificate Insurer’s rights as subrogee for payments distributable pursuant to Section 5.02, any payment with respect to distributions to the provisions Class A2 Certificates that is made with funds received pursuant to the terms of the Certificate Insurance Policy to obtain shall not be considered payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Class A2 Certificates that, from the Trust Fund and shall not result in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer distribution or the Certificate Insurer's fiscal agentprovision for the distribution in reduction of the Class Principal Amount of the Class A2 Certificates or Current Interest thereon, if any, and within the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.meaning of Article V.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or either of the institution of any action, of following as to which a Responsible Officer of the Trustee has actual knowledge: (A) the commencement of any proceeding by or against the Depositor commenced under the United States bankruptcy code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an “Insolvency Proceeding”) and (B) the making of any claim in connection with any Insolvency Proceeding seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "“Preference Claim"”) of any distribution made with respect to the Class A2 Certificates. Each CertificateholderHolder of a Class A2 Certificate, by its purchase of Certificatessuch Certificate, the Servicer and the Trustee hereby agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such any Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder Holder of a Class A2 Certificate, in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any an adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, shall surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationcancellation upon the termination of the Trust Fund pursuant to Section 7.01 hereof.
Appears in 1 contract
Samples: Trust Agreement (Amortizing Residential Collateral Trust, Series 2004-1)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer If, on the second Business Day before any Distribution Date, the Trustee shall determine with respect Securities Administrator determines that an Insured Payment is required to be made by the immediately following Certificate Insurer on such Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding Securities Administrator shall determine the amount of any such Insured Payment and prior to the application shall, on behalf of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds ShortfallTrustee, the Trustee shall complete prepare a Notice of Nonpayment in the form of Exhibit A to the Certificate Insurance Policy and submit furnish such notice Notice of Nonpayment to the Certificate Insurer no later than 12:00 noon Trustee by 10:00 a.m. New York City time on such second Business Day. The Trustee shall execute such Notice of Nonpayment and submit such Notice of Nonpayment to the Certificate Insurer by 12:00 noon, New York City time on such second Business Day preceding such Distribution Date as a claim for an Insured Payment Payment. The Trustee’s responsibility for delivering a Notice of Nonpayment to the Certificate Insurer, as provided in the preceding sentence, is limited to the availability, timeliness and accuracy of the Notice of Nonpayment and information therein provided to it by the Securities Administrator. In the event the Trustee receives a certified copy of an amount equal order of the appropriate court that any scheduled payment of principal or interest on a Class 3-A3 Certificate has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall promptly notify the Certificate Insurer in writing, as appropriate, and the fiscal agent, if any, and the Trustee shall make a claim on the Certificate Insurance Policy in accordance with the provisions thereof to obtain payment by the Certificate Insurer of such voided scheduled payment. In addition, the Trustee shall mail notice to all Holders of the Class 3-A3 Certificates so affected that, in the event that any such Holder’s scheduled payment is so recovered, such Holder will be entitled to payment pursuant to the terms of the Certificate Insurance Policy, a copy of which shall be made available to such Available Funds ShortfallHolders by the Trustee. The Trustee shall furnish to the Certificate Insurer and the appropriate fiscal agent, if any, its records listing the payments on the affected Class 3-A3 Certificates, if any, that have been made by the Trustee and subsequently recovered from the affected Holders, and the dates on which such payments were made by the Trustee.
(cb) The At the time of the execution hereof, and for the purposes hereof, the Trustee shall establish a separate Eligible Account special purpose trust account in the name of the Trustee for the benefit of Holders of the Class 3-A3 Certificates and (the Certificate Insurer referred to herein as the "Certificate Insurance Payment “Policy Payments Account" ”) over which the Trustee shall have exclusive control and sole right of withdrawal. The Policy Payments Account shall be an Eligible Account. The Trustee shall deposit upon receipt any amount received by it and paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for the purposes of payment making payments to Holders of the Class 3-A3 Certificates, in respect of the related Guaranteed Distributions (or other amounts payable pursuant to paragraph (b) above on the Class 3-A3 Certificates, by the Certificate Insurer pursuant to the Certificateholders of the Insured Distribution Amount Certificate Insurance Policy) for which a the related claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount . Such amounts shall be transferred to the Certificate Account on the related Distribution Date and disbursed allocated by the Trustee to Holders of Class 3-A3 Certificates entitled to such payments in the Certificateholders in accordance same manner as principal and interest distributions are to be allocated with respect to such Certificates pursuant to Section 6.055.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay make regular payments hereunder with funds withdrawn from the Insured Distribution Amount with other funds available to make such paymentCertificate Account. However, the amount of any payment of principal or of interest payments made on the Class 3-A3 Certificates to be paid from funds transferred from in the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph subsection (de) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Trustee.
(c) Any funds received by the Trustee from the Certificate Insurer for deposit into the Policy Payments Account pursuant to the Certificate Insurance Policy in respect of a Distribution Date or otherwise as a result of any claim under such Certificate Insurance Policy shall be applied by the Trustee directly to the payment in full (i) of the Insured Payments due on such Distribution Date on the Class 3-A3 Certificates or (ii) of other amounts to which payments under the Certificate Insurance Policy are to be applied. Funds received by the Trustee as a result of any claim under the Certificate Insurance Policy shall be used solely for payment to the Holders of the Class 3-A3 Certificates and may not be applied for any other purpose, including, without limitation, satisfaction of any costs, expenses or liabilities of the Trustee or the Trust Fund. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a after each Distribution Date (other than the final Distribution Date to the extent of funds remaining in the Policy Payments Account required to be paid to Holders of the Class 3-A3 Certificates) shall be returned remitted promptly by the Trustee to the Certificate Insurer pursuant to the written instructions instruction of the Certificate Insurer by the end of such Business DayInsurer.
(d) The Trustee shall keep a complete and accurate record records in respect of (i) all funds remitted to the amount Trustee by the Certificate Insurer and deposited into the Policy Payments Account and (ii) the allocation of such funds to (A) payments of interest on and principal paid in respect of any Certificate from moneys received under the Certificate Insurance PolicyClass 3-A3 Certificates and (B) payments in respect of Preference Amounts. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one three Business Day's Days’ prior written notice to the Trustee. Any Insured Payments disbursed by the Trustee from proceeds of the Certificate Insurance Policy shall be considered payment by the Certificate Insurer and not by the Trust Fund with respect to the Class 3-A3 Certificates and the Certificate Insurer will be entitled to receive the related Reimbursement Amount pursuant to Section 5.02.
(e) In The Trustee acknowledges, and each Holder of a Class 3-A3 Certificate by its acceptance of such Certificate agrees that, without the event that need for any further action on the Trustee has received a certified copy of an order part of the appropriate court that Certificate Insurer or the Trustee, to the extent the Certificate Insurer makes Insured Payments, directly or indirectly, on account of principal of or interest on any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy lawClass 3-A3 Certificates, the Trustee Certificate Insurer will be fully subrogated to the rights of the Holders of such Class 3-A3 Certificates to receive the related Reimbursement Amount pursuant to Section 5.02 and the Certificate Insurer shall so notify also have the rights conferred to the Certificate Insurer under Sections 4.06 and 5.02 of the Insurance Agreement, as if fully set forth herein. The Class 3-A3 Certificateholders, by acceptance of such Certificates, assign to the Certificate Insurer their rights as Holders of the Class 3-A3 Certificates, to the extent of the Certificate Insurer’s interest with respect to amounts paid under the Certificate Insurance Policy. Each of the Depositor and Trustee agrees to such subrogation and, shall comply further agrees to execute such instruments and to take such actions as, in the sole judgment of the Certificate Insurer are necessary to evidence such subrogation and, subject to the priority of payment provisions of this Agreement, to perfect the rights of the Certificate Insurer to receive any moneys paid or payable in respect of the Class 3-A3 Certificates under this Agreement or otherwise. Anything herein to the contrary notwithstanding, solely for purposes of determining the Certificate Insurer’s rights as subrogee for payments distributable pursuant to Section 5.02, any payment with respect to distributions to the provisions Class 3-A3 Certificates that is made with funds received pursuant to the terms of the Certificate Insurance Policy to obtain shall not be considered payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Class 3-A3 Certificates that, from the Trust Fund and shall not result in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer distribution or the Certificate Insurer's fiscal agentprovision for the distribution in reduction of the Class Principal Amount of the Class 3-A3 Certificates or Current Interest thereon, if any, and within the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.meaning of Article V.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or either of the institution of any action, of following as to which a Responsible Officer of the Trustee has actual knowledge: (A) the commencement of any proceeding by or against the Depositor commenced under the United States bankruptcy code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an “Insolvency Proceeding”) and (B) the making of any claim in connection with any Insolvency Proceeding seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "“Preference Claim"”) of any distribution made with respect to the Class 3-A3 Certificates. Each CertificateholderHolder of a Class 3-A3 Certificate, by its purchase of Certificatessuch Certificate, the Servicer and the Trustee hereby agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such any Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder Holder of a Class 3-A3 Certificate, in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any an adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, shall surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationcancellation upon the termination of the Trust Fund pursuant to Section 7.01 hereof.
Appears in 1 contract
Samples: Trust Agreement (Structured Asset Sec Corp Mort Pas THR Certs Ser 2003 Bc10)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer If, on the Business Day before any Distribution Date, the Trustee determines that an Insured Amount is required to be made by the Certificate Insurer on such Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any such Insured Payment Amount and prior shall give written notice to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete Certificate Insurer by completing a Notice of Nonpayment in the form of Exhibit A to the Certificate Insurance Policy and submit submitting such notice to the Certificate Insurer no later than Notice of Nonpayment by 12:00 noon noon, New York City time on the second such Business Day preceding such Distribution Date as a claim for an Insured Payment Amount. The Trustee’s responsibility for delivering a Notice of Nonpayment to the Certificate Insurer, as provided in the preceding sentence, is limited to the availability, timeliness and accuracy of the information provided to it by the Master Servicer. In the event the Trustee receives a certified copy of an amount equal order of the appropriate court that any scheduled payment of principal or interest on a Insured Certificate has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall promptly notify the Certificate Insurer in writing, as appropriate, and the fiscal agent, if any, and the Trustee shall make a claim on the Certificate Insurance Policy in accordance with the provisions thereof to obtain payment by the Certificate Insurer of such voided scheduled payment. In addition, the Trustee shall mail notice to all Holders of the Insured Certificates so affected that, in the event that any such Holder’s scheduled payment is so recovered, such Holder will be entitled to payment pursuant to the terms of the Certificate Insurance Policy, a copy of which shall be made available to such Available Funds ShortfallHolders by the Trustee. The Trustee shall furnish to the Certificate Insurer and the appropriate fiscal agent, if any, its records listing the payments on the affected Insured Certificates, if any, that have been made by the Trustee and subsequently recovered from the affected Holders, and the dates on which such payments were made by the Trustee.
(cb) The At the time of the execution hereof, and for the purposes hereof, the Trustee shall establish a separate Eligible the Policy Payments Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Policy Payments Account shall be an Eligible Account. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for the purposes of payment making payments to the Certificateholders Holders of the Insured Distribution Amount Certificates in respect of the Insured Distributions (or other amounts payable pursuant to the second paragraph of subsection (a) above on the Insured Certificates by the Certificate Insurer pursuant to the Certificate Insurance Policy) for which a the related claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount . Such amounts shall be transferred to the Certificate Account on the related Distribution Date and disbursed allocated by the Trustee to Holders of Insured Certificates entitled to such payments in the Certificateholders in accordance same manner as principal and interest distributions are to be allocated with Section 6.05respect to such Certificates pursuant to Sections 5.02 and 5B.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay make regular payments hereunder with funds withdrawn from the Insured Distribution Amount with other funds available to make such paymentCertificate Account. However, the amount of any payment of principal or of interest payments made on the Insured Certificates to be paid from funds transferred from in the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph subsection (de) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Trustee.
(c) Any funds received from the Certificate Insurer for deposit into the Policy Payments Account pursuant to the Certificate Insurance Policy in respect of a Distribution Date or otherwise as a result of any claim under such Certificate Insurance Policy shall be applied by the Trustee directly to the payment in full (i) of the Insured Amounts due on such Distribution Date on the Insured Certificates or (ii) of other amounts to which payments under the Certificate Insurance Policy are to be applied. Funds received by the Trustee as a result of any claim under the Certificate Insurance Policy shall be used solely for payment to the Holders of the Insured Certificates and may not be applied for any other purpose, including, without limitation, satisfaction of any costs, expenses or liabilities of the Trustee or the Trust Fund. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a after each Distribution Date (other than the final Distribution Date to the extent of funds remaining in the Policy Payments Account required to be paid to Holders of the Insured Certificates) shall be returned remitted promptly to the Certificate Insurer pursuant to the written instructions instruction of the Certificate Insurer by the end of such Business DayInsurer.
(d) The Trustee shall keep a complete and accurate record records in respect of (i) all funds remitted to the amount Trustee by the Certificate Insurer and deposited into the Policy Payments Account and (ii) the allocation of such funds to (A) payments of interest on and principal paid in respect of any Certificate from moneys received under Insured Certificates (B) any Applied Loss Amount allocated to the Certificate Insurance PolicyInsured Certificates and (C) payments in respect of Preference Amounts. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one three Business Day's Days’ prior notice to the Trustee. Any Insured Amounts disbursed by the Trustee from proceeds of the Certificate Insurance Policy shall be considered payment by the Certificate Insurer and not by the Trust Fund with respect to the Insured Certificates and the Certificate Insurer will be entitled to receive the related Reimbursement Amount pursuant to Section 5B.02(b)(iii), 5B.02(c)(i)(B), 5B.02(c)(ii)(B) or 5B.02(d)(i)(B), as applicable.
(e) In The Trustee acknowledges, and each Holder of a Insured Certificate by their acceptance of such Certificate agree, that, without the event that need for any further action on the Trustee has received a certified copy of an order part of the appropriate court that Certificate Insurer or the Trustee, to the extent the Certificate Insurer pays Insured Amounts or Preference Amounts, directly or indirectly, on account of principal of or interest on any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy lawsuch Class of Certificates, the Trustee shall so notify Certificate Insurer will be fully subrogated to the rights of the Holders of such Class to receive the related Reimbursement Amount pursuant to Section 5B.02(b)(iii), 5B.02(c)(i)(B), 5B.02(c)(ii)(B) or 5B.02(d)(i)(B), as applicable. The Holders of each Insured Certificate, by acceptance of their respective Classes of Certificates assign their rights as Holders of such Class of Certificates to the extent of the Certificate Insurer’s interest with respect to amounts paid under the Certificate Insurance Policy. Each of the Depositor and Trustee agrees to such subrogation and, shall comply further agrees to execute such instruments and to take such actions as, in the sole judgment of the Certificate Insurer are necessary to evidence such subrogation and, subject to the priority of payment provisions of this Agreement, to perfect the rights of the Certificate Insurer to receive any moneys paid or payable in respect of the Insured Certificates under this Agreement or otherwise. Anything herein to the contrary notwithstanding, solely for purposes of determining the Certificate Insurer’s rights as subrogee for payments distributable pursuant to Sections 5.02 and 5B.02, any payment with respect to distributions to the provisions Insured Certificates that is made with funds received pursuant to the terms of the Certificate Insurance Policy to obtain shall not be considered payment by the Certificate Insurer of such voided Insured Payment, Class of Certificates from the Trust Fund and shall, at shall not result in the time it provides notice to distribution or the Certificate Insurer, notify, by mail to provision for the Certificateholders distribution in reduction of the affected Class Principal Amount of such Class of Certificates thator Current Interest thereon, in within the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy meaning of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.Article V.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or either of the institution of any action, of following as to which a Responsible Officer of the Trustee has actual knowledge: (A) the commencement of any proceeding by or against the Depositor commenced under the Bankruptcy Code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an “Insolvency Proceeding”) and (B) the making of any claim in connection with any Insolvency Proceeding seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "“Preference Claim"”) of any distribution made with respect to the Insured Certificates. Each CertificateholderHolder of a Insured Certificate, by its purchase of Certificatesits respective Class of Certificate, the Servicer and the Trustee hereby agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such any Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder Holder of a Insured Certificate in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any an adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, shall surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationcancellation upon the termination of the Trust Fund with respect to Pool 3 pursuant to Article VII hereof.
Appears in 1 contract
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer If the -------------------------------- statement delivered to the Trustee pursuant to Section 6.02 indicates that there will be a Distribution Account Shortfall for the related Distribution Date, the Trustee shall determine with respect to complete the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete a Notice notice in the form of Exhibit A to the Certificate Insurance Policy and Policy. The Trustee shall submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Business Day preceding such Distribution Date as a claim for an Insured Payment Amount in an amount equal to the sum of the Distribution Account Shortfall.
(b) Upon receipt of Insured Payments from the Certificate Insurer on behalf of Class A Certificateholders, the Trustee shall deposit such Available Funds ShortfallInsured Payments in the Distribution Account and shall distribute such Insured Payments, or the proceeds thereof, to the Class A Certificateholders in accordance with Sections 6.01(a).
(c) The Trustee shall establish (i) receive as attorney-in-fact of each Holder of any Class A Certificates any Insured Payment from the Certificate Insurer and (ii) disburse the same to the Holders of such Certificates as set forth in Section 6.01(b). Insured Payments disbursed by the Trustee from proceeds of a separate Eligible Account Certificate Insurance Policy shall be considered payment by the Certificate Insurer and not by the Trust Fund with respect to such Certificates, and the Certificate Insurer shall be entitled to receive the related Reimbursement Amount pursuant to Section 6.01(a)(iv). The Trustee hereby agrees on behalf of each Class A Certificateholder and the Trust Fund for the benefit of Holders of the Certificates and the Certificate Insurer referred that it recognizes that to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under extent the Certificate Insurance Policy in Insurer makes Insured Payments, either directly or indirectly (as by paying through the Certificate Insurance Payment Account and distribute such amount only for purposes of payment to the Certificateholders of the Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance PolicyTrustee), to the extent needed to pay the Insured Distribution Amount shall be transferred to Holders of such Certificates, the Certificate Account on Insurer will be entitled to receive the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Reimbursement Amount with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day6.01(a)(iv).
(d) The Trustee shall keep a complete and accurate record Subject only to the priority of payment provisions of this Agreement, each of the amount of interest Company and principal paid in respect the Trustee acknowledges that, to the extent of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment made by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish is to be fully subrogated to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee extent of such payment and subsequently recovered from the Certificateholders, and dates any additional interest due on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurerlate payment, to the fullest extent permitted by law, the rights of the Servicer, Holders of the Class A Certificates to any moneys paid or payable in respect of the Class A Certificates under this Agreement or otherwise. Each of the Company and the Trustee agrees to such subrogation and, further, agrees to execute such instruments and each Certificateholder to take such actions as, in the conduct sole judgment of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of are necessary to evidence such retirement, subrogation and, upon retirement subject to the priority of payment provision of this Agreement, to perfect the Certificates and the expiration of the term rights of the Certificate Insurance Policy, surrender Insurer to receive any moneys paid or payable in respect of the Certificate Insurance Policy to the Certificate Insurer for cancellationClass A Certificates under this Agreement or otherwise.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (MLCC Mortgage Investors Inc)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Pre- Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete a Notice in the form of Exhibit A to the Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Business Day preceding such Distribution Date as a claim for an Insured Payment in an amount equal to such Available Funds Shortfall.
(c) The Trustee shall establish a separate Eligible Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Payment Account and distribute such amount only for purposes of payment to the Certificateholders of the Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount shall be transferred to the Certificate Account on the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Amount with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(d) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Prudential Securities Secured Financing Corp)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer If, on the second Business Day before any Distribution Date, the Trustee determines that an Insured Amount is required to be made by the Certificate Insurer on such Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any such Insured Payment Amount and prior shall give written notice to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete Certificate Insurer by completing a Notice of Nonpayment in the form of Exhibit A to the Certificate Insurance Policy and submit submitting such notice to the Certificate Insurer no later than Notice of Nonpayment by 12:00 noon noon, New York City time on the such second Business Day preceding such Distribution Date as a claim for an Insured Payment Amount. The Trustee’s responsibility for delivering a Notice of Nonpayment to the Certificate Insurer, as provided in the preceding sentence, is limited to the availability, timeliness and accuracy of the information provided to it by the Master Servicer. In the event the Trustee receives a certified copy of an amount equal order of the appropriate court that any scheduled payment of principal or interest on a Guaranteed Certificate has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall promptly notify the Certificate Insurer in writing, as appropriate, and the fiscal agent, if any, and the Trustee shall make a claim on the Certificate Insurance Policy in accordance with the provisions thereof to obtain payment by the Certificate Insurer of such voided scheduled payment. In addition, the Trustee shall mail notice to all Holders of the Guaranteed Certificates so affected that, in the event that any such Holder’s scheduled payment is so recovered, such Holder will be entitled to payment pursuant to the terms of the Certificate Insurance Policy, a copy of which shall be made available to such Available Funds ShortfallHolders by the Trustee. The Trustee shall furnish to the Certificate Insurer and the appropriate fiscal agent, if any, its records listing the payments on the affected Guaranteed Certificates, if any, that have been made by the Trustee and subsequently recovered from the affected Holders, and the dates on which such payments were made by the Trustee.
(cb) The At the time of the execution hereof, and for the purposes hereof, the Trustee shall establish a separate Eligible the Policy Payments Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Policy Payments Account shall be an Eligible Account. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for the purposes of payment making payments to Holders of the Guaranteed Certificates in respect of the Guaranteed Distributions (or other amounts payable pursuant to the Certificateholders second paragraph of subsection (a) above on the Insured Distribution Amount Guaranteed Certificates by the Certificate Insurer pursuant to the Certificate Insurance Policy) for which a the related claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount . Such amounts shall be transferred to the Certificate Account on the related Distribution Date and disbursed allocated by the Trustee to Holders of Guaranteed Certificates entitled to such payments in the Certificateholders in accordance same manner as principal and interest distributions are to be allocated with respect to such Certificates pursuant to Section 6.055.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay make regular payments hereunder with funds withdrawn from the Insured Distribution Amount with other funds available to make such paymentCertificate Account. However, the amount of any payment of principal or of interest payments made on the Guaranteed Certificates to be paid from funds transferred from in the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph subsection (de) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Trustee.
(c) Any funds received from the Certificate Insurer for deposit into the Policy Payments Account pursuant to the Certificate Insurance Policy in respect of a Distribution Date or otherwise as a result of any claim under such Certificate Insurance Policy shall be applied by the Trustee directly to the payment in full (i) of the Insured Amounts due on such Distribution Date on the Guaranteed Certificates or (ii) of other amounts to which payments under the Certificate Insurance Policy are to be applied. Funds received by the Trustee as a result of any claim under the Certificate Insurance Policy shall be used solely for payment to the Holders of the Guaranteed Certificates and may not be applied for any other purpose, including, without limitation, satisfaction of any costs, expenses or liabilities of the Trustee or the Trust Fund. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a after each Distribution Date (other than the final Distribution Date to the extent of funds remaining in the Policy Payments Account required to be paid to Holders of the Guaranteed Certificates) shall be returned remitted promptly to the Certificate Insurer pursuant to the written instructions instruction of the Certificate Insurer by the end of such Business DayInsurer.
(d) The Trustee shall keep a complete and accurate record records in respect of (i) all funds remitted to the amount Trustee by the Certificate Insurer and deposited into the Policy Payments Account and (ii) the allocation of such funds to (A) payments of interest on and principal paid in respect of any Certificate from moneys received under Guaranteed Certificates (B) Applied Loss Amounts allocated to the Certificate Insurance PolicyGuaranteed Certificates and (C) payments in respect of Preference Amounts. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one three Business Day's Days’ prior notice to the Trustee. Any Insured Amounts disbursed by the Trustee from proceeds of the Certificate Insurance Policy shall be considered payment by the Certificate Insurer and not by the Trust Fund with respect to the Guaranteed Certificates and the Certificate Insurer will be entitled to receive the related Reimbursement Amount pursuant to Section 5.02(b)(iii) or Section 5.02(c)(iii), as applicable.
(e) In The Trustee acknowledges, and each Holder of a Guaranteed Certificate by their acceptance of such Certificate agree, that, without the event that need for any further action on the Trustee has received a certified copy of an order part of the appropriate court that Certificate Insurer or the Trustee, to the extent the Certificate Insurer pays Insured Amounts or Preference Amounts, directly or indirectly, on account of principal of or interest on any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy lawsuch Class of Certificates, the Trustee shall so notify Certificate Insurer will be fully subrogated to the rights of the Holders of such Class to receive the related Reimbursement Amount pursuant to Section 5.02(b)(iii) or Section 5.02(c)(iii), as applicable. The Holders of each Guaranteed Certificate, by acceptance of their respective Classes of Certificates assign their rights as Holders of such Class of Certificates to the extent of the Certificate Insurer’s interest with respect to amounts paid under the Certificate Insurance Policy. Each of the Depositor and Trustee agrees to such subrogation and, shall comply further agrees to execute such instruments and to take such actions as, in the sole judgment of the Certificate Insurer are necessary to evidence such subrogation and, subject to the priority of payment provisions of this Agreement, to perfect the rights of the Certificate Insurer to receive any moneys paid or payable in respect of the Guaranteed Certificates under this Agreement or otherwise. Anything herein to the contrary notwithstanding, solely for purposes of determining the Certificate Insurer’s rights as subrogee for payments distributable pursuant to Section 5.02, any payment with respect to distributions to the provisions Guaranteed Certificates that is made with funds received pursuant to the terms of the Certificate Insurance Policy to obtain shall not be considered payment by the Certificate Insurer of such voided Insured Payment, Class of Certificates from the Trust Fund and shall, at shall not result in the time it provides notice to distribution or the Certificate Insurer, notify, by mail to provision for the Certificateholders distribution in reduction of the affected Class Principal Amount of such Class of Certificates thator Current Interest thereon, in within the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy meaning of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.Article V.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or either of the institution of any action, of following as to which a Responsible Officer of the Trustee has actual knowledge: (A) the commencement of any proceeding by or against the Depositor commenced under the Bankruptcy Code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an “Insolvency Proceeding”) and (B) the making of any claim in connection with any Insolvency Proceeding seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "“Preference Claim"”) of any distribution made with respect to the Guaranteed Certificates. Each CertificateholderHolder of a Guaranteed Certificate, by its purchase of Certificatesits respective Class of Certificate, the Servicer and the Trustee hereby agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such any Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder Holder of a Guaranteed Certificate in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any an adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, shall surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationcancellation upon the termination of the Trust Fund pursuant to Article VII hereof.
Appears in 1 contract
The Certificate Insurance Policy. (a) Within two (2) days of On each Servicer Distribution -------------------------------- Advance Date, the Trustee shall determine with respect to the immediately following related Distribution Date the Available Funds for such Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on for any Distribution Date there the Trustee determines that an Insured Amount is an Available Funds Shortfalldue, the Trustee shall complete a Notice in the form of Exhibit A to the Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Business Day preceding such prior to the Distribution Date as a claim for that portion of an Insured Payment in an amount Amount that is equal to such Available Funds ShortfallDeficiency Amount.
(c) The Trustee shall establish a separate Eligible Account special purpose trust account for the benefit of Holders of the Certificates Class A Certificateholders and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Payments Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit in the Certificate Insurance Payments Account, upon receipt receipt, any amount paid under the Certificate Insurance Policy in the Certificate Insurance Payment Account and shall distribute such amount only for purposes of payment to the Certificateholders of the any Insured Distribution Amount Amount, for which which, in each case, a claim was made to the Certificate Insurer, and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Certificate Administrator, the Trustee or the Trust FundTrust. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount Amount, shall be transferred to the Certificate Account on the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.055.01. It shall not be necessary for such payments made under the Certificate Insurance Policy to be made by checks or wire transfers separate from the checks or wire transfers used other amounts distributed pursuant to pay the Insured Distribution Amount with other funds available to make such paymentSection 5.01. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account Policy shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.075.05. Funds held in paid under the Certificate Insurance Payment Account Policy shall not be invested. Any funds remaining in the Certificate Insurance Payment Payments Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(d) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one two Business Day's Days' prior written notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any prior distribution made on the Class A Certificates that represented payment of an Insured Payment Amount has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured PaymentAmount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment Amount is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as of a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the CertificatesAmount. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) may at any time during the continuation of any proceeding relating to a Preference Claim Amount direct all matters relating to such Preference ClaimAmount, including, without limitation, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas supersedes or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer Servicer, the Certificate Administrator and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Certificate Administrator the Trustee and each Certificateholder in the conduct of any such Preference ClaimAmount, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference ClaimAmount. The Trustee shall promptly notify the Certificate Insurer of any Event of Default upon its occurrence.
(g) The Trustee shall, upon retirement of the Certificates, furnish Servicer shall designate a contact person who shall be available to the Certificate Insurer a notice of such retirement, and, upon retirement of to provide reasonable access to information regarding the Certificates and the expiration of the term of the Certificate Insurance Policy, Home Equity Loans.
(h) The Trustee shall surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationcancellation at the expiration of the term of such Certificate Insurance Policy as provided therein and in the Insurance Agreement.
(i) The Trustee shall send to the Certificate Insurer the statement prepared pursuant to Section 5.05 hereof as well as any other statements, reports or communications sent to Holders of the Class A Certificates, in each case at the same time such reports, statements and communications are otherwise sent.
(j) Simultaneously with the execution and delivery of this Agreement, the Trustee shall execute and deliver the Insurance Agreement and, for all purposes of this Agreement, the performance by the Trustee of its obligations under this Agreement shall include the Trustee's obligations under the Insurance Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Norwest Asset Acceptance Corp)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer If, on the second Business Day before any Distribution Date, the Trustee determines that an Insured Payment is required to be made by the Certificate Insurer on such Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any such Insured Payment and prior shall give written notice to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete Certificate Insurer by completing a Notice of Nonpayment in the form of Exhibit A to the Certificate Insurance Policy and submit submitting such notice to the Certificate Insurer no later than Notice of Nonpayment by 12:00 noon noon, New York City time on the such second Business Day preceding such Distribution Date as a claim for an Insured Payment Payment. The Trustee’s responsibility for delivering a Notice of Nonpayment to the Certificate Insurer, as provided in the preceding sentence, is limited to the availability, timeliness and accuracy of the information provided to it by the Master Servicer. In the event the Trustee receives a certified copy of an amount equal order of the appropriate court that any scheduled payment of principal or interest on a Class A5 Certificate or Class A6 Certificate has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall promptly notify the Certificate Insurer in writing, as appropriate, and the Fiscal Agent, if any, and the Trustee shall make a claim on the Certificate Insurance Policy in accordance with the provisions thereof to obtain payment by the Certificate Insurer of such voided scheduled payment. In addition, the Trustee shall mail notice to all Holders of the Class A5 Certificates or Class A 6 Certificates, as applicable, so affected that, in the event that any such Holder’s scheduled payment is so recovered, such Holder will be entitled to payment pursuant to the terms of the Certificate Insurance Policy, a copy of which shall be made available to such Available Funds ShortfallHolders by the Trustee. The Trustee shall furnish to the Certificate Insurer and the appropriate Fiscal Agent, if any, its records listing the payments on the affected Class A5 Certificates or Class A6 Certificates, if any, that have been made by the Trustee and subsequently recovered from the affected Holders, and the dates on which such payments were made by the Trustee.
(cb) The At the time of the execution hereof, and for the purposes hereof, the Trustee shall establish a separate Eligible Account special purpose trust account in the name of the Trustee for the benefit of Holders of the Class A5 Certificates and Class A6 Certificates (the Certificate Insurer referred to herein as the "Certificate Insurance Payment “Policy Payments Account" ”) over which the Trustee shall have exclusive control and sole right of withdrawal. The Policy Payments Account shall be an Eligible Account. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for the purposes of payment making payments to Holders of the Class A5 Certificates or Class A6 Certificates, as applicable, in respect of the related Guaranteed Distributions (or other amounts payable pursuant to paragraph (b) above on the Class A5 Certificates or Class A6 Certificates, as applicable, by the Certificate Insurer pursuant to the Certificateholders of the Insured Distribution Amount Certificate Insurance Policy) for which a the related claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount . Such amounts shall be transferred to the Certificate Account on the related Distribution Date and disbursed allocated by the Trustee to Holders of Class A5 Certificates or Class A6 Certificates, as applicable, entitled to such payments in the Certificateholders in accordance same manner as principal and interest distributions are to be allocated with respect to such Certificates pursuant to Section 6.055.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay make regular payments hereunder with funds withdrawn from the Insured Distribution Amount with other funds available to make such paymentCertificate Account. However, the amount of any payment of principal or of interest payments made on the Class A5 Certificates to be paid or Class A6 Certificates from funds transferred from in the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph subsection (de) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Trustee.
(c) Any funds received from the Certificate Insurer for deposit into the Policy Payments Account pursuant to the Certificate Insurance Policy in respect of a Distribution Date or otherwise as a result of any claim under such Certificate Insurance Policy shall be applied by the Trustee directly to the payment in full (i) of the Insured Payments due on such Distribution Date on the Class A5 Certificates or Class A6 Certificates, as applicable, or (ii) of other amounts to which payments under the Certificate Insurance Policy are to be applied. Funds received by the Trustee as a result of any claim under the Certificate Insurance Policy shall be used solely for payment to the Holders of the Class A5 Certificates or Class A6 Certificates, as applicable, and may not be applied for any other purpose, including, without limitation, satisfaction of any costs, expenses or liabilities of the Trustee or the Trust Fund. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a after each Distribution Date (other than the final Distribution Date to the extent of funds remaining in the Policy Payments Account required to be paid to Holders of the Class A5 Certificates or Class A6 Certificates, as applicable) shall be returned remitted promptly to the Certificate Insurer pursuant to the written instructions instruction of the Certificate Insurer by the end of such Business DayInsurer.
(d) The Trustee shall keep a complete and accurate record records in respect of (i) all funds remitted to the amount Trustee by the Certificate Insurer and deposited into the Policy Payments Account and (ii) the allocation of such funds to (A) payments of interest on and principal paid in respect of any Certificate from moneys received under Class A5 Certificates or Class A6 Certificates, as applicable, (B) Applied Loss Amounts allocated to the Certificate Insurance PolicyClass A5 Certificates or Class A6 Certificates, as applicable and (C) payments in respect of Preference Amounts. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one three Business Day's Days’ prior notice to the Trustee. Any Insured Payments disbursed by the Trustee from proceeds of the Certificate Insurance Policy shall be considered payment by the Certificate Insurer and not by the Trust Fund with respect to the Class A5 Certificates and Class A6 Certificates and the Certificate Insurer will be entitled to receive the related Reimbursement Amount pursuant to Sections 5.02(b)(iii), 5.02(c)(i)(B) and 5.02(c)(ii)(B).
(e) In The Trustee acknowledges, and each Holder of a Class A5 Certificate and Class A6 Certificate by its acceptance of such Class A5 Certificate or Class A6 Certificate, as applicable, agrees, that, without the event that need for any further action on the Trustee has received a certified copy of an order part of the appropriate court that Certificate Insurer or the Trustee, to the extent the Certificate Insurer makes Insured Payments, directly or indirectly, on account of principal of or interest on any Insured Payment has been voided in whole Class A5 Certificates or in part Class A6 Certificates, as a preference payment under applicable bankruptcy lawapplicable, the Trustee Certificate Insurer will be fully subrogated to the rights of the Holders of such Class A5 Certificates or Class A6 Certificates, as applicable, to receive the related Reimbursement Amount pursuant to Sections 5.02(b)(iii), 5.02(c)(i)(B) and 5.02(c)(ii)(B) and the Certificate Insurer shall so notify also have the rights conferred to the Certificate Insurer under Sections 4.06 and 5.02 of the Insurance Agreement, as if fully set forth herein. The Class A5 Certificateholders and Class A6 Certificateholders, by acceptance of the Class A5 Certificates or Class A6 Certificates, as applicable, assign their rights as Holders of the Class A5 Certificates or Class A6 Certificates, as applicable, to the extent of the Certificate Insurer’s interest with respect to amounts paid under the Certificate Insurance Policy. Each of the Depositor and Trustee agrees to such subrogation and, shall comply further agrees to execute such instruments and to take such actions as, in the sole judgment of the Certificate Insurer are necessary to evidence such subrogation and, subject to the priority of payment provisions of this Agreement, to perfect the rights of the Certificate Insurer to receive any moneys paid or payable in respect of the Class A5 Certificates or Class A6 Certificates, as applicable, under this Agreement or otherwise. Anything herein to the contrary notwithstanding, solely for purposes of determining the Certificate Insurer’s rights as subrogee for payments distributable pursuant to Section 5.02, any payment with respect to distributions to the provisions Class A5 Certificates or Class A6 Certificates, as applicable, that is made with funds received pursuant to the terms of the Certificate Insurance Policy to obtain shall not be considered payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Class A5 Certificates thator Class A6 Certificates, as applicable, from the Trust Fund and shall not result in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer distribution or the Certificate Insurer's fiscal agentprovision for the distribution in reduction of the Class Principal Amount of the Class A5 Certificates or Class A6 Certificates, if anyas applicable, and or Current Interest thereon, within the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.meaning of Article V.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or either of the institution of any action, of following as to which a Responsible Officer of the Trustee has actual knowledge: (A) the commencement of any proceeding by or against the Depositor commenced under the United States bankruptcy code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an “Insolvency Proceeding”) and (B) the making of any claim in connection with any Insolvency Proceeding seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "“Preference Claim"”) of any distribution made with respect to the Class A5 Certificates or Class A6 Certificates. Each CertificateholderHolder of a Class A5 Certificate and Class A6 Certificate, by its purchase of Certificatessuch Class A5 Certificate or Class A6 Certificate, the Servicer as applicable, and the Trustee hereby agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such any Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder Holder of a Class A5 Certificate or Class A6 Certificate, as applicable, in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any an adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, shall surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationcancellation upon the termination of the Trust Fund pursuant to Section 7.01 hereof.
Appears in 1 contract
Samples: Trust Agreement (Structured Asset Sec Corp Mort Pas THR Certs Ser 2003 28xs)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer If, on the second Business Day before any Distribution Date, the Trustee determines that an Insured Payment is required to be made by the Certificate Insurer, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment such deficiency and prior shall give notice to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete Certificate Insurer by completing a Notice of Nonpayment in the form of Exhibit A to the Certificate Insurance Policy and submit submitting such notice to the Certificate Insurer no later than Notice of Nonpayment by 12:00 noon noon, New York City time on the such second Business Day preceding such Distribution Date as a claim for an Insured Payment Payment. The Trustee's responsibility for delivering the Notice of Nonpayment to the Certificate Insurer as provided in the preceding sentence is limited to the availability, timeliness and accuracy of the information provided by the Master Servicer.
(b) In the event the Trustee receives a certified copy of an amount equal order of the appropriate court that any scheduled payment of principal or interest on an Insured Certificate has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall (i) promptly notify the Certificate Insurer, as appropriate, and (ii) comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided scheduled payment. In addition, the Trustee shall mail notice to all Holders of the Insured Certificates so affected that, in the event that any such Holder's scheduled payment is so recovered, such Holder will be entitled to payment pursuant to the terms of the Certificate Insurance Policy, a copy of which shall be made available to such Available Funds ShortfallHolders by the Trustee. The Trustee shall furnish to the Certificate Insurer and the appropriate Fiscal Agent, if any, its records listing the payments on the affected Insured Certificate, if any, that have been made by the Trustee and subsequently recovered from the affected Holders, and the dates on which such payments were made by the Trustee.
(c) The At the time of the execution hereof, and for the purposes hereof, the Trustee shall establish a separate Eligible Account special purpose trust account in the name of the Trustee for the benefit of Holders of the Insured Certificates and the Certificate Insurer referred to herein as (the "Certificate Insurance Payment Policy Payments Account" ") over which the Trustee shall have exclusive control and sole right of withdrawal. The Certificate Insurance Policy Payments Account shall be an Eligible Account. The Trustee shall deposit upon receipt any amount Insured Payment paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for the purposes of payment making payments to the Certificateholders Holders of the Insured Distribution Amount Certificates for which a the related claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount . Such amounts shall be transferred to the Certificate Account on the related Distribution Date and disbursed allocated by the Trustee to Holders of Insured Certificates affected by such shortfalls in the Certificateholders in accordance same manner as principal and interest distributions are to be allocated with respect to such Certificates pursuant to Section 6.055.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay make regular payments hereunder with funds withdrawn from the Insured Distribution Amount with other funds available to make such paymentCertificate Account. However, the amount of any payment of principal or of interest payments made on the Insured Certificates to be paid from funds transferred from in the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph subsection (de) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Trustee.
(d) Any funds received from the Certificate Insurer for deposit into the Certificate Insurance Policy Payments Account pursuant to the Certificate Insurance Policy in respect of a Distribution Date or otherwise as a result of any claim under such Certificate Insurance Policy shall be applied by the Trustee directly to the payment in full (i) of the Insured Payments due on such Distribution Date on the Insured Certificates, or (ii) of other amounts to which payments under the Certificate Insurance Policy are to be applied. Funds received by the Trustee as a result of any claim under the Certificate Insurance Policy shall be used solely for payment to the Holders of the Insured Certificates, respectively, and may not be applied for any other purpose, including, without limitation, satisfaction of any costs, expenses or liabilities of the Trustee or the Trust Fund. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a after each Distribution Date shall be returned remitted promptly to the Certificate Insurer pursuant to the written instructions instruction of the Certificate Insurer by the end of such Business DayInsurer.
(de) The Trustee shall keep a complete and accurate record records in respect of (i) all funds remitted to it by the amount Certificate Insurer and deposited into the Certificate Insurance Policy Payments Account and (ii) the allocation of such funds to (A) payments of interest on and principal paid in respect of any Certificate from moneys received under the Certificate Insurance PolicyInsured Certificates, and (B) payments in respect of Preference Amounts. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one three Business Day's Days' prior notice to the Trustee.
(e) In the event that . Any Insured Payments disbursed by the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions from proceeds of the Certificate Insurance Policy to obtain shall be considered payment by the Certificate Insurer of such voided and not by the Trust Fund with respect to the Insured PaymentCertificates, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder Insurer will be entitled to payment receive the related Reimbursement Amount pursuant to Sections 5.02(d)(i)(2) or (d)(ii)(2), as applicable.
(f) The Trustee acknowledges, and each Holder of an Insured Certificate by its acceptance of such Insured Certificate agrees, that, without the Certificate Insurance Policy, a copy need for any further action on the part of which shall be made available through the Trustee, the Certificate Insurer or the Trustee, to the extent the Certificate Insurer makes Insured Payments, directly or indirectly, on account of principal of or interest on any Insured Certificates, the Certificate Insurer will be fully subrogated to the rights of the Holders of such Insured Certificates to receive the related Reimbursement Amount pursuant to Sections 5.02 (d)(i)(2) or (d)(ii)(2), as applicable. The Insured Certificateholders, by acceptance of the Insured Certificates, assign their rights as Holders of the Insured Certificates to the extent of the Certificate Insurer's fiscal agentinterest with respect to amounts paid under the Certificate Insurance Policy. Each of the Depositor and Trustee agrees to such subrogation and, if anyfurther agrees to execute such instruments and to take such actions as, in the sole judgment of the Certificate Insurer are necessary to evidence such subrogation and, subject to the priority of payment provisions of this Agreement, to perfect the rights of the Certificate Insurer to receive any moneys paid or payable in respect of the Insured Certificates under this Agreement or otherwise. Anything herein to the contrary notwithstanding, solely for purposes of determining the Certificate Insurer's rights as subrogee for payments distributable pursuant to Section 5.02, any payment with respect to distributions to Insured Certificateholders that is made with funds received pursuant to the terms of the Certificate Insurance Policy shall not be considered payment of the Insured Certificates from the Trust Fund and shall not result in the distribution or the provision for the distribution in reduction of the Class Certificate Principal Amount of the Insured Certificates, or Current Interest or Carryforward Interest, within the meaning of Article V.
(g) Upon its becoming aware of the occurrence of an Event of Default, the Trustee shall furnish to promptly notify the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which of such payments were madeEvent of Default.
(fh) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer either of the Trustee following as to which it has actual knowledge: (A) the commencement of any proceeding by or against the Depositor commenced under the United States bankruptcy code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an "Insolvency Proceeding") and (B) the making of any claim in connection with any Insolvency Proceeding seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the CertificatesInsured Certificateholders. Each CertificateholderHolder of an Insured Certificate, by its purchase of Insured Certificates, the Servicer and the Trustee hereby agree that, that the Certificate Insurer (so long as no the Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such any Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder Holder of a Insured Certificate in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any an adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(gi) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, shall surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationcancellation upon the termination of the Trust Fund pursuant to Section 7.01 hereof.
Appears in 1 contract
Samples: Trust Agreement (Structured Asset Sec Corp Mort Pas THR Cert Ser 1999-Bc1)
The Certificate Insurance Policy. (a) Within two (2) days of Business Days after each Servicer Distribution Date, Remittance Date the Trustee shall determine with respect to the immediately following Distribution Date, Date the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) Remittance Date plus the amount of any transfers to amounts deposited into the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating pursuant to Section 6.12 and any Capitalized Interest Amount to be deposited pursuant to Section 6.13 for such Distribution Date pursuant to less the amounts described in clauses (i) through (ii) of Section 6.01 hereof6.05(b) or (c) for the related Distribution Date, excluding and not including the amount of any Insured Payment and prior which is required to be deposited in the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 Certificate Account for the related such Distribution Date. The amounts described above in the preceding sentence sentence, with respect to the each Distribution Date are the "Available Funds"" for such Distribution Date.
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete a Notice in the form of Exhibit A to the related Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Policy Business Day preceding such Distribution Date as a claim for an Insured Payment in an amount equal to such Available Funds Shortfall.
(c) The Trustee shall establish a separate Eligible Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Payments Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Payment Payments Account and distribute such amount only for purposes of payment to the Certificateholders of the Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount shall be transferred by the Trustee from the Certificate Insurance Payments Account to the Certificate Account on the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments made under the Certificate Insurance Policy to be made by checks or wire transfers separate from the checks or wire transfers used other amounts distributed pursuant to pay the Insured Distribution Amount with other funds available to make such paymentSection 6.05. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Payments Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Payments Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Payments Account on the first Policy Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Policy Business Day.
(d) The Trustee Remittance Report shall keep a complete and accurate record of indicate the amount of interest and principal paid in respect of any Certificate the Class A Certificates from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.any
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Nations Asset Securities Inc)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer Distribution DateUnless otherwise indicated, the Trustee shall determine with respect all references in this Section 5.06 to the immediately following Distribution DateSecurities Administrator shall mean the Securities Administrator, acting on behalf of and with the amount to be on deposit in the Certificate Account on such Distribution Date as a result authorization of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds"Trustee.
(b) If If, on the second Business Day before any Distribution Date there or the Securities Administrator determines that an Insured Amount is an Available Funds Shortfallrequired to be made by the Certificate Insurer on such Distribution Date, the Trustee Securities Administrator, as applicable, shall complete determine the amount of any such Insured Amount and shall give written notice to the Certificate Insurer by completing a Notice of Nonpayment in the form of Exhibit A to the Certificate Insurance Policy and submit submitting such notice to the Certificate Insurer no later than Notice of Nonpayment by 12:00 noon noon, New York City time on the such second Business Day preceding such Distribution Date as a claim for an Insured Payment Amount. The Securities Administrator’s responsibility for delivering a Notice of Nonpayment to the Certificate Insurer, as provided in the preceding sentence, is limited to the availability, timeliness and accuracy of the information provided to it by the Master Servicer. In the event the Securities Administrator receives a certified copy of an amount equal order of the appropriate court that any scheduled payment of principal or interest on a Guaranteed Certificate has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Securities Administrator shall promptly notify the Certificate Insurer in writing, as appropriate, and the fiscal agent, if any, and the Securities Administrator shall, on behalf of the Trustee, make a claim on the Certificate Insurance Policy in accordance with the provisions thereof to obtain payment by the Certificate Insurer of such voided scheduled payment. In addition, the Securities Administrator shall mail notice to all Holders of any Class of Guaranteed Certificates, so affected that, in the event that any such Holder’s scheduled payment is so recovered, such Holder will be entitled to payment pursuant to the terms of the Certificate Insurance Policy, a copy of which shall be made available to such Available Funds ShortfallHolders by the Securities Administrator. The Securities Administrator shall furnish to the Certificate Insurer and the appropriate fiscal agent, if any, its records listing the payments on the affected Classes of Guaranteed Certificates, if any, that have been made by the Securities Administrator and subsequently recovered from the affected Holders, and the dates on which such payments were made by the Securities Administrator.
(c) The Trustee At the time of the execution hereof, and for the purposes hereof, the Securities Administrator shall establish a separate Eligible the Policy Payments Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee Securities Administrator shall have exclusive control and sole right of withdrawal. The Trustee Policy Payments Account shall be an Eligible Account. The Securities Administrator shall deposit upon receipt any amount paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for the purposes of payment making payments to Holders of the Guaranteed Certificates in respect of the Guaranteed Distributions (or other amounts payable pursuant to the Certificateholders second paragraph of subsection (a) above on any Class of Guaranteed Certificates by the Insured Distribution Amount Certificate Insurer pursuant to the Certificate Insurance Policy) for which a the related claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount . Such amounts shall be transferred to the Certificate Account on the related Distribution Date and disbursed allocated by the Trustee Securities Administrator to Holders of a Class 1-A2B, Class 1-A3, Class 1-A4, Class 1-A5B or Class 2-A1 Certificates entitled to such payments in the Certificateholders in accordance same manner as principal and interest distributions are to be allocated with respect to such Certificates pursuant to Section 6.055.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay make regular payments hereunder with funds withdrawn from the Insured Distribution Amount with other funds available to make such paymentCertificate Account. However, the amount any payments made on any Class of any payment of principal or of interest on the Guaranteed Certificates to be paid from funds transferred from in the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph subsection (de) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Securities Administrator.
(d) Any funds received from the Certificate Insurer for deposit into the Policy Payments Account pursuant to the Certificate Insurance Policy in respect of a Distribution Date or otherwise as a result of any claim under such Certificate Insurance Policy shall be applied by the Securities Administrator directly to the payment in full (i) of the Insured Amounts due on such Distribution Date on the Class 1-A2B, 1-A3, 1-A4, 1-A5B or Class 2-A1 Certificates, as applicable, or (ii) of other amounts to which payments under the Certificate Insurance Policy are to be applied. Funds received by the Securities Administrator as a result of any claim under the Certificate Insurance Policy shall be used solely for payment to the Holders of the Class 1-A2B, 1-A3, 1-A4, 1-A5B or Class 2-A1 Certificates, as applicable, and may not be applied for any other purpose, including, without limitation, satisfaction of any costs, expenses or liabilities of the Securities Administrator, the Trustee or the Trust Fund. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a after each Distribution Date (other than the final Distribution Date to the extent of funds remaining in the Policy Payments Account required to be paid to Holders of the Class 1-A2B, 1-A3, 1-A4, 1-A5B or Class 2-A1 Certificates, as applicable) shall be returned remitted promptly to the Certificate Insurer pursuant to the written instructions instruction of the Certificate Insurer by the end of such Business DayInsurer.
(de) The Trustee Securities Administrator shall keep a complete and accurate record records in respect of (i) all funds remitted to the amount Securities Administrator by the Certificate Insurer and deposited into the Policy Payments Account and (ii) the allocation of such funds to (A) payments of interest on and principal paid in respect of any Certificate from moneys received under Class 1-A2B, 1-A3, 1-A4, 1-A5B or Class 2-A1 Certificates, as applicable (B) Applied Loss Amounts allocated to the Certificate Insurance PolicyClass 1-A2B, 1-A3, 1-A4, 1-A5B or Class 2-A1 Certificates, as applicable and (C) payments in respect of Preference Amounts. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one three Business Day's Days’ prior notice to the Trustee.
(e) In Securities Administrator. Any Insured Amounts disbursed by the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions Securities Administrator from proceeds of the Certificate Insurance Policy to obtain shall be considered payment by the Certificate Insurer of such voided Insured Paymentand not by the Trust Fund with respect to the Class 1-A2B, 1-A3, 1-A4, 1-A5B or Class 2-A1 Certificates, as applicable, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder Insurer will be entitled to payment receive the related Reimbursement Amount pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, Sections 5.02(b)(iii) and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made5.02(c)(iii).
(f) The Securities Administrator acknowledges, and each Holder of a Guaranteed Certificate by their acceptance of such Certificates agree, that, without the need for any further action on the part of the Certificate Insurer, the Securities Administrator or the Trustee, to the extent the Certificate Insurer pays Insured Amounts or Preference Amounts, directly or indirectly, on account of principal of or interest on any such Class of Certificates, the Certificate Insurer will be fully subrogated to the rights of the Holders of such Class to receive the related Reimbursement Amount pursuant to Section 5.02(b)(iii). The Class 1-A2B, 1-A3, 1-A4, 1-A5B or Class 2-A1 Certificateholders, by acceptance of their respective Classes of Certificates assign their rights as Holders of such Class of Certificates to the extent of the Certificate Insurer’s interest with respect to amounts paid under the Certificate Insurance Policy. Each of the Depositor, the Securities Administrator and the Trustee agrees to such subrogation and, further agrees to execute such instruments and to take such actions as, in the sole judgment of the Certificate Insurer are necessary to evidence such subrogation and, subject to the priority of payment provisions of this Agreement, to perfect the rights of the Certificate Insurer to receive any moneys paid or payable in respect of the Class 1-A2B, 1-A3, 1-A4, 1-A5B or Class 2-A1 Certificates, as applicable, under this Agreement or otherwise. Anything herein to the contrary notwithstanding, solely for purposes of determining the Certificate Insurer’s rights as subrogee for payments distributable pursuant to Section 5.02, any payment with respect to distributions to the Class 1-A2B, 1-A3, 1-A4, 1-A5B or Class 2-A1 Certificates, as applicable, that is made with funds received pursuant to the terms of the Certificate Insurance Policy shall not be considered payment of such Class of Certificates from the Trust Fund and shall not result in the distribution or the provision for the distribution in reduction of the Class Principal Amount of such Class of Certificates or Current Interest thereon, within the meaning of Article V.
(g) The Securities Administrator shall promptly notify the Certificate Insurer of any proceeding or either of the institution of any action, of following as to which a Responsible Officer of the Trustee either has actual knowledge: (A) the commencement of any proceeding by or against the Depositor commenced under the Bankruptcy Code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an “Insolvency Proceeding”) and (B) the making of any claim in connection with any Insolvency Proceeding seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "“Preference Claim"”) of any distribution made with respect to the Class 1-A2B, 1-A3, 1-A4, 1-A5B or Class 2-A1 Certificates, as applicable. Each CertificateholderHolder of a Guaranteed Certificate, by its purchase of Certificatesits respective Class of Certificate, the Servicer and the Trustee and the Securities Administrator hereby agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such any Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the ServicerTrustee, the Trustee Securities Administrator and each Certificateholder Holder of a Class of Guaranteed Certificate in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any an adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(gh) The Trustee shall, upon retirement or the Securities Administrator on behalf of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, Trustee shall surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationcancellation upon the termination of the Trust Fund pursuant to Article VII hereof.
Appears in 1 contract
The Certificate Insurance Policy. (a) Within two (2) days of As to each Distribution Date, the Trustee shall, based on the information required to be provided by the Servicer to the Trustee, determine whether there will be a Required Payment for such Distribution Date. In the event that the Trustee determines that there will be a Required Payment for the related Distribution Date, the Trustee shall determine with respect to complete the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete a Notice notice in the form of Exhibit A to the Certificate Insurance Policy and Policy. The Trustee shall submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Business Day preceding such Distribution Date as a claim for an Insured Payment Amount in an amount equal to the Required Payment.
(b) Upon receipt of Insured Payments from the Certificate Insurer on behalf of Class A Certificateholders, the Trustee shall deposit such Available Funds ShortfallInsured Payments in the Distribution Account and shall distribute such Insured Payments, or the proceeds thereof, to the Class A Certificateholders in accordance with Section 6.01.
(c) The Trustee shall establish (i) receive as attorney-in-fact of each Holder of any Class A Certificates any Insured Payment from the Certificate Insurer and (ii) disburse the same to the Holders of such Certificates as set forth in Section 6.01. Insured Payments disbursed by the Trustee from proceeds of a separate Eligible Account Certificate Insurance Policy shall be considered payment by the Certificate Insurer and not by the Trust Fund with respect to such Certificates, and the Certificate Insurer shall be entitled to receive the related Reimbursement Amount pursuant to Section 6.01. The Trustee hereby agrees on behalf of each Class A Certificateholder and the Trust Fund for the benefit of Holders of the Certificates and the Certificate Insurer referred that it recognizes that to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under extent the Certificate Insurance Policy in Insurer makes Insured Payments, either directly or indirectly (as by paying through the Certificate Insurance Payment Account and distribute such amount only for purposes of payment to the Certificateholders of the Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance PolicyTrustee), to the extent needed to pay the Insured Distribution Amount shall be transferred to Holders of such Certificates, the Certificate Account on Insurer will be entitled to receive the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Reimbursement Amount with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day6.01.
(d) The Trustee shall keep a complete and accurate record Subject only to the priority of payment provisions of this Agreement, each of the amount of interest and principal paid in respect of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy lawDepositor, the Trustee shall so notify and each Holder of a Class A Certificate acknowledges that, to the Certificate Insurer, shall comply with the provisions extent of the Certificate Insurance Policy to obtain any payment made by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish is to be fully subrogated to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee extent of such payment and subsequently recovered from the Certificateholders, and dates any additional interest due on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurerlate payment, to the fullest extent permitted by law, the rights of the Servicer, Holders of the Class A Certificates to any moneys paid or payable in respect of the Class A Certificates under this Agreement or otherwise. Each of the Depositor and the Trustee agrees to such subrogation and, further, agrees to execute such instruments and each Certificateholder to take such actions as, in the conduct sole judgment of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of are necessary to evidence such retirement, subrogation and, upon retirement subject to the priority of payment provision of this Agreement, to perfect the Certificates and the expiration of the term rights of the Certificate Insurance Policy, surrender Insurer to receive any moneys paid or payable in respect of the Certificate Insurance Policy to the Certificate Insurer for cancellationClass A Certificates under this Agreement or otherwise.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Dean Witter Capital I Inc)
The Certificate Insurance Policy. (a) Within two (2) days of Not later than 3:00 p.m., New York time, on the third Business Day immediately preceding each Servicer Distribution Date, the Trustee Trust Administrator shall determine with respect the Available Funds for such Distribution Date. To the extent any Available Funds Shortfall will exist for any Distribution Date after giving effect to the immediately following Distribution Date, the amount distributions specified in Section 4.04(b) hereof (calculating such distributions without giving effect to any Insured Payment to be on deposit in the Certificate Account made on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall), the Trustee Trust Administrator shall complete a Notice notice in the form of Exhibit A attached to the Certificate Insurance Policy (the "Notice") and shall submit such notice Notice to the Certificate Insurer no later than 12:00 noon 10:00 a.m., New York City time time, on the second Business Day preceding such Distribution Date as Date. Such Notice may be delivered by electronic facsimile (in which case the original shall be sent by overnight courier). The Notice shall constitute a claim for an Insured Payment in pursuant to the Policy for an amount equal to such the Available Funds Shortfall. Upon receipt of Insured Payments on behalf of the Certificateholders, the Trust Administrator shall deposit such Insured Payments in the Policy Payments Account, and shall thereafter transfer such Insured Payments to the Certificate Account for distribution solely to the related Certificateholders in accordance with Section 4.04(b).
(cb) The Trustee Trust Administrator, on behalf of the Trust and as agent for the Trustee, shall establish a separate Eligible Account special purpose trust account for the benefit of the Holders of the Offered Certificates and the Certificate Insurer referred to herein as (the "Certificate Insurance Payment Policy Payments Account" ") over which the Trustee Trust Administrator shall have exclusive control and sole right of withdrawal. The Trustee Trust Administrator shall deposit upon receipt any amount paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for purposes of payment to the Certificateholders Holders of Offered Certificates of the Insured Distribution Amount Payment for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Master Servicer, the Trustee Trustee, the Trust Administrator or the Trust FundTrust. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount Policy shall be transferred to the Certificate Account on in accordance with the related Distribution Date next succeeding paragraph and thereafter disbursed by the Trustee Trust Administrator to the Certificateholders Holders of the Offered Certificates in accordance with Section 6.054.04(b). It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Amount with any other funds available amounts distributed pursuant to make such paymentSection 4.04(b). However, the amount of any payment of principal of or of interest on the Offered Certificates to be paid from funds transferred from the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to related Holders of the Offered Certificates pursuant to Section 6.074.05. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Trust Administrator. On any Distribution Date with respect to which a claim has been made under the Policy, the amount of any funds received by the Trust Administrator as a result of such claim, to the extent required to pay amounts owed to Certificateholders on such Distribution Date, shall be withdrawn from the Policy Payments Account and deposited in the Certificate Account and applied by the Trust Administrator, together with the other funds to be deposited in the Certificate Account, directly to the amounts owed to Certificateholders on the related Certificates. Funds received by the Trust Administrator as a result of any claim under the Policy shall be deposited by the Trust Administrator in the Policy Payments Account and then transferred to the Certificate Account and used solely for payment to the related Holders of the related Certificates and may not be applied to satisfy any costs, expenses or liabilities of the Master Servicer, the Trustee, the Trust Administrator or the Trust. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a Distribution Date shall be returned remitted to the Certificate Insurer Insurer, pursuant to the written instructions of the Certificate Insurer Insurer, by the end of such Business Day.
(dc) The Trustee Trust Administrator shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(ed) In the event that the Trustee has received The Trust Administrator shall receive, as attorney-in-fact of each Holder of a certified copy of an order of the appropriate court that Class A Certificate, any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify from the Certificate Insurer, shall comply Insurer and disburse the same to each Holder of a Class A Certificate in accordance with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were madethis Article IV.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (New Century Home Equity Loan Trust Series 1999-NCB)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete a Notice in the form of Exhibit A to the Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Business Day preceding such Distribution Date as a claim for an Insured Payment in an amount equal to such Available Funds Shortfall.
(c) The Trustee shall establish a separate non-interest bearing trust account which shall be an Eligible Account for the benefit of Holders of the Class A-1 Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Policy Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Policy Payment Account and distribute such amount only for purposes of payment to the Certificateholders Insured Certificates of the Insured Distribution Amount Policy Payment for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Master Servicer, the Trustee or the Trust FundFund or to pay any other Class of Certificates. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount any Class A-1 Certificate Deficiency Amount, shall be transferred to the Certificate Distribution Account on the related Distribution Date Date, and the portion thereof representing the Class A-1 Certificate Deficiency Amount shall be disbursed by the Trustee to the Certificateholders Class A-1 Certificateholders, in accordance with each case as if it were a distribution to the Holders of such Certificates pursuant to Section 6.054.01. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay other distributions to the Insured Distribution Amount Class A-1 Certificateholders, as applicable, with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Insured Certificates to be paid from funds transferred from the Certificate Insurance Policy Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the such Class of Certificates pursuant to Section 6.074.02. Funds held in the Certificate Insurance Policy Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Policy Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(db) The If the Trustee shall keep has determined that a complete and accurate record of the amount of interest and principal Class A-1 Certificate Deficiency Amount is required to be paid in respect of any Certificate from moneys received under the Certificate Insurance Policy with respect to such Distribution Date, it shall deliver a Notice of Claim (in the form attached as Exhibit A to the Certificate Insurance Policy) to the Certificate Insurer no later than noon, New York, New York time on the second Business Day preceding such Distribution Date and shall provide a copy thereof to the Master Servicer at or prior to the time such Notice of Claim is received by the Certificate Insurer. The Certificate Insurer Notice of Claim shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice constitute a claim therefor pursuant to the TrusteeCertificate Insurance Policy.
(ec) In the event that If the Trustee has received receives a certified copy of an order of the appropriate court (an "Order") that any prior distribution made on the Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy lawCertificates constitutes an Avoided Payment, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, Avoided Payment and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders notify each holder of the affected Insured Certificates thatby mail that (i) subject to the terms of the Certificate Insurance Policy, the Certificate Insurer will disburse the Avoided Payment directly to the receiver, conservator, debtor-in-possession or trustee in bankruptcy named in the Order on the fourth Business Day following such Certificateholder's making timely delivery to the Trustee of (a) a certificate of such Certificateholder that such Order has been entered and is not subject to any stay, (b) an opinion of counsel satisfactory to the Certificate Insurer that such Order is final and is not subject to appeal and (c) an assignment duly executed and delivered by such Certificateholder, in such from as is reasonably required by the event Certificate Insurer and provided to such Certificateholder by the Certificate Insurer, irrevocably assigning to the Certificate Insurer all rights and claims of such Certificateholder relating to or arising under the affected Insured Certificates against the debtor that made a payment of such Avoided Payment, or otherwise with respect to such payment, provided that if such documents are received after 10:00 a.m., New York time, on such Business Day, they will be deemed to be received on the following Business Day, and (ii) if any Certificateholder's Insured such Avoided Payment is so recoveredrecovered from such Certificateholder pursuant to such Order, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a . A copy of which the Certificate Insurance Policy shall be made available to each affected Certificateholder through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, a copy of its records evidencing the payments which that have been made by the Trustee and subsequently recovered from Certificateholders and the Certificateholders, and dates on which such payments were made.
(fd) The Trustee shall promptly notify keep a complete and accurate record of the amount of interest and principal paid in respect of any Insured Certificates from moneys received under the Certificate Insurance Policy. The Certificate Insurer of any proceeding or shall have the institution of any action, of which a Responsible Officer right to inspect such records at reasonable times during normal business hours upon two Business Day's prior notice to the Trustee.
(e) The Holders of the Trustee has actual knowledge, seeking Insured Certificates are not entitled to institute proceedings directly against the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the CertificatesCertificate Insurer. Each CertificateholderHolder of the Insured Certificates, by its purchase of Certificates, the Servicer and the Trustee agree that, Insured Certificates hereby agrees that the Certificate Insurer (so long as no Certificate Insurer Default exists) may at any time during the continuation of any proceeding relating to a Preference Claim an Avoided Payment, direct all matters relating to such Preference ClaimAvoided Payment on their behalf, including, without limitation, (i) the direction of 121 any appeal of any order relating to such Preference Claim preference claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, .
(f) Any payments to the Certificate Insurer shall be subrogated to, made by wire transfer of immediately available funds to the following Federal Reserve Account (unless and each Certificateholder, until the Servicer and Certificate Insurer notifies the Trustee hereby delegate and assign to of a change in such account information in writing): Fleet Bank, N.A. 000 Xxxx Xxxxxx Xxxxxxxx, XX 00000-0000 ABA Number: 000000000 For the Certificate InsurerAccount of: XL Capital Assurance Inc. 0000 Xxxxxx xx xxx Xxxxxxxx, to the fullest extent permitted by law00xx Xxxxx Xxx Xxxx, the rights of the Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.XX 00000-0000 Account #: 000-000-0000 Reference: Policy Number CA01142A-PPSI 2004-WHQ1
(g) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon after retirement of the Insured Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
(h) The Trustee shall hold the Certificate Insurance Policy in trust as agent for the Holders of the Class A Certificates for the purpose of making claims thereon and distributing the proceeds thereof. Neither the Certificate Insurance Policy nor the amounts paid on the Certificate Insurance Policy shall constitute part of the Trust Fund created by this Agreement. Each Holder of Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney-in-fact for the purpose of making claims on the Certificate Insurance Policy.
Appears in 1 contract
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer Not later than one Business Day prior to the Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, Date the amount to be on deposit in the Certificate Account on such Distribution Date as a result of reduced by (x) the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application sum of the amounts described in clauses (a)(ii) through and (a)(iiiii) of Section 6.05 6.5(b) for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds", and further not including (y) any Insured Payment.
(b) If Not later than 12:00 noon New York City time on any the Business Day preceding each Distribution Date there is an Available Funds ShortfallDate, the Trustee shall shall, if the Trustee determines that an Insured Payment is required to be made in accordance with the Certificate Insurance Policy complete a Notice in the form of Exhibit A to the Certificate Insurance Policy Policy, and submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Business Day preceding and such Distribution Date notice shall serve as a claim for an Insured Payment in an amount equal to the Insured Payment due with respect to the Class A Certificates for and on such Available Funds ShortfallDistribution Date. The Insured Payment shall be deposited directly into the Certificate Account in accordance with the Notice and the Certificate Insurance Policy.
(c) The Trustee shall establish a separate Eligible Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Payment Account and distribute such amount only for purposes of payment to the Certificateholders of the Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount shall be transferred to the Certificate Account on the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Amount with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(d) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(ed) In the event that the Trustee has received a certified copy of an order of the appropriate court that any amount distributed on the Class A Certificates, including any amounts represented by an Insured Payment Payment, has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Paymentamount distributed, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment amount distributed is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(fe) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference ClaimPREFERENCE CLAIM") of any distribution made with respect to the Certificates. Each Class A Certificateholder, by its purchase of Class A Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i1) the direction of any appeal of any order relating to such Preference Claim and (ii2) the posting of any surety, supersedas supersedes or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Class A Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, 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 any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Painewebber Mort Accept Corp Iv New South Home Eq Tr 1999-1)
The Certificate Insurance Policy. (a) Within two (2) days of Business Days after each Master Servicer Distribution Date, Remittance Date the Trustee shall determine with respect to the immediately following Distribution Date, Date the amount to be on deposit in the Certificate Account Accounts on such Distribution Date as a result of the (i) Master Servicer's remittance of the Master Servicer Remittance Amount on the related Master Servicer Remittance Date plus the amount of any amounts deposited into the Certificate Accounts from the related Pre-Funding Account pursuant to Section 6.12 and any Interest Coverage Additions to be deposited pursuant to Section 6.13 for such Distribution Date, less the amounts described in clause (f) of Section 6.02 to be withdrawn on such Distribution Date and clauses (i) through (ii) of Section 6.05(b) or (c) for the related Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding not including the amount of any Insured Payment and prior which is required to the application of the amounts described be deposited in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Certificate Account for such Distribution Date. The amounts described above in the preceding sentence sentence, as determined separately with respect to the Group I Loans, and Group II Loans, with respect to each Distribution Date are the "Group I Available Funds" and "Group II Available Funds" for such Distribution Date.
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete a Notice in the form of Exhibit A to the related Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Policy Business Day preceding such Distribution Date as a claim for an Insured Payment in an amount equal to such Available Funds Shortfall.
(c) The Trustee shall establish a separate Eligible Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Payments Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Payment Payments Account and distribute such amount only for purposes of payment to the Certificateholders of the Group I Insured Distribution Amount or Group II Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Master Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Group I Insured Distribution Amount or Group II Insured Distribution Amount shall be transferred by the Trustee from the Certificate Insurance Payments Account to the related Certificate Account on the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments made under the Certificate Insurance Policy to be made by checks or wire transfers separate from the checks or wire transfers used other amounts distributed pursuant to pay the Insured Distribution Amount with other funds available to make such paymentSection 6.05. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Payments Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Payments Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Payments Account on the first Policy Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Policy Business Day.
(d) The Trustee Remittance Report shall keep a complete and accurate record of indicate the amount of interest and principal paid in respect of any Certificate the Group I Class A Certificates and the Group II Class A Certificates from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Master Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Southern Pacific Secured Assets Corp)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer If, on the second Business Day before any Distribution Date, the Trustee determines that an Insured Amount is required to be made by the Certificate Insurer on such Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any such Insured Payment Amount and prior shall give written notice to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete Certificate Insurer by completing a Notice of Nonpayment in the form of Exhibit A to the Certificate Insurance Policy and submit submitting such notice to the Certificate Insurer no later than Notice of Nonpayment by 12:00 noon noon, New York City time on the such second Business Day preceding such Distribution Date as a claim for an Insured Payment Amount. The Trustee’s responsibility for delivering a Notice of Nonpayment to the Certificate Insurer, as provided in the preceding sentence, is limited to the availability, timeliness and accuracy of the information provided to it by the Master Servicer. In the event the Trustee receives a certified copy of an amount equal order of the appropriate court that any scheduled payment of principal or interest on a Class 1-A6 Certificate has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall promptly notify the Certificate Insurer in writing, as appropriate, and the fiscal agent, if any, and the Trustee shall make a claim on the Certificate Insurance Policy in accordance with the provisions thereof to obtain payment by the Certificate Insurer of such voided scheduled payment. In addition, the Trustee shall mail notice to all Holders of the Class 1-A6 Certificates so affected that, in the event that any such Holder’s scheduled payment is so recovered, such Holder will be entitled to payment pursuant to the terms of the Certificate Insurance Policy, a copy of which shall be made available to such Available Funds ShortfallHolders by the Trustee. The Trustee shall furnish to the Certificate Insurer and the appropriate fiscal agent, if any, its records listing the payments on the affected Class 1-A6 Certificates, if any, that have been made by the Trustee and subsequently recovered from the affected Holders, and the dates on which such payments were made by the Trustee.
(cb) The At the time of the execution hereof, and for the purposes hereof, the Trustee shall establish a separate Eligible Account special purpose trust account in the name of the Trustee for the benefit of Holders of the Class 1-A6 Certificates and (the Certificate Insurer referred to herein as the "Certificate Insurance Payment “Policy Payments Account" ”) over which the Trustee shall have exclusive control and sole right of withdrawal. The Policy Payments Account shall be an Eligible Account. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for the purposes of payment making payments to Holders of the Class 1-A6 Certificates in respect of the Guaranteed Distributions (or other amounts payable pursuant to the Certificateholders second paragraph of subsection (a) above on the Insured Distribution Amount Class 1-A6 Certificates by the Certificate Insurer pursuant to the Certificate Insurance Policy) for which a the related claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount . Such amounts shall be transferred to the Certificate Account on the related Distribution Date and disbursed allocated by the Trustee to Holders of Class 1-A6 Certificates entitled to such payments in the Certificateholders in accordance same manner as principal and interest distributions are to be allocated with respect to such Certificates pursuant to Section 6.055.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay make regular payments hereunder with funds withdrawn from the Insured Distribution Amount with other funds available to make such paymentCertificate Account. However, the amount of any payment of principal or of interest payments made on the Class 1-A6 Certificates to be paid from funds transferred from in the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph subsection (de) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Trustee.
(c) Any funds received from the Certificate Insurer for deposit into the Policy Payments Account pursuant to the Certificate Insurance Policy in respect of a Distribution Date or otherwise as a result of any claim under such Certificate Insurance Policy shall be applied by the Trustee directly to the payment in full (i) of the Insured Amounts due on such Distribution Date on the Class 1-A6 Certificates, or (ii) of other amounts to which payments under the Certificate Insurance Policy are to be applied. Funds received by the Trustee as a result of any claim under the Certificate Insurance Policy shall be used solely for payment to the Holders of the Class 1-A6 Certificates, and may not be applied for any other purpose, including, without limitation, satisfaction of any costs, expenses or liabilities of the Trustee or the Trust Fund. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a after each Distribution Date (other than the final Distribution Date to the extent of funds remaining in the Policy Payments Account required to be paid to Holders of the Class 1-A6 Certificates) shall be returned remitted promptly to the Certificate Insurer pursuant to the written instructions instruction of the Certificate Insurer by the end of such Business DayInsurer.
(d) The Trustee shall keep a complete and accurate record records in respect of (i) all funds remitted to the amount Trustee by the Certificate Insurer and deposited into the Policy Payments Account and (ii) the allocation of such funds to (A) payments of interest on and principal paid in respect of any Certificate from moneys received under Class 1-A6 Certificates, (B) Pool 1 Applied Loss Amounts allocated to the Certificate Insurance PolicyClass 1-A6 Certificates, and (C) payments in respect of Preference Amounts. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one three Business Day's Days’ prior notice to the Trustee. Any Insured Payments disbursed by the Trustee from proceeds of the Certificate Insurance Policy shall be considered payment by the Certificate Insurer and not by the Trust Fund with respect to the Class 1-A6 Certificates and the Certificate Insurer will be entitled to receive the related Reimbursement Amount pursuant to Section 5.02(b)(iii).
(e) In The Trustee acknowledges, and each Holder of a Class 1-A6 Certificate by its acceptance of such Class 1-A6 Certificate agrees, that, without the event that need for any further action on the Trustee has received a certified copy of an order part of the appropriate court that Certificate Insurer or the Trustee, to the extent the Certificate Insurer pays Insured Amounts or Preference Amounts, directly or indirectly, on account of principal of or interest on any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy lawClass 1-A6 Certificates, the Trustee Certificate Insurer will be fully subrogated to the rights of the Holders of such Class 1-A6 Certificates to receive the related Reimbursement Amount pursuant to Sections 5.02(b)(iii) and the Certificate Insurer shall so notify also have the rights conferred to the Certificate Insurer under Sections 4.06 and 5.02 of the Insurance Agreement, as if fully set forth herein. The Class 1-A6 Certificateholders, by acceptance of the Class 1-A6 Certificates assign their rights as Holders of the Class 1-A6 Certificates to the extent of the Certificate Insurer’s interest with respect to amounts paid under the Certificate Insurance Policy. Each of the Depositor and Trustee agrees to such subrogation and, shall comply further agrees to execute such instruments and to take such actions as, in the sole judgment of the Certificate Insurer are necessary to evidence such subrogation and, subject to the priority of payment provisions of this Agreement, to perfect the rights of the Certificate Insurer to receive any moneys paid or payable in respect of the Class 1-A6 Certificates under this Agreement or otherwise. Anything herein to the contrary notwithstanding, solely for purposes of determining the Certificate Insurer’s rights as subrogee for payments distributable pursuant to Section 5.02, any payment with respect to distributions to the provisions Class 1-A6 Certificates that is made with funds received pursuant to the terms of the Certificate Insurance Policy to obtain shall not be considered payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Class 1-A6 Certificates that, from the Trust Fund and shall not result in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer distribution or the Certificate Insurer's fiscal agentprovision for the distribution in reduction of the Class Principal Amount of the Class 1-A6 Certificates or Current Interest thereon, if any, and within the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.meaning of Article V.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or either of the institution of any action, of following as to which a Responsible Officer of the Trustee has actual knowledge: (A) the commencement of any proceeding by or against the Depositor commenced under the United States bankruptcy code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an “Insolvency Proceeding”) and (B) the making of any claim in connection with any Insolvency Proceeding seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "“Preference Claim"”) of any distribution made with respect to the Class 1-A6 Certificates. Each CertificateholderHolder of a Class 1-A6 Certificate, by its purchase of Certificatessuch Class 1-A6 Certificate, the Servicer and the Trustee hereby agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such any Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder Holder of a Class 1-A6 Certificate in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any an adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, shall surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationcancellation upon the termination of the Trust Fund pursuant to Section 7.01 hereof.
Appears in 1 contract
Samples: Trust Agreement (Structured Asset Securities Corp Mort Pas THR Cert Se 04 4xs)
The Certificate Insurance Policy. (a) Within two Not later than three (23) days of Business Days prior to each Servicer Distribution Date, the Trustee shall determine with respect to the immediately following such Distribution Date, the amount to be on deposit in the Certificate Distribution Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereofextent of Available Funds, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds"Payment.
(b) If on any Distribution Date there is an Available Funds Shortfalla Certificate Deficiency Amount, the Trustee shall complete a Notice notice in the form of Exhibit A to the Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon 2:00 pm, New York City time time, on the second third Business Day preceding such Distribution Date as a claim for an Insured Payment in an amount equal to such Available Funds ShortfallCertificate Deficiency Amount. No later than 12:00 noon, New York City time, on each Distribution Date, the Certificate Insurer shall remit to the Trustee the amount of all Insured Payments for which such notice has been so received after the preceding Distribution Date for deposit in the Policy Payment Account.
(c) The Trustee shall establish a separate Eligible Account for the benefit of Holders of the Class A and Class M Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Policy Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Policy Payment Account and distribute such amount only for purposes of payment to the Certificateholders Class A-1, Class A-2, Class A-3 or Class M Certificateholders, as applicable, of the Insured Distribution Amount Payment for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust FundFund or to pay any other Class of Certificates. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount any Certificate Deficiency Amount, shall be transferred to the Certificate Distribution Account on the related Distribution Date Date, and the portion thereof representing the Class A-1 Certificate Deficiency Amount shall be disbursed by the Trustee to the Certificateholders Class A-1 Certificateholders, the portion thereof representing the Class A-2 Certificate Deficiency Amount shall be disbursed by the Trustee to the Class A-2 Certificateholders, the portion thereof representing the Class A-3 Certificate Deficiency Amount shall be disbursed by the Trustee to the Class A-3 Certificateholders, and the portion thereof representing the Class M Certificate Deficiency Amount shall be disbursed by the Trustee to the Class M Certificateholders, in accordance with each case as if it were a distribution to the Holders of such Certificates pursuant to Section 6.054.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay other distributions to the Insured Distribution Amount Class A-1, Class A-2, Class A-3 or Class M Certificateholders, as applicable, with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Certificates to be paid Class A-1, Class A-2, Class A-3 or Class M Certificateholders, as applicaxxx, xx xx xxxd from funds transferred from the Certificate Insurance Policy Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the such Class of Certificates pursuant to Section 6.074.03(a). Funds held in the Certificate Insurance Policy Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Policy Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(d) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Class A-1, Class A-2, Class A-3 and Class M Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any such Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the such Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer and its fiscal agent of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Class A or Class M Certificates. Each Class A and Class M Certificateholder, by its purchase of such Class of Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas supersedes or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer Class A and Class M Certificateholder and the Trustee hereby delegate delegates and assign assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Class A and Class M Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Class A-1, Class A-2, Class A-3 or Class M Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon after retirement of the each such Class of Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
(h) The Trustee will hold the Certificate Insurance Policy in trust as agent for the Holders of the Class A and Class M Certificates for the purpose of making claims thereon and distributing the proceeds thereof. Neither the Certificate Insurance Policy nor the amounts paid on the Certificate Insurance Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of Class A or Class M Certificates, by accepting its Class A or Class M Certificates, appoints the Trustee as attorney-in-fact for the purpose of making claims on the Certificate Insurance Policy.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Abs Cap I Inc Mort Pas THR Certs Ser 2003-Nc9)
The Certificate Insurance Policy. (a) Within Not later than two (2) days of Business Days prior to each Servicer Distribution Date, the Trustee Securities Administrator shall determine with respect to the immediately following such Distribution Date, (i) the amount to be on deposit in the Certificate Distribution Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereofextent of Available Funds, excluding the amount of any Insured Payment Amount and prior any Preference Amount, and (ii) on any Distribution Date after the Class Certificate Balance of each Class of Subordinated Certificates has been reduced to zero, the application positive difference between (A) the aggregate Class Certificate Balances of the amounts described in clauses Class A Certificates (a)(i) through (a)(iii) after giving effect to all payments of Section 6.05 for principal to be made on the related next Distribution Date. The amounts described above in ) over (B) the preceding sentence with respect to aggregate Stated Principal Balance of the Distribution Date are the "Available Funds"Mortgage Loans as of such date.
(b) If the amount described in Section 4.07(a)(ii) is a positive number, the Securities Administrator shall provide the Certificate Insurer written notice. The Certificate Insurer is permitted, at its sole option and discretion, to provide the Securities Administrator notice if it will make a payment in the amount described in clause (ii) of the definition of Deficiency Amount in this Agreement. If on any Distribution Date there is an Available Funds ShortfallInsured Amount, the Trustee Securities Administrator shall complete a Notice notice in the form of Exhibit A to the Certificate Insurance Policy and submit such notice to the Certificate Insurer in accordance with the terms of the Certificate Insurance Policy no later than 12:00 noon New York City time on the second Business Day preceding such Distribution Date as a claim for an such Insured Payment in an amount equal to such Available Funds ShortfallAmount.
(c) The Trustee Securities Administrator shall establish a separate Eligible Account for the benefit of Holders of the Class A Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Policy Payment Account" over which the Trustee Securities Administrator shall have exclusive control and sole right of withdrawal. The Trustee Securities Administrator shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Policy Payment Account and distribute such amount only for purposes of payment to the Class A Certificateholders of the an Insured Distribution Amount or a Preference Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee Depositor, the Trustee, the Securities Administrator or the Trust FundFund or to pay any other Class of Certificates. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the any Insured Distribution Amount or any Preference Amount, shall be transferred to the Certificate Distribution Account on the related Distribution Date and disbursed by the Trustee Securities Administrator to the Class A Certificateholders in accordance with Section 6.054.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay other distributions to the Insured Distribution Amount Class A Certificateholders with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Class A Certificates to be paid from funds transferred from the Certificate Insurance Policy Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Class A Certificates pursuant to Section 6.074.03(a). Funds held in the Certificate Insurance Policy Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Policy Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(d) The Trustee Securities Administrator shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate Class A Certificates from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the TrusteeSecurities Administrator.
(e) In the event that the Trustee Securities Administrator has received a certified copy of an order of the appropriate court that any Insured Payment distribution on the Class A Certificates has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee Securities Administrator shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of the amount of such voided Insured Paymentdistribution constituting a Preference Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Class A Certificateholders of the affected Certificates that, in the event any Class A Certificateholder's Insured Payment distribution is so recoveredrecovered as a preference payment, such Class A Certificateholder will be entitled to payment of an amount constituting a Preference Amount pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the TrusteeSecurities Administrator, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee Securities Administrator shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee Securities Administrator and subsequently recovered from the Class A Certificateholders, and dates on which such payments were made.
(f) The Trustee Securities Administrator shall promptly notify the Certificate Insurer and its fiscal agent of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee Securities Administrator has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Class A Certificates. Each Class A Certificateholder, by its purchase of Class A Certificates, the Servicer and the Trustee Securities Administrator agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas supersedes or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer Class A Certificateholder and the Trustee Securities Administrator hereby delegate delegates and assign assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee Securities Administrator and each Class A Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee Securities Administrator shall, upon retirement of the Class A Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Class A Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
(h) The Securities Administrator will hold the Certificate Insurance Policy in trust as agent for the Holders of the Class A Certificates for the purpose of making claims thereon and distributing the proceeds thereof. Neither the Certificate Insurance Policy nor the amounts paid on the Certificate Insurance Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of Class A Certificates, by accepting its Class A Certificates, appoints the Securities Administrator as attorney in fact for the purpose of making claims on the Certificate Insurance Policy.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley ABS Capital I Inc. Trust 2007-Nc4)
The Certificate Insurance Policy. (a) Within two Not later than three (23) days of Business Days prior to each Servicer Distribution Date, the Trustee shall determine with respect to the immediately following such Distribution Date, the amount to be on deposit in the Certificate Distribution Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereofextent of Available Funds, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds"Policy Payment.
(b) If the Trustee determines that on any Distribution Date there is an Available Funds Shortfallwill be a Certificate Deficiency Amount, the Trustee shall complete a Notice notice in the form of Exhibit A to the Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon 2:00 pm, New York City time time, on the second Business Day preceding such Distribution Date as a claim for an Insured Policy Payment in an amount equal to such Available Funds ShortfallCertificate Deficiency Amount. No later than 12:00 noon, New York City time, on the related Distribution Date, the Certificate Insurer shall remit to the Trustee the amount of all Policy Payments for which such notice has been so received for deposit in the Policy Payment Account.
(c) The Trustee shall establish a separate Eligible Account for the benefit of Holders of the Class A and Class M-1 Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Policy Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Policy Payment Account and distribute such amount only for purposes of payment to the Certificateholders Class A Certificates or Class M-1 Certificates, as applicable, of the Insured Distribution Amount Policy Payment for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Master Servicer, the Trustee or the Trust FundFund or to pay any other Class of Certificates. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount any Certificate Deficiency Amount, shall be transferred to the Certificate Distribution Account on the related Distribution Date Date, and the portion thereof representing the Class AV-1 Certificate Deficiency Amount shall be disbursed by the Trustee to the Certificateholders Class AV-1 Certificateholders, the portion thereof representing the Class AV-2 Certificate Deficiency Amount shall be disbursed by the Trustee to the Class AV-2 Certificateholders, the portion thereof representing the Class AF Certificate Deficiency Amount shall be disbursed by the Trustee to the Class AF Certificateholders, the portion thereof representing the Class M-1 Certificate Deficiency Amount shall be disbursed by the Trustee to the Class M-1 Certificateholders, in accordance with each case as if it were a distribution to the Holders of such Certificates pursuant to Section 6.054.01. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay other distributions to the Insured Distribution Amount Class A and Class M-1 Certificateholders, as 125 applicable, with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Class A Certificates or Class M-1 Certificateholders, as applicable, to be paid from funds transferred from the Certificate Insurance Policy Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the such Class of Certificates pursuant to Section 6.074.02. Funds held in the Certificate Insurance Policy Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Policy Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(d) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate Class A Certificates and Class M-1 Certificates from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured amount that would have been payable on its original date of payment as a Policy Payment had amounts not otherwise been available to pay such amount on such date has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured PaymentAvoided Payment (as such term is defined in the Certificate Insurance Policy), and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any such Certificateholder's Insured Policy Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the such Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer and its fiscal agent of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas Class A Certificates or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.Class M-1
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Argent Securities Inc Asset Back Thru Cert Series 203-W6)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete a Notice in the form of Exhibit A to the Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Business Day preceding such Distribution Date as a claim for an Insured Payment in an amount equal to such Available Funds Shortfall.
(c) The Trustee shall establish a separate Eligible Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment 56 Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Payment Account and distribute such amount only for purposes of payment to the Certificateholders of the Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount shall be transferred to the Certificate Account on the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Amount with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(d) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.. 57
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Prudential Securities Secured Financing Corp)
The Certificate Insurance Policy. (a) Within two (2) days of On each Servicer Distribution Date, Determination Date the Trustee shall determine with respect to the immediately following Distribution Date, Payment Date the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence Group Available Funds with respect to each Group. If the Distribution Date are the "Available Funds".
(b) If on Trustee determines that a Deficiency Amount for a Group will exist with respect to any Distribution Date there is an Available Funds ShortfallPayment Date, the Trustee shall complete a Notice (the "Class A Notice") in the form of Exhibit A to the Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Business Day preceding such Distribution Payment Date as a claim for an Insured Payment in an amount equal to such Available Funds Shortfall.
(c) The Trustee shall establish a separate Eligible Account for the benefit Deficiency Amount. Upon receipt of Holders of the Certificates and Insured Payments from the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Payment Account and distribute such amount only for purposes of payment to the Certificateholders of the Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount shall be transferred to the Certificate Account on the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for deposit such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Amount with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below Payments in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business DayAccount.
(db) The Trustee shall keep a complete and accurate record (i) receive Insured Payments as attorney-in-fact of each Holder of the amount Class A Certificates of interest and principal paid in respect of the related Class receiving any Certificate Insured Payment from moneys received under the Certificate Insurance PolicyInsurer and (ii) disburse such Insured Payment to the Holders of the related Class A Certificates as set forth in Section 6.06. The Certificate Insurer shall have be entitled to receive the right related Reimbursement Amount, pursuant to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice Section 6.06(b)(ix) and (x) hereof with respect to each Insured Payment made by the Certificate Insurer. The Trustee hereby agrees on behalf of each Holder of Class A Certificates and the Trust for the benefit of the Certificate Insurer that it recognizes that to the extent the Certificate Insurer makes Insured Payments, either directly or indirectly (as by paying through the Trustee), to the Holders of such Class A Certificates, the Certificate Insurer will be entitled to receive the related Reimbursement Amount pursuant to Section 6.06(b)(ix) and (x) hereof.
(ec) In the event that Insured Payments disbursed by the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions from proceeds of the Certificate Insurance Policy to obtain shall not be considered payment by the Trust nor shall such payments discharge the obligation of the Trust with respect to such Class A Certificates, and the Certificate Insurer shall become the owner of such unpaid amounts due from the Trust in respect of the Class A Certificates. The Trustee hereby agrees on behalf of each Holder of a Class A Certificate for the benefit of the Certificate Insurer that it recognizes that to the extent the Certificate Insurer makes any Insured Payment, either directly or indirectly (as by paying through the Trustee), to the Class A Certificateholders, the Certificate Insurer will be subrogated to the rights of the Class A Certificateholders with respect to such Insured Payment, shall be deemed to the extent of payments so made to be a registered Class A Certificateholder and shall receive all future distributions until all such Insured Payments by the Certificate Insurer, together with interest thereon at the Late Payment Rate (as defined in the I&I Agreement), have been fully reimbursed. To evidence such subrogation, the Trustee shall note the Certificate Insurer's rights as subrogee on the registration books maintained by the Trustee or the Registrar upon receipt from the Certificate Insurer of such voided proof of payment of any Insured Payment. The effect of the foregoing provisions is that, and shall, at the time it provides notice to the Certificate Insurer, notify, extent of Insured Payments made by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trusteeit, the Certificate Insurer or shall be paid before payment of the Certificate Insurer's fiscal agent, if any, and balance of the Trustee shall furnish distributions are made to the Certificate Insurer or its fiscal agent, if any, its records evidencing other Holders of the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) Class A Certificates. The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, action seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Class A Certificates. Each CertificateholderHolder, by its purchase of Class A Certificates, the Servicer and the Trustee hereby agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such any Preference Claim and (ii) the posting of any surety, supersedas supersedes or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder such Holder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any an adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to . Insured Payments paid by the Certificate Insurer to the Trustee shall be received by the Trustee, as agent to the Certificateholders. The Trustee is not permitted to make a notice of such retirement, and, upon retirement of claim on the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender Trust Fund or on any Certificateholder for payments made to Certificateholders under the Certificate Insurance Policy which are characterized as preference payments by any Bankruptcy Court having jurisdiction over any bankrupt Mortgagor unless ordered to the Certificate Insurer for cancellationdo so by such Bankruptcy Court.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Residential Asset Funding Corp)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer If, on the Business Day before any Distribution Date, the Trustee determines that an Insured Amount is required to be made by the Certificate Insurer on such Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any such Insured Payment Amount and prior shall give written notice to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete Certificate Insurer by completing a Notice of Nonpayment in the form of Exhibit A to the Certificate Insurance Policy and submit submitting such notice to the Certificate Insurer no later than Notice of Nonpayment by 12:00 noon noon, New York City time on the second such Business Day preceding such Distribution Date as a claim for an Insured Payment Amount. The Trustee’s responsibility for delivering a Notice of Nonpayment to the Certificate Insurer, as provided in the preceding sentence, is subject to the availability, timeliness and accuracy of the information provided to it by the Master Servicer in accordance with Section 4.03(a). In the event the Trustee receives a certified copy of an amount equal order of the appropriate court that any scheduled payment of principal or interest on a Insured Certificate has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall promptly notify the Certificate Insurer in writing, as appropriate, and the fiscal agent, if any, and the Trustee shall make a claim on the Certificate Insurance Policy in accordance with the provisions thereof to obtain payment by the Certificate Insurer of such voided scheduled payment. In addition, the Trustee shall mail notice to all Holders of the Insured Certificates so affected that, in the event that any such Holder’s scheduled payment is so recovered, such Holder will be entitled to payment pursuant to the terms of the Certificate Insurance Policy, a copy of which shall be made available to such Available Funds ShortfallHolders by the Trustee. The Trustee shall furnish to the Certificate Insurer and the appropriate fiscal agent, if any, its records listing the payments on the affected Insured Certificates, if any, that have been made by the Trustee and subsequently recovered from the affected Holders, and the dates on which such payments were made by the Trustee.
(cb) The At the time of the execution hereof, and for the purposes hereof, the Trustee shall establish a separate Eligible the Policy Payments Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Policy Payments Account shall be an Eligible Account. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for the purposes of payment making payments to the Certificateholders Holders of the Insured Distribution Amount Certificates in respect of the Insured Distributions (or other amounts payable pursuant to the second paragraph of subsection (a) above on the Insured Certificates by the Certificate Insurer pursuant to the Certificate Insurance Policy) for which a the related claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount . Such amounts shall be transferred to the Certificate Account on the related Distribution Date and disbursed allocated by the Trustee to Holders of Insured Certificates entitled to such payments in the Certificateholders in accordance same manner as principal and interest distributions are to be allocated with respect to such Certificates pursuant to Section 6.055.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay make regular payments hereunder with funds withdrawn from the Insured Distribution Amount with other funds available to make such paymentCertificate Account. However, the amount of any payment of principal or of interest payments made on the Insured Certificates to be paid from funds transferred from in the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph subsection (de) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Trustee.
(c) Any funds received from the Certificate Insurer for deposit into the Policy Payments Account pursuant to the Certificate Insurance Policy in respect of a Distribution Date or otherwise as a result of any claim under such Certificate Insurance Policy shall be applied by the Trustee directly to the payment in full (i) of the Insured Amounts due on such Distribution Date on the Insured Certificates or (ii) of other amounts to which payments under the Certificate Insurance Policy are to be applied. Funds received by the Trustee as a result of any claim under the Certificate Insurance Policy shall be used solely for payment to the Holders of the Insured Certificates and may not be applied for any other purpose, including, without limitation, satisfaction of any costs, expenses or liabilities of the Trustee or the Trust Fund. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a after each Distribution Date (other than the final Distribution Date to the extent of funds remaining in the Policy Payments Account required to be paid to Holders of the Insured Certificates) shall be returned remitted promptly to the Certificate Insurer pursuant to the written instructions instruction of the Certificate Insurer by the end of such Business DayInsurer.
(d) The Trustee shall keep a complete and accurate record records in respect of (i) all funds remitted to the amount Trustee by the Certificate Insurer and deposited into the Policy Payments Account and (ii) the allocation of such funds to (A) payments of interest on and principal paid in respect of any Certificate from moneys received under Insured Certificates (B) any Applied Loss Amount allocated to the Certificate Insurance PolicyInsured Certificates and (C) payments in respect of Preference Amounts. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one three Business Day's Days’ prior notice to the Trustee. Any Insured Amounts disbursed by the Trustee from proceeds of the Certificate Insurance Policy shall be considered payment by the Certificate Insurer and not by the Trust Fund with respect to the Insured Certificates and the Certificate Insurer will be entitled to receive the related Reimbursement Amount pursuant to Section 5.02(b)(iv), 5.02(d)(i)(C) or 5.02(d)(ii)(C), as applicable.
(e) In The Trustee acknowledges, and each Holder of a Insured Certificate by their acceptance of such Certificate agree, that, without the event that need for any further action on the Trustee has received a certified copy of an order part of the appropriate court that Certificate Insurer or the Trustee, to the extent the Certificate Insurer pays Insured Amounts or Preference Amounts, directly or indirectly, on account of principal of or interest on any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy lawsuch Class of Certificates, the Trustee shall so notify Certificate Insurer will be fully subrogated to the rights of the Holders of such Class to receive the related Reimbursement Amount pursuant to Section 5.02(b)(iv), 5.02(d)(i)(C) or 5.02(d)(ii)(C), as applicable. The Holders of each Insured Certificate, by acceptance of their respective Classes of Certificates assign their rights as Holders of such Class of Certificates to the extent of the Certificate Insurer’s interest with respect to amounts paid under the Certificate Insurance Policy. Each of the Depositor and Trustee agrees to such subrogation and, shall comply further agrees to execute such instruments and to take such actions as, in the sole judgment of the Certificate Insurer are necessary to evidence such subrogation and, subject to the priority of payment provisions of this Agreement, to perfect the rights of the Certificate Insurer to receive any moneys paid or payable in respect of the Insured Certificates under this Agreement or otherwise. Anything herein to the contrary notwithstanding, solely for purposes of determining the Certificate Insurer’s rights as subrogee for payments distributable pursuant to Section 5.02, any payment with respect to distributions to the provisions Insured Certificates that is made with funds received pursuant to the terms of the Certificate Insurance Policy to obtain shall not be considered payment by the Certificate Insurer of such voided Insured Payment, Class of Certificates from the Trust Fund and shall, at shall not result in the time it provides notice to distribution or the Certificate Insurer, notify, by mail to provision for the Certificateholders distribution in reduction of the affected Class Principal Amount of such Class of Certificates thator Current Interest thereon, in within the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy meaning of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.Article V.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or either of the institution of any action, of following as to which a Responsible Officer of the Trustee has actual knowledge: (A) the commencement of any proceeding by or against the Depositor commenced under the Bankruptcy Code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an “Insolvency Proceeding”) and (B) the making of any claim in connection with any Insolvency Proceeding seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "“Preference Claim"”) of any distribution made with respect to the Insured Certificates. Each CertificateholderHolder of a Insured Certificate, by its purchase of Certificatesits respective Class of Certificate, the Servicer and the Trustee hereby agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such any Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder Holder of a Insured Certificate in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any an adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, shall surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationcancellation upon the termination of the Trust Fund pursuant to Article VII hereof.
Appears in 1 contract
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer Not later than 12:00 noon on the third Business Day prior to the Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, Date the amount to be on deposit in the Certificate Account on such Distribution Date as a result of reduced by (x) the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application sum of the amounts described in clauses (a)(ii) through and (a)(iiiii) of Section 6.05 6.5(b) for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds", and further not including (y) any Insured Payment.
(b) If Not later than 12:00 noon New York City time on any the third Business Day preceding each Distribution Date there is an Available Funds ShortfallDate, the Trustee shall shall, if the Trustee determines that an Insured Payment is required to be made in accordance with the Certificate Insurance Policy complete a Notice in the form of Exhibit A to the Certificate Insurance Policy Policy, and submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Business Day preceding and such Distribution Date notice shall serve as a claim for an Insured Payment in an amount equal to the Insured Payment due with respect to the Class A Certificates for and on such Available Funds ShortfallDistribution Date. The Insured Payment shall be deposited directly into the Certificate Account in accordance with the Notice and the Certificate Insurance Policy.
(c) The Trustee shall establish a separate Eligible Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Payment Account and distribute such amount only for purposes of payment to the Certificateholders of the Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount shall be transferred to the Certificate Account on the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Amount with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(d) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(ed) In the event that the Trustee has received a certified copy of an order of the appropriate court that any amount distributed on the Class A Certificates, including any amounts represented by an Insured Payment Payment, has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Paymentamount distributed, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment amount distributed is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(fe) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Class A Certificateholder, by its purchase of Class A Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i1) the direction of any appeal of any order relating to such Preference Claim and (ii2) the posting of any surety, supersedas supersedes or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Class A Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, 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 any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Painewebber Mort Accept Corp Iv New South 1999 2)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer If, on the second Business Day before any Distribution Date, the Trustee determines that an Insured Payment is required to be made by the Certificate Insurer on such Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any such Insured Payment and prior shall give written notice to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete Certificate Insurer by completing a Notice of Nonpayment in the form of Exhibit A to the Certificate Insurance Policy and submit submitting such notice to the Certificate Insurer no later than Notice of Nonpayment by 12:00 noon noon, New York City time on the such second Business Day preceding such Distribution Date as a claim for an Insured Payment Payment. The Trustee’s responsibility for delivering a Notice of Nonpayment to the Certificate Insurer, as provided in the preceding sentence, is limited to the availability, timeliness and accuracy of the information provided to it by the Master Servicer. In the event the Trustee receives a certified copy of an amount equal order of the appropriate court that any scheduled payment of principal or interest on a Class A5 Certificate or Class A6 Certificate has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall promptly notify the Certificate Insurer in writing, as appropriate, and the Fiscal Agent, if any, and the Trustee shall make a claim on the Certificate Insurance Policy in accordance with the provisions thereof to obtain payment by the Certificate Insurer of such voided scheduled payment. In addition, the Trustee shall mail notice to all Holders of the Class A5 Certificates or Class A 6 Certificates, as applicable, so affected that, in the event that any such Holder’s scheduled payment is so recovered, such Holder will be entitled to payment pursuant to the terms of the Certificate Insurance Policy, a copy of which shall be made available to such Available Funds ShortfallHolders by the Trustee. The Trustee shall furnish to the Certificate Insurer and the appropriate Fiscal Agent, if any, its records listing the payments on the affected Class A5 Certificates or Class A6 Certificates, if any, that have been made by the Trustee and subsequently recovered from the affected Holders, and the dates on which such payments were made by the Trustee.
(cb) The At the time of the execution hereof, and for the purposes hereof, the Trustee shall establish a separate Eligible Account special purpose trust account in the name of the Trustee for the benefit of Holders of the Class A5 Certificates and Class A6 Certificates (the Certificate Insurer referred to herein as the "Certificate Insurance Payment “Policy Payments Account" ”) over which the Trustee shall have exclusive control and sole right of withdrawal. The Policy Payments Account shall be an Eligible Account. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for the purposes of payment making payments to Holders of the Class A5 Certificates or Class A6 Certificates, as applicable, in respect of the related Guaranteed Distributions (or other amounts payable pursuant to paragraph (b) above on the Class A5 Certificates or Class A6 Certificates, as applicable, by the Certificate Insurer pursuant to the Certificateholders of the Insured Distribution Amount Certificate Insurance Policy) for which a the related claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount . Such amounts shall be transferred to the Certificate Account on the related Distribution Date and disbursed allocated by the Trustee to Holders of Class A5 Certificates or Class A6 Certificates, as applicable, entitled to such payments in the Certificateholders in accordance same manner as principal and interest distributions are to be allocated with respect to such Certificates pursuant to Section 6.055.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay make regular payments hereunder with funds withdrawn from the Insured Distribution Amount with other funds available to make such paymentCertificate Account. However, the amount of any payment of principal or of interest payments made on the Class A5 Certificates to be paid or Class A6 Certificates from funds transferred from in the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph subsection (de) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Trustee.
(c) Any funds received from the Certificate Insurer for deposit into the Policy Payments Account pursuant to the Certificate Insurance Policy in respect of a Distribution Date or otherwise as a result of any claim under such Certificate Insurance Policy shall be applied by the Trustee directly to the payment in full (i) of the Insured Payments due on such Distribution Date on the Class A5 Certificates or Class A6 Certificates, as applicable, or (ii) of other amounts to which payments under the Certificate Insurance Policy are to be applied. Funds received by the Trustee as a result of any claim under the Certificate Insurance Policy shall be used solely for payment to the Holders of the Class A5 Certificates or Class A6 Certificates, as applicable, and may not be applied for any other purpose, including, without limitation, satisfaction of any costs, expenses or liabilities of the Trustee or the Trust Fund. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a after each Distribution Date (other than the final Distribution Date to the extent of funds remaining in the Policy Payments Account required to be paid to Holders of the Class A5 Certificates or Class A6 Certificates, as applicable) shall be returned remitted promptly to the Certificate Insurer pursuant to the written instructions instruction of the Certificate Insurer by the end of such Business DayInsurer.
(d) The Trustee shall keep a complete and accurate record records in respect of (i) all funds remitted to the amount Trustee by the Certificate Insurer and deposited into the Policy Payments Account and (ii) the allocation of such funds to (A) payments of interest on and principal paid in respect of any Certificate from moneys received under Class A5 Certificates or Class A6 Certificates, as applicable, (B) Applied Loss Amounts allocated to the Certificate Insurance PolicyClass A5 Certificates or Class A6 Certificates, as applicable and (C) payments in respect of Preference Amounts. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one three Business Day's Days’ prior notice to the Trustee. Any Insured Payments disbursed by the Trustee from proceeds of the Certificate Insurance Policy shall be considered payment by the Certificate Insurer and not by the Trust Fund with respect to the Class A5 Certificates and Class A6 Certificates and the Certificate Insurer will be entitled to receive the related Reimbursement Amount pursuant to Sections 5.02(b)(iii), 5.02(c)(i)(B) and 5.02(c)(ii)(B).
(e) In The Trustee acknowledges, and each Holder of a Class A5 Certificate and Class A6 Certificate by its acceptance of such Class A5 Certificate or Class A6 Certificate, as applicable, agrees, that, without the event that need for any further action on the Trustee has received a certified copy of an order part of the appropriate court that Certificate Insurer or the Trustee, to the extent the Certificate Insurer makes Insured Payments, directly or indirectly, on account of principal of or interest on any Insured Payment has been voided in whole Class A5 Certificates or in part Class A6 Certificates, as a preference payment under applicable bankruptcy lawapplicable, the Trustee Certificate Insurer will be fully subrogated to the rights of the Holders of such Class A5 Certificates or Class A6 Certificates, as applicable, to receive the related Reimbursement Amount pursuant to Sections 5.02(b)(iii), 5.02(c)(i)(B) and 5.02(c)(ii)(B) and the Certificate Insurer shall so notify also have the rights conferred to the Certificate Insurer under Sections 4.06 and 5.02 of the Insurance Agreement, as if fully set forth herein. The Class A5 Certificateholders and Class A6 Certificateholders, by acceptance of the Class A5 Certificates or Class A6 Certificates, as applicable, assign their rights as Holders of the Class A5 Certificates or Class A6 Certificates, as applicable, to the extent of the Certificate Insurer’s interest with respect to amounts paid under the Certificate Insurance Policy. Each of the Depositor and Trustee agrees to such subrogation and, shall comply further agrees to execute such instruments and to take such actions as, in the sole judgment of the Certificate Insurer are necessary to evidence such subrogation and, subject to the priority of payment provisions of this Agreement, to perfect the rights of the Certificate Insurer to receive any moneys paid or payable in respect of the Class A5 Certificates or Class A6 Certificates, as applicable, under this Agreement or otherwise. Anything herein to the contrary notwithstanding, solely for purposes of determining the Certificate Insurer’s rights as subrogee for payments distributable pursuant to Section 5.02, any payment with respect to distributions to the provisions Class A5 Certificates or Class A6 Certificates, as applicable, that is made with funds received pursuant to the terms of the Certificate Insurance Policy to obtain shall not be considered payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Class A5 Certificates thator Class A6 Certificates, as applicable, from the Trust Fund and shall not result in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer distribution or the Certificate Insurer's fiscal agentprovision for the distribution in reduction of the Class Principal Amount of the Class A5 Certificates or Class A6 Certificates, if anyas applicable, and or current Interest thereon, within the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.meaning of Article V.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or either of the institution of any action, of following as to which a Responsible Officer of the Trustee has actual knowledge: (A) the commencement of any proceeding by or against the Depositor commenced under the United States bankruptcy code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an “Insolvency Proceeding”) and (B) the making of any claim in connection with any Insolvency Proceeding seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "“Preference Claim"”) of any distribution made with respect to the Class A5 Certificates or Class A6 Certificates. Each CertificateholderHolder of a Class A5 Certificate and Class A6 Certificate, by its purchase of Certificatessuch Class A5 Certificate or Class A6 Certificate, the Servicer as applicable, and the Trustee hereby agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such any Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder Holder of a Class A5 Certificate or Class A6 Certificate, as applicable, in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any an adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, shall surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationcancellation upon the termination of the Trust Fund pursuant to Section 7.01 hereof.
Appears in 1 contract
Samples: Trust Agreement (Structured Asset Securities Corp Mo Pa Th Ce Ser 2003-25xs)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer If, on the second Business Day before any Distribution Date, the Trustee determines that an Insured Payment is required to be made by the Certificate Insurer on such Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any such Insured Payment and prior shall give written notice to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete Certificate Insurer by completing a Notice of Nonpayment in the form of Exhibit A to the Certificate Insurance Policy and submit submitting such notice to the Certificate Insurer no later than Notice of Nonpayment by 12:00 noon noon, New York City time on the such second Business Day preceding such Distribution Date as a claim for an Insured Payment Payment. The Trustee’s responsibility for delivering a Notice of Nonpayment to the Certificate Insurer, as provided in the preceding sentence, is limited to the availability, timeliness and accuracy of the information provided to it by the Master Servicer. In the event the Trustee receives a certified copy of an amount equal order of the appropriate court that any scheduled payment of principal or interest on a Class 1-A3A, Class 1-A5B or Class 1-A6 Certificate has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall promptly notify the Certificate Insurer in writing, as appropriate, and the fiscal agent, if any, and the Trustee shall make a claim on the Certificate Insurance Policy in accordance with the provisions thereof to obtain payment by the Certificate Insurer of such voided scheduled payment. In addition, the Trustee shall mail notice to all Holders of the Class 1-A3A, Class 1-A5B or Class 1-A6 Certificates, as applicable, so affected that, in the event that any such Holder’s scheduled payment is so recovered, such Holder will be entitled to payment pursuant to the terms of the Certificate Insurance Policy, a copy of which shall be made available to such Available Funds ShortfallHolders by the Trustee. The Trustee shall furnish to the Certificate Insurer and the appropriate fiscal agent, if any, its records listing the payments on the affected Class 1-A3A, Class 1-A5B or Class 1-A6 Certificates, if any, that have been made by the Trustee and subsequently recovered from the affected Holders, and the dates on which such payments were made by the Trustee.
(cb) The At the time of the execution hereof, and for the purposes hereof, the Trustee shall establish a separate Eligible the Policy Payments Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Policy Payments Account shall be an Eligible Account. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for the purposes of payment making payments to Holders of the Class 1-A3A, Class 1-A5B or Class 1-A6 Certificates, as applicable, in respect of the Guaranteed Distributions (or other amounts payable pursuant to the Certificateholders second paragraph of subsection (a) above on any such Class of Certificates by the Insured Distribution Amount Certificate Insurer pursuant to the Certificate Insurance Policy) for which a the related claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount . Such amounts shall be transferred to the Certificate Account on the related Distribution Date and disbursed allocated by the Trustee to Holders of Class 1-A3A, Class 1-A5B or Class 1-A6 Certificates entitled to such payments in the Certificateholders in accordance same manner as principal and interest distributions are to be allocated with respect to such Certificates pursuant to Section 6.055.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay make regular payments hereunder with funds withdrawn from the Insured Distribution Amount with other funds available to make such paymentCertificate Account. However, the amount of any payment of principal or of interest payments made on the Class 1-A3A, Class 1-A5B or Class 1-A6 Certificates to be paid from funds transferred from in the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph subsection (de) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Trustee.
(c) Any funds received from the Certificate Insurer for deposit into the Policy Payments Account pursuant to the Certificate Insurance Policy in respect of a Distribution Date or otherwise as a result of any claim under such Certificate Insurance Policy shall be applied by the Trustee directly to the payment in full (i) of the Insured Payments due on such Distribution Date on the Class 1-A3A, Class 1-A5B or Class 1-A6 Certificates, as applicable, or (ii) of other amounts to which payments under the Certificate Insurance Policy are to be applied. Funds received by the Trustee as a result of any claim under the Certificate Insurance Policy shall be used solely for payment to the Holders of the Class 1-A3A, Class 1-A5B or Class 1-A6 Certificates, as applicable, and may not be applied for any other purpose, including, without limitation, satisfaction of any costs, expenses or liabilities of the Trustee or the Trust Fund. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a after each Distribution Date (other than the final Distribution Date to the extent of funds remaining in the Policy Payments Account required to be paid to Holders of the Class 1-A3A, Class 1-A5B or Class 1-A6 Certificates, as applicable) shall be returned remitted promptly to the Certificate Insurer pursuant to the written instructions instruction of the Certificate Insurer by the end of such Business DayInsurer.
(d) The Trustee shall keep a complete and accurate record records in respect of (i) all funds remitted to the amount Trustee by the Certificate Insurer and deposited into the Policy Payments Account and (ii) the allocation of such funds to (A) payments of interest on and principal paid in respect of any Certificate from moneys received under Class 1-A3A, Class 1-A5B or Class 1-A6 Certificates, as applicable (B) Applied Loss Amounts allocated to the Certificate Insurance PolicyClass 1-A3A, Class 1-A5B or Class 1-A6 Certificates, as applicable and (C) payments in respect of Preference Amounts. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one three Business Day's Days’ prior notice to the Trustee. Any Insured Payments disbursed by the Trustee from proceeds of the Certificate Insurance Policy shall be considered payment by the Certificate Insurer and not by the Trust Fund with respect to the Class 1-A3A, Class 1-A5B or Class 1-A6 Certificates, as applicable, and the Certificate Insurer will be entitled to receive the related Reimbursement Amount pursuant to Section 5.02(b)(iii).
(e) In The Trustee acknowledges, and each Holder of a Class 1-A3A, Class 1-A5B or Class 1-A6 Certificate by their acceptance of such Certificates agree, that, without the event that need for any further action on the Trustee has received a certified copy of an order part of the appropriate court that Certificate Insurer or the Trustee, to the extent the Certificate Insurer pays Insured Payments, directly or indirectly, on account of principal of or interest on any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy lawsuch Class of Certificates, the Trustee Certificate Insurer will be fully subrogated to the rights of the Holders of such Class to receive the related Reimbursement Amount pursuant to Section 5.02(b)(iii) and the Certificate Insurer shall so notify also have the rights conferred to the Certificate Insurer pursuant to Sections 4.06 and 5.02 of the Insurance Agreement, as if fully set forth herein. The Class 1-A3A, Class 1-A5B or Class 1-A6 Certificateholders, by acceptance of their respective Classes of Certificates assign their rights as Holders of such Class of Certificates to the extent of the Certificate Insurer’s interest with respect to amounts paid under the Certificate Insurance Policy. Each of the Depositor and Trustee agrees to such subrogation and, shall comply further agrees to execute such instruments and to take such actions as, in the sole judgment of the Certificate Insurer are necessary to evidence such subrogation and, subject to the priority of payment provisions of this Agreement, to perfect the rights of the Certificate Insurer to receive any moneys paid or payable in respect of the Class 1-A3A, Class 1-A5B or Class 1-A6 Certificates, as applicable, under this Agreement or otherwise. Anything herein to the contrary notwithstanding, solely for purposes of determining the Certificate Insurer’s rights as subrogee for payments distributable pursuant to Section 5.02, any payment with respect to distributions to the provisions Class 1-A3A, Class 1-A5B or Class 1-A6 Certificates, as applicable, that is made with funds received pursuant to the terms of the Certificate Insurance Policy to obtain shall not be considered payment by the Certificate Insurer of such voided Insured Payment, Class of Certificates from the Trust Fund and shall, at shall not result in the time it provides notice to distribution or the Certificate Insurer, notify, by mail to provision for the Certificateholders distribution in reduction of the affected Class Principal Amount of such Class of Certificates thator Current Interest thereon, in within the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy meaning of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.Article V.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or either of the institution of any action, of following as to which a Responsible Officer of the Trustee has actual knowledge: (A) the commencement of any proceeding by or against the Depositor commenced under the Bankruptcy Code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an “Insolvency Proceeding”) and (B) the making of any claim in connection with any Insolvency Proceeding seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "“Preference Claim"”) of any distribution made with respect to the Class 1-A3A, Class 1-A5B or Class 1-A6 Certificates, as applicable. Each CertificateholderHolder of a Class 1-A3A, Class 1-A5B or Class 1-A6 Certificate, by its purchase of Certificatesits respective Class of Certificate, the Servicer and the Trustee hereby agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such any Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder Holder of a Class 1-A3A, Class 1-A5B or Class 1-A6 Certificate in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any an adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, shall surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationcancellation upon the termination of the Trust Fund pursuant to Article VII hereof.
Appears in 1 contract
Samples: Trust Agreement (Structured Asset Securities Corp Mortgage Pass-Through Certificates 2004-11xs)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete a Notice in the form of Exhibit A to the Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Business Day preceding such Distribution Date as a claim for an Insured Payment in an amount equal to such Available Funds Shortfall.
(c) The Trustee shall establish a separate Eligible Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Payment Account and distribute such amount only for purposes of payment to the Certificateholders of the Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount shall be transferred to the Certificate Account on the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Amount with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(d) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas supersede as or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (American Business Financial Services Inc /De/)
The Certificate Insurance Policy. (a) Within two (2) days If the statement delivered to the Trustee pursuant to Section 4.01 indicates that there will be the payment of each Servicer Guaranteed Distributions for the related Distribution Date, the Trustee shall determine with respect to complete the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date Notice for Payment (as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, defined and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete a Notice included in the form of Exhibit A to specified by the Certificate Insurance Policy and Policy). The Trustee shall submit such notice to the Certificate Insurer or its fiscal agent no later than 12:00 noon noon, New York City time time, on the second Business Day preceding such Distribution Date as a claim for an Insured Payment.
(b) Upon receipt of an Insured Payment from the Certificate Insurer on behalf of Certificateholders, the Trustee shall deposit such Insured Payment into the Certificate Account. In addition, the Certificate Insurer may, in an amount equal its sole discretion, remit funds (other than Insured Payments) to such Available Funds Shortfallthe Trustee for deposit in the Collection or Certificate Account as part of Certificate Interest Collections to be distributed pursuant to Section 5.01(a)(i) through (iii).
(c) The Trustee shall establish a separate Eligible Account (i) receive, as attorney-in-fact of each Certificateholder receiving any Insured Payment from the Certificate Insurer, such Insured Payment and (ii) disburse such Insured Payment to the Certificateholders as set forth in Section 5.01(d). Insured Payments disbursed by the Trustee from proceeds of the Certificate Insurance Policy shall not be considered payment by the Trust Fund with respect to such Certificates, and the Certificate Insurer shall be entitled to receive the related Reimbursement Amount pursuant to Section 5.01(a)(vi). The Trustee hereby agrees on behalf of each Certificateholder and the Trust Fund for the benefit of Holders of the Certificates and the Certificate Insurer referred that it recognizes that to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under extent the Certificate Insurance Policy in Insurer makes Insured Payments, either directly or indirectly (as by paying through the Certificate Insurance Payment Account and distribute such amount only for purposes of payment to the Certificateholders of the Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance PolicyTrustee), to the extent needed to pay the Insured Distribution Amount shall be transferred to Certificateholders, the Certificate Account on Insurer will be entitled to receive the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Reimbursement Amount with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day5.01(a)(vi).
(d) The Trustee shall keep a complete and accurate record Subject only to the priority of payment provisions of this Agreement, each of the amount of interest Depositor, the Transferor, the Servicer and principal paid in respect the Trustee acknowledges that, to the extent of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment made by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish is to be fully subrogated to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee extent of such payment and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer interest due thereon as part of the Trustee has actual knowledgeReimbursement Amount, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificatesrights of the Certificateholders to any moneys paid or payable in respect of the Certificates under this Agreement or otherwise. Each Certificateholderof the Depositor, by its purchase of Certificatesthe Transferor, the Servicer and the Trustee agree thatagrees to such subrogation and agrees to execute such instruments and to take such actions as, in the sole judgment of the Certificate Insurer (so long as no Certificate Insurer Default exists) may at any time during evidenced in writing to the continuation of any proceeding relating to a Preference Claim direct all matters relating to such Preference Claim, including, without limitation, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas or performance bond pending any such appeal. In addition and without limitation of the foregoingDepositor, the Certificate Insurer shall be subrogated to, and each CertificateholderTransferor, the Servicer and the Trustee hereby delegate and assign Trustee), are necessary to evidence such subrogation and, subject to the Certificate Insurerpriority of payment provisions of this Agreement, to the fullest extent permitted by law, perfect the rights of the Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement to receive any moneys paid or payable in respect of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationunder this Agreement or otherwise.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mort Inves Inc Providian Home Eq Ln Tr 1999-1)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete a Notice in the form of Exhibit A to the Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Business Day preceding such Distribution Date as a claim for an Insured Payment in an amount equal to such Available Funds Shortfall.
(c) The Trustee shall establish a separate non-interest bearing trust account which shall be an Eligible Account for the benefit of Holders of the Class A-1 Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Policy Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Policy Payment Account and distribute such amount only for purposes of payment to the Certificateholders Insured Certificates of the Insured Distribution Amount Policy Payment for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust FundFund or to pay any other Class of Certificates. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount any Class A-1 Certificate Deficiency Amount, shall be transferred to the Certificate Distribution Account on the related Distribution Date Date, and the portion thereof representing the Class A-1 Certificate Deficiency Amount shall be disbursed by the Trustee to the Certificateholders Class A-1 Certificateholders, in accordance with each case as if it were a distribution to the Holders of such Certificates pursuant to Section 6.054.01. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay other distributions to the Insured Distribution Amount Class A-1 Certificateholders, as applicable, with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Insured Certificates to be paid from funds transferred from the Certificate Insurance Policy Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the such Class of Certificates pursuant to Section 6.074.02. Funds held in the Certificate Insurance Policy Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Policy Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(db) The If the Trustee shall keep has determined that a complete and accurate record of the amount of interest and principal Class A-1 Certificate Deficiency Amount is required to be paid in respect of any Certificate from moneys received under the Certificate Insurance Policy with respect to such Distribution Date, it shall deliver a Notice of Claim (in the form attached as Exhibit A to the 126 Certificate Insurance Policy) to the Certificate Insurer no later than noon, New York, New York time on the second Business Day preceding such Distribution Date and shall provide a copy thereof to the Servicer at or prior to the time such Notice of Claim is received by the Certificate Insurer. The Certificate Insurer Notice of Claim shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice constitute a claim therefor pursuant to the TrusteeCertificate Insurance Policy.
(ec) In the event that If the Trustee has received receives a certified copy of an order of the appropriate court (an "Order") that any prior distribution made on the Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy lawCertificates constitutes an Avoided Payment, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, Avoided Payment and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders notify each holder of the affected Insured Certificates thatby mail that (i) subject to the terms of the Certificate Insurance Policy, the Certificate Insurer will disburse the Avoided Payment directly to the receiver, conservator, debtor-in-possession or trustee in bankruptcy named in the Order on the fourth Business Day following such Certificateholder's making timely delivery to the Trustee of (a) a certificate of such Certificateholder that such Order has been entered and is not subject to any stay, (b) an opinion of counsel satisfactory to the Certificate Insurer that such Order is final and is not subject to appeal and (c) an assignment duly executed and delivered by such Certificateholder, in such from as is reasonably required by the event Certificate Insurer and provided to such Certificateholder by the Certificate Insurer, irrevocably assigning to the Certificate Insurer all rights and claims of such Certificateholder relating to or arising under the affected Insured Certificates against the debtor that made a payment of such Avoided Payment, or otherwise with respect to such payment, provided that if such documents are received after 10:00 a.m., New York time, on such Business Day, they will be deemed to be received on the following Business Day, and (ii) if any Certificateholder's Insured such Avoided Payment is so recoveredrecovered from such Certificateholder pursuant to such Order, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a . A copy of which the Certificate Insurance Policy shall be made available to each affected Certificateholder through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, a copy of its records evidencing the payments which that have been made by the Trustee and subsequently recovered from Certificateholders and the Certificateholders, and dates on which such payments were made.
(fd) The Trustee shall promptly notify keep a complete and accurate record of the amount of interest and principal paid in respect of any Insured Certificates from moneys received under the Certificate Insurance Policy. The Certificate Insurer of any proceeding or shall have the institution of any action, of which a Responsible Officer right to inspect such records at reasonable times during normal business hours upon two Business Day's prior notice to the Trustee.
(e) The Holders of the Trustee has actual knowledge, seeking Insured Certificates are not entitled to institute proceedings directly against the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the CertificatesCertificate Insurer. Each CertificateholderHolder of the Insured Certificates, by its purchase of Certificates, the Servicer and the Trustee agree that, Insured Certificates hereby agrees that the Certificate Insurer (so long as no Certificate Insurer Default exists) may at any time during the continuation of any proceeding relating to a Preference Claim an Avoided Payment, direct all matters relating to such Preference ClaimAvoided Payment on their behalf, including, without limitation, (i) the direction of any appeal of any order relating to such Preference Claim preference claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, .
(f) Any payments to the Certificate Insurer shall be subrogated to, made by wire transfer of immediately available funds to the following Federal Reserve Account (unless and each Certificateholder, until the Servicer and Certificate Insurer notifies the Trustee hereby delegate and assign to of a change in such account information in writing): Fleet Bank, N.A. 000 Xxxx Xxxxxx Xxxxxxxx, XX 00000-0000 ABA Number: 000000000 For the Certificate InsurerAccount of: XL Capital Assurance Inc. 0000 Xxxxxx xx xxx Xxxxxxxx, to the fullest extent permitted by law00xx Xxxxx Xxx Xxxx, the rights of the Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.XX 00000-0000 Account #: 000-000-0000 Reference: Policy Number CA01269A/CMLTI 2004-RES1
(g) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon after retirement of the Insured Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
(h) The Trustee shall hold the Certificate Insurance Policy in trust as agent for the Holders of the Class A Certificates for the purpose of making claims thereon and distributing the proceeds thereof. Neither the Certificate Insurance Policy nor the amounts paid on the Certificate Insurance Policy shall constitute part of the Trust Fund created by this Agreement. Each Holder of Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney-in-fact for the purpose of making claims on the Certificate Insurance Policy.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust, Series 2004-Res1)
The Certificate Insurance Policy. (a) Within two (2) days of each If on the third Business Day prior to any Distribution Date the Servicer Distribution Date, has reported to the Trustee shall determine with respect pursuant to Section 5.20 that the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of Servicer has determined that the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to for such Distribution Date pursuant to Section 6.01 hereof, excluding will be less than the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 Guaranteed Distribution for the related Distribution Date. The amounts described above in the preceding sentence with respect to the such Distribution Date are (such difference, the "Available FundsCertificate Insurance Policy Drawing Amount".
(b) If on any Distribution Date there is an Available Funds Shortfall), the Trustee shall complete a Notice in the form of Exhibit A to the Endorsement of the Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second third Policy Business Day preceding such Distribution Date as a claim for an Insured Payment in an amount equal to such Available Funds ShortfallCertificate Insurance Policy Drawing Amount. In addition, the Certificate Insurer may, at any time and in its sole discretion, pay the amount of any Realized Losses not allocated to the Class A Certificates (any such payment, an "Insurer Optional Payment").
(cb) The Trustee shall establish a separate Eligible Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Policy Payments Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Payment Policy Payments Account and distribute such amount only for purposes of payment to the Certificateholders of the Insured Guaranteed Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount Guaranteed Distribution, shall be transferred by the Trustee from the Policy Payments Account to the Certificate Lower-Tier Distribution Account on the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments made under the Certificate Insurance Policy to be made by checks or wire transfers separate from the checks or wire transfers used other amounts distributed pursuant to pay the Insured Distribution Amount with other funds available to make such paymentSection 6.05. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Policy Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Policy Business Day.
(dc) The Trustee Remittance Report shall keep a complete and accurate record of indicate the amount of interest and principal paid in respect of any Certificate the Class A Certificates from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(ed) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(fe) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Nations Banc Asset Sec Ins Asset Backed Cert Series 1997-1)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer If, on the second Business Day before any Distribution Date, the Trustee determines that an Insured Payment is required to be made by the Certificate Insurer on such Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any such Insured Payment and prior shall give written notice to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete Certificate Insurer by completing a Notice of Nonpayment in the form of Exhibit A to the Certificate Insurance Policy and submit submitting such notice to the Certificate Insurer no later than Notice of Nonpayment by 12:00 noon noon, New York City time on the such second Business Day preceding such Distribution Date as a claim for an Insured Payment Payment. The Trustee’s responsibility for delivering a Notice of Nonpayment to the Certificate Insurer, as provided in the preceding sentence, is limited to the availability, timeliness and accuracy of the information provided to it by the Master Servicer. In the event the Trustee receives a certified copy of an amount equal order of the appropriate court that any scheduled payment of principal or interest on a Class 1-A2B, Class 1-A3B, Class 1-A5 or Class 1-A6 Certificate has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall promptly notify the Certificate Insurer in writing, as appropriate, and the fiscal agent, if any, and the Trustee shall make a claim on the Certificate Insurance Policy in accordance with the provisions thereof to obtain payment by the Certificate Insurer of such voided scheduled payment. In addition, the Trustee shall mail notice to all Holders of the Class 1-A2B, Class 1-A3B, Class 1-A5 or Class 1-A6 Certificates, as applicable, so affected that, in the event that any such Holder’s scheduled payment is so recovered, such Holder will be entitled to payment pursuant to the terms of the Certificate Insurance Policy, a copy of which shall be made available to such Available Funds ShortfallHolders by the Trustee. The Trustee shall furnish to the Certificate Insurer and the appropriate fiscal agent, if any, its records listing the payments on the affected Class 1-A2B, Class 1-A3B, Class 1-A5 or Class 1-A6 Certificates, if any, that have been made by the Trustee and subsequently recovered from the affected Holders, and the dates on which such payments were made by the Trustee.
(cb) The At the time of the execution hereof, and for the purposes hereof, the Trustee shall establish a separate Eligible the Policy Payments Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Policy Payments Account shall be an Eligible Account. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for the purposes of payment making payments to Holders of the Class 1-A2B, Class 1-A3B, Class 1-A5 or Class 1-A6 Certificates, as applicable, in respect of the Guaranteed Distributions (or other amounts payable pursuant to the Certificateholders second paragraph of subsection (a) above on any such Class of Certificates by the Insured Distribution Amount Certificate Insurer pursuant to the Certificate Insurance Policy) for which a the related claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount . Such amounts shall be transferred to the Certificate Account on the related Distribution Date and disbursed allocated by the Trustee to Holders of Class 1-A2B, Class 1-A3B, Class 1-A5 or Class 1-A6 Certificates entitled to such payments in the Certificateholders in accordance same manner as principal and interest distributions are to be allocated with respect to such Certificates pursuant to Section 6.055.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay make regular payments hereunder with funds withdrawn from the Insured Distribution Amount with other funds available to make such paymentCertificate Account. However, the amount of any payment of principal or of interest payments made on the Class 1-A2B, Class 1-A3B, Class 1-A5 or Class 1-A6 Certificates to be paid from funds transferred from in the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph subsection (de) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Trustee.
(c) Any funds received from the Certificate Insurer for deposit into the Policy Payments Account pursuant to the Certificate Insurance Policy in respect of a Distribution Date or otherwise as a result of any claim under such Certificate Insurance Policy shall be applied by the Trustee directly to the payment in full (i) of the Insured Payments due on such Distribution Date on the Class 1-A2B, Class 1-A3B, Class 1-A5 or Class 1-A6 Certificates, as applicable, or (ii) of other amounts to which payments under the Certificate Insurance Policy are to be applied. Funds received by the Trustee as a result of any claim under the Certificate Insurance Policy shall be used solely for payment to the Holders of the Class 1-A2B, Class 1-A3B, Class 1-A5 or Class 1-A6 Certificates, as applicable, and may not be applied for any other purpose, including, without limitation, satisfaction of any costs, expenses or liabilities of the Trustee or the Trust Fund. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a after each Distribution Date (other than the final Distribution Date to the extent of funds remaining in the Policy Payments Account required to be paid to Holders of the Class 1-A2B, Class 1-A3B, Class 1-A5 or Class 1-A6 Certificates, as applicable) shall be returned remitted promptly to the Certificate Insurer pursuant to the written instructions instruction of the Certificate Insurer by the end of such Business DayInsurer.
(d) The Trustee shall keep a complete and accurate record records in respect of (i) all funds remitted to the amount Trustee by the Certificate Insurer and deposited into the Policy Payments Account and (ii) the allocation of such funds to (A) payments of interest on and principal paid in respect of any Certificate from moneys received under Class 1-A2B, Class 1-A3B, Class 1-A5 or Class 1-A6 Certificates, as applicable (B) Applied Loss Amounts allocated to the Certificate Insurance PolicyClass 1-A2B, Class 1-A3B, Class 1-A5 or Class 1-A6 Certificates, as applicable and (C) payments in respect of Preference Amounts. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one three Business Day's Days’ prior notice to the Trustee. Any Insured Payments disbursed by the Trustee from proceeds of the Certificate Insurance Policy shall be considered payment by the Certificate Insurer and not by the Trust Fund with respect to the Class 1-A2B, Class 1-A3B, Class 1-A5 or Class 1-A6 Certificates, as applicable, and the Certificate Insurer will be entitled to receive the related Reimbursement Amount pursuant to Section 5.02(b)(iii).
(e) In The Trustee acknowledges, and each Holder of a Class 1-A2B, Class 1-A3B, Class 1-A5 or Class 1-A6 Certificate by their acceptance of such Certificates agree, that, without the event that need for any further action on the Trustee has received a certified copy of an order part of the appropriate court that Certificate Insurer or the Trustee, to the extent the Certificate Insurer pays Insured Payments, directly or indirectly, on account of principal of or interest on any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy lawsuch Class of Certificates, the Trustee Certificate Insurer will be fully subrogated to the rights of the Holders of such Class to receive the related Reimbursement Amount pursuant to Section 5.02(b)(iii) and the Certificate Insurer shall so notify also have the rights conferred to the Certificate Insurer pursuant to Sections 4.06 and 5.02 of the Insurance Agreement, as if fully set forth herein. The Class 1-A2B, Class 1-A3B, Class 1-A5 or Class 1-A6 Certificateholders, by acceptance of their respective Classes of Certificates assign their rights as Holders of such Class of Certificates to the extent of the Certificate Insurer’s interest with respect to amounts paid under the Certificate Insurance Policy. Each of the Depositor and Trustee agrees to such subrogation and, shall comply further agrees to execute such instruments and to take such actions as, in the sole judgment of the Certificate Insurer are necessary to evidence such subrogation and, subject to the priority of payment provisions of this Agreement, to perfect the rights of the Certificate Insurer to receive any moneys paid or payable in respect of the Class 1-A2B, Class 1-A3B, Class 1-A5 or Class 1-A6 Certificates, as applicable, under this Agreement or otherwise. Anything herein to the contrary notwithstanding, solely for purposes of determining the Certificate Insurer’s rights as subrogee for payments distributable pursuant to Section 5.02, any payment with respect to distributions to the provisions Class 1-A2B, Class 1-A3B, Class 1-A5 or Class 1-A6 Certificates, as applicable, that is made with funds received pursuant to the terms of the Certificate Insurance Policy to obtain shall not be considered payment by the Certificate Insurer of such voided Insured Payment, Class of Certificates from the Trust Fund and shall, at shall not result in the time it provides notice to distribution or the Certificate Insurer, notify, by mail to provision for the Certificateholders distribution in reduction of the affected Class Principal Amount of such Class of Certificates thator Current Interest thereon, in within the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy meaning of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.Article V.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or either of the institution of any action, of following as to which a Responsible Officer of the Trustee has actual knowledge: (A) the commencement of any proceeding by or against the Depositor commenced under the Bankruptcy Code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an “Insolvency Proceeding”) and (B) the making of any claim in connection with any Insolvency Proceeding seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "“Preference Claim"”) of any distribution made with respect to the Class 1-A2B, Class 1-A3B, Class 1-A5 or Class 1-A6 Certificates, as applicable. Each CertificateholderHolder of a Class 1-A2B, Class 1-A3B, Class 1-A5 or Class 1-A6 Certificate, by its purchase of Certificatesits respective Class of Certificate, the Servicer and the Trustee hereby agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such any Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder Holder of a Class 1-A2B, Class 1-A3B, Class 1-A5 or Class 1-A6 Certificate in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any an adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, shall surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationcancellation upon the termination of the Trust Fund pursuant to Article VII hereof.
Appears in 1 contract
Samples: Trust Agreement (Structured Asset Securities Corp Mortgage Pass-Through Certificates 2004-9xs)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer If, on the second Business Day before any Distribution Date, the Trustee determines that an Insured Amount is required to be made by the Certificate Insurer on such Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any such Insured Payment Amount and prior shall give written notice to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete Certificate Insurer by completing a Notice of Nonpayment in the form of Exhibit A to the Certificate Insurance Policy and submit submitting such notice to the Certificate Insurer no later than Notice of Nonpayment by 12:00 noon noon, New York City time on the such second Business Day preceding such Distribution Date as a claim for an Insured Payment Amount. The Trustee’s responsibility for delivering a Notice of Nonpayment to the Certificate Insurer, as provided in the preceding sentence, is limited to the availability, timeliness and accuracy of the information provided to it by the Master Servicer. In the event the Trustee receives a certified copy of an amount equal order of the appropriate court that any scheduled payment of principal or interest on a Class A3A or Class A4A Certificate has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall promptly notify the Certificate Insurer in writing, as appropriate, and the fiscal agent, if any, and the Trustee shall make a claim on the Certificate Insurance Policy in accordance with the provisions thereof to obtain payment by the Certificate Insurer of such voided scheduled payment. In addition, the Trustee shall mail notice to all Holders of the Class A3A or Class A4A Certificates, as applicable, so affected that, in the event that any such Holder’s scheduled payment is so recovered, such Holder will be entitled to payment pursuant to the terms of the Certificate Insurance Policy, a copy of which shall be made available to such Available Funds ShortfallHolders by the Trustee. The Trustee shall furnish to the Certificate Insurer and the appropriate fiscal agent, if any, its records listing the payments on the affected Class A3A and Class A4A Certificates, if any, that have been made by the Trustee and subsequently recovered from the affected Holders, and the dates on which such payments were made by the Trustee.
(cb) The At the time of the execution hereof, and for the purposes hereof, the Trustee shall establish a separate Eligible the Policy Payments Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Policy Payments Account shall be an Eligible Account. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for the purposes of payment making payments to Holders of the Class A3A or Class A4A Certificates, as applicable, in respect of the Guaranteed Distributions (or other amounts payable pursuant to the Certificateholders second paragraph of subsection (a) above on either Class of Certificates by the Insured Distribution Amount Certificate Insurer pursuant to the Certificate Insurance Policy) for which a the related claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount . Such amounts shall be transferred to the Certificate Account on the related Distribution Date and disbursed allocated by the Trustee to Holders of Class A3A or Class A4A Certificates entitled to such payments in the Certificateholders in accordance same manner as principal and interest distributions are to be allocated with respect to such Certificates pursuant to Section 6.055.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay make regular payments hereunder with funds withdrawn from the Insured Distribution Amount with other funds available to make such paymentCertificate Account. However, the amount of any payment of principal or of interest payments made on the Class A3A or Class A4A Certificates to be paid from funds transferred from in the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph subsection (de) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Trustee.
(c) Any funds received from the Certificate Insurer for deposit into the Policy Payments Account pursuant to the Certificate Insurance Policy in respect of a Distribution Date or otherwise as a result of any claim under such Certificate Insurance Policy shall be applied by the Trustee directly to the payment in full (i) of the Insured Amounts due on such Distribution Date on the Class A3A or Class A4A Certificates, as applicable, or (ii) of other amounts to which payments under the Certificate Insurance Policy are to be applied. Funds received by the Trustee as a result of any claim under the Certificate Insurance Policy shall be used solely for payment to the Holders of the Class A3A or Class A4A Certificates, as applicable, and may not be applied for any other purpose, including, without limitation, satisfaction of any costs, expenses or liabilities of the Trustee or the Trust Fund. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a after each Distribution Date (other than the final Distribution Date to the extent of funds remaining in the Policy Payments Account required to be paid to Holders of the Class A3A or Class A4A Certificates, as applicable) shall be returned remitted promptly to the Certificate Insurer pursuant to the written instructions instruction of the Certificate Insurer by the end of such Business DayInsurer.
(d) The Trustee shall keep a complete and accurate record records in respect of (i) all funds remitted to the amount Trustee by the Certificate Insurer and deposited into the Policy Payments Account and (ii) the allocation of such funds to (A) payments of interest on and principal paid in respect of any Certificate from moneys received under Class A3A or Class A4A Certificates, as applicable (B) Applied Loss Amounts allocated to the Certificate Insurance PolicyClass A3A or Class A4A Certificates, as applicable and (C) payments in respect of Preference Amounts. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one three Business Day's Days’ prior notice to the Trustee. Any Insured Amounts disbursed by the Trustee from proceeds of the Certificate Insurance Policy shall be considered payment by the Certificate Insurer and not by the Trust Fund with respect to the Class A3A or Class A4A Certificates, as applicable, and the Certificate Insurer will be entitled to receive the related Reimbursement Amount pursuant to Section 5.02(b)(iii).
(e) In The Trustee acknowledges, and each Holder of a Class A3A or Class A4A Certificate by their acceptance of such Certificates agree, that, without the event that need for any further action on the Trustee has received a certified copy of an order part of the appropriate court that Certificate Insurer or the Trustee, to the extent the Certificate Insurer pays Insured Amounts or Preference Amounts, directly or indirectly, on account of principal of or interest on any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy lawsuch Class of Certificates, the Trustee shall so notify Certificate Insurer will be fully subrogated to the rights of the Holders of such Class to receive the related Reimbursement Amount pursuant to Section 5.02(b)(iii). The A3A or Class A4A Certificateholders, by acceptance of their respective Classes of Certificates assign their rights as Holders of such Class of Certificates to the extent of the Certificate Insurer’s interest with respect to amounts paid under the Certificate Insurance Policy. Each of the Depositor and Trustee agrees to such subrogation and, shall comply further agrees to execute such instruments and to take such actions as, in the sole judgment of the Certificate Insurer are necessary to evidence such subrogation and, subject to the priority of payment provisions of this Agreement, to perfect the rights of the Certificate Insurer to receive any moneys paid or payable in respect of the Class A3A or Class A4A Certificates, as applicable, under this Agreement or otherwise. Anything herein to the contrary notwithstanding, solely for purposes of determining the Certificate Insurer’s rights as subrogee for payments distributable pursuant to Section 5.02, any payment with respect to distributions to the provisions Class A3A or Class A4A Certificates, as applicable, that is made with funds received pursuant to the terms of the Certificate Insurance Policy to obtain shall not be considered payment by the Certificate Insurer of such voided Insured Payment, Class of Certificates from the Trust Fund and shall, at shall not result in the time it provides notice to distribution or the Certificate Insurer, notify, by mail to provision for the Certificateholders distribution in reduction of the affected Class Principal Amount of such Class of Certificates thator Current Interest thereon, in within the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy meaning of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.Article V.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or either of the institution of any action, of following as to which a Responsible Officer of the Trustee has actual knowledge: (A) the commencement of any proceeding by or against the Depositor commenced under the Bankruptcy Code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an “Insolvency Proceeding”) and (B) the making of any claim in connection with any Insolvency Proceeding seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "“Preference Claim"”) of any distribution made with respect to the Class A3A or Class A4A Certificates, as applicable. Each CertificateholderHolder of a Class A3A or Class A4A Certificate, by its purchase of Certificatesits respective Class of Certificate, the Servicer and the Trustee hereby agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such any Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder Holder of a A3A or Class A4A Certificate in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any an adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, shall surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationcancellation upon the termination of the Trust Fund pursuant to Article VII hereof.
Appears in 1 contract
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer If, on the third Business Day before any Distribution Date, the Trustee determines that a Deficiency Amount exists for such Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any such Insured Payment and prior shall give notice to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete Certificate Insurer by completing a Notice notice in the form of Exhibit A to the Certificate Insurance Policy and submit submitting such notice to the Certificate Insurer no later than by 12:00 noon New York City time on the second such third Business Day preceding such Distribution Date as a claim for an Insured Payment Payment. The Trustee's responsibility for delivering a notice to the Certificate Insurer, as provided in the preceding sentence, is limited to the availability, timeliness and accuracy of the information provided by the Servicer.]
(b) [In the event that the Trustee receives a certified copy of an amount equal order of the appropriate court that any scheduled payment of principal or interest on an Insured Certificates has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall (i) promptly notify the Certificate Insurer, as appropriate, and the Fiscal Agent, if any, and (ii) comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided payment. In addition, the Trustee shall mail notice to all Holders of Insured Certificates so affected that, in the event that any such Holder's payment is so recovered, such Holder will be entitled to payment pursuant to the terms of the Certificate Insurance Policy, a copy of which shall be made available to such Available Funds ShortfallHolders by the Trustee. The Trustee shall furnish to the Certificate Insurer and the appropriate Fiscal Agent, if any, its records listing the payments on the affected Insured Certificates, if any, that have been made by the Trustee and subsequently recovered from the affected Holders, and the dates on which such payments were made by the Trustee.]
(c) [The Trustee shall establish a separate Eligible Account for the benefit of Holders of the Insured Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Payments Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Payment Payments Account and distribute such amount only for purposes of payment to the Insured Certificateholders of the Insured Distribution Amount for which a claim was made Payment and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount Payment shall be transferred by the Trustee from the Certificate Insurance Payments Account to the Certificate Account on the related Distribution Date and disbursed by the Trustee to the Insured Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments made under the Certificate Insurance Policy to be made by checks or wire transfers separate from the checks or wire transfers used other amounts distributed pursuant to pay the Insured Distribution Amount with other funds available to make such paymentSection 6.05. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Payments Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Payments Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Payments Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.]
(d) [The Trustee Remittance Report shall indicate the amount of interest and principal paid in respect of the Insured Certificates from moneys received under the Certificate Insurance Policy. The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Insured Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.]
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) [The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Insured Certificates. Each Certificateholder, by its purchase acceptance of Certificatesa Certificate, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.]
(gf) The Trustee shall[Anything herein to the contrary notwithstanding, upon retirement any payment with respect to principal of or interest on any of the Certificates, furnish Insured Certificates which is made with moneys received pursuant to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term terms of the Certificate Insurance Policy, surrender Policy shall not be considered payment of such Certificates from the Certificate Insurance Policy to Trust Fund and shall not result in the Certificate Insurer payment of or the provision for cancellation.the payment of the principal of or interest on such Certificates within the meaning of Section
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Finance America Securities LLC)
The Certificate Insurance Policy. (a) Within two (2) days of Business Days after each Servicer Distribution Date, Determination Date the Trustee shall determine with respect to the immediately following Distribution Date, Date the amount to be on deposit in the Certificate Distribution Account on such Distribution Date as a result of the (i) Master Servicer's remittance of the Servicer Remittance Available Distribution Amount on the related Servicer Distribution Date, Determination Date plus any amounts on deposit in the Reserve Fund available to pay amounts pursuant to clauses (i) and (ii) any transfers to of the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Available Distribution Date pursuant to Section 6.01 hereofAmount Allocation, excluding and not including the amount of any Insured Payment and prior which is required to be deposited in the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 Distribution Account for the related such Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds a Distribution Account Shortfall, the Trustee shall complete a Notice in the form of Exhibit A to the related Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Policy Business Day preceding such Distribution Date as a claim for an Insured Payment in an amount equal to such Available Funds Distribution Account Shortfall.
(c) The Trustee shall establish a separate Eligible Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Payments Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Payment Payments Account and distribute such amount only for purposes of payment to the Certificateholders of the Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Master Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount shall be transferred by the Trustee from the Certificate Insurance Payments Account to the Certificate Account on the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments made under the Certificate Insurance Policy to be made by checks or wire transfers separate from the checks or wire transfers used other amounts distributed pursuant to pay the Insured Distribution Amount with other funds available to make such paymentSection 6.05. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Payments Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Payments Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Payments Account on the first Policy Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Policy Business Day.
(d) The Trustee Remittance Report shall keep a complete and accurate record of indicate the amount of interest and principal paid in respect of any Certificate the Class A Certificates from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Master Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Master Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Master Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
Appears in 1 contract
The Certificate Insurance Policy. (a) Within two (2) days of each If, based on the information provided by the applicable Servicer Distribution Datepursuant to SECTION 8.04(D)(II), the Trustee shall determine with respect to the immediately following Distribution Date, the amount determines that a Deficiency Amount to be on deposit in covered by the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 Insurance Policy will exist for the related Distribution Date. The amounts described above in Date or that a Preference Amount to be covered by the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds ShortfallCertificate Insurance Policy exists, the Trustee shall complete a Notice the notice in the form of Exhibit A to the Certificate Insurance Policy (the "CERTIFICATE INSURER NOTICE") and submit such notice Certificate Insurer Notice in accordance with the Certificate Insurance Policy to the Certificate Insurer no later than 12:00 noon P.M., New York City time time, on the second Business Day immediately preceding such Distribution Date Date, as a claim for the amount of such Deficiency Amount or Preference Amount.
(b) No later than the Closing Date, the Trustee will establish and maintain a trust account, in its name and for the benefit of Holders of the Class A Certificates, titled "JPMorgan Chase Bank, as Trustee, in trust for the holders of GSRPM Mortgage Loan Trust 2003-1 Certificate Insurance Account," (the "CERTIFICATE INSURANCE ACCOUNT"). Upon receipt of an Insured Payment from the Certificate Insurer on behalf of the Holders of any of the Class A Certificates, the Trustee shall deposit such Insured Payment in an amount equal the Certificate Insurance Account. All amounts on deposit in the Certificate Insurance Account shall remain uninvested. The Trustee shall distribute on each Distribution Date any Insured Payment relating to interest and any Insured Payment relating to principal or losses for such Available Funds ShortfallDistribution Date from the Certificate Insurance Account as provided in SECTION 7.06(C).
(c) The Trustee shall establish (i) receive as attorney-in-fact of each Holder of a separate Eligible Account for the benefit of Holders of the Certificates and Class A Certificate any related Insured Payment from the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Payment Account and (ii) distribute such amount only for purposes of payment Insured Payment to the such Certificateholders of the as set forth in subsection (b) above. Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount shall be transferred to the Certificate Account on the related Distribution Date and Payments disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Amount with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(d) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions proceeds of the Certificate Insurance Policy to obtain shall not be considered payment by the Trust with respect to the Class A Certificates, nor shall such disbursement of such Insured Payments discharge the obligations of the Trust with respect to the amounts thereof, and the Certificate Insurer shall become the owner of such voided Insured Payment, and shall, at the time it provides notice amounts to the extent covered by such Insured Payments as the deemed assignee of such Holders of Class A Certificates. The Trustee hereby agrees (and each Holder of a Class A Certificate Insurer, notify, by mail its acceptance of its Class A Certificates hereby agrees) for the benefit of the Certificate Insurer that the Trustee shall recognize that to the Certificateholders of extent the affected Certificates thatCertificate Insurer pays Insured Payments, in either directly or indirectly (as by paying amounts to Trustee for distribution to such Holders), to such Holders, the event any Certificateholder's Insured Payment is so recovered, such Certificateholder Certificate Insurer will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish Holders to the Certificate Insurer a notice extent of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationInsured Payments.
Appears in 1 contract
Samples: Trust and Servicing Agreement (Gs Mortgage Sec Corp Mort Pass THR Cert Ser 2003-1)
The Certificate Insurance Policy. (a) Within two (2) days of Not later than 3:00 p.m., New York time, on the third Business Day immediately preceding each Servicer Distribution Date, the Trustee shall determine with respect the Available Funds for such Distribution Date. To the extent any Available Funds Shortfall will exist for any Distribution Date after giving effect to the immediately following Distribution Date, the amount distributions specified in Section 4.04(b) hereof (calculating such distributions without giving effect to any Insured Payment to be on deposit in the Certificate Account made on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall), the Trustee shall complete a Notice notice in the form of Exhibit A attached to the Certificate Insurance Policy (the "Notice") and shall submit such notice Notice to the Certificate Insurer no later than 12:00 noon 10:00 a.m., New York City time time, on the second Business Day preceding such Distribution Date as Date. Such Notice may be delivered by electronic facsimile (in which case the original shall be sent by overnight courier). The Notice shall constitute a claim for an Insured Payment in pursuant to the Policy for an amount equal to such the Available Funds Shortfall. Upon receipt of Insured Payments on behalf of the Certificateholders, the Trustee shall deposit such Insured Payments in the Policy Payments Account, and shall thereafter transfer such Insured Payments to the Certificate Account for distribution solely to the related Certificateholders in accordance with Section 4.04(b).
(cb) The Trustee Trustee, on behalf of the Trust, shall establish a separate Eligible Account special purpose trust account for the benefit of the Holders of the Offered Certificates and the Certificate Insurer referred to herein as (the "Certificate Insurance Payment Policy Payments Account" ") over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for purposes of payment to the Certificateholders Holders of Offered Certificates of the Insured Distribution Amount Payment for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust FundTrust. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount Policy shall be transferred to the Certificate Account on in accordance with the related Distribution Date next succeeding paragraph and thereafter disbursed by the Trustee to the Certificateholders Holders of the Offered Certificates in accordance with Section 6.054.04(b). It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Amount with any other funds available amounts distributed pursuant to make such paymentSection 4.04(b). However, the amount of any payment of principal of or of interest on the Offered Certificates to be paid from funds transferred from the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to related Holders of the Offered Certificates pursuant to Section 6.074.05. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Trustee. On any Distribution Date with respect to which a claim has been made under the Policy, the amount of any funds received by the Trustee as a result of such claim, to the extent required to pay amounts owed to Certificateholders on such Distribution Date, shall be withdrawn from the Policy Payments Account and deposited in the Certificate Account and applied by the Trustee, together with the other funds to be deposited in the Certificate Account, directly to the amounts owed to Certificateholders on the related Certificates. Funds received by the Trustee as a result of any claim under the Policy shall be deposited by the Trustee in the Policy Payments Account and then transferred to the Certificate Account and used solely for payment to the related Holders of the related Certificates and may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a Distribution Date shall be returned remitted to the Certificate Insurer Insurer, pursuant to the written instructions of the Certificate Insurer Insurer, by the end of such Business Day.
(dc) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(d) The Trustee shall receive, as attorney-in-fact of each Holder of a Class A Certificate, any Insured Payment from the Certificate Insurer and disburse the same to each Holder of a Class A Certificate in accordance with the provisions of this Article IV. Insured Payments disbursed by the Trustee from proceeds of the Policy shall not be considered payment by the Trust nor shall such payments discharge the obligation of the Trust with respect to such Offered Certificates, and the Certificate Insurer shall be subrogated to the rights of the Certificateholders to the extent of the payment and shall be entitled to receive the Reimbursement Amount pursuant to Section 4.04(b)(iv). By acceptance of a Certificate, each Holder of a Certificate agrees and recognizes that to the extent the Certificate Insurer makes Insured Payments, either directly or indirectly (as by paying through the Trustee), to the Class A Certificateholders, the Certificate Insurer will be entitled to receive the Reimbursement Amount pursuant to Section 4.04(b)(iv).
(e) In the event that If the Trustee has received receives a certified copy of an order of the appropriate court (an "Order") that any Insured Payment prior distribution made on the Offered Certificates of principal or current interest has been voided in whole or in part as a preference payment Preference Payment under applicable bankruptcy bankruptcy, insolvency, receivership or similar law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, distribution and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders notify each Holder of the affected Certificates by mail (i) that, subject to the terms of the Policy, the Certificate Insurer will disburse the voided distribution directly to the receiver, conservator, debtor-in-possession or trustee in bankruptcy named in the event any Order following such Certificateholder's Insured Payment making timely delivery to the Trustee of (a) a certificate of such Certificateholder that such Order has been entered and is so recoverednot subject to any stay and (b) an assignment duly executed and delivered by such Certificateholder, in such form as is reasonably required by the Certificate Insurer and provided to such Certificateholder by the Certificate Insurer, irrevocably assigning to the Certificate Insurer all rights and claims of such Certificateholder relating to or arising under the affected Certificates against the debtor that made such Preference Payment, or otherwise with respect to such preference payment, and (ii) that, if any such voided distribution payment is recovered from such Certificateholder pursuant to such Order, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a . A copy of which the Policy shall be made available to each affected Certificateholder through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which that have been made by the Trustee Trustee, and subsequently recovered from Certificateholders and the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Offered Certificates. Each CertificateholderHolder of a Class A Certificate, by its purchase of Certificatessuch Certificate, the Servicer and the Trustee agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas supersede as or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each CertificateholderHolder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder Holder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement It is understood and agreed that the intention of the Certificates, furnish to parties is that the Certificate Insurer a notice of shall not be entitled to reimbursement on any Distribution Date for amounts previously paid by it unless on such retirement, and, upon retirement Distribution Date the Class A Certificateholders shall also have received the full amount of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer Insured Distribution Amount for cancellationsuch Distribution Date.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Prudential Securities Secured Financing Corp)
The Certificate Insurance Policy. (a) Within two (2) days of Not later than 3:00 p.m., New York time, on the third Business Day immediately preceding each Servicer Distribution Date, the Trustee Trust Administrator shall determine with respect the Available Funds for such Distribution Date. To the extent any Available Funds Shortfall will exist for any Distribution Date after giving effect to the immediately following Distribution Date, the amount distributions specified in Section 4.04(a) hereof (calculating such distributions without giving effect to any Insured Payment to be on deposit in the Certificate Account made on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall), the Trustee Trust Administrator shall complete a Notice notice in the form of Exhibit A attached to the Certificate Insurance Policy (the "Notice") and shall submit such notice Notice to the Certificate Insurer no later than 12:00 noon 10:00 a.m., New York City time time, on the second Business Day preceding such Distribution Date as Date. Such Notice may be delivered by electronic facsimile (in which case the original shall be sent by overnight courier). The Notice shall constitute a claim for an Insured Payment in pursuant to the Policy for an amount equal to such the Available Funds Shortfall. Upon receipt of Insured Payments on behalf of the Certificateholders, the Trust Administrator shall deposit such Insured Payments in the Policy Payments Account, and shall thereafter transfer such Insured Payments to the Certificate Account for distribution solely to the related Certificateholders in accordance with Section 4.04(a).
(cb) The Trustee Trust Administrator, on behalf of the Trust and as agent for the Trustee, shall establish a separate Eligible Account special purpose trust account for the benefit of the Holders of the Offered Certificates and the Certificate Insurer referred to herein as (the "Certificate Insurance Payment Policy Payments Account" ") over which the Trustee Trust Administrator shall have exclusive control and sole right of withdrawal. The Trustee Trust Administrator shall deposit upon receipt any amount paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for purposes of payment to the Certificateholders Holders of Offered Certificates of the Insured Distribution Amount Payment for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee Trustee, the Trust Administrator or the Trust FundTrust. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount Policy shall be transferred to the Certificate Account on in accordance with the related Distribution Date next succeeding paragraph and thereafter disbursed by the Trustee Trust Administrator to the Certificateholders Holders of the Offered Certificates in accordance with Section 6.054.04(a). It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Amount with any other funds available amounts distributed pursuant to make such paymentSection 4.04(a). However, the amount of any payment of principal of or of interest on the Offered Certificates to be paid from funds transferred from the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to related Holders of the Offered Certificates pursuant to Section 6.074.06. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Trust Administrator. On any Distribution Date with respect to which a claim has been made under the Policy, the amount of any funds received by the Trust Administrator as a result of such claim, to the extent required to pay amounts owed to Certificateholders on such Distribution Date, shall be withdrawn from the Policy Payments Account and deposited in the Certificate Account and applied by the Trust Administrator, together with the other funds to be deposited in the Certificate Account, directly to the amounts owed to Certificateholders on the related Certificates. Funds received by the Trust Administrator as a result of any claim under the Policy shall be deposited by the Trust Administrator in the Policy Payments Account and then transferred to the Certificate Account and used solely for payment to the related Holders of the related Certificates and may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee, the Trust Administrator or the Trust. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a Distribution Date shall be returned remitted to the Certificate Insurer Insurer, pursuant to the written instructions of the Certificate Insurer Insurer, by the end of such Business Day.
(dc) The Trustee Trust Administrator shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(d) The Trust Administrator shall receive, as attorney-in-fact of each Holder of a Class A Certificate, any Insured Payment from the Certificate Insurer and disburse the same to each Holder of a Class A Certificate in accordance with the provisions of this Article IV. Insured Payments disbursed by the Trust Administrator from proceeds of the Policy shall not be considered payment by the Trust nor shall such payments discharge the obligation of the Trust with respect to such Offered Certificates, and the Certificate Insurer shall be subrogated to the rights of the Certificateholders to the extent of the payment and shall be entitled to receive the Reimbursement Amount pursuant to Section 4.04(a)(I)(vi) or (II)(vi). By acceptance of a Certificate, each Holder of a Certificate agrees and recognizes that to the extent the Certificate Insurer makes Insured Payments, either directly or indirectly (as by paying through the Trustee), to the Class A Certificateholders, the Certificate Insurer will be entitled to receive the Reimbursement Amount pursuant to Section 4.04(a)(I)(vi) and (II)(vi).
(e) In If the event that the Trustee has received Trust Administrator receives a certified copy of an order of the appropriate court (an "Order") that any Insured Payment prior distribution made on the Offered Certificates of principal or current interest has been voided in whole or in part as a preference payment Preference Payment under applicable bankruptcy bankruptcy, insolvency, receivership or similar law, the Trustee Trust Administrator shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, distribution and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders notify each Holder of the affected Certificates by mail (i) that, subject to the terms of the Policy, the Certificate Insurer will disburse the voided distribution directly to the receiver, conservator, debtor- in-possession or trustee in bankruptcy named in the event any Order following such Certificateholder's Insured Payment making timely delivery to the Trust Administrator of (a) a certificate of such Certificateholder that such Order has been entered and is so recoverednot subject to any stay and (b) an assignment duly executed and delivered by such Certificateholder, in such form as is reasonably required by the Certificate Insurer and provided to such Certificateholder by the Certificate Insurer, irrevocably assigning to the Certificate Insurer all rights and claims of such Certificateholder relating to or arising under the affected Certificates against the debtor that made such Preference Payment, or otherwise with respect to such preference payment, and (ii) that, if any such voided distribution payment is recovered from such Certificateholder pursuant to such Order, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a . A copy of which the Policy shall be made available to each affected Certificateholder through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if anyTrust Administrator, and the Trustee Trust Administrator shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which that have been made by the Trustee Trust Administrator and subsequently recovered from Certificateholders and the Certificateholders, and dates on which such payments were made.
(f) The Trustee Trust Administrator shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee Trust Administrator has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Offered Certificates. Each CertificateholderHolder of a Class A Certificate, by its purchase of Certificatessuch Certificate, the Servicer Servicer, the Trust Administrator and the Trustee agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each CertificateholderHolder, the Servicer Servicer, the Trust Administrator and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee Trustee, the Trust Administrator and each Certificateholder Holder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement It is understood and agreed that the intention of the Certificates, furnish to parties is that the Certificate Insurer a notice of shall not be entitled to reimbursement on any Distribution Date for amounts previously paid by it unless on such retirement, and, upon retirement Distribution Date the Class A Certificateholders shall also have received the full amount of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer Insured Distribution Amount for cancellationsuch Distribution Date.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (New Century Home Eq Ln Tr Ser 2000 NCB Asset Back Ps THR Cer)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds". The amounts relating to collections or otherwise with respect to Mortgage Loan Group I are the "Available Funds for Group I" and the amounts relating to collections or otherwise with respect to Mortgage Loan Group II are the "Available Funds for Group II".
(b) If on any Distribution Date there is an Available Funds ShortfallShortfall for either Group, the Trustee shall complete a Notice in the form of Exhibit A to the Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Business Day preceding such Distribution Date as a claim for an Insured Payment in an amount equal to such Available Funds Shortfall.
(c) The Trustee shall establish a separate Eligible Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Payment Account and distribute such amount only for purposes of payment to the Certificateholders of the related Group of the Insured Distribution Amount for such Group for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount shall be transferred to the Certificate Account on the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Amount with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(d) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Prudential Securities Secured Financing Corp)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer If, on the second Business Day before any Distribution Date, the Trustee determines that an Insured Amount is required to be made by the Certificate Insurer on such Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any such Insured Payment Amount and prior shall give written notice to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete Certificate Insurer by completing a Notice of Nonpayment in the form of Exhibit A to the Certificate Insurance Policy and submit submitting such notice to the Certificate Insurer no later than Notice of Nonpayment by 12:00 noon noon, New York City time on the such second Business Day preceding such Distribution Date as a claim for an Insured Payment Amount. The Trustee’s responsibility for delivering a Notice of Nonpayment to the Certificate Insurer, as provided in the preceding sentence, is limited to the availability, timeliness and accuracy of the information provided to it by the Master Servicer. In the event the Trustee receives a certified copy of an amount equal order of the appropriate court that any scheduled payment of principal or interest on a Class A5B Certificate has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall promptly notify the Certificate Insurer in writing, as appropriate, and the fiscal agent, if any, and the Trustee shall make a claim on the Certificate Insurance Policy in accordance with the provisions thereof to obtain payment by the Certificate Insurer of such voided scheduled payment. In addition, the Trustee shall mail notice to all Holders of the Class A5B Certificates so affected that, in the event that any such Holder’s scheduled payment is so recovered, such Holder will be entitled to payment pursuant to the terms of the Certificate Insurance Policy, a copy of which shall be made available to such Available Funds ShortfallHolders by the Trustee. The Trustee shall furnish to the Certificate Insurer and the appropriate fiscal agent, if any, its records listing the payments on the affected Class A5B Certificates, if any, that have been made by the Trustee and subsequently recovered from the affected Holders, and the dates on which such payments were made by the Trustee.
(cb) The At the time of the execution hereof, and for the purposes hereof, the Trustee shall establish a separate Eligible Account special purpose trust account in the name of the Trustee for the benefit of Holders of the Class A5B Certificates and (the Certificate Insurer referred to herein as the "Certificate Insurance Payment “Policy Payments Account" ”) over which the Trustee shall have exclusive control and sole right of withdrawal. The Policy Payments Account shall be an Eligible Account. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for the purposes of payment making payments to Holders of the Class A5B Certificates in respect of the Guaranteed Distributions (or other amounts payable pursuant to the Certificateholders second paragraph of subsection (a) above on the Insured Distribution Amount Class A5B Certificates by the Certificate Insurer pursuant to the Certificate Insurance Policy) for which a the related claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount . Such amounts shall be transferred to the Certificate Account on the related Distribution Date and disbursed allocated by the Trustee to Holders of Class A5B Certificates entitled to such payments in the Certificateholders in accordance same manner as principal and interest distributions are to be allocated with respect to such Certificates pursuant to Section 6.055.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay make regular payments hereunder with funds withdrawn from the Insured Distribution Amount with other funds available to make such paymentCertificate Account. However, the amount of any payment of principal or of interest payments made on the Class A5B Certificates to be paid from funds transferred from in the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph subsection (de) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Trustee.
(c) Any funds received from the Certificate Insurer for deposit into the Policy Payments Account pursuant to the Certificate Insurance Policy in respect of a Distribution Date or otherwise as a result of any claim under such Certificate Insurance Policy shall be applied by the Trustee directly to the payment in full (i) of the Insured Amounts due on such Distribution Date on the Class A5B Certificates, or (ii) of other amounts to which payments under the Certificate Insurance Policy are to be applied. Funds received by the Trustee as a result of any claim under the Certificate Insurance Policy shall be used solely for payment to the Holders of the Class A5B Certificates, and may not be applied for any other purpose, including, without limitation, satisfaction of any costs, expenses or liabilities of the Trustee or the Trust Fund. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a after each Distribution Date (other than the final Distribution Date to the extent of funds remaining in the Policy Payments Account required to be paid to Holders of the Class A5B Certificates) shall be returned remitted promptly to the Certificate Insurer pursuant to the written instructions instruction of the Certificate Insurer by the end of such Business DayInsurer.
(d) The Trustee shall keep a complete and accurate record records in respect of (i) all funds remitted to the amount Trustee by the Certificate Insurer and deposited into the Policy Payments Account and (ii) the allocation of such funds to (A) payments of interest on and principal paid in respect of any Certificate from moneys received under Class A5B Certificates, (B) Applied Loss Amounts allocated to the Certificate Insurance PolicyClass A5B Certificates, and (C) payments in respect of Preference Amounts. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one three Business Day's Days’ prior notice to the Trustee. Any Insured Amounts disbursed by the Trustee from proceeds of the Certificate Insurance Policy shall be considered payment by the Certificate Insurer and not by the Trust Fund with respect to the Class A5B Certificates and the Certificate Insurer will be entitled to receive the related Reimbursement Amount pursuant to Section 5.02(b)(iii).
(e) In The Trustee acknowledges, and each Holder of a Class A5B Certificate by its acceptance of such Class A5B Certificate agrees, that, without the event that need for any further action on the Trustee has received a certified copy of an order part of the appropriate court that Certificate Insurer or the Trustee, to the extent the Certificate Insurer pays Insured Amounts or Preference Amounts, directly or indirectly, on account of principal of or interest on any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy lawClass A5B Certificates, the Trustee shall so notify Certificate Insurer will be fully subrogated to the rights of the Holders of such Class A5B Certificates to receive the related Reimbursement Amount pursuant to Section 5.02(b)(iii). The Class A5B Certificateholders, by acceptance of the Class A5B Certificates assign their rights as Holders of the Class A5B Certificates to the extent of the Certificate Insurer’s interest with respect to amounts paid under the Certificate Insurance Policy. Each of the Depositor and Trustee agrees to such subrogation and, shall comply further agrees to execute such instruments and to take such actions as, in the sole judgment of the Certificate Insurer are necessary to evidence such subrogation and, subject to the priority of payment provisions of this Agreement, to perfect the rights of the Certificate Insurer to receive any moneys paid or payable in respect of the Class A5B Certificates under this Agreement or otherwise. Anything herein to the contrary notwithstanding, solely for purposes of determining the Certificate Insurer’s rights as subrogee for payments distributable pursuant to Section 5.02, any payment with respect to distributions to the provisions Class A5B Certificates that is made with funds received pursuant to the terms of the Certificate Insurance Policy to obtain shall not be considered payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Class A5B Certificates that, from the Trust Fund and shall not result in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer distribution or the Certificate Insurer's fiscal agentprovision for the distribution in reduction of the Class Principal Amount of the Class A5B Certificates or Current Interest thereon, if any, and within the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.meaning of Article V.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or either of the institution of any action, of following as to which a Responsible Officer of the Trustee has actual knowledge: (A) the commencement of any proceeding by or against the Depositor commenced under the United States bankruptcy code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an “Insolvency Proceeding”) and (B) the making of any claim in connection with any Insolvency Proceeding seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "“Preference Claim"”) of any distribution made with respect to the Class A5B Certificates. Each CertificateholderHolder of a Class A5B Certificate, by its purchase of Certificatessuch Class A5B Certificate, the Servicer and the Trustee hereby agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such any Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder Holder of a Class A5B Certificate in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any an adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, shall surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationcancellation upon the termination of the Trust Fund pursuant to Section 7.01 hereof.
Appears in 1 contract
Samples: Trust Agreement (Structured Asset Sec Corp Mort Pass THR Certs Ser 2004 6xs)
The Certificate Insurance Policy. (a) Within two (2) days of On the third Business Day prior to each Servicer Distribution Date, the Trustee shall determine with respect to the immediately following such Distribution Date, Date the amount to be on deposit in the Certificate Account Accounts on such Distribution Date as a result of constituting the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Available Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds"Amount.
(b) No later than the third Business Day prior to each Distribution Date, the Trustee will determine whether a Deficiency Amount exists under either Certificate Insurance Policy. If on any Distribution Date there is an Available Funds Shortfallthe Trustee determines that a Deficiency Amount exists, the Trustee shall complete a Notice in the form of Exhibit A to the related Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second third Business Day preceding such Distribution Date as a claim for an Insured Payment in an amount equal to such Available Funds Shortfallexcess.
(c) The Trustee shall establish a two separate Eligible Account Accounts for the benefit of Holders of the Group I Certificates and the Group II Certificates, as applicable, and the Certificate Insurer referred to herein as the "Certificate Insurance Payment AccountPayments Accounts" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the related Certificate Insurance Policy in the related Certificate Insurance Payment Payments Account and distribute such amount only for purposes of payment to the Certificateholders of the Insured Distribution Amount Group I Certificates or Group II Certificates for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee Depositor, the Transferor, the Trustee, or the Trust Fund. Amounts paid under the applicable Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount shall be transferred to the Certificate Account on the related Distribution Date and disbursed by the Trustee from the related Certificate Insurance Payments Account to the related Certificateholders in accordance with Section 6.056.6. It shall not be necessary for such payments made under the Certificate Insurance Policies to be made by checks or wire transfers separate from the checks or wire transfers used other amounts distributed pursuant to pay the Insured Distribution Amount with other funds available to make such paymentSection 6.6. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account Payments Accounts shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Account Payments Accounts shall not be invested. Any funds remaining in the Certificate Insurance Payment Account Payments Accounts on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(d) The Trustee Distribution Statement shall keep a complete and accurate record of indicate the amount of interest and principal paid in respect of any Certificate the Class A Certificates and the Class IO Certificates from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the TrusteePolicies.
(e) In The Trustee shall, as necessary, make a claim on the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the related Certificate Insurance Policy to obtain payment by in respect of Preference Amounts in accordance with the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders terms of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the related Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the . The Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, including (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder in the conduct of any such Preference Claim, including, without limitation, including all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement shall (i) receive as attorney-in-fact of the Certificates, furnish to each Group I Certificate and each Group II Certificate any Insured Payment from the Certificate Insurer a notice of and (ii) distribute such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationInsured Payment as set forth in subsection (c) above.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Abs Capital I Inc)
The Certificate Insurance Policy. (a) Within two (2) days of As to each Distribution Date, the Trustee shall, based on the information required to be provided by the Master Servicer to the Trustee, determine whether there will be a Required Payment for such Distribution Date. In the event that the Trustee determines that there will be a Required Payment for the related Distribution Date, the Trustee shall determine with respect to complete the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete a Notice notice in the form of Exhibit A to the Certificate Insurance Policy and Policy. The Trustee shall submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Business Day preceding such Distribution Date as a claim for an Insured Payment Amount in an amount equal to the Required Payment.
(b) Upon receipt of Insured Payments from the Certificate Insurer on behalf of Class A Certificateholders, the Trustee shall deposit such Available Funds ShortfallInsured Payments in the Distribution Account and shall distribute such Insured Payments, or the proceeds thereof, to the Class A Certificateholders in accordance with Sections 6.01(a).
(c) The Trustee shall establish (i) receive as attorney-in-fact of each Holder of any Class A Certificates any Insured Payment from the Certificate Insurer and (ii) disburse the same to the Holders of such Certificates as set forth in Section 6.01(a). Insured Payments disbursed by the Trustee from proceeds of a separate Eligible Account Certificate Insurance Policy shall be considered payment by the Certificate Insurer and not by the Trust Fund with respect to such Certificates, and the Certificate Insurer shall be entitled to receive the related Reimbursement Amount pursuant to Section 6.01(a)(iv). The Trustee hereby agrees on behalf of each Class A Certificateholder and the Trust Fund for the benefit of Holders of the Certificates and the Certificate Insurer referred that it recognizes that to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under extent the Certificate Insurance Policy in Insurer makes Insured Payments, either directly or indirectly (as by paying through the Certificate Insurance Payment Account and distribute such amount only for purposes of payment to the Certificateholders of the Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance PolicyTrustee), to the extent needed to pay the Insured Distribution Amount shall be transferred to Holders of such Certificates, the Certificate Account on Insurer will be entitled to receive the related Distribution Date and disbursed by the Trustee to the Certificateholders in accordance with Section 6.05. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay the Insured Distribution Reimbursement Amount with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07. Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day6.01(a)(iv).
(d) The Trustee shall keep a complete and accurate record Subject only to the priority of payment provisions of this Agreement, each of the amount of interest Depositor and principal paid in respect the Trustee acknowledges that, to the extent of any Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's prior notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment made by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish is to be fully subrogated to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee extent of such payment and subsequently recovered from the Certificateholders, and dates any additional interest due on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurerlate payment, to the fullest extent permitted by law, the rights of the Servicer, Holders of the Class A Certificates to any moneys paid or payable in respect of the Class A Certificates under this Agreement or otherwise. Each of the Depositor and the Trustee agrees to such subrogation and, further, agrees to execute such instruments and each Certificateholder to take such actions as, in the conduct sole judgment of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of are necessary to evidence such retirement, subrogation and, upon retirement subject to the priority of payment provision of this Agreement, to perfect the Certificates and the expiration of the term rights of the Certificate Insurance Policy, surrender Insurer to receive any moneys paid or payable in respect of the Certificate Insurance Policy to the Certificate Insurer for cancellationClass A Certificates under this Agreement or otherwise.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Sequoia Mort Trust 4 Mort Loan Asset Back Pass-Through Cert)
The Certificate Insurance Policy. (a) Within two (2) days The Trustee hereby appoints the Securities Administrator as its agent in connection with the receipt and distribution of each Servicer Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount all amounts required to be on deposit in paid by the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete a Notice in the form of Exhibit A to Insurer under the Certificate Insurance Policy and submit such notice the providing of any notices required to the Certificate Insurer no later than 12:00 noon New York City time on the second Business Day preceding such Distribution Date as a claim for an Insured Payment in an amount equal to such Available Funds Shortfall.
(c) be provided thereunder. The Trustee Securities Administrator shall establish a separate non-interest bearing trust account which shall be an Eligible Account for the benefit of Holders of the Class A-1B Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Policy Payment Account" over which the Trustee Securities Administrator shall have exclusive control and sole right of withdrawal. The Trustee Securities Administrator shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Policy Payment Account and distribute such amount only for purposes of payment to the Certificateholders Class A-1B Certificates of the Insured Distribution Amount Policy Payment for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Master Servicer, the Trustee or the Trust FundFund or to pay any other Class of Certificates. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount any Class A-1B Certificate Deficiency Amount, shall be transferred to the Certificate Distribution Account on the related Distribution Date Date, and the portion thereof representing the Class A-1B Certificate Deficiency Amount shall be disbursed by the Trustee Securities Administrator to the Certificateholders Class A-1B Certificateholders, in accordance with each case as if it were a distribution to the Holders of such Certificates pursuant to Section 6.055.01. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay other distributions to the Insured Distribution Amount Class A-1B Certificateholders, as applicable, with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Class A-1B Certificates to be paid from funds transferred from the Certificate Insurance Policy Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the such Class of Certificates pursuant to Section 6.075.02. Funds held in the Certificate Insurance Policy Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Policy Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(b) If the Securities Administrator has determined that a Class A-1B Certificate Deficiency Amount is required to be paid under the Certificate Insurance Policy with respect to such Distribution Date, it shall deliver a Notice of Claim (in the form attached as Exhibit A to the Certificate Insurance Policy) to the Certificate Insurer no later than noon, New York, New York time on the second Business Day preceding such Distribution Date and shall provide a copy thereof to the Master Servicer at or prior to the time such Notice of Claim is received by the Certificate Insurer. The Notice of Claim shall constitute a claim therefor pursuant to the Certificate Insurance Policy.
(c) If the Securities Administrator receives a certified copy of a final order of the appropriate court exercising jurisdiction in an Insolvency Proceeding with respect to which the appeal period as expired without an appeal having been filed (an "Order") that any prior distribution made on the Insured Certificates constitutes an Avoided Payment and must be returned by the Certificate Owner, the Securities Administrator shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such Avoided Payment and shall, at the time it provides notice to the Certificate Insurer, notify each holder of the affected Insured Certificates by mail that (i) subject to the terms of the Certificate Insurance Policy, the Certificate Insurer will disburse the Avoided Payment directly to the receiver, conservator, debtor-in-possession or trustee in bankruptcy named in the Order on the Business Day following such Certificateholder's making timely delivery to the Securities Administrator of (a) a certified copy of the Order of such Certificateholder that such Order has been entered and is not subject to any stay, (b) an assignment duly executed and delivered by such Certificate Owner, in such form as is reasonably required by the Certificate Insurer and provided to such Certificateholder by the Certificate Insurer, irrevocably assigning to the Certificate Insurer all rights and claims of such Certificate Owner relating to or arising under the affected Insured Certificates against the debtor that made a payment of such Avoided Payment, or otherwise with respect to such payment and (c) a payment notice in the form required by the Certificate Insurance Policy, appropriately completed and executed by the Securities Administrator, provided that if such documents are received after 10:00 a.m., New York time, on such Business Day, they will be deemed to be received on the following Business Day. A copy of the Certificate Insurance Policy shall be made available to each affected Certificateholder through the Trustee, and the Securities Administrator shall furnish to the Certificate Insurer or its fiscal agent, if any, a copy of its records evidencing the payments that have been made by the Securities Administrator and subsequently recovered from Certificateholders and the dates on which such payments were made.
(d) The Trustee Securities Administrator shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Certificate Class A-1B Certificates from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one two Business Day's prior notice to the TrusteeSecurities Administrator.
(e) In the event that the Trustee has received a certified copy of an order The Holders of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify Certificates are not entitled to institute proceedings directly against the Certificate Insurer, shall comply with the provisions . Each Holder of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Certificateholders of the affected Certificates that, in the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "Preference Claim") of any distribution made with respect to the Certificates. Each Certificateholder, by its purchase of Certificates, the Servicer and the Trustee agree that, Insured Certificates hereby agrees that the Certificate Insurer (so long as no Certificate Insurer Default exists) may at any time during the continuation of any proceeding relating to a Preference Claim an Avoided Payment, direct all matters relating to such Preference ClaimAvoided Payment on their behalf, including, without limitation, (i) the direction of any appeal of any order relating to such Preference Claim preference claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, .
(f) Any payments to the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign made by wire transfer of immediately available funds to the following Federal Reserve Account (unless and until the Certificate InsurerInsurer notifies the Securities Administrator of a change in such account information in writing): Fleet Bank, to N.A. 777 Main Street Xxxxxxxx, XX 00000-0000 XXA Number: 04900571 For the fullest extent permitted by law, the rights Account of: XL Capital Assurance Inc. 1221 Avenue of the ServicerAmericas, the Trustee and each Certificateholder in the conduct of any such Preference Claim30xx Xxxxx Xxx Xxxx, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.XX 00000-0000 Xxcount #: 942-783-5841 Xxference: Policy Number CA01082A
(g) The Trustee Securities Administrator shall, upon retirement of the Class A-1B Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon after retirement of the Class A-1B Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation.
(h) The Trustee shall hold the Certificate Insurance Policy in trust as agent for the Holders of the Class A-1B Certificates for the purpose of making claims thereon and distributing the proceeds thereof. Neither the Certificate Insurance Policy nor the amounts paid on the Certificate Insurance Policy shall constitute part of the Trust Fund created by this Agreement. Each Holder of Class A-1B Certificates, by accepting its Class A-1B Certificates, appoints the Securities Administrator as attorney-in-fact for the purpose of making claims on the Certificate Insurance Policy.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (ACE Securities Corp Series 2004-Rm1)
The Certificate Insurance Policy. (a) Within two (2) days of following each Servicer Distribution Remittance Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Distribution Account on such Distribution Date as a result of the (i) Servicer's ’s remittance of the Servicer Interest Remittance Amount and the Principal Remittance Amount on the related Servicer Distribution Remittance Date, and (ii) any transfers to the Certificate Distribution Account made from the Capitalized Interest Account and/or the Pre-Funding Account Accounts relating to such Distribution Date pursuant to Section 6.01 4.02 hereof, excluding the amount of any Insured Payment and prior to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds"Payment.
(b) If on any Distribution Date there is an Available Funds Shortfalla Class A-1 Deficiency, the Trustee shall complete a Notice in the form of Exhibit A to the Certificate Insurance Policy and submit such notice to the Certificate Insurer no later than 12:00 noon New York City time on the second Business Day preceding such Distribution Date as a claim for an Insured Payment in an amount equal to such Available Funds ShortfallClass A-1 Deficiency.
(c) The Trustee shall establish a separate Eligible Account for the benefit of Holders of the Class A-1 Certificates and the Certificate Insurer Insurer, referred to herein as the "Certificate “Insurance Payment Account" ,” over which the Trustee shall have exclusive control and sole right of withdrawal. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in the Certificate Insurance Payment Account and distribute such amount only for purposes of payment to the Class A-1 Certificateholders of the Insured Distribution Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount Amount, shall be transferred to the Certificate Distribution Account on the related Distribution Date and disbursed by the Trustee to the Class A-1 Certificateholders in accordance with Section 6.054.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay other distributions to the Insured Distribution Amount Class A-1 Certificateholders with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Class A-1 Certificates to be paid from funds transferred from the Certificate Insurance Payment Account shall be noted as provided in paragraph (d) below in the Certificate Register and in the statement to be furnished to Holders of the such Certificates pursuant to Section 6.074.03(a). Funds held in the Certificate Insurance Payment Account shall not be invested. Any funds remaining in the Certificate Insurance Payment Account on the first Business Day following a Distribution Date shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(d) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Class A-1 Certificate from moneys received under the Certificate Insurance Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one Business Day's ’s prior notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Certificate Insurance Policy to obtain payment by the Certificate Insurer of such voided Insured Payment, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail to the Class A-1 Certificateholders of the affected Certificates that, in the event any Class A-1 Certificateholder's ’s Insured Payment is so recovered, such Class A-1 Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's ’s fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Class A-1 Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "“Preference Claim"”) of any distribution made with respect to the Class A-1 Certificates. Each Class A-1 Certificateholder, by its purchase of Class A-1 Certificates, the Servicer and the Trustee agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety, supersedas supersedes or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Class A-1 Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the ServicerTrustee, the Trustee Servicer and each Class A-1 Certificateholder in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement once the Certificate Balance of the CertificatesClass A-1 Certificates has been reduced to zero (after giving effect to all payments including any payments made under the Certificate Insurance Policy), furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Class A-1 Certificates and the expiration of the term of the Certificate Insurance Policy, surrender the Certificate Insurance Policy to the Certificate Insurer for cancellation. Such cancellation shall in not way reduce the rights of the Certificate Insurer to amounts subrogated to the Certificate Insurer or to be reimbursed for any Reimbursement Amounts.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Abs Capital I Inc CDC Mor Cap Tr 2004-He2)
The Certificate Insurance Policy. (a) Within two (2) days of each Servicer If, on the second Business Day before any Distribution Date, the Trustee determines that an Insured Payment is required to be made by the Certificate Insurer on such Distribution Date, the Trustee shall determine with respect to the immediately following Distribution Date, the amount to be on deposit in the Certificate Account on such Distribution Date as a result of the (i) Servicer's remittance of the Servicer Remittance Amount on the related Servicer Distribution Date, and (ii) any transfers to the Certificate Account made from the Capitalized Interest Account and/or the Pre-Funding Account relating to such Distribution Date pursuant to Section 6.01 hereof, excluding the amount of any such Insured Payment and prior shall give written notice to the application of the amounts described in clauses (a)(i) through (a)(iii) of Section 6.05 for the related Distribution Date. The amounts described above in the preceding sentence with respect to the Distribution Date are the "Available Funds".
(b) If on any Distribution Date there is an Available Funds Shortfall, the Trustee shall complete Certificate Insurer by completing a Notice of Nonpayment in the form of Exhibit A to the Certificate Insurance Policy and submit submitting such notice to the Certificate Insurer no later than Notice of Nonpayment by 12:00 noon noon, New York City time on the such second Business Day preceding such Distribution Date as a claim for an Insured Payment Payment. The Trustee’s responsibility for delivering a Notice of Nonpayment to the Certificate Insurer, as provided in the preceding sentence, is limited to the availability, timeliness and accuracy of the information provided to it by the Master Servicer. In the event the Trustee receives a certified copy of an amount equal order of the appropriate court that any scheduled payment of principal or interest on a Class 2-A3A Certificate has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall promptly notify the Certificate Insurer in writing and the fiscal agent, if any, and the Trustee shall, on behalf of the Trust and the Class 2-A3A Certificateholders, make a claim on the Certificate Insurance Policy in accordance with the provisions thereof to obtain payment by the Certificate Insurer of such voided scheduled payment. In addition, the Trustee shall mail notice to all Holders of the Class 2-A3A Certificates so affected that, in the event that any such Holder’s scheduled payment is so recovered, such Holder will be entitled to payment pursuant to the terms of the Certificate Insurance Policy, a copy of which shall be made available to such Available Funds ShortfallHolders by the Trustee. The Trustee shall furnish to the Certificate Insurer and the appropriate fiscal agent, if any, its records listing the payments on the affected Class 2-A3A Certificates, if any, that have been made by the Trustee and subsequently recovered from the affected Holders, and the dates on which such payments were made by the Trustee.
(cb) The At the time of the execution hereof, and for the purposes hereof, the Trustee shall establish a separate Eligible the Policy Payments Account for the benefit of Holders of the Certificates and the Certificate Insurer referred to herein as the "Certificate Insurance Payment Account" over which the Trustee shall have exclusive control and sole right of withdrawal. The Policy Payments Account shall be an Eligible Account. The Trustee shall deposit upon receipt any amount paid under the Certificate Insurance Policy in into the Certificate Insurance Payment Policy Payments Account and distribute such amount only for the purposes of payment making payments to Holders of the Class 2-A3A Certificates in respect of the Guaranteed Distributions (or other amounts payable pursuant to the Certificateholders second paragraph of subsection (a) above on such Class 2-A3A Certificates by the Insured Distribution Amount Certificate Insurer pursuant to the Certificate Insurance Policy) for which a the related claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Trustee or the Trust Fund. Amounts paid under the Certificate Insurance Policy, to the extent needed to pay the Insured Distribution Amount . Such amounts shall be transferred to the Certificate Account on the related Distribution Date and disbursed allocated by the Trustee to Holders of Class 2-A3A Certificates entitled to such payments in the Certificateholders in accordance same manner as principal and interest distributions are to be allocated with respect to such Certificates pursuant to Section 6.055.02. It shall not be necessary for such payments to be made by checks or wire transfers separate from the checks or wire transfers used to pay make regular payments hereunder with funds withdrawn from the Insured Distribution Amount with other funds available to make such paymentCertificate Account. However, the amount of any payment of principal or of interest payments made on the Class 2-A3A Certificates to be paid from funds transferred from in the Certificate Insurance Payment Policy Payments Account shall be noted as provided in paragraph subsection (de) below in the Certificate Register and in the statement to be furnished to Holders of the Certificates pursuant to Section 6.07below. Funds held in the Certificate Insurance Payment Policy Payments Account shall not be investedinvested by the Trustee.
(c) Any funds received from the Certificate Insurer for deposit into the Policy Payments Account pursuant to this Agreement and the Certificate Insurance Policy in respect of a Distribution Date or otherwise as a result of any claim under such Certificate Insurance Policy shall be applied by the Trustee directly to the payment in full (i) of the Insured Payments due on such Distribution Date on the Class 2-A3A Certificates, or (ii) of other amounts to which payments under the Certificate Insurance Policy are to be applied. Funds received by the Trustee as a result of any claim under the Certificate Insurance Policy shall be used solely for payment to the Holders of the Class 2-A3A Certificates and may not be applied for any other purpose, including, without limitation, satisfaction of any costs, expenses or liabilities of the Trust, the Trustee or the Trust Fund. Any funds remaining in the Certificate Insurance Payment Policy Payments Account on the first Business Day following a after each Distribution Date (other than the final Distribution Date to the extent of funds remaining in the Policy Payments Account required to be paid to Holders of the Class 2-A3A Certificates) shall be returned remitted promptly to the Certificate Insurer pursuant to the written instructions instruction of the Certificate Insurer by the end of such Business DayInsurer.
(d) The Trustee shall keep a complete and accurate record records in respect of (i) all funds remitted to the amount Trustee by the Certificate Insurer and deposited into the Policy Payments Account and (ii) the allocation of such funds to (A) payments of interest on and principal paid in respect of any Certificate from moneys received under Class 2-A3A Certificates, (B) Pool 2 Applied Loss Amounts allocated to the Certificate Insurance PolicyClass 2-A3A Certificates, and (C) payments in respect of Preference Amounts. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one three Business Day's Days’ prior notice to the Trustee. Any Insured Payments disbursed by the Trustee from proceeds of the Certificate Insurance Policy shall be considered payment by the Certificate Insurer and not by the Trust Fund with respect to the Class 2-A3A Certificates, and the Certificate Insurer will be entitled to receive the related Reimbursement Amount pursuant to Section 5.02(c)(iii).
(e) In The Trustee acknowledges, and each Holder of a Class 2-A3A Certificate by their acceptance of such Certificates agrees, that without the event that need for any further action on the Trustee has received a certified copy of an order part of the appropriate court that Certificate Insurer or the Trustee, to the extent the Certificate Insurer pays Insured Payments, directly or indirectly, on account of principal of or interest on any Insured Payment has been voided in whole or in part as a preference payment under applicable bankruptcy lawsuch Class of Certificates, the Trustee Certificate Insurer will be fully subrogated to the rights of the Holders of such Class to receive the related Reimbursement Amount pursuant to Section 5.02(c)(iii) and the Certificate Insurer shall so notify also have the rights conferred the Certificate Insurer pursuant to Sections 4.06 and 5.02 of the Insurance Agreement, as if fully set forth herein. The Class 2-A3A Certificateholders, by acceptance of their Certificates assigns their rights as Holders of such Class of Certificates to the extent of the Certificate Insurer’s interest with respect to amounts paid under the Certificate Insurance Policy. Each of the Depositor and the Trustee agrees to such subrogation and further agrees to execute such instruments and to take such actions as, shall comply in the sole judgment of the Certificate Insurers are necessary to evidence such subrogation and, subject to the priority of payment provisions of this Agreement, to perfect the rights of the Certificate Insurer to receive any moneys paid or payable in respect of the Class 2-A3A Certificates under this Agreement or otherwise. Anything herein to the contrary notwithstanding, solely for purposes of determining the Certificate Insurer’s rights as subrogee for payments distributable pursuant to Section 5.02, any payment with respect to distributions to the provisions Class 2-A3A Certificates that is made with funds received pursuant to the terms of the Certificate Insurance Policy to obtain shall not be considered payment by the Certificate Insurer of such voided Insured Payment, Class of Certificates from the Trust Fund and shall, at shall not result in the time it provides notice to distribution or the Certificate Insurer, notify, by mail to provision for the Certificateholders distribution in reduction of the affected Class Principal Amount of such Class of Certificates thator Current Interest thereon, in within the event any Certificateholder's Insured Payment is so recovered, such Certificateholder will be entitled to payment pursuant to the Certificate Insurance Policy, a copy meaning of which shall be made available through the Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate Insurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the Certificateholders, and dates on which such payments were made.Article V.
(f) The Trustee shall promptly notify the Certificate Insurer of any proceeding or either of the institution of any action, of following as to which a Responsible Officer of the Trustee has actual knowledge: (A) the commencement of any proceeding by or against the Depositor commenced under the Bankruptcy Code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an “Insolvency Proceeding”) and (B) the making of any claim in connection with any Insolvency Proceeding seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law (a "“Preference Claim"”) of any distribution made with respect to the Class 2-A3A Certificates. Each CertificateholderHolder of a Class 2-A3A Certificate, by its purchase of Certificatesits respective Class of Certificate, the Servicer and the Trustee hereby agree that, that the Certificate Insurer (so long as no Certificate Insurer Default exists) 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, (i) the direction of any appeal of any order relating to such any Preference Claim and (ii) the posting of any surety, supersedas supersedeas or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each Certificateholder, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Servicer, the Trustee and each Certificateholder Holder of a Class 2-A3A Certificate in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any an adversary proceeding or action with respect to any court order issued in connection with any such Preference Claim.
(g) The Trustee shall, upon retirement of the Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Certificates and the expiration of the term of the Certificate Insurance Policy, shall surrender the Certificate Insurance Policy to the Certificate Insurer for cancellationcancellation upon the termination of the Trust Fund pursuant to Article VII hereof.
Appears in 1 contract
