The Policy. (a) If the Trustee determines that a Deficiency Amount to be covered by the Policy will exist for the related Distribution Date, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “Notice”) and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the second Business Day immediately preceding such Distribution Date, as a claim for the amount of such Insured Amount. (b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawal. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured Certificates, the Trustee shall deposit such Insured Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of Certificates. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held in the Insurance Account shall not be invested. Any funds remaining in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day. (c) 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 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made. (e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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 or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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. (f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation. (g) The Trustee will hold the 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 Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy. (h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment of the Insured Certificates from the Trust Fund. The Depositor, the Servicer and the Trustee acknowledge, and each holder by its acceptance of an Insured Certificate agrees, that without the need for any further action on the part of the Certificate Insurer, the Depositor, the Servicer or the Trustee (a) to the extent the Certificate Insurer makes payments, directly or indirectly, on account of principal of or interest on the Insured Certificates to the holders of such Insured Certificates, the Certificate Insurer will be fully subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth herein. (i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 4 contracts
Sources: Pooling and Servicing Agreement (IndyMac Residential Mortgage-Backed Trust, Series 2006-L4), Pooling and Servicing Agreement (IndyMac Residential Mortgage-Backed Trust, Series 2006-L3), Pooling and Servicing Agreement (IndyMac Residential Mortgage-Backed Trust, Series 2006-L2)
The Policy. (a) If If, on the Trustee second Business Day prior to the Draw Date, the Agent determines that a Deficiency Amount to be covered by the Policy will exist for on such Draw Date in an amount greater than zero, the Agent shall notify the Insurer in writing of such Deficiency Amount; provided further that the Agent will promptly notify the Insurer if it reasonably determines on any other Business Day that a Deficiency Amount greater than zero is likely to exist on the next Draw Date. Unless the Agent shall have received written notice from the Insurer to the effect that the Insurer intends to make an Insurer Advance in respect of such Deficiency Amount on the related Distribution Draw Date, the Trustee Agent shall complete deliver to the Insurer a notice substantially in the form of Exhibit A to the Policy (the “Notice”"NOTICE FOR PAYMENT") and submit as a claim for an Insured Amount in an amount equal to such Deficiency Amount. Such Notice for Payment shall be delivered in accordance with the terms of the Policy to the Certificate Insurer no later than 12:00 P.M.10:00 a.m., New York City time, on the second Business Day immediately preceding such Distribution Draw Date, as a claim for the amount of such Insured Amount.
(b) The Trustee Agent, for the benefit of the Insured Purchasers and the Insurer, shall establish and maintain an account (the "INSURANCE ACCOUNT") as a segregated account, identified as the "Insurance Account, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corp., as Agent" The Agent shall make or permit withdrawals from the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawalonly as provided in this Agreement. Upon receipt of an Insured Amount or Insurer Advance from the Certificate Insurer on behalf of the Holders of the Insured CertificatesPurchasers, the Trustee Agent shall deposit such Insured Amount amounts into the Insurance Account. On each Draw Date, the Agent shall distribute the Deficiency Amount, if any, from amounts on deposit in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of Certificates. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates Purchasers in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held in the Insurance Account shall not be invested. Any funds remaining in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business DayDeficiency Amount.
(c) The Trustee Agent (i) 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 Policy. The Certificate Insurer shall have the right be deemed to inspect such records at reasonable times during normal business hours upon one Business Day’s prior notice to the Trustee.
(d) In the event that the Trustee has received a certified copy of an order of the appropriate court that receive any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered Advance from the holders Insurer as attorney-in-fact on behalf of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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 Purchasers and (ii) the posting of any surety shall distribute such Insured Amount or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and the Trustee hereby delegates and assigns Advance to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate Purchasers as set forth 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.
subsection (fb) The Trustee shall, upon retirement of the above. Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders of the Insured Certificates for the purpose of making claims thereon and distributing the Amounts from proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy and Insurer Advances disbursed by the Agent shall not be considered payment by the Seller with respect to the Purchasers, nor shall such disbursement of such Insured Amounts or Insurer Advances discharge the obligations of the Insured Certificates from Seller with respect to the Trust Fundamounts thereof. The Depositor, the Servicer Insurer shall become subrogee and the Trustee acknowledgedeemed assignee of the Purchasers, and each holder by its acceptance of an amount of Investment or Discount and Program Fees, as applicable, equal to the amount of Insured Certificate agrees, Amounts paid or Insurer Advances made by the Insurer. The Agent hereby agrees that without the need for any further action on the part of the Certificate Insurer, the Depositor, the Servicer or the Trustee (a) Agent shall recognize that to the extent the Certificate Insurer makes paymentspayments of Insured Amounts or Insurer Advances, either directly or indirectlyindirectly (as by paying through the Agent), on account of principal of or interest on to the Insured Certificates to the holders of such Insured CertificatesPurchasers, the Certificate Insurer will be fully subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due Insured Purchasers to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment extent of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereinpayments.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.]
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Adesa Inc), Receivables Purchase Agreement (Adesa Inc)
The Policy. (a) If the Trustee determines that a Deficiency an Insured Amount to be covered by the Policy will exist for the related Distribution Date, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “Notice”) and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the second Business Day immediately preceding such Distribution Date, as a claim for the amount of such Insured Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawal. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured Certificates, the Trustee shall deposit such Insured Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of Certificates. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held in the Insurance Account shall not be invested. Any funds remaining in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(c) 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 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Master Servicer, the Depositor 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 or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the 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 Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment of the Insured Certificates from the Trust Fund. The Depositor, the Master Servicer and the Trustee acknowledge, and each holder by its acceptance of an Insured Certificate agrees, that without the need for any further action on the part of the Certificate Insurer, the Depositor, the Master Servicer or the Trustee (a) to the extent the Certificate Insurer makes payments, directly or indirectly, on account of principal of or interest on the Insured Certificates to the holders of such Insured Certificates, the Certificate Insurer will be fully subrogated to, and each holder of an Insured Certificate, the Master Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment of such amounts and as provided in this Agreement. The Trustee and the Master Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth herein.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Indymac Residential Mortgage-Backed Trust, Series 2005-L3), Pooling and Servicing Agreement (Indymac Residential Mortgage-Backed Trust, Series 2005-L2)
The Policy. (a) If The Transferor hereby represents that (i) it has obtained the Policy in the name of the Trustee determines and solely for the benefit of the Series 1998-2 Securityholders, (ii) that a Deficiency Amount to be covered it has entered into the Insurance Agreement which provides for the issuance of the Policy by the Insurer and (iii) that the Policy will exist permits the Trustee (or the Servicer on its behalf) to draw on the Policy from time to time for the purposes set forth in this Supplement. The Insurer shall not be entitled to reimbursement for any draws, interest or fees with respect to the Policy from the corpus of the Trust, except as specifically provided herein.
(b) Pursuant to the Policy, if on any Determination Date the Servicer notifies the Trustee that on the related Distribution DateDate (i) the funds that will be on deposit in the Interest Funding Account available for distribution are insufficient to pay the Class A Monthly Interest with respect to such Monthly Period or the Servicing Fee with respect to such Monthly Period will not otherwise be paid in full or (ii) a Potential Class A Charge-Off shall occur, then the Trustee shall complete the give notice in the form of Exhibit A to the Policy (Insurer by telecopy or other writing by the “Notice”) and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, close of business on the second Business Day immediately preceding such prior to the Distribution Date, as a claim for Date demanding payment of an amount equal to the amount deficiency (the "Policy Claim Amount"). Following receipt by the Insurer of such Insured Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawal. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured Certificatesnotice, the Trustee shall deposit such Insured Insurer will pay the Policy Claim Amount in before 12:00 noon on the Insurance Account and distribute such amount only for purposes of payment Business Day preceding the Distribution Date (i) with respect to the Insured Certificates of the Insured Amount for which a claim was made and such amount may not funds to be applied to satisfy any costs, expenses or liabilities the payment of the Servicer, the Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of Certificates. Amounts paid under the PolicyA Monthly Interest, to the extent needed Trustee for deposit in the Distribution Account, (ii) with respect to pay the Insured Amount, shall funds to be transferred applied to the Distribution Account on payment of the related Distribution Date Monthly Servicing Fee, to the Servicer and disbursed by (iii) with respect to funds to be applied with respect to a Potential Class A Charge-Off, to the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted treated as provided in paragraph (d) below Available Series 1998-2 Principal Collections and deposited in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held in the Insurance Account shall not be invested. Any funds remaining in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business DayAccount.
(c) 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 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) In the event that the Trustee has received a certified copy of an order claims paying ability rating of the appropriate court Insurer is downgraded and such downgrade would result in a downgrading of the then current rating of the Class A Securities (a "Replacement Event"), the Transferor, in accordance with and upon satisfaction of the conditions set forth in the Policy, including payment in full of all amounts owed to the Insurer, may but shall not be required to, substitute a new surety bond or surety bonds for the existing Policy or may arrange for any other form of Enhancement; provided, however, that any Insured Amount has been voided in whole or in part as a preference payment under applicable bankruptcy laweach case the Class A Securities shall be rated no lower than the rating assigned by each Rating Agency to the Class A Securities prior to such Replacement Event and the timing and mechanism for drawing on such new credit enhancement shall be reasonably acceptable to the Trustee. Upon receipt of the new Enhancement, the Trustee shall so notify surrender the Certificate Insurer, shall comply with the provisions of the replaced Policy to obtain payment by the Certificate Insurer.
(d) So long as the Insurer of such Preference Amount in has not defaulted on its obligations under the amount of such voided Insured AmountPolicy, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate Insurer will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders exercise all voting rights of the Insured Certificates, and dates on which such payments were made.
(e) The Trustee shall promptly notify Series 1998-2 Securityholders without the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer consent of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law Class A Securityholders (a “Preference Claim”) of including any distribution made voting rights with respect to amending the Insured Certificates. Each holder of an Insured Certificate, by its purchase of such Insured Certificate, the Agreement or this Supplement or terminating a Servicer, the Depositor ) and the Trustee agree that Class A Securityholders may only exercise such voting rights with the Certificate Insurer (so long as no Certificate Insurer Default exists) may at any time during prior written consent of 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 or performance bond pending any such appealInsurer. In addition and without limitation determining whether the required percentage of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding Securityholders have given their approval or action consent with respect to any court order issued in connection with any such Preference Claim.
(f) The Trustee shall, upon retirement an action requiring the consent of a majority of the Insured CertificatesSecurityholders, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust except as agent for the holders of the Insured Certificates for the purpose of making claims thereon and distributing the proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment of the Insured Certificates from the Trust Fund. The Depositorotherwise specified, the Servicer and the Trustee acknowledge, and each holder by its acceptance of an Insured Certificate agrees, that without the need for any further action on the part of the Certificate Insurer, the Depositor, the Servicer or the Trustee (a) to the extent the Certificate Insurer makes payments, directly or indirectly, on account of principal of or interest on the Insured Certificates to the holders of such Insured Certificates, the Certificate Insurer Class A Securityholders will be fully subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment of such amounts and treated as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereina single Series.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 2 contracts
Sources: Series Supplement (Metris Master Trust), Pooling and Servicing Agreement (Metris Receivables Inc)
The Policy. (a) If pursuant to Section 4.04(a)(iv), the Trustee Master Servicer determines that a Deficiency Amount to be covered by the Policy will exist exists for the related such Distribution Date, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “Notice”) Notice and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the Business Day immediately preceding each Distribution Date, as a claim for an Insured Amount (provided that the Trustee shall submit such notice on the second Business Day immediately preceding such Distribution Date, as a claim for the Date if it is able to do so) in an amount of equal to such Insured Deficiency Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawalClass A Certificates. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured CertificatesClass A Certificateholders, the Trustee shall deposit such Insured Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of CertificatesAccount. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account All amounts on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held deposit in the Insurance Account shall not be investedremain uninvested. Any funds remaining On each Distribution Date, the Trustee shall transfer any Insured Amount then on deposit in the Insurance Account to the Certificate Account. The Trustee shall distribute on each Distribution Date the first Business Day following Deficiency Amount for such Distribution Date from the later of Certificate Account, together with the distributions due to the Class A Certificateholders on such Distribution Date, as follows:
(i) the portion of any such Deficiency Amount related Distribution Date to clauses (i) and (ii) of the definition of Deficiency Amount shall be distributed among the related Class A Certificateholders on a pro rata basis in accordance with their respective shortfalls or allocations of Realized Losses; and (ii) the date received by portion of any such Deficiency Amount related to clause (iii) of the Trustee, definition of Deficiency Amount shall be returned distributed to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Dayrelated Class A Certificateholders in accordance with Section 9.01(c).
(c) The Trustee shall keep a complete and accurate record (i) receive as attorney-in-fact of the amount of interest and principal paid in respect of any Insured Certificate from moneys received under the 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that each Class A Certificateholder any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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 or performance bond pending any distribute such appealInsured Amount to such Class A Certificateholders as set forth in subsection (b) above. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and Amounts disbursed by the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders of the Insured Certificates for the purpose of making claims thereon and distributing the from proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment by the Trust Fund with respect to the Class A Certificates, nor shall such disbursement of such Insured Amounts discharge the obligations of the Trust Fund with respect to the amounts thereof, and the Insurer shall become owner of such amounts to the extent covered by such Insured Certificates from Amounts as the Trust Funddeemed assignee of such Class A Certificateholders. The Depositor, the Servicer and the Trustee acknowledge, hereby agrees on behalf of each Class A Certificateholder (and each holder Class A Certificateholder, by its acceptance of an Insured Certificate its Class A Certificates, hereby agrees, that without ) for the need for any further action on the part benefit of the Certificate Insurer, the Depositor, the Servicer or Insurer that the Trustee (a) shall recognize that to the extent the Certificate Insurer makes paymentspays Insured Amounts, either directly or indirectlyindirectly (as by paying through the Trustee), on account of principal of or interest on the Insured Certificates to the holders of such Insured CertificatesClass A Certificateholders, the Certificate Insurer will be fully entitled to be subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due Class A Certificateholders to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment extent of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereinpayments.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc), Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc)
The Policy. (a) If If, pursuant to Section 4.04(a)(v), the Trustee Master Servicer determines that a the Deficiency Amount to be covered by the Policy will exist for the related such Distribution DateDate is greater than zero, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “Notice”) Notice and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the Business Day immediately preceding each Distribution Date, as a claim for an Insured Payment (provided that the Trustee shall submit such notice on the second Business Day immediately preceding such Distribution Date, as a claim for the Date if it is able to do so) in an amount of equal to such Insured Deficiency Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawal. Upon receipt of an Insured Amount Payment from the Certificate Insurer on behalf of the Holders of the Insured CertificatesSenior Certificateholders, the Trustee shall deposit such Insured Amount Payment in the Insurance Account and Certificate Account. The Trustee shall distribute on each Distribution Date the Deficiency Amount for such amount only for purposes of payment Distribution Date from the Certificate Account, together with the distributions due to the Insured Certificates Senior Certificateholders on such Distribution Date, as follows: (i) the portion of any such Deficiency Amount related to clauses (i) and (ii) of the Insured definition of Deficiency 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of Certificates. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to distributed among the Distribution Account on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates Senior Certificateholders in accordance with Section 4.01. It 4.02(c)(i) and (ii), respectively; and (iii) the portion of any such Deficiency Amount related to clause (iii) of the definition of Deficiency Amount 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 distributed to the holders of the Insured Certificates Senior Certificateholders in accordance 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held in the Insurance Account shall not be invested. Any funds remaining in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day9.01(c).
(c) 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 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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) receive as attorney-in-fact of each Senior Certificateholder any Insured Payment from the direction of any appeal of any order relating to such Preference Claim Insurer and (ii) the posting of any surety or performance bond pending any distribute such appealInsured Payment to such Senior Certificateholders as set forth in subsection (b) above. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and Payments disbursed by the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders of the Insured Certificates for the purpose of making claims thereon and distributing the from proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment by the Trust Fund with respect to the Senior Certificates, nor shall such disbursement of such Insured Payments discharge the obligations of the Trust Fund with respect to the amounts thereof, and the Insurer shall become owner of such amounts to the extent covered by such Insured Certificates from Payments as the Trust Funddeemed assignee and subrogee of such Senior Certificateholders. The Depositor, the Servicer and the Trustee acknowledge, hereby agrees on behalf of each Senior Certificateholder (and each holder Senior Certificateholder, by its acceptance of an Insured Certificate its Senior Certificates, hereby agrees, that without ) for the need for any further action on the part benefit of the Certificate Insurer, the Depositor, the Servicer or Insurer that the Trustee (a) shall recognize that to the extent the Certificate Insurer makes paymentsInsured Payments, either directly or indirectlyindirectly (as by paying through the Trustee), on account of principal of or interest on the Insured Certificates to the holders of such Insured CertificatesSenior Certificateholders, the Certificate Insurer will be fully entitled to be subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due Senior Certificateholders to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment extent of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereinpayments.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 2 contracts
Sources: Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc), Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc)
The Policy. (a) If pursuant to Section 4.03(a)(iv), the Trustee determines that a the Deficiency Amount to be covered by the Policy will exist for the related such Distribution DateDate is greater than zero, the Trustee shall complete the notice Notice in the form of Exhibit A to the Policy (the “Notice”) and submit such Notice in accordance with the Policy to the Certificate Insurer and the fiscal agent, if any, named in the Policy no later than 12:00 P.M.noon, New York City time, on the second Business Day immediately two Business Days preceding such each Distribution Date, as a claim for the an Insured Payment in an amount of equal to such Insured Deficiency Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawalSenior Certificates. Upon receipt of an Insured Amount Payment from the Certificate Insurer on behalf of the Holders of the Insured CertificatesSenior Certificateholders, the Trustee shall deposit such Insured Amount Payment in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of CertificatesAccount. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account All amounts on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held deposit in the Insurance Account shall not be investedremain uninvested. Any funds remaining On each Distribution Date, the Trustee shall transfer any Insured Payment then on deposit in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer Account. The Trustee shall distribute on each Distribution Date the Deficiency Amount for such Distribution Date from the Certificate Account together with and in the manner provided for the distributions due to the Senior Certificateholders on such Distribution Date pursuant to the written instructions of the Certificate Insurer by the end of such Business DaySection 4.01.
(c) The Trustee shall keep a complete and accurate record (i) receive as attorney-in-fact of the amount of interest and principal paid in respect of each Senior Certificateholder any Insured Certificate Payment from moneys received under the 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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 or performance bond pending any distribute such appealInsured Payment to such Senior Certificateholders as set forth in Subsection (b) above. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and Payments disbursed by the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders of the Insured Certificates for the purpose of making claims thereon and distributing the from proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment by the Trust Fund with respect to the Senior Certificates, nor shall such disbursement of such Insured Payments discharge the obligations of the Trust Fund with respect to the amounts thereof, and the Certificate Insurer shall become owner of such amounts to the extent covered by such Insured Certificates from Payments as the Trust Funddeemed assignee of such Senior Certificateholders. The Depositor, the Servicer and the Trustee acknowledge, hereby agrees on behalf of each Senior Certificateholder (and each holder Senior Certificateholder, by its acceptance of an Insured Certificate its Senior Certificates, hereby agrees, that without ) for the need for any further action on the part benefit of the Certificate Insurer, the Depositor, the Servicer or Insurer that the Trustee (a) shall recognize that to the extent the Certificate Insurer makes paymentsInsured Payments, either directly or indirectlyindirectly (as by paying through the Trustee), on account of principal of or interest on the Insured Certificates to the holders of such Insured CertificatesSenior Certificateholders, the Certificate Insurer will be fully entitled to be subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due Senior Certificateholders to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment extent of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereinpayments.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (DLJ Mortgage Acceptance Corp Mort Pass THR Cert Ser 1995 5)
The Policy. (a) If The Issuer hereby represents that (i) it has obtained the Insurance Policy in the name, and for the benefit and security, of the Trustee, acting on behalf of the Noteholders, (ii) it has entered into the Insurance Agreement which provides for the issuance of the Insurance Policy by the Insurer and (iii) the Insurance Policy permits the Trustee determines that a Deficiency Amount to be covered by draw on the Policy will exist from time to time for the related Distribution Datepurposes set forth in this Agreement. The Insurer shall not be entitled to reimbursement for any draws, interest or fees with respect to the Trustee shall complete Insurance Policy, except as specifically provided herein.
(b) Pursuant to the notice Insurance Policy, (i) if on any Determination Date Available Funds and amounts on deposit in the form Reserve Account are insufficient to pay the interest set forth in clause (i) of Exhibit A to the Policy definition of Accrued Interest (excluding interest on past due Accrued Interest) on the “Notice”) and submit such Notice Notes in accordance with the Policy to Priority of Payments or Section 11.7, as applicable, on the Certificate Insurer immediately following Payment Date, then the Trustee will no later than 10:00 a.m. New York City time on the fourth Business Days prior to the Payment Date make a claim under the Insurance Policy in an amount equal to such insufficiency and (ii) if on the Determination Date immediately preceding the Rated Final Maturity Date Available Funds and amounts on deposit in the Reserve Account are insufficient to reduce the Aggregate Principal Amount of the Notes to zero on the Rated Final Maturity Date, then the Trustee will no later than 10:00 a.m. New York City time on the fourth Business Days prior to the Payment Date make a claim under the Insurance Policy in an amount necessary to reduce the Aggregate Principal Amount of the Notes to zero on such Payment Date (the aggregate amounts demanded in (i) and (ii) pursuant to this sentence on any Payment Date, the “Policy Claim Amount.”) Following receipt by the Insurer of such demand, the Insurer will pay the Policy Claim Amount by the later of (i) 12:00 P.M.noon, New York City time, on the second Business Day immediately preceding such Distribution Date, as a claim for the amount of such Insured Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawal. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured Certificates, the Trustee shall deposit such Insured Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of Certificates. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account on the related Distribution applicable Payment Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held in the Insurance Account shall not be invested. Any funds remaining in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(c) 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 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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) 12:00 noon, New York City time, on the posting of any surety or performance bond pending any such appeal. In addition and without limitation fourth Business Day following receipt by the Insurer of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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 Claimappropriate demand for payment.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the 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 Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment of the Insured Certificates from the Trust Fund. The Depositor, the Servicer and the Trustee acknowledge, and each holder by its acceptance of an Insured Certificate agrees, that without the need for any further action on the part of the Certificate Insurer, the Depositor, the Servicer or the Trustee (a) to the extent the Certificate Insurer makes payments, directly or indirectly, on account of principal of or interest on the Insured Certificates to the holders of such Insured Certificates, the Certificate Insurer will be fully subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth herein.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
The Policy. (a) By the close of business on the Business Day preceding each Determination Date the Indenture Trustee shall determine from the Servicing Certificate with respect to the immediately following Payment Date, the Deficiency Amount, if any.
(b) If the Indenture Trustee determines pursuant to paragraph (a) above that a Deficiency Amount to be covered by the Policy will exist for the related Distribution Datewould exist, the Indenture Trustee shall complete the notice a Notice in the form of Exhibit A to the Policy (the “Notice”) and submit such Notice in accordance with the Policy notice to the Certificate Insurer no later than 12:00 P.M., noon New York City time, time on the second Business Day immediately related Determination Date preceding such Distribution Date, Payment Date as a claim for the payment of an Insured Amount in an amount of such Insured equal to the Deficiency Amount.
(bc) The Indenture Trustee shall establish and maintain the Insurance an Eligible Account on behalf (which may be a sub-account of the Holders Distribution Account) for the benefit of the Insured Certificates Noteholders and the Insurer referred to herein as the "Policy Payment Account" over which the Indenture Trustee shall have the exclusive control and sole right of withdrawal. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured Certificates, the The Indenture Trustee shall deposit such Insured Amount in upon receipt any amount paid under the Insurance Policy into the Policy Payment Account and distribute such amount only for purposes of payment to the Insured Certificates Noteholders of the Insured Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Depositor, the Servicer, the Seller, the Depositor, the Indenture Trustee or the Trust Fund or to pay any other Class of CertificatesTrust. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account on the related Distribution Date and disbursed by the Indenture Trustee to the holders of the Insured Certificates Noteholders in accordance with Section 4.018.7(b)(iv), (vi) and (vii), as applicable. It shall not be necessary for such payments to be made by checks check or wire transfers separate from the checks or wire transfers used to pay other distributions to the holders of the Insured Certificates Amount with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Insured Certificates Notes to be paid from funds transferred from the Insurance Policy Payment Account shall be noted as provided in paragraph subsection (d) below of this Section 8.4 and in the statement Indenture Trustee's Statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02Noteholders. Funds held in the Insurance Policy Payment Account shall not be invested. Any funds remaining in the Insurance Policy Payment Account on the first Business Day following the later of (i) the related Distribution a Payment Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(cd) The Indenture Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Insured Certificate Note from moneys received under the Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one (1) Business Day’s 's prior written notice to the Indenture Trustee.
(d) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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 or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Indenture Trustee shall, upon retirement of the Insured CertificatesNotes, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates Notes and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the 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 Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment of the Insured Certificates from the Trust Fund. The Depositor, the Servicer and the Trustee acknowledge, and each holder by its acceptance of an Insured Certificate agrees, that without the need for any further action on the part of the Certificate Insurer, the Depositor, the Servicer or the Trustee (a) to the extent the Certificate Insurer makes payments, directly or indirectly, on account of principal of or interest on the Insured Certificates to the holders of such Insured Certificates, the Certificate Insurer will be fully subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth herein.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
The Policy. (a) If the Trustee determines that a Deficiency an Insured Amount to be covered by the Policy will exist for the related Distribution Date, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “Notice”) and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the second Business Day immediately preceding such Distribution Date, as a claim for the amount of such Insured Amount.
(b) The Trustee shall establish and maintain the Insurance Account Account, which shall be an Eligible Account, on behalf of the Holders of the Insured Class A Certificates over which the Trustee shall have the exclusive control and sole right of withdrawal. Upon receipt of an a Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured Class A Certificates, the Trustee shall deposit such Insured Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Class A Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of Certificates. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account on the related Distribution Date and disbursed by the Trustee to the holders Holders of the Insured Class A Certificates in accordance with Section 4.01. 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 holders Holders of the Insured Class A Certificates with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Insured Class A Certificates to be paid from funds transferred from the Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders Holders of the Insured Class A Certificates pursuant to Section 4.024.03. Funds held in the Insurance Account shall not be invested. Any funds remaining in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(c) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Insured Certificate the Class A Certificates from moneys received under the 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders Holders of the affected Insured Class A Certificates that, in the event any holderHolder’s Insured Amount is so recovered, such holder Holder of an Insured a Class A Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders Holders of the Insured Class A Certificates, and dates on which such payments were made.
(e) 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 Class A Certificates. Each holder Holder of an Insured a Class A Certificate, by its purchase of such Insured Class A Certificate, the Servicer, the Depositor 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 or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder Holder of an Insured Class A Certificate and the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder Holder of an Insured Class A Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Class A Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Class A Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders Holders of the Insured Class A Certificates for the purpose of making claims thereon and distributing the proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Class A Certificates, by accepting its Insured Class A Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Class A Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment of the Insured Class A Certificates from the Trust Fund. The Depositor, the Servicer Depositor and the Trustee acknowledge, and each holder Holder by its acceptance of an Insured Class A Certificate agrees, that without the need for any further action on the part of the Certificate Insurer, the Depositor, the Servicer or the Trustee (a) to the extent the Certificate Insurer makes payments, directly or indirectly, on account of principal of or interest on the Insured Class A Certificates to the holders Holders of such Insured Class A Certificates, the Certificate Insurer will be fully subrogated to, and each holder Holder of an Insured Certificate, the Servicer a Class A Certificate and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders Holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due to the holders Holders of the Insured Class A Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, Class A Certificates and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders Holders as otherwise set forth herein.
(i) By accepting its Insured Class A Certificate, each holder Holder of an Insured a Class A Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder Holder of the Insured Class A Certificate for all purposes (other than with respect to the receipt of payment on the Insured Class A Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders Holders of the Insured Class A Certificates under this Agreement and under the Insured Class A Certificates without any further consent of the holders Holders of the Insured Class A Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders Holders of Insured Class A Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Option One Mortgage Loan Trust 2007-Fxd1)
The Policy. (a) If based on the information provided by the Servicer pursuant to Section 4.04 the Trustee determines that a Deficiency an Insured Amount to be covered by the Policy will exist for the related Distribution Date, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “"Notice”") and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the second Business Day immediately preceding such Distribution Date, as a claim for the amount of such Insured AmountAmount (provided that the Trustee shall submit such Notice on the second Business Day immediately preceding such Distribution Date if it is able to do so).
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawalClass A Certificates. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured Class A Certificates, the Trustee shall deposit such Insured Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of CertificatesAccount. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account All amounts on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held deposit in the Insurance Account shall not be investedremain uninvested. Any funds remaining On each Distribution Date, the Trustee shall transfer any Insured Amount then on deposit in the Insurance Account to the Distribution Account. The Trustee shall distribute on each Distribution Date any Insured Interest Payment and any Insured Principal Payment for such Distribution Date from the Distribution Account on a PRO RATA basis among the Holders of the Class A Certificates based on their respective Percentage Interests in such Class, in each case as provided in Section 4.01(g), subject to Section 4.01(h) in the case of any Insured Amount payable to the Holders of the Class A Certificates on the first Business Day following the later of (i) the related final Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of for such Business DayClass.
(c) The Trustee shall keep a complete and accurate record (i) receive as attorney-in-fact of the amount of interest and principal paid in respect of any Insured Certificate from moneys received under the 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that each Class A Certificateholder any Insured 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 Policy to obtain payment by from the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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 or performance bond pending any distribute such appealInsured Amount to such Class A Certificateholders as set forth in subsection (b) above. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and Amounts disbursed by the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders of the Insured Certificates for the purpose of making claims thereon and distributing the from proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment by the Trust Fund with respect to the Class A Certificates, nor shall such disbursement of such Insured Amounts discharge the obligations of the Trust Fund with respect to the amounts thereof, and the Certificate Insurer shall become owner of such amounts to the extent covered by such Insured Certificates from Amounts as the Trust Funddeemed assignee of such Class A Certificateholders. The Depositor, the Servicer and the Trustee acknowledge, hereby agrees on behalf of each Class A Certificateholder (and each holder Class A Certificateholder, by its acceptance of an Insured Certificate its Class A Certificates, hereby agrees, that without ) for the need for any further action on the part benefit of the Certificate Insurer, the Depositor, the Servicer or Insurer that the Trustee (a) shall recognize that to the extent the Certificate Insurer makes paymentspays Insured Amounts, either directly or indirectlyindirectly (as by paying through the Trustee), on account of principal of or interest on the Insured Certificates to the holders of such Insured CertificatesClass A Certificateholders, the Certificate Insurer will be fully entitled to be subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due Class A Certificateholders to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment extent of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereinInsured Amounts.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Financial Assets Sec Corp First Franklin Mort Ln Tr 2002 Ffa)
The Policy. (a) If On the second Business Day immediately preceding each Distribution Date, the Trustee shall determine whether a Deficiency Amount relating to such Distribution Date is greater than zero. If, at such time, the Trustee determines that a Deficiency Amount to be covered by the Policy will exist for the related any Distribution DateDate is greater than zero, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “"Notice”") and submit such Notice in accordance with the Policy to the Certificate Insurer or its agent no later than 12:00 P.M., New York City time, on the second Business Day immediately preceding such Distribution Date, as a claim for an Insured Payment in an amount equal to such Deficiency Amount. The Trustee shall, as necessary, make a claim on the amount Policy in respect of such Insured AmountPreference Amounts in accordance with the terms of the Policy.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have for the exclusive control and sole right use as an account into which to deposit any proceeds of withdrawalthe Policy. Upon receipt of an Insured Amount Payment from the Certificate Insurer on behalf of the Holders of the Insured Certificates, the Trustee shall deposit such Insured Amount Payment in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of CertificatesAccount. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account All amounts on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held deposit in the Insurance Account shall not be investedremain uninvested. Any funds remaining On each Distribution Date, the Trustee shall (i) transfer any Insured Payment then on deposit in the Insurance Account on to the first Business Day following the later of (i) the related Distribution Date or Account and (ii) the date received by the Trustee, shall be returned return to the Certificate Insurer pursuant any funds in the Insurance Account which do not constitute a portion of an Insured Payment. The Trustee shall distribute on each Distribution Date the Deficiency Amount for such Distribution Date from the Distribution Account to the written instructions Holders of the Certificate Insurer by the end of Insured Certificates on such Business DayDistribution Date.
(c) The Trustee shall keep a complete and accurate record (i) receive as attorney-in-fact of the amount each Holder of interest and principal paid in respect of Insured Certificates any Insured Certificate Payment from moneys received under the 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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 distribute such Insured Payment to such Holder of any surety or performance bond pending any such appealInsured Certificates as set forth in subsection (b) above. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and Payments disbursed by the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders of the Insured Certificates for the purpose of making claims thereon and distributing the from proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment by the Trust Fund with respect to the Insured Certificates, nor shall such disbursement of such Insured Payments discharge the obligations of the Trust Fund with respect to the amounts thereof, and the Certificate Insurer shall become owner of such amounts to the extent covered by such Insured Certificates from Payments as the Trust Funddeemed assignee and subrogee of such Holders of Insured Certificates. The Depositor, the Servicer and the Trustee acknowledge, hereby agrees on behalf of each Certificateholder (and each holder such Holder, by its acceptance of an Insured Certificate its Certificates, hereby agrees, that without ) for the need for any further action on the part benefit of the Certificate Insurer, the Depositor, the Servicer or Insurer that the Trustee (a) shall recognize that to the extent the Certificate Insurer makes paymentsInsured Payments, either directly or indirectlyindirectly (as by paying through the Trustee), on account of principal of or interest on the Insured Certificates to the holders Holders of such Insured Certificates, the Certificate Insurer will be fully subrogated to, and each holder of entitled to reimbursement in an Insured Certificate, the Servicer and the Trustee hereby delegate and assign amount equal to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the unpaid Certificate Insurer shall be paid such amounts from Reimbursement Amounts in accordance with the sources and in the manner provided herein for the payment of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise priority set forth hereinin Section 4.01.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Salomon Brothers Mort Sec Vii Asset Backed Cert 1996-Lb2)
The Policy. (a) If pursuant to Section 4.04(a)(iv), the Master Servicer determines and notifies a Responsible Officer of the Trustee determines in writing that a Deficiency Amount to be covered by exists and the Policy will exist amount of the Required Insured Payment for the related such Distribution Date, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “Notice”) Notice and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the second Business Day immediately preceding such each Distribution Date, as a claim for the an Insured Payment in an amount of equal to such Insured Deficiency Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawalClass A Certificates. Upon receipt of an Insured Amount Payment from the Certificate Insurer on behalf of the Holders of the Insured CertificatesClass A Certificateholders, the Trustee shall deposit such Insured Amount Payment in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of CertificatesAccount. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account All amounts on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held deposit in the Insurance Account shall not be investedremain uninvested. Any funds remaining On each Distribution Date, the Trustee shall transfer any Insured Payment then on deposit in the Insurance Account to the Certificate Account. The Trustee shall distribute on each Distribution Date in accordance with the first Business Day following written statement delivered by the later of Master Servicer pursuant to Section 4.04(a), the Deficiency Amount for such Distribution Date from the Certificate Account, together with the distributions due to the Class A-I Certificateholders on such Distribution Date, as follows: (i) with respect to the Class A-I Certificates, the portion of any such Deficiency Amount related to clauses (1) and (2)(i) of the definition of Deficiency Amount shall be distributed among the related Distribution Date Class A-I Certificateholders on a pro rata basis in accordance with their respective shortfalls or allocations of Realized Losses; and (ii) the date received by portion of any such Deficiency Amount related to clause (2)(ii) of the Trustee, definition of Deficiency Amount shall be returned distributed to the related Class A-I Certificateholders in accordance with Section 9.01(c). The Trustee shall distribute on each Distribution Date the Deficiency Amount for such Distribution Date from the Certificate Insurer pursuant Account, together with the distributions due to the written instructions Class A-II Certificateholders on such Distribution Date, as follows: (i) with respect to the Class A-II Certificates, the portion of any such Deficiency Amount related to clauses (1) and (2)(i) of the Certificate Insurer by definition of Deficiency Amount shall be distributed among the end related Class A-II Certificateholders on a pro rata basis in accordance with their respective shortfalls or allocations of Realized Losses; and (ii) the portion of any such Business DayDeficiency Amount related to clause (2)(ii) of the definition of Deficiency Amount shall be distributed to the related Class A-II Certificateholders in accordance with Section 9.01(c).
(c) 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 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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) receive as attorney-in-fact of each Class A Certificateholder any Insured Payment from the direction of any appeal of any order relating to such Preference Claim Insurer and (ii) the posting of any surety or performance bond pending any distribute such appealInsured Payment to such Class A Certificateholders as set forth in subsection (b) above. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and Payments disbursed by the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders of the Insured Certificates for the purpose of making claims thereon and distributing the from proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment by the Trust Fund with respect to the Class A Certificates, nor shall such disbursement of such Insured Payments discharge the obligations of the Trust Fund with respect to the amounts thereof, and the Insurer shall become owner of such amounts to the extent covered by such Insured Certificates from Payments as the Trust Funddeemed assignee of such Class A Certificateholders. The Depositor, the Servicer and the Trustee acknowledge, hereby agrees on behalf of each Class A Certificateholder (and each holder Class A Certificateholder, by its acceptance of an Insured Certificate its Class A Certificates, hereby agrees, that without ) for the need for any further action on the part benefit of the Certificate Insurer, the Depositor, the Servicer or Insurer that the Trustee (a) shall recognize that to the extent the Certificate Insurer makes paymentspays Insured Payments, either directly or indirectlyindirectly (as by paying through the Trustee), on account of principal of or interest on the Insured Certificates to the holders of such Insured CertificatesClass A Certificateholders, the Certificate Insurer will be fully entitled to be subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due Class A Certificateholders to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment extent of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereinpayments.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (RAMP Series 2005-Efc7 Trust)
The Policy. (a) If the Trustee Servicer determines that a the Deficiency Amount is greater than zero with respect to be covered by the Policy will exist for the related any Distribution Date, the Trustee shall complete the notice in the form Form of Exhibit A to the Policy (the “"Notice”") and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the second third Business Day immediately preceding such each Distribution Date, as a claim for the an Insured Payment in an amount of equal to such Insured Deficiency Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawalClass A Certificates. Upon receipt of an Insured Amount Payment from the Certificate Insurer on behalf of the Holders of the Insured CertificatesClass A Certificateholders, the Trustee shall deposit such Insured Amount Payment in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of CertificatesAccount. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account All amounts on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held deposit in the Insurance Account shall not be investedremain uninvested. Any funds remaining On each Distribution Date, the Trustee shall transfer any Insured Payment then on deposit in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant Account. The Trustee shall distribute on each Distribution Date the Deficiency Amount for such Distribution Date from the Certificate Account, together with the distributions to be made to the written instructions Class A Certificateholders on such Distribution Date, as distributions of the Certificate Insurer by the end of such Business Dayinterest and principal, respectively.
(c) 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 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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) receive as attorney-in-fact of each Class A Certificateholder any Insured Payment from the direction of any appeal of any order relating to such Preference Claim Insurer and (ii) the posting of any surety or performance bond pending any distribute such appealInsured Payment to such Class A Certificateholders as set forth in subsection (b) above. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and Payments disbursed by the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders of the Insured Certificates for the purpose of making claims thereon and distributing the from proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment by the Trust Fund with respect to the Class A Certificates, nor shall such disbursement of such Insured Payments discharge the obligations of the Trust Fund with respect to the amounts thereof, and the Insurer shall become owner of such amounts to the extent covered by such Insured Certificates from Payments as the Trust Funddeemed assignee of such Class A Certificateholders. The Depositor, the Servicer and the Trustee acknowledge, hereby agrees on behalf of each Class A Certificateholder (and each holder Class A Certificateholder, by its acceptance of an Insured Certificate its Class A Certificates, hereby agrees, that without ) for the need for any further action on the part benefit of the Certificate Insurer, the Depositor, the Servicer or Insurer that the Trustee (a) shall recognize that to the extent the Certificate Insurer makes paymentspays Insured Payments, either directly or indirectlyindirectly (as by paying through the Trustee), on account of principal of or interest on the Insured Certificates to the holders of such Insured CertificatesClass A Certificateholders, the Certificate Insurer will be fully entitled to be subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due Class A Certificateholders to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment extent of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereinpayments.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Credit Suisse First Boston Mortgage Securities Corp)
The Policy. (a) If On the second Business Day immediately preceding each Distribution Date, the Trustee shall determine whether a Deficiency Amount relating to such Distribution Date is greater than zero. If, at such time, the Trustee determines that a Deficiency Amount to be covered by the Policy will exist for the related any Distribution DateDate is greater than zero, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “"Notice”") and submit such Notice in accordance with the Policy to the Certificate Insurer or its agent no later than 12:00 P.M.p.m., New York City time, on the second Business Day immediately preceding such Distribution Date, as a claim for an Insured Payment in an amount equal to such Deficiency Amount. The Trustee shall, as necessary, make a claim on the amount Policy in respect of such Insured AmountPreference Amounts in accordance with the terms of the Policy.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have for the exclusive control and sole right use as an account into which to deposit any proceeds of withdrawalthe Policy. Upon receipt of an Insured Amount Payment from the Certificate Insurer on behalf of the Holders of the Insured Certificates, the Trustee shall deposit such Insured Amount Payment in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of CertificatesAccount. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account All amounts on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held deposit in the Insurance Account shall not be investedremain uninvested. Any funds remaining On each Distribution Date, the Trustee shall (i) transfer any Insured Payment then on deposit in the Insurance Account on to the first Business Day following the later of (i) the related Distribution Date or Account and (ii) the date received by the Trustee, shall be returned return to the Certificate Insurer pursuant any funds in the Insurance Account that do not constitute a portion of an Insured Payment. The Trustee shall distribute on each Distribution Date the Deficiency Amount for such Distribution Date from the Distribution Account to the written instructions Holders of the Certificate Insurer by the end of Insured Certificates on such Business DayDistribution Date.
(c) The Trustee shall keep a complete and accurate record (i) receive as attorney-in-fact of the amount each Holder of interest and principal paid in respect of Insured Certificates any Insured Certificate Payment from moneys received under the 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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 distribute such Insured Payment to such Holder of any surety or performance bond pending any such appealInsured Certificates as set forth in subsection (b) above. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and Payments disbursed by the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders of the Insured Certificates for the purpose of making claims thereon and distributing the from proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment by the Trust Fund with respect to the Insured Certificates, nor shall such disbursement of such Insured Payments discharge the obligations of the Trust Fund with respect to the amounts thereof, and the Certificate Insurer shall become owner of such amounts to the extent covered by such Insured Certificates from Payments as the Trust Funddeemed assignee and subrogee of such Holders of Insured Certificates. The Depositor, the Servicer and the Trustee acknowledge, hereby agrees on behalf of each Certificateholder (and each holder such Holder, by its acceptance of an Insured Certificate its Certificates, hereby agrees, that without ) for the need for any further action on the part benefit of the Certificate Insurer, the Depositor, the Servicer or Insurer that the Trustee (a) shall recognize that to the extent the Certificate Insurer makes paymentsInsured Payments, either directly or indirectlyindirectly (as by paying through the Trustee), on account of principal of or interest on the Insured Certificates to the holders Holders of such Insured Certificates, the Certificate Insurer will be fully subrogated to, and each holder of entitled to reimbursement in an Insured Certificate, the Servicer and the Trustee hereby delegate and assign amount equal to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the unpaid Certificate Insurer shall be paid such amounts from Reimbursement Amounts in accordance with the sources and in the manner provided herein for the payment of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise priority set forth hereinin Section 4.01.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Salomon Broth Mor Sec Vii Asset Bac Float Rt Cer Se 1997 Lb1)
The Policy. (a) If The Trust Administrator on the Trustee Trustee’s behalf, determines that a Deficiency an Insured Amount to be covered by the Policy will exist for the related Distribution Date, the Trustee Trust Administrator on the Trustee’s behalf, shall complete the notice in the form of Exhibit A to the Policy (the “Notice”) and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M.10:00 A.M., New York City time, on the second Business Day immediately preceding such Distribution Date, as a claim for the amount of such Insured Amount.
(b) The Trustee Trust Administrator shall establish and maintain the Insurance Account Account, which shall be an Eligible Account, on behalf of the Holders of the Insured Class A Certificates over which the Trustee Trust Administrator shall have the exclusive control and sole right of withdrawal. Upon receipt of an a Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured Class A Certificates, the Trustee Trust Administrator shall deposit such Insured Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Class A Certificates of the Insured 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 Seller, the Depositor, the Trustee Trustee, the Trust Administrator, the Master Servicer or the Trust Fund or to pay any other Class of Certificates. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account on the related Distribution Date and disbursed by the Trustee Trust Administrator to the holders Holders of the Insured Class A Certificates in accordance with Section 4.01. 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 holders Holders of the Insured Class A Certificates with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Insured Class A Certificates to be paid from funds transferred from the Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders Holders of the Insured Class A Certificates pursuant to Section 4.024.03. Funds held in the Insurance Account shall not be invested. Any funds remaining in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or (ii) the date received by the TrusteeTrust Administrator, shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(c) The Trustee Trust Administrator shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Insured Certificate the Class A Certificates from moneys received under the 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 TrusteeTrust Administrator.
(d) In the event that the Trustee Trust Administrator on the Trustee’s behalf, has received a certified copy of an order of the appropriate court that any Insured Amount has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee Trust Administrator on the Trustee’s behalf, shall so notify the Certificate Insurer, shall comply with the provisions of the Policy to obtain payment by the Certificate Insurer of such Preference Amount Avoided Payment in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders Holders of the affected Insured Class A Certificates that, in the event any holderHolder’s Insured Amount is so recovered, such holder Holder of an Insured a Class A Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee Trust Administrator or the Certificate Insurer, and the Trustee Trust Administrator shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee Trust Administrator and subsequently recovered from the holders Holders of the Insured Class A Certificates, and dates on which such payments were made.
(e) The Trustee Trustee, or the Trust Administrator on the Trustee’s behalf, 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 Class A Certificates. Each holder Holder of an Insured a Class A Certificate, by its purchase of such Insured Class A Certificate, the Servicer, the Depositor Depositor, the Trust Administrator, 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 or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder Holder of an Insured Certificate Class A Certificate, the Trust Administrator and the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder Holder of an Insured Class A Certificate 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.
(f) The Trustee Trust Administrator shall, upon retirement of the Insured Class A Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Class A Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee Trust Administrator will hold the Policy in trust as agent for the holders Holders of the Insured Class A Certificates for the purpose of making claims thereon and distributing the proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Class A Certificates, by accepting its Insured Class A Certificates, appoints the Trustee Trust Administrator as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Class A Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment of the Insured Class A Certificates from the Trust Fund. The Depositor, the Servicer Trust Administrator and the Trustee acknowledge, and each holder Holder by its acceptance of an Insured Class A Certificate agrees, that without the need for any further action on the part of the Certificate Insurer, the Depositor, the Servicer Servicer, the Trust Administrator or the Trustee (a) to the extent the Certificate Insurer makes payments, directly or indirectly, on account of principal of or interest on the Insured Class A Certificates to the holders Holders of such Insured Class A Certificates, the Certificate Insurer will be fully subrogated to, and each holder Holder of an Insured a Class A Certificate, the Servicer Trust Administrator and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders Holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due to the holders Holders of the Insured Class A Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, Class A Certificates and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment of such amounts and as provided in this Agreement. The Trustee Trustee, the Trust Administrator and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders Holders as otherwise set forth herein.
(i) By accepting its Insured Class A Certificate, each holder Holder of an Insured a Class A Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder Holder of the Insured Class A Certificate for all purposes (other than with respect to the receipt of payment on the Insured Class A Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders Holders of the Insured Class A Certificates under this Agreement and under the Insured Class A Certificates without any further consent of the holders Holders of the Insured Class A Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders Holders of Insured Class A Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Option One Mortgage Loan Trust 2007-Hl1)
The Policy. On each Determination Date the Indenture Trustee shall determine with respect to the immediately following Payment Date, the amount (the "Available Funds") to be on deposit in the Note Account on such Payment Date, as described in Section 8.6(a) hereof (excluding the amounts of any payments made pursuant to the Policy, the Indenture Trustee's Fee, the Owner Trustee's Fee, the Servicing Fee and the Premium Amount, but including amounts transferred from the Capitalized Interest Account and the Pre-Funding Account).
(a) If (i) the Trustee determines that a Deficiency Available Funds for such Payment Date are not sufficient to pay the Class A Interest Distribution Amount to be covered by and/or (ii) following the Policy will application of all Available Funds, an Overcollateralization Deficit would exist for the related Distribution Date(either such event being an "Available Funds Shortfall"), the Indenture Trustee shall complete the notice a Notice in the form of Exhibit A to the Policy (the “Notice”) and submit such Notice in accordance with the Policy notice to the Certificate Insurer no later than 12:00 P.M., noon New York City time, time on the second Business Day immediately preceding such Distribution Date, Payment Date as a claim for a payment in an amount equal to the amount of such Insured Amountaggregate Available Funds Shortfall.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawal. Upon receipt of an Insured Amount payments made pursuant to the Policy from the Certificate Insurer on behalf of the Holders of the Insured CertificatesClass A Noteholders, the Indenture Trustee shall deposit such Insured Amount payments in the Insurance Note Account and shall distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of Certificates. Amounts paid under the Policyproceeds thereof, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 8.6 hereof to the holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held in the Insurance Account shall not be invested. Any funds remaining in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business DayClass A Noteholders.
(c) The Indenture Trustee shall keep a complete and accurate record (i) receive payments made pursuant to the Policy as attorney-in-fact of the amount of interest and principal paid in respect of each Class A Noteholder receiving any Insured Certificate Payment from moneys received under the PolicyInsurer and (ii) disburse such Insured Payment to the Class A Noteholders as set forth in Section 8.6 hereof. 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment receive the related Reimbursement Amount pursuant to Section 8.6(b)(viii) hereof with respect to each Insured Payment made by the Insurer. The Indenture Trustee hereby agrees on behalf of each Class A Noteholder and the Trust for the benefit of the Insurer that it recognizes that to the extent the Insurer makes payments made pursuant to the Policy, a copy of which shall be made available either directly or indirectly (as by paying through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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 or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and the Trustee hereby delegates and assigns to the Certificate InsurerIndenture Trustee), to the fullest extent permitted by lawClass A Noteholders, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the 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 Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment of the Insured Certificates from the Trust Fund. The Depositor, the Servicer and the Trustee acknowledge, and each holder by its acceptance of an Insured Certificate agrees, that without the need for any further action on the part of the Certificate Insurer, the Depositor, the Servicer or the Trustee (a) to the extent the Certificate Insurer makes payments, directly or indirectly, on account of principal of or interest on the Insured Certificates to the holders of such Insured Certificates, the Certificate Insurer will be fully subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders entitled to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereinrelated Reimbursement Amount.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
The Policy. (a) If pursuant to Section 4.04(a)(iv), the Master Servicer determines and notifies a Responsible Officer of the Trustee determines in writing that a Deficiency Amount to be covered by an Insured Payment is required and the Policy will exist amount of such Insured Payment for the related any Distribution Date, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “Notice”) Notice and submit such Notice in accordance with the Policy to the Certificate Insurer Credit Enhancer no later than 12:00 P.M., New York City time, on the second Business Day immediately preceding such each Distribution Date, as a claim for the an Insured Payment in an amount of equal to such Insured AmountPayment.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawalClass A Certificates. Upon receipt of an Insured Amount Payment from the Certificate Insurer Credit Enhancer on behalf of the Holders of the Insured Class A Certificates, the Trustee shall deposit such Insured Amount Payment in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of CertificatesAccount. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account All amounts on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held deposit in the Insurance Account shall not be investedremain uninvested with no liability for interest or other compensation thereon. Any funds remaining On each Distribution Date, the Trustee shall transfer any Insured Payment then on deposit in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer Account and distribute such Insured Payment pursuant to the written instructions of the Certificate Insurer by the end of such Business DaySection 4.02.
(c) 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 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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) receive as attorney-in-fact of each Class A Certificateholder any Insured Payment from the direction of any appeal of any order relating to such Preference Claim Credit Enhancer and (ii) distribute such Insured Payment to the posting of any surety or performance bond pending any such appealClass A Certificates as set forth in subsection (b) above. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and Payments disbursed by the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders of the Insured Certificates for the purpose of making claims thereon and distributing the from proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment by the Trust Fund with respect to the Class A Certificates, nor shall such disbursement of such Insured Payments discharge the obligations of the Trust Fund with respect to the amounts thereof, and the Credit Enhancer shall become owner of such amounts to the extent covered by such Insured Certificates from Payments as the Trust Funddeemed assignee of such Class A Certificateholders. The Depositor, the Servicer and the Trustee acknowledge, hereby agrees on behalf of each Class A Certificateholder (and each holder Class A Certificateholder, by its acceptance of an Insured Certificate its Class A Certificates, as applicable, hereby agrees, that without ) for the need for any further action on the part benefit of the Certificate Insurer, the Depositor, the Servicer or Credit Enhancer that the Trustee (a) shall recognize that to the extent the Certificate Insurer makes paymentsCredit Enhancer pays Insured Payments, either directly or indirectlyindirectly (as by paying through the Trustee), on account of principal of or interest on the Insured Certificates to the holders of such Insured Class A Certificates, the Certificate Insurer Credit Enhancer will be fully entitled to be subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due Class A Certificateholders to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment extent of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereinpayments.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (RFMSII Series 2006-Hsa1 Trust)
The Policy. (a) If the Trustee determines that a Deficiency an Insured Amount to be covered by the Policy will exist for the related Distribution Date (calculated for this purpose assuming that all amounts due under the Interest Rate Swap Agreement are received on the Distribution Date), the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “Notice”) and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the second third Business Day immediately preceding such Distribution Date, as a claim for the amount of such Insured Amount. In the event that all amounts due under the Interest Rate Swap Agreement are not received on the Distribution Date, the Trustee shall include such shortfalls in a Notice to the Certificate Insurer relating to such Distribution Date.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Offered Certificates over which the Trustee shall have the exclusive control and sole right of withdrawal. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured Offered Certificates, the Trustee shall deposit such Insured Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Offered Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of Certificates. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account on the related Distribution Date and disbursed by the Trustee to the holders Holders of the Insured Offered Certificates in accordance with Section 4.014.02. 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 holders Holders of the Insured Offered Certificates with other funds available to make such payment. However, the amount of any payment of principal on the Class A Certificates or of interest on the Insured Offered Certificates to be paid from funds transferred from the Insurance Account shall be noted as provided in paragraph (dc) below and in the statement to be furnished to holders Holders of the Insured Offered Certificates pursuant to Section 4.024.03. Funds held in the Insurance Account shall not be invested. Any funds remaining in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(c) The Trustee shall keep a complete and accurate record of the amount of interest paid in respect of the Offered Certificates and principal paid in respect of any Insured Certificate the Class A Certificates from moneys received under the 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders Holders of the affected Insured Offered Certificates that, in the event any holderHolder’s Insured Amount is so recovered, such holder Holder of an Insured Offered Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders Holders of the Insured Offered Certificates, and dates on which such payments were made.
(e) 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 ClaimAmount”) of any distribution made with respect to the Insured Offered Certificates. Each holder Holder of an Insured Offered Certificate, by its purchase of such Insured Offered Certificate, the Servicer, the Depositor 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 Amount and (ii) the posting of any surety or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder Holder of an Insured Offered Certificate and the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder Holder of an Insured Offered Certificate 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.
(f) The Trustee shallshall promptly, upon retirement of the Insured Offered Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Offered Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders Holders of the Insured Offered Certificates for the purpose of making claims thereon and distributing the proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificatesan Offered Certificate, by accepting its Insured CertificatesOffered Certificate, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of the Class A Certificates or interest on the Insured Offered Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment of the Insured Offered Certificates from the Trust Fund. The Depositor, the Servicer Depositor and the Trustee acknowledge, and each holder Holder by its acceptance of an Insured Offered Certificate agrees, that without the need for any further action on the part of the Certificate Insurer, the Depositor, the Servicer or the Trustee (a) to the extent the Certificate Insurer makes payments, directly or indirectly, on account of principal of the Class A Certificates or interest on the Insured Offered Certificates to the holders Holders of such Insured Offered Certificates, the Certificate Insurer will be fully subrogated to, and each holder Holder of an Insured Certificate, the Servicer Offered Certificate and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders Holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due to the holders Holders of the Insured Offered Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, Offered Certificates and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders Holders as otherwise set forth herein.
(i) By accepting its Insured Offered Certificate, each holder Holder of an Insured Offered Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder Holder of the Insured Offered Certificate for all purposes (other than with respect to the receipt of payment on the Insured Offered Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders Holders of the Insured Offered Certificates under this Agreement and under the Insured Offered Certificates without any further consent of the holders Holders of the Insured CertificatesOffered Certificates and such Holders may not exercise any such rights without the prior written consent of the Certificate Insurer. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders Holders of Insured Offered Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Home Equity Mortgage Loan Asset-Backed Trust, Series INDS 2007-2)
The Policy. (a) By the close of business on the Business Day preceding each Determination Date the Indenture Trustee shall determine from the Servicing Certificate with respect to the immediately following Payment Date, the Deficiency Amount, if any.
(b) If the Indenture Trustee determines pursuant to paragraph (a) above that a Deficiency Amount to be covered by the Policy will exist for the related Distribution Datewould exist, the Indenture Trustee shall complete the notice a Notice in the form of Exhibit A to the Policy (the “Notice”) and submit such Notice in accordance with the Policy notice to the Certificate Insurer no later than 12:00 P.M., noon New York City time, time on the second Business Day immediately related Determination Date preceding such Distribution Date, Payment Date as a claim for the payment of an Insured Amount in an amount of such Insured equal to the Deficiency Amount.
(bc) The Indenture Trustee shall establish and maintain the Insurance an Eligible Account on behalf (which may be a sub-account of the Holders Collection Account) for the benefit of the Insured Certificates Bondholders and the Insurer referred to herein as the "Policy Payment Account" over which the Indenture Trustee shall have the exclusive control and sole right of withdrawal. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured Certificates, the The Indenture Trustee shall deposit such Insured Amount in upon receipt any amount paid under the Insurance Policy into the Policy Payment Account and distribute such amount only for purposes of payment to the Insured Certificates Bondholders of the Insured Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Depositor, the Servicer, the Seller, the Depositor, the Indenture Trustee or the Trust Fund or to pay any other Class of CertificatesTrust. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account on the related Distribution Date and disbursed by the Indenture Trustee to the holders of the Insured Certificates Bondholders in accordance with Section 4.018.7(b). It shall not be necessary for such payments to be made by checks check or wire transfers separate from the checks or wire transfers used to pay other distributions to the holders of the Insured Certificates Amount with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Insured Certificates Bonds to be paid from funds transferred from the Insurance Policy Payment Account shall be noted as provided in paragraph subsection (d) below of this Section 8.4 in the Bond Register and in the statement Indenture Trustee's Statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02Bondholders. Funds held in the Insurance Policy Payment Account shall not be invested. Any funds remaining in the Insurance Policy Payment Account on the first Business Day following the later of (i) the related Distribution a Payment Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(cd) The Indenture Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Insured Certificate Bond from moneys received under the Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one (1) Business Day’s 's prior written notice to the Indenture Trustee.
(d) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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 or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Indenture Trustee shall, upon retirement of the Insured CertificatesBonds, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates Bonds, and, upon retirement of the Bonds and the expiration of the term of the Policy, Policy surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the 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 Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment of the Insured Certificates from the Trust Fund. The Depositor, the Servicer and the Trustee acknowledge, and each holder by its acceptance of an Insured Certificate agrees, that without the need for any further action on the part of the Certificate Insurer, the Depositor, the Servicer or the Trustee (a) to the extent the Certificate Insurer makes payments, directly or indirectly, on account of principal of or interest on the Insured Certificates to the holders of such Insured Certificates, the Certificate Insurer will be fully subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth herein.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
The Policy. (a) If pursuant to Section 4.04(a)(iv), the Master Servicer determines and notifies the Trustee determines that a Deficiency Amount to be covered by the Policy will exist exists for the related such Distribution Date, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “Notice”) Notice and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the Business Day immediately preceding each Distribution Date, as a claim for an Insured Amount (provided that the Trustee shall submit such notice on the second Business Day immediately preceding such Distribution Date, as a claim for the Date if it is able to do so) in an amount of equal to such Insured Deficiency Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawalClass A Certificates. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured CertificatesClass A Certificateholders, the Trustee shall deposit such Insured Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of CertificatesAccount. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account All amounts on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held deposit in the Insurance Account shall not be investedremain uninvested. Any funds remaining On each Distribution Date, the Trustee shall transfer any Insured Amount then on deposit in the Insurance Account to the Certificate Account. The Trustee shall distribute on each Distribution Date the first Business Day following Deficiency Amount for such Distribution Date from the later of Certificate Account, together with the distributions due to the Class A Certificateholders on such Distribution Date, as follows:
(i) the portion of any such Deficiency Amount related Distribution Date to clauses (i) and (ii) of the definition of Deficiency Amount shall be distributed among the related Class A Certificateholders on a pro rata basis in accordance with their respective shortfalls or allocations of Realized Losses; and (ii) the date received by portion of any such Deficiency Amount related to clause (iii) of the Trustee, definition of Deficiency Amount shall be returned distributed to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Dayrelated Class A Certificateholders in accordance with Section 9.01(c).
(c) The Trustee shall keep a complete and accurate record (i) receive as attorney-in-fact of the amount of interest and principal paid in respect of any Insured Certificate from moneys received under the 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that each Class A Certificateholder any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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 or performance bond pending any distribute such appealInsured Amount to such Class A Certificateholders as set forth in subsection (b) above. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and Amounts disbursed by the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders of the Insured Certificates for the purpose of making claims thereon and distributing the from proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment by the Trust Fund with respect to the Class A Certificates, nor shall such disbursement of such Insured Amounts discharge the obligations of the Trust Fund with respect to the amounts thereof, and the Insurer shall become owner of such amounts to the extent covered by such Insured Certificates from Amounts as the Trust Funddeemed assignee of such Class A Certificateholders. The Depositor, the Servicer and the Trustee acknowledge, hereby agrees on behalf of each Class A Certificateholder (and each holder Class A Certificateholder, by its acceptance of an Insured Certificate its Class A Certificates, hereby agrees, that without ) for the need for any further action on the part benefit of the Certificate Insurer, the Depositor, the Servicer or Insurer that the Trustee (a) shall recognize that to the extent the Certificate Insurer makes paymentspays Insured Amounts, either directly or indirectlyindirectly (as by paying through the Trustee), on account of principal of or interest on the Insured Certificates to the holders of such Insured CertificatesClass A Certificateholders, the Certificate Insurer will be fully entitled to be subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due Class A Certificateholders to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment extent of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereinpayments.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc)
The Policy. (a) If the Trustee determines that a Deficiency Amount to be covered by the Policy will exist for the related Distribution Date, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “"Notice”") and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the second Business Day immediately preceding such Distribution Date, as a claim for the amount of such Insured Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawal. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured Certificates, the Trustee shall deposit such Insured Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of Certificates. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held in the Insurance Account shall not be invested. Any funds remaining in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(c) 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 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.
(d) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s 's Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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”"PREFERENCE CLAIM") of any distribution made with respect to the Insured Certificates. Each holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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 or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the 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 Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment of the Insured Certificates from the Trust Fund. The Depositor, the Servicer and the Trustee acknowledge, and each holder by its acceptance of an Insured Certificate agrees, that without the need for any further action on the part of the Certificate Insurer, the Depositor, the Servicer or the Trustee (a) to the extent the Certificate Insurer makes payments, directly or indirectly, on account of principal of or interest on the Insured Certificates to the holders of such Insured Certificates, the Certificate Insurer will be fully subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s 's rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth herein.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Indymac Residential Mortgage-Backed Trust, Series 2006-L1)
The Policy. (a) If the Trustee determines that a Deficiency an Insured Amount to be covered by the Policy will exist for the related Distribution Date, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “Notice”) and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the second Business Day immediately preceding such Distribution Date, as a claim for the amount of such Insured Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Class A Certificates over which the Trustee shall have the exclusive control and sole right of withdrawal. Upon receipt of an a Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured Class A Certificates, the Trustee shall deposit such Insured Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Class A Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of Certificates. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account on the related Distribution Date and disbursed by the Trustee to the holders Holders of the Insured Class A Certificates in accordance with Section 4.014.02. 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 holders Holders of the Insured Class A Certificates with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Insured Class A Certificates to be paid from funds transferred from the Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders Holders of the Insured Class A Certificates pursuant to Section 4.024.03. Funds held in the Insurance Account shall not be invested. Any funds remaining in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(c) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Insured Certificate the Class A Certificates from moneys received under the 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders Holders of the affected Insured Class A Certificates that, in the event any holderHolder’s Insured Amount is so recovered, such holder Holder of an Insured a Class A Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders Holders of the Insured Class A Certificates, and dates on which such payments were made.
(e) 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 Class A Certificates. Each holder Holder of an Insured a Class A Certificate, by its purchase of such Insured Class A Certificate, the Servicer, the Depositor 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 or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder Holder of an Insured Class A Certificate and the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder Holder of an Insured Class A Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Class A Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Class A Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders Holders of the Insured Class A Certificates for the purpose of making claims thereon and distributing the proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Class A Certificates, by accepting its Insured Class A Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Class A Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment of the Insured Class A Certificates from the Trust Fund. The Depositor, the Servicer Depositor and the Trustee acknowledge, and each holder Holder by its acceptance of an Insured Class A Certificate agrees, that without the need for any further action on the part of the Certificate Insurer, the Depositor, the Servicer or the Trustee (a) to the extent the Certificate Insurer makes payments, directly or indirectly, on account of principal of or interest on the Insured Class A Certificates to the holders Holders of such Insured Class A Certificates, the Certificate Insurer will be fully subrogated to, and each holder Holder of an Insured Certificate, the Servicer a Class A Certificate and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders Holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due to the holders Holders of the Insured Class A Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, Class A Certificates and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders Holders as otherwise set forth herein.
(i) By accepting its Insured Class A Certificate, each holder Holder of an Insured a Class A Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder Holder of the Insured Class A Certificate for all purposes (other than with respect to the receipt of payment on the Insured Class A Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders Holders of the Insured Class A Certificates under this Agreement and under the Insured Class A Certificates without any further consent of the holders Holders of the Insured Class A Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders Holders of Insured Class A Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Home Equity Mortgage Loan Asset-Backed Trust, Series Inds 2006-3)
The Policy. (a) If pursuant to Section 4.04(a)(iv), the Trustee Master Servicer determines that a Deficiency Amount to be covered by the Policy will exist exists for the related such Distribution Date, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “Notice”) Notice and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the Business Day immediately preceding each Distribution Date, as a claim for an Insured Amount (provided that the Trustee shall submit such notice on the second Business Day immediately preceding such Distribution Date, as a claim for the Date if it is able to do so) in an amount of equal to such Insured Deficiency Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawalClass A Certificates. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured CertificatesClass A Certificateholders, the Trustee shall deposit such Insured Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of CertificatesAccount. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account All amounts on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held deposit in the Insurance Account shall not be investedremain uninvested. Any funds remaining On each Distribution Date, the Trustee shall transfer any Insured Amount then on deposit in the Insurance Account to the Certificate Account. The Trustee shall distribute on each Distribution Date the first Business Day following Deficiency Amount for such Distribution Date from the later of Certificate Account, together with the distributions due to the Class A Certificateholders on such Distribution Date, as follows:
(i) the portion of any such Deficiency Amount related Distribution Date to clauses (i) and (ii) of the definition of Deficiency Amount shall be distributed among the related Class A Certificateholders in accordance with their respective shortfalls or allocations of Realized Losses; and (ii) the date received by portion of any such Deficiency Amount related to clause (iii) of the Trustee, definition of Deficiency Amount shall be returned distributed to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Dayrelated Class A Certificateholders in accordance with Section 9.01(c).
(c) The Trustee shall keep a complete and accurate record (i) receive as attorney-in-fact of the amount of interest and principal paid in respect of any Insured Certificate from moneys received under the 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that each Class A Certificateholder any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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 or performance bond pending any distribute such appealInsured Amount to such Class A Certificateholders as set forth in subsection (b) above. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and Amounts disbursed by the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders of the Insured Certificates for the purpose of making claims thereon and distributing the from proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment by the Trust Fund with respect to the Class A Certificates, nor shall such disbursement of such Insured Amounts discharge the obligations of the Trust Fund with respect to the amounts thereof, and the Insurer shall become owner of such amounts to the extent covered by such Insured Certificates from Amounts as the Trust Funddeemed assignee of such Class A Certificateholders. The Depositor, the Servicer and the Trustee acknowledge, hereby agrees on behalf of each Class A Certificateholder (and each holder Class A Certificateholder, by its acceptance of an Insured Certificate its Class A Certificates, hereby agrees, that without ) for the need for any further action on the part benefit of the Certificate Insurer, the Depositor, the Servicer or Insurer that the Trustee (a) shall recognize that to the extent the Certificate Insurer makes paymentspays Insured Amounts, either directly or indirectlyindirectly (as by paying through the Trustee), on account of principal of or interest on the Insured Certificates to the holders of such Insured CertificatesClass A Certificateholders, the Certificate Insurer will be fully entitled to be subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due Class A Certificateholders to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment extent of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereinpayments.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Residential Asset Securities Corp)
The Policy. (a) If the Trustee determines that a Deficiency an Insured Amount to be covered by the Policy will exist for the related Distribution Date (calculated for this purpose assuming that all amounts due under the Interest Rate Swap Agreement are received on the Distribution Date), the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “Notice”) and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the second third Business Day immediately preceding such Distribution Date, as a claim for the amount of such Insured Amount, less amounts, if any, withdrawn from the Pool Policy Reserve Account in respect of such Insured Amount. In the event that all amounts due under the Interest Rate Swap Agreement are not received on the Distribution Date, the Trustee shall include such shortfalls in a Notice to the Certificate Insurer relating to such Distribution Date.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Offered Certificates over which the Trustee shall have the exclusive control and sole right of withdrawal. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured CertificatesOffered Certificates or withdrawn from the Pool Policy Reserve Account, the Trustee shall deposit such Insured Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Offered Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of Certificates. Amounts paid under the PolicyPolicy or withdrawn from the Pool Policy Reserve Account, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account on the related Distribution Date and disbursed by the Trustee to the holders Holders of the Insured Offered Certificates in accordance with Section 4.014.02. 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 holders Holders of the Insured Offered Certificates with other funds available to make such payment. However, the amount of any payment of principal on the Class A Certificates or of interest on the Insured Offered Certificates to be paid from funds transferred from the Insurance Account shall be noted as provided in paragraph (dc) below and in the statement to be furnished to holders Holders of the Insured Offered Certificates pursuant to Section 4.024.03. Funds held in the Insurance Account shall not be invested. Any funds remaining in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(c) The Trustee shall keep a complete and accurate record of the amount of interest paid in respect of the Offered Certificates and principal paid in respect of any Insured Certificate the Class A Certificates from moneys received under the 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders Holders of the affected Insured Offered Certificates that, in the event any holderHolder’s Insured Amount is so recovered, such holder Holder of an Insured Offered Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders Holders of the Insured Offered Certificates, and dates on which such payments were made.
(e) 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 ClaimAmount”) of any distribution made with respect to the Insured Offered Certificates. Each holder Holder of an Insured Offered Certificate, by its purchase of such Insured Offered Certificate, the Servicer, the Depositor 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 Amount and (ii) the posting of any surety or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder Holder of an Insured Offered Certificate and the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder Holder of an Insured Offered Certificate 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.
(f) The Trustee shallshall promptly, upon retirement of the Insured Offered Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Offered Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders Holders of the Insured Offered Certificates for the purpose of making claims thereon and distributing the proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificatesan Offered Certificate, by accepting its Insured CertificatesOffered Certificate, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of the Class A Certificates or interest on the Insured Offered Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment of the Insured Offered Certificates from the Trust Fund. The Depositor, the Servicer Depositor and the Trustee acknowledge, and each holder Holder by its acceptance of an Insured Offered Certificate agrees, that without the need for any further action on the part of the Certificate Insurer, the Depositor, the Servicer or the Trustee (a) to the extent the Certificate Insurer makes payments, directly or indirectly, on account of principal of the Class A Certificates or interest on the Insured Offered Certificates to the holders Holders of such Insured Offered Certificates, the Certificate Insurer will be fully subrogated to, and each holder Holder of an Insured Certificate, the Servicer Offered Certificate and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders Holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due to the holders Holders of the Insured Offered Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, Offered Certificates and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders Holders as otherwise set forth herein.
(i) By accepting its Insured Offered Certificate, each holder Holder of an Insured Offered Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder Holder of the Insured Offered Certificate for all purposes (other than with respect to the receipt of payment on the Insured Offered Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders Holders of the Insured Offered Certificates under this Agreement and under the Insured Offered Certificates without any further consent of the holders Holders of the Insured CertificatesOffered Certificates and such Holders may not exercise any such rights without the prior written consent of the Certificate Insurer. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders Holders of Insured Offered Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Home Equity Mortgage Loan Asset-Backed Trust, Series INDS 2007-1)
The Policy. (a) If If, based on the Trustee information provided by the Servicer pursuant to Section 4.03, the Trust Administrator determines that a Deficiency an Insured Amount to be covered by the Policy will exist for the related Distribution Date, the Trustee Trust Administrator shall complete the notice in the form of Exhibit A to the Policy (the “"Notice”") and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the second Business Day immediately preceding such Distribution Date, as a claim for the amount of such Insured Amount.
(b) The Trustee Trust Administrator shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Class A Certificates over which the Trust Administrator on behalf of the Trustee shall have the exclusive control and sole right of withdrawal. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured Class A Certificates, the Trustee Trust Administrator shall deposit such Insured Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Class A Certificates of the Insured 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 Seller, the Depositor, the Trustee Trustee, the Trust Administrator or the Trust Fund or to pay any other Class of Certificates. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account on the related Distribution Date and disbursed by the Trustee Trust Administrator to the holders Holders of the Insured Class A Certificates in accordance with Section 4.014.01(g) (or, in the case of an amount in respect of a Preference Claim, to the related Holders of Class A Certificates as contemplated in this Section 4.07). 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 other distributions to the holders of the Insured Certificates with other funds available be made to make such paymentHolders pursuant to Section 4.01. However, the amount of any payment of principal of or of interest on the Insured Class A Certificates to be paid from funds transferred from the Insurance Account shall be noted as provided in paragraph (d) below the Certificate Register and in the statement to be furnished to holders Holders of the Insured Class A Certificates pursuant to Section 4.02. Funds held in the Insurance Account shall not be invested. Any funds remaining in the Insurance Account on the first Business Day following the later of (i) the related a Distribution Date or (ii) the date received by the Trustee, 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.
(c) The Trustee Trust Administrator shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Insured Class A Certificate from moneys received under the 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.
(d) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Amount has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee shall so notify the Trust Administrator, and the Trust Administrator shall so notify the Certificate Insurer, shall comply with the provisions of the Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Class A Certificates that, in the event any holder’s 's Insured Amount is so recovered, such holder of an Insured a Class A Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee Trust Administrator, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee Trust Administrator shall furnish to the Certificate InsurerInsurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee Trust Administrator and subsequently recovered from the holders of the Insured Class A Certificates, and dates on which such payments were made.
(e) The Trustee shall promptly notify the Trust Administrator, and the Trust 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 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 Class A Certificates. Each holder of an Insured a Class A Certificate, by its purchase of such Insured Class A Certificate, the Servicer, the Depositor Depositor, 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 surety, 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 holder of an Insured a Class A Certificate and the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured a Class A Certificate 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.
(f) The Trustee Trust Administrator shall, upon retirement of the Insured Class A Certificates, furnish to the Certificate Insurer and the Trustee a notice of such retirement, and, upon retirement of the Insured Class A Certificates and the expiration of the term of the Policy, the Trustee shall surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders of the Insured Class A Certificates for the purpose of the Trust Administrator on its behalf making claims thereon and distributing the proceeds thereof. Neither the Policy nor the amounts paid on under the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Class A Certificates, by accepting its Insured Class A Certificates, appoints the Trustee and the Trust Administrator on behalf of the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Class A Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment of the Insured Class A Certificates from the Trust Fund. The Depositor, the Servicer Servicer, the Trust Administrator and the Trustee acknowledge, and each holder by its acceptance of an Insured a Class A Certificate agrees, that without the need for any further action on the part of the Certificate Insurer, the Depositor, the Servicer Servicer, the Trust Administrator or the Trustee (a) to the extent the Certificate Insurer makes payments, directly or indirectly, on account of principal of or interest on the Insured Class A Certificates to the holders of such Insured Class A Certificates, the Certificate Insurer will be fully subrogated to, and each holder of an Insured a Class A Certificate, 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 such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due to the holders of the Insured Class A Certificates in respect of securities law violations arising from the offer and sale of the Insured Class A Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment of such amounts and as provided in this Agreement. The Trustee Trustee, the Trust Administrator and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s 's rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth herein.
(i) By accepting its Insured Class A Certificate, each holder of an Insured a Class A Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Class A Certificate for all purposes (other than with respect to the receipt of payment on the Insured Class A Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Class A Certificates under this Agreement and under the Insured Class A Certificates without any further consent of the holders of the Insured Class A Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Class A Certificates shall also be sent to the Certificate Insurer.
(j) Each of the Trustee and the Trust Administrator, and each other party hereto, acknowledges that actions with respect to the Policy and claims thereunder taken by the Trust Administrator on behalf of the Trustee (and any inactions of the Trustee resulting from inactions of the Trust Administrator on behalf of the Trustee) shall be binding upon the Trustee to the same extent as would be the case if the provisions of this Agreement provided for such actions with respect to the Policy and claims thereunder to be taken by the Trustee itself, rather than being permitted to be taken by the Trust Administrator on behalf of the Trustee.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Citigroup Mort Ln Tr Asst Back Ps THR Certs Ser 2003-He3)
The Policy. (a) If The Issuer hereby represents that (i) it has obtained the Insurance Policy in the name, and for the benefit and security, of the Trustee, acting on behalf of the Noteholders, (ii) it has entered into the Insurance Agreement which provides for the issuance of the Insurance Policy by the Insurer and (iii) the Insurance Policy permits the Trustee determines that a Deficiency Amount to be covered by draw on the Insurance Policy will exist from time to time for the related Distribution Datepurposes set forth in this Agreement. The Insurer shall not be entitled to reimbursement for any draws, interest or fees with respect to the Trustee shall complete Insurance Policy, except as specifically provided herein.
(b) Pursuant to the notice Insurance Policy, (i) if on any Determination Date Available Funds and amounts on deposit in the form Reserve Account are insufficient to pay the interest set forth in clause (i) of Exhibit A to the Policy definition of Accrued Interest (excluding interest on past due Accrued Interest) on the “Notice”) and submit such Notice Notes in accordance with the Policy to Priority of Payments or Section 11.7, as applicable, on the Certificate Insurer immediately following Payment Date, then the Trustee will no later than 10:00 a.m. New York City time on the fourth Business Day prior to the Payment Date make a claim under the Insurance Policy in accordance with the procedures set forth in the Insurance Policy in an amount equal to such insufficiency and (ii) if on the Determination Date immediately preceding the Rated Final Maturity Date Available Funds and amounts on deposit in the Reserve Account are insufficient to reduce the Aggregate Principal Amount of the Notes to zero on the Rated Final Maturity Date, then the Trustee will no later than 10:00 a.m. New York City time on the fourth Business Day prior to the Payment Date make a claim under the Insurance Policy in an amount necessary to reduce the Aggregate Principal Amount of the Notes to zero on such Payment Date (the aggregate amounts demanded in (i) and (ii) pursuant to this sentence on any Payment Date, the “Policy Claim Amount.”) Following receipt by the Insurer of such demand, the Insurer will pay the Policy Claim Amount by the later of (i) 12:00 P.M.noon, New York City time, on the second Business Day immediately preceding such Distribution Date, as a claim for the amount of such Insured Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawal. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured Certificates, the Trustee shall deposit such Insured Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of Certificates. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account on the related Distribution applicable Payment Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held in the Insurance Account shall not be invested. Any funds remaining in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(c) 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 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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) 12:00 noon, New York City time, on the posting of any surety or performance bond pending any such appeal. In addition and without limitation fourth Business Day following receipt by the Insurer of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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 Claimappropriate demand for payment.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the 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 Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment of the Insured Certificates from the Trust Fund. The Depositor, the Servicer and the Trustee acknowledge, and each holder by its acceptance of an Insured Certificate agrees, that without the need for any further action on the part of the Certificate Insurer, the Depositor, the Servicer or the Trustee (a) to the extent the Certificate Insurer makes payments, directly or indirectly, on account of principal of or interest on the Insured Certificates to the holders of such Insured Certificates, the Certificate Insurer will be fully subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth herein.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Indenture and Servicing Agreement (Wyndham Worldwide Corp)
The Policy. (a) If pursuant to Section 4.04(a)(iv), the Master Servicer determines and notifies the Trustee determines that a Deficiency Amount to be covered by the Policy will exist exists for the related such Distribution Date, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “Notice”) Notice and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the Business Day immediately preceding each Distribution Date, as a claim for an Insured Amount (provided that the Trustee shall submit such notice on the second Business Day immediately preceding such Distribution Date, as a claim for the Date if it is able to do so) in an amount of equal to such Insured Deficiency Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawalClass A-I Certificates. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured CertificatesClass A Certificateholders, the Trustee shall deposit such Insured Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of CertificatesAccount. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account All amounts on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held deposit in the Insurance Account shall not be investedremain uninvested. Any funds remaining On each Distribution Date, the Trustee shall transfer any Insured Amount then on deposit in the Insurance Account to the Certificate Account. The Trustee shall distribute on the first Business Day following the later of each Distribution Date the
(i) the portion of any such Deficiency Amount related Distribution Date to clauses (i) and (ii) of the definition of Deficiency Amount shall be distributed among the related Class A-I Certificateholders on a pro rata basis in accordance with their respective shortfalls or allocations of Realized Losses; and (ii) the date received by portion of any such Deficiency Amount related to clause (iii) of the Trustee, definition of Deficiency Amount shall be returned distributed to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Dayrelated Class A-I Certificateholders in accordance with Section 9.01(c).
(c) The Trustee shall keep a complete and accurate record (i) receive as attorney-in-fact of the amount of interest and principal paid in respect of any Insured Certificate from moneys received under the 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that each Class A-I Certificateholder any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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 or performance bond pending any distribute such appealInsured Amount to such Class A-I Certificateholders as set forth in subsection (b) above. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and Amounts disbursed by the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders of the Insured Certificates for the purpose of making claims thereon and distributing the from proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment by the Trust Fund with respect to the Class A-I Certificates, nor shall such disbursement of such Insured Amounts discharge the obligations of the Trust Fund with respect to the amounts thereof, and the Insurer shall become owner of such amounts to the extent covered by such Insured Certificates from Amounts as the Trust Funddeemed assignee of such Class A-I Certificateholders. The Depositor, the Servicer and the Trustee acknowledge, hereby agrees on behalf of each Class A-I Certificateholder (and each holder Class A-I Certificateholder, by its acceptance of an Insured Certificate its Class A-I Certificates, hereby agrees, that without ) for the need for any further action on the part benefit of the Certificate Insurer, the Depositor, the Servicer or Insurer that the Trustee (a) shall recognize that to the extent the Certificate Insurer makes paymentspays Insured Amounts, either directly or indirectlyindirectly (as by paying through the Trustee), on account of principal of or interest on the Insured Certificates to the holders of such Insured CertificatesClass A-I Certificateholders, the Certificate Insurer will be fully entitled to be subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due Class A-I Certificateholders to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment extent of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereinpayments.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Ramp Series 2004-Rs5 Trus)
The Policy. (a) If pursuant to Section 4.04(a)(iv), the Trustee Master Servicer determines that a Deficiency Amount to be covered by the Policy will exist exists for the related such Distribution Date, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “Notice”) Notice and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the Business Day immediately preceding each Distribution Date, as a claim for an Insured Amount (provided that the Trustee shall submit such notice on the second Business Day immediately preceding such Distribution Date, as a claim for the Date if it is able to do so) in an amount of equal to such Insured Deficiency Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawalClass A Certificates. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured CertificatesClass A Certificateholders, the Trustee shall deposit such Insured Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of CertificatesAccount. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account All amounts on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held deposit in the Insurance Account shall not be investedremain uninvested. Any funds remaining in the Insurance Account on the first Business Day following the later of On each Distribution 105
(i) the portion of any such Deficiency Amount related Distribution Date to clauses (i) and (ii) of the definition of Deficiency Amount shall be distributed among the related Class A Certificateholders on a pro rata basis in accordance with their respective shortfalls or allocations of Realized Losses; and (ii) the date received by portion of any such Deficiency Amount related to clause (iii) of the Trustee, definition of Deficiency Amount shall be returned distributed to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Dayrelated Class A Certificateholders in accordance with Section 9.01(c).
(c) The Trustee shall keep a complete and accurate record (i) receive as attorney-in-fact of the amount of interest and principal paid in respect of any Insured Certificate from moneys received under the 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that each Class A Certificateholder any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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 or performance bond pending any distribute such appealInsured Amount to such Class A Certificateholders as set forth in subsection (b) above. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and Amounts disbursed by the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders of the Insured Certificates for the purpose of making claims thereon and distributing the from proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment by the Trust Fund with respect to the Class A Certificates, nor shall such disbursement of such Insured Amounts discharge the obligations of the Trust Fund with respect to the amounts thereof, and the Insurer shall become owner of such amounts to the extent covered by such Insured Certificates from Amounts as the Trust Funddeemed assignee of such Class A Certificateholders. The Depositor, the Servicer and the Trustee acknowledge, hereby agrees on behalf of each Class A Certificateholder (and each holder Class A Certificateholder, by its acceptance of an Insured Certificate its Class A Certificates, hereby agrees, that without ) for the need for any further action on the part benefit of the Certificate Insurer, the Depositor, the Servicer or Insurer that the Trustee (a) shall recognize that to the extent the Certificate Insurer makes paymentspays Insured Amounts, either directly or indirectlyindirectly (as by paying through the Trustee), on account of principal of or interest on the Insured Certificates to the holders of such Insured CertificatesClass A Certificateholders, the Certificate Insurer will be fully entitled to be subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due Class A Certificateholders to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment extent of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereinpayments.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc)
The Policy. (a) If the Trustee Servicer determines that a the Deficiency Amount is greater than zero with respect to be covered by the Policy will exist for the related any Distribution Date, the Trustee shall complete the notice in the form Form of Exhibit A to the Policy (the “"Notice”") and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the second third Business Day immediately preceding such each Distribution Date, as a claim for the an Insured Payment in an amount of equal to such Insured Deficiency Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawalClass A Certificates. Upon receipt of an Insured Amount Payment from the Certificate Insurer on behalf of the Holders of the Insured CertificatesClass A Certificateholders, the Trustee shall deposit such Insured Amount Payment in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of CertificatesAccount. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account All amounts on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held deposit in the Insurance Account shall not be investedremain uninvested. Any funds remaining On each Distribution Date, the Trustee shall transfer any Insured Payment then on deposit in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant Account. The Trustee shall distribute on each Distribution Date the Deficiency Amount for such Distribution Date from the Certificate Account, together with the distributions to be made to the written instructions Class A Certificateholders on such Distribution Date, as distributions of the Certificate Insurer by the end of such Business Dayinterest and principal, respectively.
(c) 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 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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) receive as attorney-in-fact of each Class A Certificateholder any Insured Payment from the direction of any appeal of any order relating to such Preference Claim Insurer and (ii) the posting of any surety or performance bond pending any distribute such appealInsured Payment to such Class A Certificateholders as set forth in subsection (b) above. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and Payments disbursed by the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders of the Insured Certificates for the purpose of making claims thereon and distributing the from proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment by the Trust Fund with respect to the Class A Certificates, nor shall such disbursement of such Insured Payments discharge the obligations of the Trust Fund with respect to the amounts thereof, [and the Insurer] shall become owner of such amounts to the extent covered by such Insured Certificates from Payments as the Trust Funddeemed assignee of such Class A Certificateholders. The Depositor, the Servicer and the Trustee acknowledge, hereby agrees on behalf of each Class A Certificateholder (and each holder Class A Certificateholder, by its acceptance of an Insured Certificate its Class A Certificates, hereby agrees, that without ) for the need for any further action on the part benefit of the Certificate Insurer, the Depositor, the Servicer or Insurer that the Trustee (a) shall recognize that to the extent the Certificate Insurer makes paymentspays Insured Payments, either directly or indirectlyindirectly (as by paying through the Trustee), on account of principal of or interest on the Insured Certificates to the holders of such Insured CertificatesClass A Certificateholders, the Certificate Insurer will be fully entitled to be subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due Class A Certificateholders to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment extent of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereinpayments.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.]
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Credit Suisse First Boston Mortgage Securities Corp)
The Policy. (a) If pursuant to Section 4.04(a)(iv), the Master Servicer determines and notifies the Trustee determines that a Deficiency Amount to be covered by the Policy will exist exists for the related such Distribution Date, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “Notice”) Notice and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., 115 New York City time, on the Business Day immediately preceding each Distribution Date, as a claim for an Insured Amount (provided that the Trustee shall submit such notice on the second Business Day immediately preceding such Distribution Date, as a claim for the Date if it is able to do so) in an amount of equal to such Insured Deficiency Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawalClass A-II Certificates. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured CertificatesClass A-II Certificateholders, the Trustee shall deposit such Insured Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of CertificatesAccount. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account All amounts on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held deposit in the Insurance Account shall not be investedremain uninvested. Any funds remaining On each Distribution Date, the Trustee shall transfer any Insured Amount then on deposit in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant Account. The Trustee shall distribute on each Distribution Date the Deficiency Amount for such Distribution Date from the Certificate Account, together with the distributions due to the written instructions of the Certificate Insurer by the end of Class A-II Certificateholders on such Business DayDistribution Date.
(c) The Trustee shall keep a complete and accurate record (i) receive as attorney-in-fact of the amount of interest and principal paid in respect of any Insured Certificate from moneys received under the 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that each Class A-II Certificateholder any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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 or performance bond pending any distribute such appealInsured Amount to such Class A-II Certificateholders as set forth in subsection (b) above. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and Amounts disbursed by the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders of the Insured Certificates for the purpose of making claims thereon and distributing the from proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment by the Trust Fund with respect to the Class A-II Certificates, nor shall such disbursement of such Insured Amounts discharge the obligations of the Trust Fund with respect to the amounts thereof, and the Insurer shall become owner of such amounts to the extent covered by such Insured Certificates from Amounts as the Trust Funddeemed assignee of such Class A-II Certificateholders. The Depositor, the Servicer and the Trustee acknowledge, hereby agrees on behalf of each Class A-II Certificateholder (and each holder Class A-II Certificateholder, by its acceptance of an Insured Certificate its Class A-II Certificates, hereby agrees, that without ) for the need for any further action on the part benefit of the Certificate Insurer, the Depositor, the Servicer or Insurer that the Trustee (a) shall recognize that to the extent the Certificate Insurer makes paymentspays Insured Amounts, either directly or indirectlyindirectly (as by paying through the Trustee), on account of principal of or interest on the Insured Certificates to the holders of such Insured CertificatesClass A-II Certificateholders, the Certificate Insurer will be fully entitled to be subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due Class A-II Certificateholders to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment extent of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereinpayments.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc)
The Policy. (a) If pursuant to Section 4.04(a)(iv), the Trustee Master Servicer determines that a the Deficiency Amount to be covered by the Policy will exist for the related such Distribution DateDate is greater than zero, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “Notice”) Notice and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the second Business Day immediately preceding such each Distribution Date, as a claim for the an Insured Payment in an amount of equal to such Insured Deficiency Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawalClass A Certificates. Upon receipt of an Insured Amount Payment from the Certificate Insurer on behalf of the Holders of the Insured CertificatesClass A Certificateholders, the Trustee shall deposit such Insured Amount Payment in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of CertificatesAccount. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account All amounts on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held deposit in the Insurance Account shall not be investedremain uninvested. Any funds remaining On each Distribution Date, the Trustee shall transfer any Insured Payment then on deposit in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant Account. The Trustee shall distribute on each Distribution Date the Deficiency Amount for such Distribution Date from the Certificate Account to the written instructions of the Certificate Insurer by the end of Class A Certificateholders on such Business DayDistribution Date.
(c) 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 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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) receive as attorney-in-fact of each Class A Certificateholder any Insured Payment from the direction of any appeal of any order relating to such Preference Claim Insurer and (ii) the posting of any surety or performance bond pending any distribute such appealInsured Payment to such Class A Certificateholders as set forth in subsection (b) above. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and Payments disbursed by the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders of the Insured Certificates for the purpose of making claims thereon and distributing the from proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment by the Trust Fund with respect to the Class A Certificates, nor shall such disbursement of such Insured Payments discharge the obligations of the Trust Fund with respect to the amounts thereof, and the Insurer shall become owner of such amounts to the extent covered by such Insured Certificates from Payments as the Trust Funddeemed assignee of such Class A Certificateholders. The Depositor, the Servicer and the Trustee acknowledge, hereby agrees on behalf of each Class A Certificateholder (and each holder Class A Certificateholder, by its acceptance of an Insured Certificate its Class A Certificates, hereby agrees, that without ) for the need for any further action on the part benefit of the Certificate Insurer, the Depositor, the Servicer or Insurer that the Trustee (a) shall recognize that to the extent the Certificate Insurer makes paymentsInsured Payments, either directly or indirectlyindirectly (as by paying through the Trustee), on account of principal of or interest on the Insured Certificates to the holders of such Insured CertificatesClass A Certificateholders, the Certificate Insurer will be fully entitled to be subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due Class A Certificateholders to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment extent of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereinpayments.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Residential Asset Securities Corp)
The Policy. (a) If pursuant to Section 4.04(a)(iv), the Master Servicer determines and notifies the Trustee determines that a Deficiency Amount to be covered by the Policy will exist exists for the related such Distribution Date, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “Notice”) Notice and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the Business Day immediately preceding each Distribution Date, as a claim for an Insured Amount (provided that the Trustee shall submit such notice on the second Business Day immediately preceding such Distribution Date, as a claim for the Date if it is able to do so) in an amount of equal to such Insured Deficiency Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawalClass A Certificates. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured CertificatesClass A Certificateholders, the Trustee shall deposit such Insured Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of CertificatesAccount. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account All amounts on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held deposit in the Insurance Account shall not be investedremain uninvested. Any funds remaining On each Distribution Date, the Trustee shall transfer any Insured Amount then on deposit in the Insurance Account to the Certificate Account. The Trustee shall distribute on each Distribution Date the first Business Day following Deficiency Amount for such Distribution Date from the later of Certificate Account, together with the distributions due to the Class A Certificateholders on such Distribution Date, as follows:
(i) the portion of any such Deficiency Amount related Distribution Date to clauses (i) and (ii) of the definition of Deficiency Amount shall be distributed among the related Class A Certificateholders on a pro rata basis in accordance with their respective shortfalls or allocations of Realized Losses; and (ii) the date received by portion of any such Deficiency Amount related to clause (iii) of the Trustee, definition of Deficiency Amount shall be returned distributed to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Dayrelated Class A Certificateholders in accordance with Section 9.01(c).
(c) The Trustee shall keep a complete and accurate record (i) receive as attorney-in-fact of the amount of interest and principal paid in respect of any Insured Certificate from moneys received under the 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that each Class A Certificateholder any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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 or performance bond pending any distribute such appealInsured Amount to such Class A Certificateholders as set forth in subsection (b) above. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and Amounts disbursed by the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders of the Insured Certificates for the purpose of making claims thereon and distributing the from proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment by the Trust Fund with respect to the Class A Certificates, nor shall such disbursement of such Insured Amounts discharge the obligations of the Trust Fund with respect to the amounts thereof, and the Insurer shall become owner of such amounts to the extent covered by such Insured Certificates from Amounts as the Trust Funddeemed assignee of such Class A Certificateholders. The Depositor, the Servicer and the Trustee acknowledge, hereby agrees on behalf of each Class A Certificateholder (and each holder Class A Certificateholder, by its acceptance of an Insured Certificate its Class A Certificates, hereby agrees, that without ) for the need for any further action on the part benefit 104 of the Certificate Insurer, the Depositor, the Servicer or Insurer that the Trustee (a) shall recognize that to the extent the Certificate Insurer makes paymentspays Insured Amounts, either directly or indirectlyindirectly (as by paying through the Trustee), on account of principal of or interest on the Insured Certificates to the holders of such Insured CertificatesClass A Certificateholders, the Certificate Insurer will be fully entitled to be subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due Class A Certificateholders to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment extent of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereinpayments.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc)
The Policy. (a) If the Trustee determines that a the Deficiency Amount is greater than zero with respect to be covered by the Policy will exist for the related any Distribution Date, the Trustee shall complete the notice in the form Form of Exhibit A to the Policy (the “"Notice”") and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the second third Business Day immediately preceding such each Distribution Date, as a claim for the an Insured Payment in an amount of equal to such Insured Deficiency Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawalClass A Certificates. Upon receipt of an Insured Amount Payment from the Certificate Insurer on behalf of the Holders of the Insured applicable Class of Class A Certificates, the Trustee shall deposit such Insured Amount Payment in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of CertificatesAccount. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account All amounts on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held deposit in the Insurance Account shall not be investedremain uninvested. Any funds remaining On each Distribution Date, the Trustee shall transfer any Insured Payment then on deposit in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant Account. The Trustee shall distribute on each Distribution Date any Deficiency Amount for such Distribution Date from the Certificate Account, together with the distributions to be made to the written instructions Class A Certificateholders on such Distribution Date, as distributions of the Certificate Insurer by the end of such Business Dayinterest and principal, respectively.
(c) The Trustee shall keep a complete and accurate record (i) receive as attorney-in-fact of the amount of interest and principal paid in respect of each Class A Certificateholder any Insured Certificate Payment from moneys received under the 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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) distribute such Insured Payment to the posting of any surety or performance bond pending any such appealapplicable Class A Certificateholders as set forth in subsection (b) above. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and Payments disbursed by the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders of the Insured Certificates for the purpose of making claims thereon and distributing the from proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment by the Trust Fund with respect to the Class A Certificates, nor shall such disbursement of such Insured Payments discharge the obligations of the Trust Fund with respect to the amounts thereof, and the Certificate Insurer shall become owner of such amounts to the extent covered by such Insured Certificates from Payments as the Trust Funddeemed assignee of such Class A Certificateholders. The Depositor, the Servicer and the Trustee acknowledge, hereby agrees on behalf of each Class A Certificateholder (and each holder Class A Certificateholder, by its acceptance of an Insured Certificate its Class A Certificates, hereby agrees, that without ) for the need for any further action on the part benefit of the Certificate Insurer, the Depositor, the Servicer or Insurer that the Trustee (a) shall recognize that to the extent the Certificate Insurer makes paymentspays Insured Payments, either directly or indirectlyindirectly (as by paying through the Trustee), on account of principal of or interest on the Insured Certificates to the holders Holders of such Insured the applicable Class of Class A Certificates, the Certificate Insurer will be fully entitled to be subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due Class A Certificateholders to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment extent of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereinpayments.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.]
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Chevy Chase Bank FSB)
The Policy. (a) If If, based on the Trustee information provided by the Servicer pursuant to Section 4.03, the Certificate Administrator determines that a Deficiency an Insured Amount to be covered by the Policy will exist for the related Distribution Date, the Certificate Administrator shall provide notice to the Trustee no later than 12:00 P.M., New York City time, on the second Business Day preceding such Distribution Date, whereupon the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “"Notice”") and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the second Business Day immediately preceding such Distribution Date, as a claim for the amount of such Insured AmountAmount (provided that the Trustee shall submit such Notice on the second Business Day immediately preceding such Distribution Date if it is able to do so).
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Class A-1 Certificates, the Class A-2 Certificates over which and the Trustee shall have the exclusive control and sole right of withdrawalClass A-IO Certificates. Upon receipt of an Insured Amount Payment from the Certificate Insurer on behalf of the Holders of Class A-1 Certificateholders, the Insured CertificatesClass A-2 Certificateholders and/or the Class A-IO Certificateholders, the Trustee shall deposit such Insured Amount Payment in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of CertificatesAccount. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account All amounts on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held deposit in the Insurance Account shall not be investedremain uninvested. Any funds remaining On each Distribution Date, the Trustee shall transfer any Insured Payment then on deposit in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant Account. The Trustee shall distribute on each Distribution Date any Insured Interest Payment and any Insured Principal Payment for such Distribution Date from the Certificate Account, in each case on a pro rata basis, as provided in Section 4.01, subject to Section 4.01(h) in the case of any Insured Principal Payment payable to the written instructions Holders of the Certificate Insurer by Class A-1 Certificates and/or the end of Class A-2 Certificates on the final Distribution Date for such Business DayClass.
(c) The Trustee shall keep a complete (i) receive as attorney-in-fact of each Class A-1 Certificateholder, each Class A-2 Certificateholder and accurate record of the amount of interest and principal paid in respect of each Class A-IO Certificateholder any Insured Certificate Payment from moneys received under the 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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) distribute such Insured Payment to the posting of any surety or performance bond pending any such appeal. In addition and without limitation of the foregoingClass A-1 Certificateholders, the Certificate Insurer shall be subrogated to, and each holder of an Class A-2 Certificateholders and/or the Class A-IO Certificateholders as set forth in subsection (b) above. Insured Certificate and Payments disbursed by the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders of the Insured Certificates for the purpose of making claims thereon and distributing the from proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment by the Trust Fund with respect to the Class A-1 Certificateholders, the Class A-2 Certificates and/or the Class A-IO Certificateholders, nor shall such disbursement of such Insured Payments discharge the obligations of the Trust Fund with respect to the amounts thereof, and the Certificate Insurer shall become owner of such amounts to the extent covered by such Insured Certificates from Payments as the Trust Funddeemed assignee of the Class A-1 Certificateholders, the Class A-2 Certificateholders and the Class A-IO Certificateholders. The DepositorTrustee hereby agrees on behalf of each Class A-1 Certificateholder, the Servicer and the Trustee acknowledge, each Class A-2 Certificateholder and each holder Class A-IO Certificateholder (and each Class A Certificateholder, by its acceptance of an Insured Certificate its Class A-1 Certificates or Class A-2 Certificates, and each Class A-IO Certificateholder, by its acceptance of its Class A-IO Certificates, as applicable, hereby agrees, that without ) for the need for any further action on the part benefit of the Certificate Insurer, the Depositor, the Servicer or Insurer that the Trustee (a) shall recognize that to the extent the Certificate Insurer makes paymentspays Insured Payments, either directly or indirectlyindirectly (as by paying through the Trustee), on account of principal of or interest on the Insured Certificates to the holders of such Insured CertificatesClass A-1 Certificateholders, the Class A-2 Certificateholders and the Class A-IO Certificateholders, the Certificate Insurer will be fully entitled to be subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal the Class A-1 Certificateholders, the Class A-2 Certificateholders and interest from the Trust Fund, including, without limitation, any amounts due Class A-1O Certificateholders to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment extent of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereinInsured Amounts.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Bear Stearns Ast BCK Sec Inc Madison Ave Trust 2002-A)
The Policy. (a) If The Transferor hereby represents that (i) it has obtained the Policy in the name of the Trustee determines and solely for the benefit of the Series 1998-3 Securityholders, (ii) that a Deficiency Amount to be covered it has entered into the Insurance Agreement which provides for the issuance of the Policy by the Insurer and (iii) that the Policy will exist permits the Trustee (or the Servicer on its behalf) to draw on the Policy from time to time for the purposes set forth in this Supplement. The Insurer shall not be entitled to reimbursement for any draws, interest or fees with respect to the Policy from the corpus of the Trust, except as specifically provided herein.
(b) Pursuant to the Policy, if on any Determination Date the Servicer notifies the Trustee that on the related Distribution DateDate (i) the funds that will be on deposit in the Interest Funding Account available for distribution are insufficient to pay the Class A Monthly Interest with respect to such Monthly Period or the Servicing Fee with respect to such Monthly Period will not otherwise be paid in full or (ii) a Potential Class A Charge-Off shall occur, then the Trustee shall complete the give notice in the form of Exhibit A to the Policy (Insurer by telecopy or other writing by the “Notice”) and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, close of business on the second Business Day immediately preceding such prior to the Distribution Date, as a claim for Date demanding payment of an amount equal to the amount deficiency (the "Policy Claim Amount"). Following receipt by the Insurer of such Insured Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawal. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured Certificatesnotice, the Trustee shall deposit such Insured Insurer will pay the Policy Claim Amount in before 12:00 noon on the Insurance Account and distribute such amount only for purposes of payment Business Day preceding the Distribution Date (i) with respect to the Insured Certificates of the Insured Amount for which a claim was made and such amount may not funds to be applied to satisfy any costs, expenses or liabilities the payment of the Servicer, the Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of Certificates. Amounts paid under the PolicyA Monthly Interest, to the extent needed Trustee for deposit in the Distribution Account, (ii) with respect to pay the Insured Amount, shall funds to be transferred applied to the Distribution Account on payment of the related Distribution Date Monthly Servicing Fee, to the Servicer and disbursed by (iii) with respect to funds to be applied with respect to a Potential Class A Charge-Off, to the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted treated as provided in paragraph (d) below Available Series 1998-3 Principal Collections and deposited in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held in the Insurance Account shall not be invested. Any funds remaining in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business DayAccount.
(c) 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 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) In the event that the Trustee has received a certified copy of an order claims paying ability rating of the appropriate court Insurer is downgraded and such downgrade would result in a downgrading of the then current rating of the Class A Securities (a "Replacement Event"), the Transferor, in accordance with and upon satisfaction of the conditions set forth in the Policy, including payment in full of all amounts owed to the Insurer, may but shall not be required to, substitute a new surety bond or surety bonds for the existing Policy or may arrange for any other form of Enhancement; provided, however, that any Insured Amount has been voided in whole or in part as a preference payment under applicable bankruptcy laweach case the Class A Securities shall be rated no lower than the rating assigned by each Rating Agency to the Class A Securities prior to such Replacement Event and the timing and mechanism for drawing on such new credit enhancement shall be reasonably acceptable to the Trustee. Upon receipt of the new Enhancement, the Trustee shall so notify surrender the Certificate Insurer, shall comply with the provisions of the replaced Policy to obtain payment by the Certificate Insurer.
(d) So long as the Insurer of such Preference Amount in has not defaulted on its obligations under the amount of such voided Insured AmountPolicy, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate Insurer will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders exercise all voting rights of the Insured Certificates, and dates on which such payments were made.
(e) The Trustee shall promptly notify Series 1998-3 Securityholders without the Certificate Insurer of any proceeding or the institution of any action, of which a Responsible Officer consent of the Trustee has actual knowledge, seeking the avoidance as a preferential transfer under applicable bankruptcy, insolvency, receivership or similar law Class A Securityholders (a “Preference Claim”) of including any distribution made voting rights with respect to amending the Insured Certificates. Each holder of an Insured Certificate, by its purchase of such Insured Certificate, the Agreement or this Supplement or terminating a Servicer, the Depositor ) and the Trustee agree that Class A Securityholders may only exercise such voting rights with the Certificate Insurer (so long as no Certificate Insurer Default exists) may at any time during prior written consent of 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 or performance bond pending any such appealInsurer. In addition and without limitation determining whether the required percentage of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding Securityholders have given their approval or action consent with respect to any court order issued in connection with any such Preference Claim.
(f) The Trustee shall, upon retirement an action requiring the consent of a majority of the Insured CertificatesSecurityholders, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust except as agent for the holders of the Insured Certificates for the purpose of making claims thereon and distributing the proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment of the Insured Certificates from the Trust Fund. The Depositorotherwise specified, the Servicer and the Trustee acknowledge, and each holder by its acceptance of an Insured Certificate agrees, that without the need for any further action on the part of the Certificate Insurer, the Depositor, the Servicer or the Trustee (a) to the extent the Certificate Insurer makes payments, directly or indirectly, on account of principal of or interest on the Insured Certificates to the holders of such Insured Certificates, the Certificate Insurer Class A Securityholders will be fully subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment of such amounts and treated as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereina single Series.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
The Policy. (a) If pursuant to Section 4.04(a)(iii), the Trustee Master Servicer determines that a Deficiency Amount to be covered by the Policy will exist exists for the related such Distribution Date, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “Notice”) Notice and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the Business Day immediately preceding each Distribution Date, as a claim for an Insured Amount (provided that the Trustee shall submit such notice on the second Business Day immediately preceding such Distribution Date, as a claim for the Date if it is able to do so) in an amount of equal to such Insured Deficiency Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawalClass A Certificates. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured CertificatesClass A Certificateholders, the Trustee shall deposit such Insured Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of CertificatesAccount. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account All amounts on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held deposit in the Insurance Account shall not be investedremain uninvested. Any funds remaining On each Distribution Date, the Trustee shall transfer any Insured Amount then on deposit in the Insurance Account to the Certificate Account. The Trustee shall distribute on each Distribution Date the first Business Day following Deficiency Amount for such Distribution Date from the later of Certificate Account, together with the distributions due to the Class A Certificateholders on such Distribution Date, as follows:
(i) the portion of any such Deficiency Amount related Distribution Date to clauses (i) and (ii) of the definition of Deficiency Amount shall be distributed among the related Class A Certificateholders on a pro rata basis in accordance with their respective shortfalls or allocations of Realized Losses; and (ii) the date received by portion of any such Deficiency Amount related to clause (iii) of the Trustee, definition of Deficiency Amount shall be returned distributed to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Dayrelated Class A Certificateholders in accordance with Section 9.01(c).
(c) The Trustee shall keep (i) receive as attorney-in-fact of each Class A Certificateholder any Insured Amount from the Insurer and (ii) distribute such Insured Amount to such Class A Certificateholders as set forth in subsection (b) above; provided, that if the Trustee receives the amount of such draw from the Limited Reimbursement Counterparty on the Limited Reimbursement Agreement, the Trustee shall not make a complete and accurate record draw on the Policy. Notwithstanding the foregoing, to the extent (i) a demand is made on the Trustee for reimbursement or other payment of such amounts paid in error or otherwise not in accordance with the terms of this Agreement, in each case with the consent of the Insurer, which consent shall not be unreasonably withheld, or (ii) a court of competent jurisdiction orders the repayment by the Trustee to the Limited Reimbursement Counterparty on the Limited Reimbursement Agreement of the amount of interest and principal paid in respect of any Insured Certificate from moneys received under the 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured Amount has been voided in whole or in part as a preference payment under applicable bankruptcy lawdraw, the Trustee shall so notify the Certificate Insurer, shall comply with the provisions of the Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, make a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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 or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the 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 Policy nor the amounts paid draw on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms hereof as if the Limited Reimbursement Counterparty on the Limited Reimbursement Agreement had not made any payment to the Trustee. Insured Amounts disbursed by the Trustee from proceeds of the Policy shall not be considered payment by the Trust Fund with respect to the Class A Certificates, nor shall such disbursement of such Insured Amounts discharge the obligations of the Trust Fund with respect to the amounts thereof, and the Insurer shall become owner of such amounts to the extent covered by such Insured Certificates from Amounts as the Trust Funddeemed assignee of such Class A Certificateholders. The Depositor, the Servicer and the Trustee acknowledge, hereby agrees on behalf of each Class A Certificateholder (and each holder Class A Certificateholder, by its acceptance of an Insured Certificate its Class A Certificates, hereby agrees, that without ) for the need for any further action on the part benefit of the Certificate Insurer, the Depositor, the Servicer or Insurer that the Trustee (a) shall recognize that to the extent the Certificate Insurer makes paymentspays Insured Amounts, either directly or indirectlyindirectly (as by paying through the Trustee), on account of principal of or interest on the Insured Certificates to the holders of such Insured CertificatesClass A Certificateholders, the Certificate Insurer will be fully entitled to be subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due Class A Certificateholders to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment extent of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereinpayments.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Bear Stearns Asset Backed Securities Inc)
The Policy. (a) If pursuant to Section 4.03(a), the Trustee Master Servicer determines that a Deficiency Amount to be covered by the Policy will exist exists for the related such Distribution Date, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “Notice”) Notice and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the Business Day immediately preceding each Distribution Date, as a claim for an Insured Amount (provided that the Trustee shall submit such Notice on the second Business Day immediately preceding such Distribution Date, as a claim for the Date if it is able to do so) in an amount of equal to such Insured Deficiency Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawalClass A Certificates. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured CertificatesClass A Certificateholders, the Trustee shall deposit such Insured Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of CertificatesAccount. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account All amounts on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held deposit in the Insurance Account shall not be investedremain uninvested. Any funds remaining On each Distribution Date, the Trustee shall transfer any Insured Amount then on deposit in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business DayAccount.
(c) The Trustee shall keep a complete and accurate record (i) receive as attorney-in-fact of the amount of interest and principal paid in respect of each Class A Certificateholder any Insured Certificate Amount from moneys received under the Policy. The Certificate Insurer shall have the right and (ii) distribute such Insured Amount to inspect such records at reasonable times during normal business hours upon one Business Day’s prior notice to the TrusteeClass A Certificateholders as set forth in subsection (b) above.
(d) In the event that the The Trustee has received a certified copy of an order of the appropriate court that any Insured Amount has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee promptly shall so notify the Certificate Insurer, shall comply with the provisions of the Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 Insured Class A Certificates. Each holder of an Insured CertificateHolder, by its purchase of such Insured CertificateClass A Certificates, the Servicer, the Depositor 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 surety, 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 holder of an Insured Certificate and the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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. Insured Amounts paid by the Insurer to the Trustee shall be received by the Trustee, as agent to the Certificateholders. The Trustee is not permitted to make a claim on the Trust or on any Certificateholder for payments made to Certificateholders under the Policy which are characterized as preference payments by any federal bankruptcy court having jurisdiction over any bankrupt Mortgagor unless ordered to do so by such bankruptcy court.
(fe) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the 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 Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created Amounts disbursed by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms from proceeds of the Policy shall not be considered payment by the Trust Fund with respect to the Class A Certificates, nor shall such disbursement of such Insured Amounts discharge the obligations of the Trust Fund with respect to the amounts thereof, and the Insurer shall become owner of such amounts to the extent covered by such Insured Certificates from Amounts as the Trust Funddeemed assignee of such Class A Certificateholders. The Depositor, the Servicer and the Trustee acknowledge, hereby agrees on behalf of each Class A Certificateholder (and each holder Class A Certificateholder, by its acceptance of an Insured Certificate its Class A Certificates, hereby agrees, that without ) for the need for any further action on the part benefit of the Certificate Insurer, the Depositor, the Servicer or Insurer that the Trustee (a) shall recognize that to the extent the Certificate Insurer makes paymentspays Insured Amounts, either directly or indirectlyindirectly (as by paying through the Trustee), on account of principal of or interest on the Insured Certificates to the holders of such Insured CertificatesClass A Certificateholders, the Certificate Insurer will be fully entitled to be subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due Class A Certificateholders to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment extent of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereinpayments.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Impac Secured Assets Corp)
The Policy. (a) If pursuant to Section 4.04(a)(iv), the Master Servicer determines and notifies the Trustee determines that a Deficiency Amount to be covered by the Policy will exist exists for the related such Distribution Date, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “Notice”) Notice and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the Business Day immediately preceding each Distribution Date, as a claim for an Insured Amount (provided that the Trustee shall submit such notice on the second Business Day immediately preceding such Distribution Date, as a claim for the Date if it is able to do so) in an amount of equal to such Insured Deficiency Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawalClass A Certificates. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured CertificatesClass A Certificateholders, the Trustee shall deposit such Insured Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of CertificatesAccount. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account All amounts on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held deposit in the Insurance Account shall not be investedremain uninvested. Any funds remaining On each Distribution Date, the Trustee shall transfer any Insured Amount then on deposit in the Insurance Account to the Certificate Account. The Trustee shall distribute on each Distribution Date the first Business Day following Deficiency Amount for such Distribution Date from the later of Certificate Account, together with the 116
(i) the portion of any such Deficiency Amount related Distribution Date to clauses (i) and (ii) of the definition of Deficiency Amount shall be distributed among the related Class A Certificateholders on a pro rata basis in accordance with their respective shortfalls or allocations of Realized Losses; and (ii) the date received by portion of any such Deficiency Amount related to clause (iii) of the Trustee, definition of Deficiency Amount shall be returned distributed to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Dayrelated Class A Certificateholders in accordance with Section 9.01(c).
(c) The Trustee shall keep a complete and accurate record (i) receive as attorney-in-fact of the amount of interest and principal paid in respect of any Insured Certificate from moneys received under the 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that each Class A Certificateholder any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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 or performance bond pending any distribute such appealInsured Amount to such Class A Certificateholders as set forth in subsection (b) above. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and Amounts disbursed by the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders of the Insured Certificates for the purpose of making claims thereon and distributing the from proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment by the Trust Fund with respect to the Class A Certificates, nor shall such disbursement of such Insured Amounts discharge the obligations of the Trust Fund with respect to the amounts thereof, and the Insurer shall become owner of such amounts to the extent covered by such Insured Certificates from Amounts as the Trust Funddeemed assignee of such Class A Certificateholders. The Depositor, the Servicer and the Trustee acknowledge, hereby agrees on behalf of each Class A Certificateholder (and each holder Class A Certificateholder, by its acceptance of an Insured Certificate its Class A Certificates, hereby agrees, that without ) for the need for any further action on the part benefit of the Certificate Insurer, the Depositor, the Servicer or Insurer that the Trustee (a) shall recognize that to the extent the Certificate Insurer makes paymentspays Insured Amounts, either directly or indirectlyindirectly (as by paying through the Trustee), on account of principal of or interest on the Insured Certificates to the holders of such Insured CertificatesClass A Certificateholders, the Certificate Insurer will be fully entitled to be subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due Class A Certificateholders to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment extent of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereinpayments.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc)
The Policy. (a) If If, based on the information provided by the Master Servicer pursuant to Section 4.03, the Trustee determines that a Deficiency an Insured Amount to be covered by the Policy will exist for the related Distribution Date, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “"Notice”") and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the second Business Day immediately preceding such Distribution Date, as a claim for the amount of such Insured Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawal. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured Certificates, the Trustee shall deposit such Insured Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of Certificates. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held in the Insurance Account shall not be invested. Any funds remaining in the Insurance Account on the first Business Day following the later of (i) the related a Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(c) 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 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.
(d) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s 's Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate InsurerInsurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 Insured Certificates. Each holder of an Insured Certificate, by its purchase of such Insured Certificate, the Master Servicer, the Depositor 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 surety, 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 holder of an Insured Certificate and the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the 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 Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment of the Insured Certificates from the Trust Fund. The Depositor, the Master Servicer and the Trustee acknowledge, and each holder by its acceptance of an Insured Certificate agrees, that without the need for any further action on the part of the Certificate Insurer, the Depositor, the Master Servicer or the Trustee (a) to the extent the Certificate Insurer makes payments, directly or indirectly, on account of principal of or interest on the Insured Certificates to the holders of such Insured Certificates, the Certificate Insurer will be fully subrogated to, and each holder of an Insured Certificate, the Master Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment of such amounts and as provided in this Agreement. The Trustee and the Master Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s 's rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth herein.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.. ..
Appears in 1 contract
Sources: Pooling and Servicing Agreement (New Century Home Equity Loan Trust Series 2003-5)
The Policy. (a) If the Trustee Trust Administrator determines that a Deficiency an Insured Amount to be covered by the Policy will exist for the related Distribution Date, the Trustee Trust Administrator shall complete the notice in the form of Exhibit A to the Policy (the “Notice”) and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the second Business Day immediately preceding such Distribution Date, as a claim for the amount of such Insured Amount.
(b) The Trust Administrator on behalf of the Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Class AF-6B Certificates over which the Trust Administrator on behalf of the Trustee shall have the exclusive control and sole right of withdrawal. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured Class AF-6B Certificates, the Trustee Trust Administrator shall deposit such Insured Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Class AF-6B Certificates of the Insured 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 Seller, the Depositor, the Trust Administrator, the Trustee or the Trust Fund or to pay any other Class of Certificates. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account on the related Distribution Date and disbursed by the Trustee Paying Agent to the holders of the Insured Class AF-6B Certificates in accordance with Section 4.014.01(g). 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 holders of the Insured Class AF-6B Certificates with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Insured Class AF-6B Certificates to be paid from funds transferred from the Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders Holders of the Insured Class AF-6B Certificates pursuant to Section 4.02. Funds held in the Insurance Account shall not be invested. Any funds remaining in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or (ii) the date received by the TrusteeTrust Administrator, shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(c) The Trustee Trust Administrator shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Insured Class AF-6B Certificate from moneys received under the 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 TrusteeTrust Administrator.
(d) In the event that the Trustee or the Trust Administrator has received a certified copy of an order of the appropriate court that any Insured Amount has been voided in whole or in part as a preference payment under applicable bankruptcy law, the Trustee or the Trust Administrator shall so notify each other and the Certificate Insurer, and the Trust Administrator on behalf of the Trustee shall comply with the provisions of the Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders Holders of the affected Insured Class AF-6B Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Class AF-6B Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee Trust Administrator or the Certificate Insurer, and the Trustee Trust Administrator shall furnish to the Certificate InsurerInsurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee or the Trust Administrator on behalf of the Trustee and subsequently recovered from the holders Holders of the Insured Class AF-6B Certificates, and dates on which such payments were made.
(e) The Trustee or the 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 or the Trust Administrator, as applicable, 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 Class AF-6B Certificates. Each holder of an Insured a Class AF-6B Certificate, by its purchase of such Insured Class AF-6B Certificate, the Master Servicer, the Depositor Depositor, 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 surety, 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 holder of an Insured Class AF-6B Certificate and each of the Trustee and the Trust Administrator hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee Trustee, the Trust Administrator and each holder of an Insured a Class AF-6B Certificate 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.
(f) The Trustee Trust Administrator shall, upon retirement of the Insured Class AF-6B Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Class AF-6B Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders of the Insured Class AF-6B Certificates for the purpose of the Trust Administrator on its behalf making claims thereon and distributing the proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Class AF-6B Certificates, by accepting its Insured Class AF-6B Certificates, appoints the Trust Administrator on behalf of the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Class AF-6B Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment of the Insured Class AF-6B Certificates from the Trust Fund. The Depositor, the Servicer Master Servicer, the Trust Administrator and the Trustee acknowledge, and each holder Holder by its acceptance of an Insured Class AF-6B Certificate agrees, that without the need for any further action on the part of the Certificate Insurer, the Depositor, the Servicer Master Servicer, the Trust Administrator or the Trustee (a) to the extent the Certificate Insurer makes payments, directly or indirectly, on account of principal of or interest on the Insured Class AF-6B Certificates to the holders of such Insured Class AF-6B Certificates, the Certificate Insurer will be fully subrogated to, and each holder of an Insured Class AF-6B Certificate, 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 such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment of such amounts and as provided in this Agreement. The Trustee Trustee, the Trust Fund and the Master Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth herein.
(i) By accepting its Insured Class AF-6B Certificate, each holder of an Insured Class AF-6B Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Class AF-6B Certificate for all purposes (other than with respect to the receipt of payment on the Insured Class AF-6B Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders Holders of the Insured Class AF-6B Certificates under this Agreement and under the Insured Class AF-6B Certificates without any further consent of the holders of the Insured Class AF-6B Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders Holders of Insured Class AF-6B Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
The Policy. On each Determination Date the Indenture Trustee shall determine with respect to the immediately following Payment Date, the amount (the "Available Funds") to be on deposit in the Note Account on such Payment Date, as described in Section 8.6(a) hereof (excluding the amounts of any payments made pursuant to the Policy, the Indenture Trustee's Fee, the Owner Trustee's Fee, the Servicing Fee and the Premium Amount, but including amounts transferred from the Capitalized Interest Account and the Pre-Funding Account).
(a) If (i) the Trustee determines that a Deficiency Available Funds for such Payment Date are not sufficient to pay the Class A Interest Distribution Amount to be covered by and/or (ii) following the Policy will application of all Available Funds, an Overcollateralization Deficit would exist for the related Distribution Date(either such event being an "Available Funds Shortfall"), the Indenture Trustee shall complete the notice a Notice in the form of Exhibit A to the Policy (the “Notice”) and submit such Notice in accordance with the Policy notice to the Certificate Insurer no later than 12:00 P.M., noon New York City time, time on the second Business Day immediately preceding such Distribution Date, Payment Date as a claim for a payment in an amount equal to the amount of such Insured Amountaggregate Available Funds Shortfall.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawal. Upon receipt of an Insured Amount payments made pursuant to the Policy from the Certificate Insurer on behalf of the Holders of the Insured CertificatesClass A Noteholders, the Indenture Trustee shall deposit such Insured Amount payments in the Insurance Note Account and shall distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of Certificates. Amounts paid under the Policyproceeds thereof, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 8.6 hereof to the holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held in the Insurance Account shall not be invested. Any funds remaining in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business DayClass A Noteholders.
(c) The Indenture 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 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.
(di) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment receive payments made pursuant to the Policy, a copy Policy as attorney-in-fact of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered each Class A Noteholder receiving any Insured Payment from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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) disburse such Insured Payment to the posting of any surety or performance bond pending any such appealClass A Noteholders as set forth in Section 8.6 hereof. In addition and without limitation of the foregoing, the Certificate The Insurer shall be subrogated to, and each holder of an Insured Certificate and entitled to receive the Trustee hereby delegates and assigns related Reimbursement Amount pursuant to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate in the conduct of any such Preference Claim, including, without limitation, all rights of any party to any adversary proceeding or action Section 8.6(b)(vii) hereof with respect to any court order issued in connection with any such Preference Claim.
(f) The Trustee shall, upon retirement of the each Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the 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 Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is Payment made with moneys received pursuant to the terms of the Policy shall not be considered payment of the Insured Certificates from the Trust Fund. The Depositor, the Servicer and the Trustee acknowledge, and each holder by its acceptance of an Insured Certificate agrees, that without the need for any further action on the part of the Certificate Insurer, the Depositor, the Servicer or the Trustee (a) to the extent the Certificate Insurer makes payments, directly or indirectly, on account of principal of or interest on the Insured Certificates to the holders of such Insured Certificates, the Certificate Insurer will be fully subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth herein.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.The
Appears in 1 contract
Sources: Indenture (Advanta Revolving Home Equity Loan Trust 1998-A)
The Policy. (a) If pursuant to Section 4.04(a)(iv), the Master Servicer determines and notifies the Trustee determines that a Deficiency Amount to be covered by the Policy will exist exists for the related such Distribution Date, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “Notice”) Notice and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the Business Day immediately preceding each Distribution Date, as a claim for an Insured Amount (provided that the Trustee shall submit such notice on the second Business Day immediately preceding such Distribution Date, as a claim for the Date if it is able to do so) in an amount of equal to such Insured Deficiency Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawalClass A Certificates. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured CertificatesClass A Certificateholders, the Trustee shall deposit such Insured Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of CertificatesAccount. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account All amounts on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held deposit in the Insurance Account shall not be investedremain uninvested. Any funds remaining On each Distribution Date, the Trustee shall transfer any Insured Amount then on deposit in the Insurance Account to the Certificate Account. The Trustee shall distribute on each Distribution Date the first Business Day following Deficiency Amount for such Distribution Date from the later of Certificate Account, together with the distributions due to the Class A Certificateholders on such Distribution Date, as follows:
(i) the portion of any such Deficiency Amount related Distribution Date to clauses (i) and (ii) of the definition of Deficiency Amount shall be distributed among the related Class A Certificateholders on a pro rata basis in accordance with their respective shortfalls or allocations of Realized Losses; and (ii) the date received by portion of any such Deficiency Amount related to clause (iii) of the Trustee, definition of Deficiency Amount shall be returned distributed to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.related Class A Certificateholders in accordance with Section 9.01(c). 103
(c) The Trustee shall keep a complete and accurate record (i) receive as attorney-in-fact of the amount of interest and principal paid in respect of any Insured Certificate from moneys received under the 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that each Class A Certificateholder any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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 or performance bond pending any distribute such appealInsured Amount to such Class A Certificateholders as set forth in subsection (b) above. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and Amounts disbursed by the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders of the Insured Certificates for the purpose of making claims thereon and distributing the from proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment by the Trust Fund with respect to the Class A Certificates, nor shall such disbursement of such Insured Amounts discharge the obligations of the Trust Fund with respect to the amounts thereof, and the Insurer shall become owner of such amounts to the extent covered by such Insured Certificates from Amounts as the Trust Funddeemed assignee of such Class A Certificateholders. The Depositor, the Servicer and the Trustee acknowledge, hereby agrees on behalf of each Class A Certificateholder (and each holder Class A Certificateholder, by its acceptance of an Insured Certificate its Class A Certificates, hereby agrees, that without ) for the need for any further action on the part benefit of the Certificate Insurer, the Depositor, the Servicer or Insurer that the Trustee (a) shall recognize that to the extent the Certificate Insurer makes paymentspays Insured Amounts, either directly or indirectlyindirectly (as by paying through the Trustee), on account of principal of or interest on the Insured Certificates to the holders of such Insured CertificatesClass A Certificateholders, the Certificate Insurer will be fully entitled to be subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due Class A Certificateholders to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment extent of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereinpayments.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc)
The Policy. (a) If the Trustee determines that a Deficiency an Insured Amount to be covered by the Policy will exist for the related Distribution Date, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “Notice”) and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the second Business Day immediately preceding such Distribution Date, as a claim for the amount of such Insured Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawal. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured Certificates, the Trustee shall deposit such Insured Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of Certificates. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held in the Insurance Account shall not be invested. Any funds remaining in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(c) 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 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Master Servicer, the Depositor 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 surety, 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 holder of an Insured Certificate and the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the 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 Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment of the Insured Certificates from the Trust Fund. The Depositor, the Master Servicer and the Trustee acknowledge, and each holder by its acceptance of an Insured Certificate agrees, that without the need for any further action on the part of the Certificate Insurer, the Depositor, the Master Servicer or the Trustee (a) to the extent the Certificate Insurer makes payments, directly or indirectly, on account of principal of or interest on the Insured Certificates to the holders of such Insured Certificates, the Certificate Insurer will be fully subrogated to, and each holder of an Insured Certificate, the Master Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment of such amounts and as provided in this Agreement. The Trustee and the Master Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth herein.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Indymac Residential Mortgage-Backed Trust, Series 2005-L1)
The Policy. (a) If the Trustee determines that a Deficiency an Insured Amount to be covered by the Policy will exist for the related Distribution Date, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “Notice”) and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the second Business Day immediately preceding such Distribution Date, as a claim for the amount of such Insured Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Class A Certificates over which the Trustee shall have the exclusive control and sole right of withdrawal. Upon receipt of an a Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured Class A Certificates, the Trustee shall deposit such Insured Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Class A Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of Certificates. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account on the related Distribution Date and disbursed by the Trustee to the holders Holders of the Insured Class A Certificates in accordance with Section 4.014.02. 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 holders Holders of the Insured Class A Certificates with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Insured Class A Certificates to be paid from funds transferred from the Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders Holders of the Insured Class A Certificates pursuant to Section 4.024.03. Funds held in the Insurance Account shall not be invested. Any funds remaining in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(c) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Insured Certificate the Class A Certificates from moneys received under the 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders Holders of the affected Insured Class A Certificates that, in the event any holderHolder’s Insured Amount is so recovered, such holder Holder of an Insured a Class A Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders Holders of the Insured Class A Certificates, and dates on which such payments were made.
(e) 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 Class A Certificates. Each holder Holder of an Insured a Class A Certificate, by its purchase of such Insured Class A Certificate, the Servicer, the Depositor 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 or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder Holder of an Insured Class A Certificate and the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder Holder of an Insured Class A Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Class A Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Class A Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders Holders of the Insured Class A Certificates for the purpose of making claims thereon and distributing the proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Class A Certificates, by accepting its Insured Class A Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Class A Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment of the Insured Class A Certificates from the Trust Fund. The Depositor, the Servicer Depositor and the Trustee acknowledge, and each holder Holder by its acceptance of an Insured Class A Certificate agrees, that without the need for any further action on the part of the Certificate Insurer, the Depositor, the Servicer Depositor or the Trustee (a) to the extent the Certificate Insurer makes payments, directly or indirectly, on account of principal of or interest on the Insured Class A Certificates to the holders Holders of such Insured Class A Certificates, the Certificate Insurer will be fully subrogated to, and each holder Holder of an Insured Certificate, the Servicer a Class A Certificate and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders Holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due to the holders Holders of the Insured Class A Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, Class A Certificates and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders Holders as otherwise set forth herein.
(i) By accepting its Insured Class A Certificate, each holder Holder of an Insured a Class A Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder Holder of the Insured Class A Certificate for all purposes (other than with respect to the receipt of payment on the Insured Class A Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders Holders of the Insured Class A Certificates under this Agreement and under the Insured Class A Certificates without any further consent of the holders Holders of the Insured Class A Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders Holders of Insured Class A Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (IndyMac Home Equity Loan Asset-Backed Trust, Series INDS 2006-2b)
The Policy. (a) If The Issuer hereby represents that (i) it has obtained the Insurance Policy in the name, and for the benefit and security, of the Trustee, acting on behalf of the Noteholders, (ii) it has entered into the Insurance Agreement which provides for the issuance of the Insurance Policy by the Insurer and (iii) the Insurance Policy permits the Trustee determines that a Deficiency Amount to be covered by draw on the Insurance Policy will exist from time to time for the related Distribution Datepurposes set forth in this Agreement. The Insurer shall not be entitled to reimbursement for any draws, interest or fees with respect to the Trustee shall complete Insurance Policy, except as specifically provided herein.
(b) Pursuant to the notice Insurance Policy, (i) if on any Determination Date Available Funds and amounts on deposit in the form Reserve Account are insufficient to pay the interest set forth in clause (i) of Exhibit A to the Policy definition of Accrued Interest (excluding interest on past due Accrued Interest) on the “Notice”) and submit such Notice Notes in accordance with the Policy to Priority of Payments or Section 11.7, as applicable, on the Certificate Insurer immediately following Payment Date, then the Trustee will no later than 12:00 P.M.noon New York City time on the third Business Day prior to the Payment Date make a claim under the Insurance Policy in accordance with the procedures set forth in the Insurance Policy in an amount equal to such insufficiency and (ii) if on the Determination Date immediately preceding the Rated Final Maturity Date Available Funds and amounts on deposit in the Reserve Account are insufficient to reduce the Aggregate Principal Amount of the Notes to zero on the Rated Final Maturity Date, then the Trustee will no later than 12:00 noon New York City time on the second Business Day prior to the Payment Date make a claim under the Insurance Policy in an amount necessary to reduce the Aggregate Principal Amount of the Notes to zero on such Payment Date (the aggregate amounts demanded in (i) and (ii) pursuant to this sentence on any Payment Date, the “Deficiency Amount.”) Following receipt by the Insurer of such demand, the Insurer will pay the Deficiency Amount by the later of (i) 12:00 noon, New York City time, on the applicable Payment Date and (ii) 12:00 noon, New York City time, on the second Business Day immediately preceding following receipt by the Insurer of the appropriate demand for payment. If any portion or all of any amount insured under the Insurance Policy which was previously distributed to a holder of Notes (other than any distribution comprised of amounts paid by the Insurer) is recoverable and recovered from such Distribution Date, Holder as a claim for voidable preference by a trustee in bankruptcy pursuant to the amount Bankruptcy Code pursuant to a final non-appealable order of a court exercising proper jurisdiction in an insolvency proceeding (a “Final Order”) (such Insured recovered amount, a “Preference Amount.
(b) The Trustee shall establish and maintain ”), pursuant to the Insurance Account on behalf of Policy, the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawal. Upon receipt of Insurer will pay as an Insured Amount from an amount equal to each such Preference Amount by 12:00 noon on the Certificate second Business Day following receipt by the Insurer on behalf a Business Day of (x) a certified copy of the Holders Final Order, together with an opinion of counsel satisfactory to the Insurer, irrevocably assigning to the Insurer all rights and claims of the Insured CertificatesTrustee and/or such Holder of the Notes relating to or arising under any Note against the debtor who paid such Preference Amount and constituting an appropriate instrument, in form satisfactory to the Insurer, appointing the Insurer as the agent of the Trustee shall deposit and/or such Insured Holder in respect of such Preference Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured Amount for which (y) a claim was made Notice appropriately completed and such amount may not be applied to satisfy any costs, expenses or liabilities of the Servicer, the Seller, the Depositor, executed by the Trustee or such Holder, as the Trust Fund case may be. Such payment shall be made to the receiver, conservator, debtor-in-possession or trustee in bankruptcy named in the Final Order and not to pay the Trustee or Holder of the Notes directly (unless the Holder has previously paid such amount to such receiver, conservator, debtor-in-possession or trustee named in such Final Order in which case payment shall be made to the Trustee for distribution to the Holder upon delivery of proof of such payment reasonably satisfactory to Insurer). The Insurer shall not be (i) required to make any other Class payment in respect of Certificates. Amounts paid under the Policy, any Preference Amount to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account on the related Distribution Date and disbursed such Preference Amount is comprised of amounts previously paid by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurer under the Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held in the Insurance Account shall not be invested. Any funds remaining in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date Policy, or (ii) the date received by the Trustee, shall be returned obligated to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(c) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid make any payment in respect of any Insured Certificate from moneys received under the 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to which payment pursuant to the Policy, represents a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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 or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the 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 Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment of the Insured Certificates from the Trust Fund. The Depositorprincipal amount of any Notes, the Servicer and the Trustee acknowledge, and each holder by its acceptance of an Insured Certificate agrees, that without the need for any further action on the part of the Certificate Insurer, the Depositor, the Servicer or the Trustee (a) prior to the extent time the Certificate Insurer makes payments, directly or indirectly, on account of principal of or interest on the Insured Certificates otherwise would have been required to the holders of such Insured Certificates, the Certificate Insurer will be fully subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due to the holders of the Insured Certificates make a payment in respect of securities law violations arising from such principal, in which case the offer and sale Insurer shall pay the balance of the Insured Certificates, and (b) the Certificate Insurer shall be paid Preference Amount when such amounts from the sources and in the manner provided herein for the payment of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as amount otherwise set forth hereinwould have been required.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
The Policy. (a) If If, based on the information provided by the Master Servicer pursuant to Section 4.04, the Trustee determines that a Deficiency an Insured Amount to be covered by the Policy will exist for the related Distribution DateDate or that a Preference Amount to be covered by the Policy exists, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “"Notice”") and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the second Business Day immediately preceding such Distribution Date, as a claim for the amount of such Insured AmountAmount or Preference Amount (provided that the Trustee shall submit such Notice on the second Business Day immediately preceding such Distribution Date if it is able to do so).
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Class A Certificates over which and the Trustee shall have the exclusive control and sole right of withdrawalClass S-1 Certificates. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of either Class of the Insured Class A Certificates or the Class S-1 Certificates, the Trustee shall deposit such Insured Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of CertificatesAccount. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account All amounts on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held deposit in the Insurance Account shall not be investedremain uninvested. Any funds remaining On each Distribution Date, the Trustee shall transfer any Insured Amount then on deposit in the Insurance Account to the Distribution Account. The Trustee shall distribute on each Distribution Date any Insured Interest Payment and any Insured Principal Payment for such Distribution Date from the Distribution Account, in each case on a pro rata basis, as provided in Section 4.01(b), subject to Section 4.01(e) in the case of any Insured Principal Payment payable to the Holders of the either Class of Class A Certificates or the Class S-1 Certificates on the first Business Day following the later of (i) the related final Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of for such Business DayClass.
(c) The Trustee shall keep (i) receive as attorney-in-fact of each Holder of a complete and accurate record of the amount of interest and principal paid in respect of Class A Certificate and/or Class S-1 Certificate, as applicable, any Insured Certificate from moneys received under the 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that any related Insured 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 Policy to obtain payment by from the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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 or performance bond pending any distribute such appealInsured Amount to such Certificateholders as set forth in subsection (b) above. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and Amounts disbursed by the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders of the Insured Certificates for the purpose of making claims thereon and distributing the from proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment by the Trust Fund with respect to the Class A Certificates or Class S Certificates, nor shall such disbursement of such Insured Amounts discharge the obligations of the Trust Fund with respect to the amounts thereof, and the Certificate Insurer shall become owner of such amounts to the extent covered by such Insured Amounts as the deemed assignee of such Holders of Class A Certificates from the Trust Fundand/or Class S-1 Certificates, as applicable. The Depositor, the Servicer and the Trustee acknowledge, hereby agrees (and each holder Holder of a Class A Certificate and Class S-1 Certificate, by its acceptance of an Insured Certificate its Class A Certificates or Class S-1 Certificates, hereby agrees, that without ) for the need for any further action on the part benefit of the Certificate Insurer, the Depositor, the Servicer or Insurer that the Trustee (a) shall recognize that to the extent the Certificate Insurer makes paymentspays Insured Amounts, either directly or indirectlyindirectly (as by paying amounts to Trustee for distribution to such Holders), on account of principal of or interest on the Insured Certificates to the holders of such Insured CertificatesHolders, the Certificate Insurer will be fully entitled to be subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of the such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due Holders to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment extent of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereinInsured Amounts.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Financial Asset Sec Corp New South Home Equity Trust 2001-1)
The Policy. (a) If As soon as possible, and in no event later than 12:00 noon New York City time on the Trustee determines that a Deficiency Amount to be covered by the Policy will exist for the related second Business Day immediately preceding each Distribution Date, the Trustee shall complete furnish the Certificate Insurer, the Certificate Insurer's fiscal agent, if any, and the Servicer with a completed notice in the form of set forth as Exhibit A to the Policy (the “Notice”"Notice for Payment") and submit such Notice in accordance with the event that the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the second Business Day immediately preceding Draw Amount for such Distribution Date, as Date is an amount greater than zero. The Notice for Payment shall specify the amount of the Policy Draw Amount and shall constitute a claim for a Policy Draw Amount pursuant to the amount Policy. Upon receipt of such Insured Amount.
(b) The Trustee shall establish and maintain the Insurance Account a Policy Draw Amount on behalf of the Holders of Class A Certificateholders under the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawal. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured CertificatesPolicy, the Trustee shall deposit such Insured Policy Draw Amount in the Insurance Distribution Account for the benefit of the Holders of the Class A Certificates and shall distribute such amount only for purposes of payment to the Insured Certificates of the Insured Policy Draw 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of Certificates. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held in the Insurance Account shall not be invested. Any funds remaining in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day4.01.
(cb) The Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Insured Certificate the Class A Certificates from moneys received under the Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one four (4) Business Day’s 's prior written notice to the Trustee.
(dc) In If a payment to the event that the Trustee has received a certified copy of an order Holders of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Class A Certificates that, in the event any holder’s Insured Amount which is so recovered, such holder of an Insured Certificate will be entitled to payment guaranteed pursuant to the Policy, Policy is voided (a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e"Preference Event") The Trustee shall promptly notify the Certificate Insurer of under 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 in an Insolvency Proceeding (as such term is used in the Policy), and, as a “Preference Claim”) of any distribution made with respect to the Insured Certificates. Each holder of an Insured Certificate, by its purchase result of such Insured Certificatea Preference Event, the ServicerTrustee is required to return such voided payment, or any portion of such voided payment, made in respect of the Class A Certificates (an "Avoided Payment"), the Depositor and the Trustee agree that shall furnish to the Certificate Insurer (so long as no Certificate Insurer Default existsx) may at a certified copy of an order of a court exercising jurisdiction in such Insolvency Proceeding to the effect that the Trustee is required to return any time such payment or portion thereof during the continuation term of any proceeding relating to a Preference Claim direct all matters relating to the Policy because such Preference Claim, including, without limitationpayment was voided under applicable law (the "Order"), (iy) the direction of any appeal of any order relating to such Preference Claim and (ii) the posting of any surety or performance bond pending any such appeal. In addition and without limitation of the foregoingan assignment, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and the Trustee hereby delegates and assigns in form reasonably satisfactory to the Certificate Insurer, irrevocably assigning to the fullest extent Certificate Insurer all rights and claims of the Holders of the Class A Certificates relating to or arising under the Class A Certificates against the Trust or otherwise, with respect to such Avoided Payment, and (z) a certificate from the related Certificateholders that the Order has been entered and is not subject to any stay. Such payment shall be disbursed to the receiver, conservator, debtor-in-possession or trustee in bankruptcy named in the Order and not to the Trustee or a Certificateholder directly (unless a Certificateholder has previously paid such amount to the receiver, conservator, debtor-in-possession or trustee in bankruptcy named in the Order in which case such payment shall be disbursed to the Trustee for distribution to such Certificateholder upon proof of such payment reasonably satisfactory to the Certificate Insurer). The Trustee is not permitted to make a claim on the Trust or on any Holder of Class A Certificates for payments made to any Holder of Class A Certificates which are characterized as preference payments by lawany bankruptcy court having jurisdiction over any bankrupt Mortgagor unless ordered to do so by such bankruptcy court.
(d) Any amounts received by the Trustee pursuant to the Policy in respect of the Class A Certificates shall be deposited in the Distribution Account for the benefit of the Holders of the Class A Certificates and shall be distributed in accordance with the priorities set forth in Section 4.01. By acceptance of the related Certificate, the rights holders of the Trustee Mezzanine, Class C, Class P, Class R and each holder of an Insured Certificate in the conduct of any such Preference Claim, including, without limitation, Class R-X Certificates waive 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the 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 Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on received under the Policy.
(he) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on any of the Insured Class A Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment of the Insured such Certificates from the Trust Fundand shall not result in the payment of or the provision for the payment of the principal of or interest on such Certificates, as applicable. The Depositor, the Servicer and the Trustee acknowledge, and each holder Holder by its acceptance of an Insured Class A Certificate agrees, that without the need for any further action on the part of the Certificate Insurer, the Depositor, the Servicer Servicer, the Trustee or the Trustee Certificate Registrar (a) to the extent the Certificate Insurer makes payments, directly or indirectly, on account of principal of or interest on the Insured any Class A Certificates to the holders Holders of such Insured Certificates, the Certificate Insurer will be fully subrogated to, and each holder of an Insured Class A Certificate, the Depositor, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, Insurer to the fullest extent permitted by law, the rights of such holders to receive such principal and interest interest, as applicable, from the Trust Fund, including, without limitation, any amounts due to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts principal and interest from the sources and in the manner provided herein and in the Insurance Agreement for the payment of such amounts principal and as provided in this Agreement. interest.
(f) The Trustee Trustee, the Depositor and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s 's rights or interests under this Agreement without limiting the rights or affecting the interests of the holders Holders of the Class A Certificates as otherwise set forth herein.
(ig) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless Unless a Certificate Insurer Default exists, the Trustee shall not, without the Certificate Insurer's consent or unless directed by the Certificate Insurer shall be deemed to be (a) terminate the holder rights and obligations of the Insured Servicer pursuant to Section 3.01, (b) agree to any amendment pursuant to Section 11.01 or (c) undertake any litigation relating to matters arising pursuant to this Agreement.
(h) The Certificate for Insurer may, in writing and in its sole discretion, renounce all purposes (other than with respect to the receipt or any of payment on the Insured Certificates) and shall have the right to exercise all its rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without or any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to requirement for the Certificate Insurer's consent for any period of time.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Option One Mortgage Loan Trust 2007-Fxd2)
The Policy. (a) If pursuant to Section 4.04(a)(iv), the Master Servicer determines and notifies a Responsible Officer of the Trustee determines in writing that a Deficiency Amount to be covered by exists and the Policy will exist amount of the Required Insured Payment for the related such Distribution Date, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “Notice”) Notice and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the second Business Day immediately preceding such each Distribution Date, as a claim for the an Insured Payment in an amount of equal to such Insured Deficiency Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawalClass A Certificates. Upon receipt of an Insured Amount Payment from the Certificate Insurer on behalf of the Holders of the Insured CertificatesClass A Certificateholders, the Trustee shall deposit such Insured Amount Payment in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of CertificatesAccount. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account All amounts on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held deposit in the Insurance Account shall not be investedremain uninvested. Any funds remaining On each Distribution Date, the Trustee shall transfer any Insured Payment then on deposit in the Insurance Account to the Certificate Account. The Trustee shall distribute on each Distribution Date, in accordance with the first Business Day following written statement delivered by the later of Master Servicer pursuant to Section 4.04(a), the Deficiency Amount for such Distribution Date from the Certificate Account, together with the distributions due to the Class A-I Certificateholders on such Distribution Date, as follows: (i) with respect to the Class A-I Certificates, the portion of any such Deficiency Amount related to clauses (1) and (2)(i) of the definition of Deficiency Amount shall be distributed among the related Distribution Date Class A-I Certificateholders on a pro rata basis in accordance with their respective shortfalls or allocations of Realized Losses; and (ii) the date received by portion of any such Deficiency Amount related to clause (2)(ii) of the Trustee, definition of Deficiency Amount shall be returned distributed to the related Class A-I Certificateholders in accordance with Section 9.01(c). The Trustee shall distribute on each Distribution Date the Deficiency Amount for such Distribution Date from the Certificate Insurer pursuant Account, together with the distributions due to the written instructions Class A-II Certificateholders on such Distribution Date, as follows: (i) with respect to the Class A-II Certificates, the portion of any such Deficiency Amount related to clauses (1) and (2)(i) of the Certificate Insurer by definition of Deficiency Amount shall be distributed among the end related Class A-II Certificateholders on a pro rata basis in accordance with their respective shortfalls or allocations of Realized Losses; and (ii) the portion of any such Business DayDeficiency Amount related to clause (2)(ii) of the definition of Deficiency Amount shall be distributed to the related Class A-II Certificateholders in accordance with Section 9.01(c).
(c) 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 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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) receive as attorney-in-fact of each Class A Certificateholder any Insured Payment from the direction of any appeal of any order relating to such Preference Claim Insurer and (ii) the posting of any surety or performance bond pending any distribute such appealInsured Payment to such Class A Certificateholders as set forth in subsection (b) above. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and Payments disbursed by the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders of the Insured Certificates for the purpose of making claims thereon and distributing the from proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment by the Trust Fund with respect to the Class A Certificates, nor shall such disbursement of such Insured Payments discharge the obligations of the Trust Fund with respect to the amounts thereof, and the Insurer shall become owner of such amounts to the extent covered by such Insured Certificates from Payments as the Trust Funddeemed assignee of such Class A Certificateholders. The Depositor, the Servicer and the Trustee acknowledge, hereby agrees on behalf of each Class A Certificateholder (and each holder Class A Certificateholder, by its acceptance of an Insured Certificate its Class A Certificates, hereby agrees, that without ) for the need for any further action on the part benefit of the Certificate Insurer, the Depositor, the Servicer or Insurer that the Trustee (a) shall recognize that to the extent the Certificate Insurer makes paymentspays Insured Payments, either directly or indirectlyindirectly (as by paying through the Trustee), on account of principal of or interest on the Insured Certificates to the holders of such Insured CertificatesClass A Certificateholders, the Certificate Insurer will be fully entitled to be subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due Class A Certificateholders to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment extent of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereinpayments.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (RAMP Series 2005-Nc1 Trust)
The Policy. (a) If pursuant to Section 4.04(a)(iv), the Master Servicer determines and notifies the Trustee determines that a Deficiency Amount to be covered by the Policy will exist exists for the related such Distribution Date, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “Notice”) Notice and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the Business Day immediately preceding each Distribution Date, as a claim for an Insured Amount (provided that the Trustee shall submit such notice on the second Business Day immediately preceding such Distribution Date, as a claim for the Date if it is able to do so) in an amount of equal to such Insured Deficiency Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawalClass A Certificates. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured CertificatesClass A Certificateholders, the Trustee shall deposit such Insured Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of CertificatesAccount. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account All amounts on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held deposit in the Insurance Account shall not be investedremain uninvested. Any funds remaining On each Distribution Date, the Trustee shall transfer any Insured Amount then on deposit in the Insurance Account to the Certificate Account. The Trustee shall distribute on each Distribution Date the first Business Day following Deficiency Amount for such Distribution Date from the later of Certificate Account, together with the distributions due to the Class A Certificateholders on such Distribution Date, as follows:
(i) the portion of any such Deficiency Amount related Distribution Date to clauses (i) and (ii) of the definition of Deficiency Amount shall be distributed among the Class A Certificateholders on a pro rata basis in accordance with their respective shortfalls or allocations of Realized Losses; and (ii) the date received by portion of any such Deficiency Amount related to clause (iii) of the Trustee, definition of Deficiency Amount shall be returned distributed to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business DayClass A Certificateholders in accordance with Section 9.01(c).
(c) The Trustee shall keep a complete and accurate record (i) receive as attorney-in-fact of the amount of interest and principal paid in respect of any Insured Certificate from moneys received under the 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that each Class A Certificateholder any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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 or performance bond pending any distribute such appealInsured Amount to such Class A Certificateholders as set forth in subsection (b) above. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and Amounts disbursed by the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders of the Insured Certificates for the purpose of making claims thereon and distributing the from proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment by the Trust Fund with respect to the Class A Certificates, nor shall such disbursement of such Insured Amounts discharge the obligations of the Trust Fund with respect to the amounts thereof, and the Insurer shall become owner of such amounts to the extent covered by such Insured Certificates from Amounts as the Trust Funddeemed assignee of such Class A Certificateholders. The Depositor, the Servicer and the Trustee acknowledge, hereby agrees on behalf of each Class A Certificateholder (and each holder Class A Certificateholder, by its acceptance of an Insured Certificate its Class A Certificates, hereby agrees, that without ) for the need for any further action on the part benefit of the Certificate Insurer, the Depositor, the Servicer or Insurer that the Trustee (a) shall recognize that to the extent the Certificate Insurer makes paymentspays Insured Amounts, either directly or indirectlyindirectly (as by paying through the Trustee), on account of principal of or interest on the Insured Certificates to the holders of such Insured CertificatesClass A Certificateholders, the Certificate Insurer will be fully entitled to be subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due Class A Certificateholders to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment extent of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereinpayments.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc)
The Policy. (a) If If, based on the information provided by either Servicer pursuant to Section 4.03, the Trustee determines that a Deficiency an Insured Amount to be covered by the Policy will exist for the related Distribution Date, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “"Notice”") and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the second Business Day immediately preceding such Distribution Date, as a claim for the amount of such Insured Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawal. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured Certificates, the Trustee shall deposit such Insured Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the either Servicer, the Seller, the Guarantor, the Depositor, the Trustee or the Trust Fund or to pay any other Class of Certificates. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held in the Insurance Account shall not be invested. Any funds remaining in the Insurance Account on the first Business Day following the later of (i) the related a Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(c) 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 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.
(d) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured distribution constituting a Preference Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount Holder's distribution is so recoveredrecovered as a preference payment, such holder Holder of an Insured Certificate will be entitled to payment constituting a Preference Amount pursuant to the Policy, a copy of which shall be made available through the Trustee Trustee, the Certificate Insurer or the Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish to the Certificate InsurerInsurer or its fiscal agent, if any, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 Insured Certificates. Each holder of an Insured Certificate, by its purchase of such Insured Certificate, the each Servicer, the Guarantor the Depositor 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 surety, 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 holder of an Insured Certificate and the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the 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 Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment of the Insured Certificates from the Trust Fund. The Depositor, each Servicer, the Servicer Guarantor and the Trustee acknowledge, and each holder Holder by its acceptance of an Insured Certificate agrees, that without the need for any further action on the part of the Certificate Insurer, the Depositor, either Servicer, the Servicer Guarantor or the Trustee (a) to the extent the Certificate Insurer makes payments, directly or indirectly, on account of principal of or interest on the Insured Certificates to the holders of such Insured Certificates, the Certificate Insurer will be fully subrogated to, and each holder of an Insured Certificate, each Servicer, the Servicer Guarantor and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment of such amounts and as provided in this Agreement. The Trustee Trustee, the Guarantor and the each Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s 's rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth herein.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (New Century Home Equity Loan Trust, Series 2004-A)
The Policy. (a) If On the Closing Date, the Indenture Trustee determines that shall enter into the Insurance Agreement, pursuant to which the Policy will be issued for the benefit of the Class A Noteholders.
(b) On each Determination Date, the Servicer shall determine whether there will be a Deficiency Amount to on the following Distribution Date and shall immediately notify the Indenture Trustee of such Deficiency Amount. If the Servicer notifies the Indenture Trustee that there will be covered by the Policy will exist for the related a Deficiency Amount on any Distribution Date, the Indenture Trustee shall complete the notice in the form of Exhibit A to make a claim on the Policy (the “Notice”) and submit for such Deficiency Amount by delivery of a Notice in accordance with the Policy to the Certificate Insurer Ambac by no later than 12:00 P.M.noon, New York City time, on the second third Business Day immediately preceding such Distribution Date, as a claim for the amount of such Insured Amount.
(b) . The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawal. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured Certificates, the Indenture Trustee shall deposit such Insured Amount all amounts paid by Ambac under the Policy in respect of Class A Monthly Interest into the Insurance Collection Account upon receipt and shall distribute such amount only amounts to the Paying Agent for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of Certificates. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account A Noteholders on the related Distribution Date Date. The Indenture Trustee shall deposit all amounts paid by Ambac under the Policy in respect of principal, including any payments in respect of Potential Class A Charge-Offs, into the Principal Funding Account upon receipt and disbursed by the Trustee shall distribute such amounts to the holders of Paying Agent for payment to the Insured Certificates Class A Noteholders on the Expected Final Distribution Date or the next Special Distribution Date, as applicable, in accordance with Section 4.014.11(d). It If the Indenture Trustee shall not make a claim on the Policy in respect of a Potential Class A Charge-Off for any Distribution Date and the amount paid by Ambac under the Policy in respect of such Potential Class A Charge-Off shall be necessary deposited into the Principal Funding Account after such Distribution Date, such amount shall be deemed to have been paid by Ambac for such payments to be made the purpose of reimbursing Investor Charge-Offs.
(c) If payment of any amount guaranteed by checks or wire transfers separate from the checks or wire transfers used to pay other distributions Ambac pursuant to the holders Policy is avoided as a preference payment (the "Preference Amount") under applicable bankruptcy, insolvency, receivership or similar law in the event of an insolvency of the Insured Certificates with other funds available to make such payment. HoweverTransferor, the Servicer or the Issuer, Ambac will pay such amount out of any payment of principal or of interest its funds on the Insured Certificates to be paid from funds transferred from the Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held in the Insurance Account shall not be invested. Any funds remaining in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or date when due to be paid pursuant to the Order referred to below and (ii) the date received fifth Business Day following receipt on a Business Day by Ambac in New York, New York from the Indenture Trustee of (A) a certified copy of the final nonappealable order of a court or other governmental body exercising competent jurisdiction ordering the recovery by a receiver, conservator, debtor-in-possession or trustee in bankruptcy of a Preference Amount (an "Order"), (B) a certificate by or on behalf of the Indenture Trustee or the Class A Noteholders that the Order has been entered and is not subject to stay, (C) an assignment in such form as may be reasonably required by Ambac, duly executed and delivered by the Indenture Trustee or the Class A Noteholders, as applicable, irrevocably assigning to Ambac all rights and claims of the Indenture Trustee or the Class A Noteholders, as applicable, relating to or arising under the Class A Notes against the debtor which made such preference payment or otherwise with respect to such Preference Amount, (D) appropriate instruments to effect (when executed by the affected party) the appointment of Ambac as agent for the Indenture Trustee and the Class A Noteholders in any legal proceeding relating to such preference payment in a form satisfactory to Ambac, and (E) a notice appropriately completed and executed by the Indenture Trustee; provided, shall however, that if such documents are received after 12:00 noon, New York City time, on such Business Day, they will be returned deemed to be received on the following Business Day; and, provided further, that Ambac will not be obligated to make any payment in respect of any Preference Amount representing a payment in respect of principal on the Class A Notes prior to the Certificate Insurer time Ambac would have been required to make a payment in respect of such principal pursuant to the written instructions Policy. Ambac will disburse such payment to the court or other governmental body or receiver, conservator, debtor-in-possession, or trustee in bankruptcy named in the Order on behalf of the Certificate Insurer by Class A Noteholders and not to the end Indenture Trustee or any Class A Noteholder directly unless the Indenture Trustee or such Class A Noteholder, as applicable, has returned principal or interest paid on the Class A Notes to such court or other governmental body or receiver, conservator, debtor-in-possession or trustee in bankruptcy named in the Order, in which case Ambac will disburse such payment to the Indenture Trustee on behalf of such Business DayClass A Noteholder, subject to delivery to Ambac of the items referred to in clauses (A) through (E) above and evidence satisfactory to Ambac that payment has been made to such court or other governmental body or receiver, conservator, debtor-in-possession or trustee in bankruptcy named in the Order.
(cd) Ambac will pay any amounts (other than Preference Amounts) due under the Policy in immediately available funds no later than 12:00 noon, New York City time, on the later of the Distribution Date on which the related Deficiency Amount is due or the second Business Day following receipt by Ambac in New York, New York on a Business Day of a notice; provided, however, that if such notice is received after 12:00 noon, New York City time, on such Business Day or a day that is not a Business Day, it will be deemed to have been received on the following Business Day. The terms "receipt" and "received" mean, with respect to any item to be delivered under the Policy with respect to a claim, actual delivery to Ambac, before 12:00 noon, New York City time, on a Business Day. If any notice, certificate, instrument or other item given under this Policy is delivered on a day that is not a Business Day or after 12:00 noon, New York City time on a Business Day, it will be deemed to have been received on the following Business Day. If any notice, certificate, instrument or other item given under the Policy and received by Ambac is not in proper form or is not properly completed, executed or delivered or is otherwise insufficient for the purpose of making claim under the Policy, it will be deemed not to have been received by Ambac for purposes of the Policy, and Ambac will promptly so advise the Indenture Trustee and the Indenture Trustee may submit an amended notice, certificate, instrument or other item.
(e) The Indenture Trustee shall receive as attorney-in-fact of the applicable owners each Insured Payment from Ambac and will distribute the same to the Class A Noteholders as provided in Section 5.1. All Insured Payments disbursed by the Indenture Trustee from claims made on the Policy shall not be considered payment by the Issuer with respect to the Class A Notes. Upon any payment under the Policy, Ambac will be subrogated to the rights of the Class A Noteholders to receive any and all amounts due with respect to the Class A Notes to the extent of any Insured Payment by Ambac under the Policy; provided, however, that, to the extent Ambac has become subrogated to the rights of the Class A Noteholders to the extent of any Insured Payment under the Policy, no recovery of such payment shall occur until the Class A Note Principal Balance has been reduced to zero and all amounts payable to the Class A Noteholders have been paid in full; and, provided further, that recovery of such payment shall only occur to the extent funds are allocated and available for distribution to Ambac in accordance with Section 4.5(a)(viii) and Ambac will have no further recourse to the Trust Assets. If, on any Distribution Date, the Indenture Trustee or the Servicer determines that Ambac has paid more under the Policy than is required by the terms hereof, the Indenture Trustee shall promptly return such excess to Ambac. The Indenture Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any each Insured Certificate from moneys received under the PolicyPayment paid. The Certificate Insurer shall Ambac will have the right to inspect such records at reasonable times record during normal business hours upon one Business Day’s prior notice to the Indenture Trustee.
(d) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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 or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shallSo long as no Control Transfer Event shall have occurred and be continuing, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the 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 Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment of the Insured Certificates from the Trust Fund. The Depositor, the Servicer and the Trustee acknowledge, and each holder by its acceptance of an Insured Certificate agrees, that without the need for any further action on the part of the Certificate Insurer, the Depositor, the Servicer or the Trustee (a) to the extent the Certificate Insurer makes payments, directly or indirectly, on account of principal of or interest on the Insured Certificates to the holders of such Insured Certificates, the Certificate Insurer will be fully subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth herein.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer Ambac shall be deemed to be the holder sole Holder of the Insured Certificate Series 2003-A Notes for all purposes (other than with respect the purpose of exercising voting rights and the giving of any consents, approvals, instructions, directions, declarations and notices relating to the receipt of payment on Series 2003-A Notes; provided, however, that the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates all affected Noteholders shall also be sent required for any amendment or waiver requiring the consent of all affected Noteholders.
(g) So long as no Control Transfer Event shall have occurred and be continuing, any action under the Transaction Documents that requires satisfaction of the Rating Agency Condition and that does not require the consent of Ambac shall also be subject to the Certificate Insurercondition that each Rating Agency shall have notified the Transferor, the Servicer and the Indenture Trustee that such action will not result in a reduction or withdrawal of its shadow rating of the Series 2003-A Notes without giving effect to the availability of the Policy.
Appears in 1 contract
Sources: Indenture Supplement (Fnanb Credit Card Master Trust)
The Policy. (a) If pursuant to Section 4.04(a)(iii), the Trustee Master Servicer determines that a Deficiency Amount to be covered by the Policy will exist exists for the related such Distribution Date, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “Notice”) Notice and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the Business Day immediately preceding each Distribution Date, as a claim for an Insured Amount (provided that the Trustee shall submit such notice on the second Business Day immediately preceding such Distribution Date, as a claim for the Date if it is able to do so) in an amount of equal to such Insured Deficiency Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawalClass A Certificates. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured CertificatesClass A Certificateholders, the Trustee shall deposit such Insured Amount in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of CertificatesAccount. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account All amounts on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held deposit in the Insurance Account shall not be investedremain uninvested. Any funds remaining On each Distribution Date, the Trustee shall transfer any Insured Amount then on deposit in the Insurance Account to the Certificate Account. The Trustee shall distribute on each Distribution Date the first Business Day following Deficiency Amount for such Distribution Date from the later of Certificate Account, together with the distributions due to the Class A Certificateholders on such Distribution Date, as follows:
(i) the portion of any such Deficiency Amount related Distribution Date to clauses (i) and (ii) of the definition of Deficiency Amount shall be distributed among the related Class A Certificateholders on a pro rata basis in accordance with their respective shortfalls or allocations of Realized Losses; and (ii) the date received by portion of any such Deficiency Amount related to clause (iii) of the Trustee, definition of Deficiency Amount shall be returned distributed to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Dayrelated Class A Certificateholders in accordance with Section 9.01(c).
(c) The Trustee shall keep a complete and accurate record (i) receive as attorney-in-fact of the amount of interest and principal paid in respect of any Insured Certificate from moneys received under the 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that each Class A Certificateholder any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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 or performance bond pending any distribute such appealInsured Amount to such Class A Certificateholders as set forth in subsection (b) above. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and Amounts disbursed by the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders of the Insured Certificates for the purpose of making claims thereon and distributing the from proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment by the Trust Fund with respect to the Class A Certificates, nor shall such disbursement of such Insured Amounts discharge the obligations of the Trust Fund with respect to the amounts thereof, and the Insurer shall become owner of such amounts to the extent covered by such Insured Certificates from Amounts as the Trust Funddeemed assignee of such Class A Certificateholders. The Depositor, the Servicer and the Trustee acknowledge, hereby agrees on behalf of each Class A Certificateholder (and each holder Class A Certificateholder, by its acceptance of an Insured Certificate its Class A Certificates, hereby agrees, that without ) for the need for any further action on the part benefit of the Certificate Insurer, the Depositor, the Servicer or Insurer that the Trustee (a) shall recognize that to the extent the Certificate Insurer makes paymentspays Insured Amounts, either directly or indirectlyindirectly (as by paying through the Trustee), on account of principal of or interest on the Insured Certificates to the holders of such Insured CertificatesClass A Certificateholders, the Certificate Insurer will be fully entitled to be subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due Class A Certificateholders to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment extent of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereinpayments.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Bear Stearns Asset Backed Securities Inc)
The Policy. (a) By the close of business on the Business Day preceding each Determination Date the Indenture Trustee shall determine from the Servicing Certificate with respect to the immediately following Payment Date, the Deficiency Amount, if any.
(b) If the Indenture Trustee determines pursuant to paragraph (a) above that a Deficiency Amount to be covered by the Policy will exist for the related Distribution Datewould exist, the Indenture Trustee shall complete the notice a Notice in the form of Exhibit A to the Policy (the “Notice”) and submit such Notice in accordance with the Policy notice to the Certificate Insurer no later than 12:00 P.M., noon New York City time, time on the second Business Day immediately related Determination Date preceding such Distribution Date, Payment Date as a claim for the payment of an Insured Amount in an amount of such Insured equal to the Deficiency Amount.
(bc) The Indenture Trustee shall establish and maintain the Insurance an Eligible Account on behalf (which may be a sub-account of the Holders Collection Account) for the benefit of the Insured Certificates Noteholders and the Insurer referred to herein as the "Policy Payment Account" over which the Indenture Trustee shall have the exclusive control and sole right of withdrawal. Upon receipt of an Insured Amount from the Certificate Insurer on behalf of the Holders of the Insured Certificates, the The Indenture Trustee shall deposit such Insured Amount in upon receipt any amount paid under the Insurance Policy into the Policy Payment Account and distribute such amount only for purposes of payment to the Insured Certificates Noteholders of the Insured Amount for which a claim was made and such amount may not be applied to satisfy any costs, expenses or liabilities of the Sponsor, the Servicer, the Seller, the Depositor, the Indenture Trustee or the Trust Fund or to pay any other Class of CertificatesTrust. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account on the related Distribution Date and disbursed by the Indenture Trustee to the holders of the Insured Certificates Noteholders in accordance with Section 4.018.7(b). It shall not be necessary for such payments to be made by checks check or wire transfers separate from the checks or wire transfers used to pay other distributions to the holders of the Insured Certificates Amount with other funds available to make such payment. However, the amount of any payment of principal or of interest on the Insured Certificates Notes to be paid from funds transferred from the Insurance Policy Payment Account shall be noted as provided in paragraph subsection (d) below of this Section 8.4 in the Note Register and in the statement Indenture Trustee's Statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02Noteholders. Funds held in the Insurance Policy Payment Account shall not be invested. Any funds remaining in the Insurance Policy Payment Account on the first Business Day following the later of (i) the related Distribution a Payment Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant to the written instructions of the Certificate Insurer by the end of such Business Day.
(cd) The Indenture Trustee shall keep a complete and accurate record of the amount of interest and principal paid in respect of any Insured Certificate Note from moneys received under the Policy. The Certificate Insurer shall have the right to inspect such records at reasonable times during normal business hours upon one (1) Business Day’s 's prior written notice to the Indenture Trustee.
(d) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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 or performance bond pending any such appeal. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Indenture Trustee shall, upon retirement of the Insured CertificatesNotes, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates Notes, and, upon retirement of the Notes and the expiration of the term of the Policy, Policy surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the 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 Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment of the Insured Certificates from the Trust Fund. The Depositor, the Servicer and the Trustee acknowledge, and each holder by its acceptance of an Insured Certificate agrees, that without the need for any further action on the part of the Certificate Insurer, the Depositor, the Servicer or the Trustee (a) to the extent the Certificate Insurer makes payments, directly or indirectly, on account of principal of or interest on the Insured Certificates to the holders of such Insured Certificates, the Certificate Insurer will be fully subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth herein.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
The Policy. (a) If the Trustee determines that a the Deficiency Amount is greater than zero with respect to be covered by the Policy will exist for the related any Distribution Date, the Trustee shall complete the notice in the form Form of Exhibit A to the Policy (the “"Notice”") and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the second third Business Day immediately preceding such each Distribution Date, as a claim for the an Insured Payment in an amount of equal to such Insured Deficiency Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawalClass A Certificates. Upon receipt of an Insured Amount Payment from the Certificate Insurer on behalf of the Holders of the Insured applicable Class of Class A Certificates, the Trustee shall deposit such Insured Amount Payment in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of CertificatesAccount. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account All amounts on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held deposit in the Insurance Account shall not be investedremain uninvested. Any funds remaining On each Distribution Date, the Trustee shall transfer any Insured Payment then on deposit in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant Account. The Trustee shall distribute on each Distribution Date any Deficiency Amount for such Distribution Date from the Certificate Account, together with the distributions to be made to the written instructions Class A Certificateholders on such Distribution Date, as distributions of the Certificate Insurer by the end of such Business Dayinterest and principal, respectively.
(c) 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 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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) receive as attorney-in-fact of each Class A Certificateholder any Insured Payment from the direction of any appeal of any order relating to such Preference Claim Insurer and (ii) distribute such Insured Payment to the posting of any surety or performance bond pending any such appealapplicable Class A Certificateholders as set forth in subsection (b) above. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and Payments disbursed by the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders of the Insured Certificates for the purpose of making claims thereon and distributing the from proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment by the Trust Fund with respect to the Class A Certificates, nor shall such disbursement of such Insured Payments discharge the obligations of the Trust Fund with respect to the amounts thereof, and the Insurer shall become owner of such amounts to the extent covered by such Insured Certificates from Payments as the Trust Funddeemed assignee of such Class A Certificateholders. The Depositor, the Servicer and the Trustee acknowledge, hereby agrees on behalf of each Class A Certificateholder (and each holder Class A Certificateholder, by its acceptance of an Insured Certificate its Class A Certificates, hereby agrees, that without ) for the need for any further action on the part benefit of the Certificate Insurer, the Depositor, the Servicer or Insurer that the Trustee (a) shall recognize that to the extent the Certificate Insurer makes paymentspays Insured Payments, either directly or indirectlyindirectly (as by paying through the Trustee), on account of principal of or interest on the Insured Certificates to the holders Holders of such Insured the applicable Class of Class A Certificates, the Certificate Insurer will be fully entitled to be subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due Class A Certificateholders to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment extent of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereinpayments.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Credit Suisse First Boston Mortgage Securities Corp)
The Policy. (a) If the Trustee determines that a the Deficiency Amount is greater than zero with respect to be covered by the Policy will exist for the related any Distribution Date, the Trustee shall complete the notice in the form Form of Exhibit A to the Policy (the “"Notice”") and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the second third Business Day immediately preceding such each Distribution Date, as a claim for the an Insured Payment in an amount of equal to such Insured Deficiency Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawalClass A Certificates. Upon receipt of an Insured Amount Payment from the Certificate Insurer on behalf of the Holders of the Insured applicable Class of Class A Certificates, the Trustee shall deposit such Insured Amount Payment in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of CertificatesAccount. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account All amounts on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held deposit in the Insurance Account shall not be investedremain uninvested. Any funds remaining On each Distribution Date, the Trustee shall transfer any Insured Payment then on deposit in the Insurance Account on the first Business Day following the later of (i) the related Distribution Date or (ii) the date received by the Trustee, shall be returned to the Certificate Insurer pursuant Account. The Trustee shall distribute on each Distribution Date any Deficiency Amount for such Distribution Date from the Certificate Account, together with the distributions to be made to the written instructions Class A Certificateholders on such Distribution Date, as distributions of the Certificate Insurer by the end of such Business Dayinterest and principal, respectively.
(c) 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 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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) receive as attorney-in-fact of each Class A Certificateholder any Insured Payment from the direction of any appeal of any order relating to such Preference Claim Insurer and (ii) distribute such Insured Payment to the posting of any surety or performance bond pending any such appealapplicable Class A Certificateholders as set forth in subsection (b) above. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and Payments disbursed by the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders of the Insured Certificates for the purpose of making claims thereon and distributing the from proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment by the Trust Fund with respect to the Class A Certificates, nor shall such disbursement of such Insured Payments discharge the obligations of the Trust Fund with respect to the amounts thereof, and the Insurer shall become owner of such amounts to the extent covered by such Insured Certificates from Payments as the Trust Funddeemed assignee of such Class A Certificateholders. The Depositor, the Servicer and the Trustee acknowledge, hereby agrees on behalf of each Class A Certificateholder (and each holder Class A Certificateholder, by its acceptance of an Insured Certificate its Class A Certificates, hereby agrees, that without ) for the need for any further action on the part benefit of the Certificate Insurer, the Depositor, the Servicer or Insurer that the Trustee (a) shall recognize that to the extent the Certificate Insurer makes paymentspays Insured Payments, either directly or indirectlyindirectly (as by paying through the Trustee), on account of principal of or interest on the Insured Certificates to the holders Holders of such Insured the applicable Class of Class A Certificates, the Certificate Insurer will be fully is subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due Class A Certificateholders to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment extent of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereinpayments.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Asset Backed Securities Corp)
The Policy. (a) If pursuant to Section 4.04(a)(iv), the Master Servicer determines and notifies the Trustee determines that a Deficiency Amount to be covered by the Policy will exist exists for the related such Distribution Date, the Trustee shall complete the notice in the form of Exhibit A to the Policy (the “Notice”) Notice and submit such Notice in accordance with the Policy to the Certificate Insurer no later than 12:00 P.M., New York City time, on the second Business Day immediately preceding such each Distribution Date, as a claim for the an Insured Payment in an amount of equal to such Insured Deficiency Amount.
(b) The Trustee shall establish and maintain the Insurance Account on behalf of the Holders of the Insured Certificates over which the Trustee shall have the exclusive control and sole right of withdrawalClass A Certificates. Upon receipt of an Insured Amount Payment from the Certificate Insurer on behalf of the Holders of the Insured CertificatesClass A Certificateholders, the Trustee shall deposit such Insured Amount Payment in the Insurance Account and distribute such amount only for purposes of payment to the Insured Certificates of the Insured 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 Seller, the Depositor, the Trustee or the Trust Fund or to pay any other Class of CertificatesAccount. Amounts paid under the Policy, to the extent needed to pay the Insured Amount, shall be transferred to the Distribution Account All amounts on the related Distribution Date and disbursed by the Trustee to the holders of the Insured Certificates in accordance with Section 4.01. 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 holders of the Insured Certificates 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 Insurance Account shall be noted as provided in paragraph (d) below and in the statement to be furnished to holders of the Insured Certificates pursuant to Section 4.02. Funds held deposit in the Insurance Account shall not be investedremain uninvested. Any funds remaining On each Distribution Date, the Trustee shall transfer any Insured Payment then on deposit in the Insurance Account to the Certificate Account. The Trustee shall distribute on each Distribution Date the first Business Day following Deficiency Amount for such Distribution Date from the later of Certificate Account, together with the distributions due to the Class A-I Certificateholders on such Distribution Date, as follows: (i) with respect to the Class A-I Certificates, the portion of any such Deficiency Amount related to clauses (1) and (2)(i) of the definition of Deficiency Amount shall be distributed among the related Distribution Date Class A-I Certificateholders on a pro rata basis in accordance with their respective shortfalls or allocations of Realized Losses; and (ii) the date received by portion of any such Deficiency Amount related to clause (2)(ii) of the Trustee, definition of Deficiency Amount shall be returned distributed to the related Class A-I Certificateholders in accordance with Section 9.01(c). The Trustee shall distribute on each Distribution Date the Deficiency Amount for such Distribution Date from the Certificate Insurer pursuant Account, together with the distributions due to the written instructions Class A-II Certificateholders on such Distribution Date, as follows: (i) with respect to the Class A-II Certificates, the portion of any such Deficiency Amount related to clauses (1) and (2)(i) of the Certificate Insurer by definition of Deficiency Amount shall be distributed among the end related Class A-II Certificateholders on a pro rata basis in accordance with their respective shortfalls or allocations of Realized Losses; and (ii) the portion of any such Business DayDeficiency Amount related to clause (2)(ii) of the definition of Deficiency Amount shall be distributed to the related Class A-II Certificateholders in accordance with Section 9.01(c).
(c) 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 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) In the event that the Trustee has received a certified copy of an order of the appropriate court that any Insured 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 Policy to obtain payment by the Certificate Insurer of such Preference Amount in the amount of such voided Insured Amount, and shall, at the time it provides notice to the Certificate Insurer, notify, by mail the holders of the affected Insured Certificates that, in the event any holder’s Insured Amount is so recovered, such holder of an Insured Certificate will be entitled to payment pursuant to the Policy, a copy of which shall be made available through the Trustee or the Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer, its records evidencing the payments which have been made by the Trustee and subsequently recovered from the holders of the Insured Certificates, and dates on which such payments were made.
(e) 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 holder of an Insured Certificate, by its purchase of such Insured Certificate, the Servicer, the Depositor 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) receive as attorney-in-fact of each Class A Certificateholder any Insured Payment from the direction of any appeal of any order relating to such Preference Claim Insurer and (ii) the posting of any surety or performance bond pending any distribute such appealInsured Payment to such Class A Certificateholders as set forth in subsection (b) above. In addition and without limitation of the foregoing, the Certificate Insurer shall be subrogated to, and each holder of an Insured Certificate and Payments disbursed by the Trustee hereby delegates and assigns to the Certificate Insurer, to the fullest extent permitted by law, the rights of the Trustee and each holder of an Insured Certificate 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.
(f) The Trustee shall, upon retirement of the Insured Certificates, furnish to the Certificate Insurer a notice of such retirement, and, upon retirement of the Insured Certificates and the expiration of the term of the Policy, surrender the Policy to the Certificate Insurer for cancellation.
(g) The Trustee will hold the Policy in trust as agent for the holders of the Insured Certificates for the purpose of making claims thereon and distributing the from proceeds thereof. Neither the Policy nor the amounts paid on the Policy will constitute part of the Trust Fund created by this Agreement. Each Holder of the Insured Certificates, by accepting its Insured Certificates, appoints the Trustee as attorney in fact for the purpose of making claims on the Policy.
(h) Anything herein to the contrary notwithstanding, any payment with respect to principal of or interest on the Insured Certificates which is made with moneys received pursuant to the terms of the Policy shall not be considered payment by the Trust Fund with respect to the Class A Certificates, nor shall such disbursement of such Insured Payments discharge the obligations of the Trust Fund with respect to the amounts thereof, and the Insurer shall become owner of such amounts to the extent covered by such Insured Certificates from Payments as the Trust Funddeemed assignee of such Class A Certificateholders. The Depositor, the Servicer and the Trustee acknowledge, hereby agrees on behalf of each Class A Certificateholder (and each holder Class A Certificateholder, by its acceptance of an Insured Certificate its Class A Certificates, hereby agrees, that without ) for the need for any further action on the part benefit of the Certificate Insurer, the Depositor, the Servicer or Insurer that the Trustee (a) shall recognize that to the extent the Certificate Insurer makes paymentspays Insured Payments, either directly or indirectlyindirectly (as by paying through the Trustee), on account of principal of or interest on the Insured Certificates to the holders of such Insured CertificatesClass A Certificateholders, the Certificate Insurer will be fully entitled to be subrogated to, and each holder of an Insured Certificate, the Servicer and the Trustee hereby delegate and assign to the Certificate Insurer, to the fullest extent permitted by law, the rights of such holders to receive such principal and interest from the Trust Fund, including, without limitation, any amounts due Class A Certificateholders to the holders of the Insured Certificates in respect of securities law violations arising from the offer and sale of the Insured Certificates, and (b) the Certificate Insurer shall be paid such amounts from the sources and in the manner provided herein for the payment extent of such amounts and as provided in this Agreement. The Trustee and the Servicer shall cooperate in all respects with any reasonable request by the Certificate Insurer for action to preserve or enforce the Certificate Insurer’s rights or interests under this Agreement without limiting the rights or affecting the interests of the holders as otherwise set forth hereinpayments.
(i) By accepting its Insured Certificate, each holder of an Insured Certificate agrees that, unless a Certificate Insurer Default exists, the Certificate Insurer shall be deemed to be the holder of the Insured Certificate for all purposes (other than with respect to the receipt of payment on the Insured Certificates) and shall have the right to exercise all rights (including, without limitation, voting rights) of the holders of the Insured Certificates under this Agreement and under the Insured Certificates without any further consent of the holders of the Insured Certificates. All notices, statement reports, certificates or opinions required by this Agreement to be sent to any holders of Insured Certificates shall also be sent to the Certificate Insurer.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (RAMP Series 2005-Rs9 Trust)