Exhibit 1.4(a)
Unit Investment Trust Insurance Policy
for Xxx Xxxxxx American Capital
Insured Income Trust
Series 70
Capital Markets Assurance Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Policy No.: SB12275
Capital Markets Assurance Corporation (the "Insurer"),inconsideration
of the payment of the premium and subject to the terms of this policy and
the letter agreement dated October 23, 1997 among the Insurer, the
Depositor and the Trustee, each as hereinafter defined, hereby unconditionally
and irrevocably guarantees to the Trust, as hereinafter defined, the full and
complete payment required to be made by or on behalf of the issuer(s) of the
Obligations, as hereinafter defined, to the applicable paying agent(s) for the
underlying obligations or its/their successor(s) (the "Paying Agent") of an
amount equal to (i) the principal of (either at the stated maturity or by any
advancement of maturity pursuant to a mandatory sinking fund payment) and
interest on the obligations described in Exhibit A attached hereto (referred
to herein as the "Obligations"), as such payments shall become due but shall
not be so paid in accordance with the original terms of the Obligations when
issued and without regard to any amendment or modification which affects in
any manner the amount, terms or conditions of payment of such Obligations
thereafter, unless the Insurer has previously consented in writing to any such
amendment or modification, except that in the event of any acceleration of the
due date of such principal by reason of mandatory or optional redemption or
acceleration resulting from a default (an "Acceleration Default"), a failure
to make any required principal and/or interest payment as and when due (after
giving effect to any applicable grace or cure period)(a "Payment Default")
or an event of bankruptcy, receivership, insolvency or similar action (a
"Bankruptcy Default"), other than any advancement of maturity pursuant to a
mandatory sinking fund payment, the payments guaranteed hereby may be made
by the Insurer at its option upon the earlier to occur of an Acceleration
Default, a Payment Default or a Bankruptcy Default within thirty (30) days
of notice of such Acceleration Default, Payment Default or Bankruptcy Default
(x) in such amounts and at such times as such payments would have been due had
there not been any such acceleration or (y) on such accelerated basis by
payment (an "Accelerated Payment") of an amount equal to the par value of such
Obligation plus accrued interest to the date of any such Accelerated Payment,
and (ii) the payment of any Insured Amount subsequently avoided in whole or in
part as a preference payment under applicable law. The amounts referred to in
the preceding sentence, including the Accelerated Payment, shall be referred
to herein collectively as the "Insured Amounts."
Upon receipt of telegraphic or telecopied notice, such notice promptly
confirmed in writing by registered or certified mail, in the form of Exhibit B
hereto duly completed (such form to be sent and notice to be given for each
Obligation for which a claim is made under this policy), or upon receipt of
written notice by registered or certified mail in the form of Exhibit B hereto
duly completed (such form to be sent and notice to be given for each
Obligation for which a claim is made under this policy), by the Insurer or
its designee from the Trustee, that a Payment Default has occurred, the
Insurer shall, on the business day next succeeding the later of (x) the date
which is thirty (30) days after the date of any Payment Default or (y) receipt
of the first notice of such Payment Default with respect to such Obligation
and, in the event the Insurer does not make an Accelerated Payment,
thereafter, within one (1) business day after the later of (x) receipt of
notice of a subsequent Payment Default or (y) the due date of the Insured
Amounts to which such notice relates, disburse to the Trustee payment of the
Insured Amounts due on such Obligation, less any amount held by the Paying
Agent or the Trustee for the payment of the Insured Amounts and legally
available therefor. Notwithstanding the foregoing, in the event a Bankruptcy
Default or Acceleration Default occurs prior to any Payment
Default, the Insurer may, at its option, make an Accelerated Payment upon the
earlier to occur of such Bankruptcy Default or Acceleration Default within
thirty (30) days of such Bankruptcy Default or Acceleration Default. In such
event, the Insurer shall have no further Obligation to make any payments in
respect of the Obligation for which such Accelerated Payment was made. The
Trustee will be paid, as to principal or as to principal and interest, upon
presentment and surrender to the Insurer of each Obligation, or in the case of
any Obligation held by a depository (the "Depository") on behalf of the
Trustee, presentment and surrender of such Obligation through the Depository,
or presentment of such other proof of ownership of the Obligation
registered, together with evidence satisfactory to the Insurer that, in all
cases, such Obligation is the Obligation described in this policy or any
replacement or successor hereto, and that such Obligation is free and clear
of all claims and encumbrances created by or on behalf of the Trustee and is
uncancelled, and any appropriate instruments of assignment to evidence the
assignment of the Insured Amounts due on the Obligation as are paid by the
Insurer, such instruments being in a form satisfactory to the Insurer.
This policy does not insure against loss of any prepayment premium which may
at any time be payable with respect to any Obligation.
If payment of any principal of or interest on the Obligations that is
avoided as a preference under applicable, bankruptcy, insolvency, receivership
or similar law in the event of a bankruptcy, insolvency, receivership or
similar action of the issuer of the Obligation is required to be made under
this policy, the Insurer will pay such amount as is avoided as a preference
pursuant to the Order or notice referred to below when due to be paid on a
scheduled basis in accordance with the original terms of the Obligations
(without reference to any redemption thereof) and in any event no earlier
than the first to occur of the fourth business day following receipt by
the Insurer from the Trustee of (i)(x) a certified copy of the order of the
court, or such regulatory authority which exercised jurisdiction, to the
effect that the Trustee or the Depository is required to return principal or
interest paid on any Obligation during the term of this policy because such
payments were avoidable preferences under applicable bankruptcy, insolvency,
receivership or similar laws (the "Order") and (y) a certificate of the Trustee
that the Order has been entered and is not subject to any stay or (ii) notice
from the Trustee that such payment has been avoided and the Depository holding
the affected Obligation on behalf of the Trust has repaid such avoided payment
and/or charged or reduced the account of the Trustee by the amount of such
avoided payment (provided that if such certified copy and certificate or notice
referred to in clauses (i) and (ii) above are received after 1:00 p.m., New
York City time, on such business day, the Insurer shall make such payment on
the fifth business day following such date). 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 directly in the event of receipt of
the certified copy and certificate referred to in clause (i) above and to the
Trustee in the event of receipt of the notice referred to in clause (ii) above.
Notwithstanding the foregoing or any other provisions of this policy, if
the Trustee receives notice that payment of any principal of or interest on
any of the Obligations is avoided as a preference under applicable bankruptcy,
insolvency, receivership or similar law and the Depository holding the
affected Obligation has not repaid such amount or charged or reduced the
Trustee's account for such amount, then the Trustee shall forward such notice
to the Insurer within four business days of the Trustee's receipt thereof.
The Insurer shall have the option to commence any appropriate adversary
proceeding, in which case it shall be responsible for all costs and expenses
in connection therewith and shall indemnify and hold the Trustee harmless
against any loss or liability in connection therewith or the failure of the
Trustee to make such preference payment, or to pay the amount of such avoided
payment to the receiver, conservator, debtor-in-possession or trustee in
bankruptcy named in such notice in accordance with the preceding paragraph.
After the Insurer has made payment with respect to an Obligation, it
shall be subrogated to all of the rights of the Trust thereon or in relation
thereto to the extent of such payment, including but not limited to the
rights to commence or participate in an adversary proceeding. When the
Insurer has made any Accelerated Payment, and until the full amount of such
payment has been recovered, the Insurer shall be vested with all of the
Trust's options, rights, votes, powers and the like under all the legal
proceedings by which each Obligation has been authorized, issued or secured,
including, the governing statutes, resolutions and ordinances of the issuer
of the Obligation, and any trust indenture, mortgage, lease agreement or
other contract relating to the Obligation or its security. The Insurer
shall not be liable to the Trust for any loss or damage resulting from the
exercise or failure to exercise, in its sole discretion, any of such options,
votes, rights, powers and the like it may have as holder or registered owner
of an Obligation with respect to which it has made any payment. The Trustee
shall execute and deliver instruments and do whatever else may be required
to secure the foregoing rights of the Insurer, and will do nothing to
prejudice them.
The Obligations of the Insurer hereunder cannot be accelerated except at
the sole option of the Insurer.
The term "Depositor" shall mean Xxx Xxxxxx American Capital Distributors,
Inc. and its successors or any successor Depositor.
The term "Trust" shall mean the Xxx Xxxxxx American Capital Insured
Income Trust, Series 70, created pursuant to a trust agreement
which incorporates by reference the Standard Terms and Conditions of Trust,
effective April 3, 1990, among the Depositor, the Trustee and American
Portfolio Evaluation Services, as evaluator.
The term "Trustee" shall mean The Bank of New York, or any successor
trustee or co-trustee.
Any service of process on the Insurer may be made to the Insurer,
Attention: General Counsel, at its offices located at 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, and such service or process shall be valid and binding.
This policy shall only apply to Obligations held in and owned by the
Trust and held or owned by the Depository on behalf of the Trust and shall
not apply to any Obligations not deposited therein by the Depositor. This
policy shall continue in force only with respect to Obligations held in and
owned by the Trust, and, subject to the provisions of this paragraph, the
Insurer shall not have any liability under this policy with respect to any
Obligations which do not constitute part of the Trust. This policy is
non-cancellable during the term hereof for any reason, but shall terminate
as to any Obligation which is no longer held by the Trust and has been
redeemed from or sold by the Trustee or the Trust on the date of such
redemption or on the settlement date of such sale, and the Insurer shall
not have any liability under this policy as to any such Obligation
thereafter. Notwithstanding the foregoing provisions of this paragraph,
the termination of this policy as to any Obligation shall not affect
the Obligations of the Insurer regarding any other Obligation in the Trust.
This policy shall terminate as to all Obligations on the date on which
the last of the Obligations mature, are redeemed or are sold by the Trust.
The premium on this policy is not refundable for any reason,
including the payment prior to maturity of the Obligations.
This policy is issued only to the Trust and is nontransferable.
This policy shall be governed by and construed under the laws of the
State of New York. Any provision of this policy which is in conflict with
the laws of the State of New York is hereby amended to conform with the
minimum requirements of such laws. This Policy and the obligations of the
Insurer hereunder are not covered by the Property/Casualty Insurance Fund
specified in Article Seventy-Six of the New York Insurance Law.
No provision affecting this policy shall exist, or waiver of any
condition be valid, unless expressed in writing, signed by the Insurer and
the Trustee, and added hereto. Each of the conditions of this policy is
hereby made severable, and waiver of one condition is not a waiver of any
other condition.
No suit or action on this policy for the recovery of any amount shall be
sustained in any court of law or equity unless all of the conditions of this
policy shall have been complied with (unless specifically waived by the
Insurer in writing) and unless commenced within two years after an event
giving rise to the Insurer's Obligation to pay the Insured Amounts.
In Witness Whereof, the Insurer has caused this policy to be executed on
its behalf this 23rd day of October, 1997.
Capital Markets Assurance Corporation
By ----------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
Exhibit A
To Unit Investment Trust
Insurance Policy No. SB12275
Schedule of Bonds for
Xxx Xxxxxx American Capital Insured Income Trust, Series 70
Date of Annual Initial
Maturity Issuance Premium Premium
CUSIP No. Par Value Issuer Coupon Date of Bonds Rate Due
912833LMO $575,000 United States Treasury STRIP 0.000% 08/15/2023 08/15/93 0.100% $ 61.44
000000XX0 $1,000,000 Virginia Electric and Power Company 6.750% 10/01/2023 10/19/93 0.140% $149.59
000000XX0 $1,000,000 Duquesne Light Company 7.550% 06/15/2025 06/15/93 0.190% $203.01
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Total $ 414.04
Exhibit B
To Unit Investment
Trust Insurance
Policy No. SB12275
Capital Markets Assurance Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ________________________
Notice for Payment Under
Unit Investment Trust
Insurance Policy No. SB12275
The undersigned individual, a duly
authorized officer of The Bank of New
York (the "Trustee") hereby certifies
to Capital Markets Assurance Corporation
("CapMAC"), with reference to insurance
policy No. SB12275 issued by CapMAC,
as follows:
(1) The Trustee has not received by _________________ (insert due
date of scheduled payment) an amount of the [principal] or [interest]
payment due on (insert description of bond) (the "Obligation") on such date
and has been notified by the bond trustee for the Obligation (or such other
party that would have knowledge of nonpayment) that it will not receive
such payment or such bond trustee will not confirm to the Trustee that the
full payment has been or is that day being made, and the amount necessary
for the Trustee to have to equal the full amount of such [principal] or
[interest] that is due on the Obligation is $ ___________________ (the
"Shortfall");
(2) The Trustee is making a claim for the Shortfall to be applied to
the payment in full of such [principal] or [interest] payments that are
due;
(3) The Trustee hereby directs CapMAC to make payment of the
Shortfall to the following account: _____________________________;
(4) The Trustee or a depository (the "Depository") on behalf of the
Trustee is the registered owner of the Obligation or coupons and holds
evidence of its right to receive payment of the Shortfall, and the Trustee
hereby represents and surrenders or will cause the Depository to surrender
to CapMAC such Obligation relating to the Shortfall, or presents other
proof of ownership of the Obligation to CapMAC, which shall be acceptable
to CapMAC in its sole judgment;
(5) The Trustee hereby certifies that the Obligation or coupon for
which the Shortfall is being claimed are the same as described in Exhibit A
to the above-referenced policy, are free and clear of any claims or
encumbrances created by or on behalf of the Trustee, and are uncancelled;
and
In Witness Whereof, this Notice for Payment has been executed this _______
day of ____________________ 19_.
By --------------------------
Name:
