Co-Trustee. (a) The Co-Trustee has been appointed at a Minnesota office solely to (i) receive and hold the Loan Insurance Policy on behalf of the Certificateholders and (ii) make payments and receive proceeds paid in respect of the Mortgage Loans pursuant to the Loan Insurance Policy and take the other actions expressly provided for in this Agreement. The Co-Trustee, not in its individual capacity but solely in its capacity as Co-Trustee on behalf of the Certificateholders, is hereby directed to hold the Loan Insurance Policy for the benefit of the Certificateholders. The Co-Trustee acknowledges receipt of the Loan Insurance Policy and agrees to perform its duties at that office in the manner described below. (b) The Co-Trustee shall not undertake nor have any of the duties of the Trustee and shall have no obligations under this Agreement other than as expressly stated in this Section 8.12. On each Distribution Date upon receipt of funds from the Master Servicer in accordance with Section 3.09, the Co-Trustee shall pay the amount received from the Master Servicer to the Loan Insurance Policy Provider on the Distribution Date by wire transfer of immediately available funds in accordance with instructions furnished by the Loan Insurance Policy Provider pursuant to the Loan Insurance Policy. The Master Servicer shall make any claims pursuant to and in accordance with the Loan Insurance Policy and, except for the duties of the Co-Trustee in this Section 8.12, shall perform all of the obligations of the insured under the Loan Insurance Policy on behalf of the Co-Trustee and for the benefit of the Certificateholders. If the Co-Trustee receives any payments under the Loan Insurance Policy from the Loan Insurance Policy Provider, the Co-Trustee shall notify the Trustee of the receipt of such amounts and shall pay them to the Trustee by wire transfer of immediately available funds on the date of receipt if received before 2:00 P.M. (New York City time), and otherwise on the next Business Day. The wiring instructions for the Trustee are: The Bank of New York ABA# 021000018 GLA# 111-565 For further credit: T▇▇ ▇▇▇▇▇▇t 408972 Ref: CWABS 2004-S1 Attent▇▇▇: ▇▇▇ ▇▇▇▇▇ ▇▇▇sano, telephone no. (212) 815-8318. If any ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇e Loan Insurance ▇▇▇▇▇▇ ▇▇ ▇▇▇e to the Co-Trustee other than by wire transfer of immediately available funds, that payment shall be deemed to have been received by the Co-Trustee on the date that payment cleared and was available to the Co-Trustee in immediately available funds. No provision of this Agreement shall be construed to relieve the Co-Trustee from liability for its own grossly negligent action, its own gross negligent failure to act or its own misconduct, its grossly negligent failure to perform its obligations in compliance with this Agreement, or any liability that would be imposed by reason of its willful misfeasance or bad faith; provided that: (i) the duties and obligations of the Co-Trustee shall be determined solely by the express provisions of this Agreement with the exception of Section 8.10, the Co-Trustee shall not be liable, individually or as Co-Trustee, except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Co-Trustee, and it may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to it and conforming to the requirements of this Agreement that it reasonably believed in good faith to be genuine and to have been duly executed by the proper authorities respecting any matters arising hereunder; and (ii) the Co-Trustee shall not be liable, individually or as Co-Trustee, for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Co-Trustee, unless the Co-Trustee was grossly negligent or acted in bad faith or with willful misfeasance. (c) Except as otherwise provided in paragraph (b) above: (i) the Co-Trustee may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (ii) the Co-Trustee may consult with counsel and any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such Opinion of Counsel; (iii) the Co-Trustee shall not be liable, individually or as Co-Trustee, for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement; (iv) the Co-Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document; (v) the Co-Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, accountants or attorneys; and (vi) the Co-Trustee shall not be required to expend its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such liability is not assured to it. (d) The recitals contained herein shall be taken as the statements of the Depositor or the Master Servicer, as the case may be, and the Co-Trustee assumes no responsibility for their correctness. The Co-Trustee makes no representations as to the validity or sufficiency of this Agreement, the Loan Insurance Policy or of any Mortgage Loan or related document. (e) The Co-Trustee in its individual or any other capacity may become the owner or pledgee of Certificates with the same rights as it would have if it were not the Co-Trustee. (f) The Master Servicer covenants and agrees (i) to pay to the Co-Trustee from time to time, and the Co-Trustee shall be entitled to, such compensation as shall be agreed in writing by the Master Servicer and the Co-Trustee (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) for all services rendered by it in the execution of the trusts hereby created and in the exercise and performance of any of the powers and duties hereunder of the Co-Trustee and (ii) to pay or reimburse the Co-Trustee, upon its request, for all reasonable expenses, disbursements and advances incurred or made by the Co-Trustee on behalf of the Trust Fund in accordance with any of the provisions of this Agreement (including, without limitation: (A) the reasonable compensation and the expenses and disbursements of its counsel, but only for representation of the Co-Trustee acting in its capacity as Co-Trustee hereunder and (B) to the extent that the Co-Trustee must engage persons not regularly in its employ to perform acts or services on behalf of the Trust Fund, which acts or services are not in the ordinary course of the duties of a trustee, paying agent or certificate registrar, in the absence of a breach or default by any party hereto, the reasonable compensation, expenses and disbursements of such persons, except any such expense, disbursement or advance as may arise from its negligence, bad faith or willful misconduct). The Co-Trustee and any director, officer, employee or agent of the Co-Trustee shall be indemnified by the Master Servicer and held harmless against any loss, liability or expense (i) incurred in connection with any legal action relating to this Agreement, the Loan Insurance Policy or the Certificates, or in connection with the performance of any of the Co-Trustee's duties hereunder, other than any loss, liability or expense incurred by reason of willful misfeasance, bad faith or negligence in the performance of any of the Co-Trustee's duties hereunder or by reason of reckless disregard of the Co-Trustee's obligations and duties hereunder and (ii) resulting from any error in any tax or information return prepared by the Master Servicer. Such indemnity shall survive the termination of this Agreement or the resignation or removal of the Co-Trustee hereunder. (g) The Co-Trustee hereunder shall, at all times, be a corporation or association organized and doing business under the laws of a state or the United States of America, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000, subject to supervision or examination by federal or state authority and with a credit rating that would not cause any of the Rating Agencies to reduce their respective ratings of any Class of Certificates below the ratings issued on the Closing Date (or having provided such security from time to time as is sufficient to avoid such reduction), and otherwise acceptable to the Loan Insurance Policy Provider. If such corporation or association publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 8.12 the combined capital and surplus of such corporation or association shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Co-Trustee shall cease to be eligible in accordance with the provisions of this Section 8.12, the Co-Trustee shall resign immediately in the manner and with the effect specified in paragraph (h) below. The corporation or national banking association serving as Co-Trustee may have normal banking and trust relationships with the Depositor, the Seller and the Master Servicer and their respective affiliates; provided that such corporation cannot be an affiliate of the Master Servicer other than the Trustee in its role as successor to the Master Servicer. If at any time (i) the Co-Trustee ceases to be eligible in accordance with this Section 8.12(g) and fails to resign after written request by the Loan Insurance Policy Provider or the Trustee, or (ii) the Co-Trustee becomes incapable of acting, or is adjudged a bankrupt or insolvent, or a receiver of the Co-Trustee or of its property is appointed, or any public officer takes charge of the Co-Trustee or of its property or affairs for the purpose of rehabilitation, conservation, or liquidation, then the Loan Insurance Policy Provider or Trustee may remove the Co-Trustee and appoint a successor co-trustee by written instrument, with copies delivered to the Co-Trustee, the Trustee, Loan Insurance Policy Provider and the successor co-trustee. Any successor co-trustee shall be paid pursuant to an agreement with the Master Servicer and the assets of the Trust Fund shall not be used to satisfy any obligation to pay the compensation of the successor co-trustee. Any resignation or removal of the Co-Trustee and appointment of a successor co-trustee pursuant to this Section shall become effective only upon acceptance of appointment by the successor co-trustee as provided in this Section. (h) The Co-Trustee may at any time resign and be discharged from the trusts hereby created by giving 30 days prior written notice of resignation to the Trustee, the Loan Insurance Policy Provider, the Depositor and the Master Servicer. Upon such resignation the Trustee (x) may appoint a successor Co-Trustee meeting the requirements in paragraph (g) above and acceptable to the Master Servicer (in its sole discretion), so long as such Co-Trustee executes and delivers to the other parties hereto and to the Loan Insurance Policy Provider an instrument agreeing to be bound by the provisions of this Agreement or (y) may if permitted by the Master Servicer (in its sole discretion) assume the rights and duties of the resigning Co-Trustee so long as the Trustee executes and delivers an instrument to that effect. The Co-Trustee shall deliver the Loan Insurance Policy and any amounts held in its possession for the benefit of the Certificateholders to the successor co-trustee upon the appointment of the successor co-trustee. (i) The Co-Trustee shall surrender the Loan Insurance Policy to the Loan Insurance Policy Provider for cancellation upon the termination of the Trust Fund.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (CWABS Asset Backed Certificates Trust 2004-S1)
Co-Trustee. (a) The Co-Trustee has been appointed at a Minnesota office solely to (i) receive and hold the Loan Insurance Policy on behalf of the Certificateholders and (ii) make payments and receive proceeds paid in respect of the Mortgage Loans pursuant to the Loan Insurance Policy and take the other actions expressly provided for in this Agreement. The Co-Trustee, not in its individual capacity but solely in its capacity as Co-Trustee on behalf of the Certificateholders, is hereby directed to hold the Loan Insurance Policy for the benefit of the Certificateholders. The Co-Trustee acknowledges receipt of the Loan Insurance Policy and agrees to perform its duties at that office in the manner described below.
(b) The Co-Trustee shall not undertake nor have any of the duties of the Trustee and shall have no obligations under this Agreement other than as expressly stated in Section this Section 8.12. On each Distribution Date upon receipt of funds from the Master Servicer in accordance with Section 3.09, the Co-Trustee shall pay the amount received from the Master Servicer to the Loan Insurance Policy Provider on the Distribution Date by wire transfer of immediately available funds in accordance with instructions furnished by the Loan Insurance Policy Provider pursuant to the Loan Insurance Policy. The Master Servicer shall make any claims pursuant to and in accordance with the Loan Insurance Policy and, except for the duties of the Co-Trustee in this Section 8.12, shall perform all of the obligations of the insured under the Loan Insurance Policy on behalf of the Co-Trustee and for the benefit of the Certificateholders. If the Co-Trustee receives any payments under the Loan Insurance Policy from the Loan Insurance Policy Provider, the Co-Trustee shall notify the Trustee of the receipt of such amounts and shall pay them to the Trustee by wire transfer of immediately available funds on the date of receipt if received before 2:00 P.M. (New York City time), and otherwise on the next Business Day. The wiring instructions for the Trustee are: The Bank of New York ABA# 021000018 GLA# 111-565 For further credit: T▇▇ ▇▇▇▇▇▇t 408972 TAS Account 081969 Ref: CWABS 2004-S1 Attent▇▇▇: ▇▇▇ ▇▇▇▇▇ ▇▇▇sano, telephone no. (212) 815-8318. If any ▇▇▇▇▇▇▇ ▇▇▇▇-▇▇ Attention: Dave Merlino, telephone no. (212) ▇▇e Loan Insurance ▇-▇▇▇▇. If any payment u▇▇▇▇ ▇▇▇ ▇▇▇e ▇ Insurance Policy is made to the Co-Trustee other than by wire transfer of immediately available funds, that payment shall be deemed to have been received by the Co-Trustee on the date that payment cleared and was available to the Co-Trustee in immediately available funds. No provision of this Agreement shall be construed to relieve the Co-Trustee from liability for its own grossly negligent action, its own gross negligent failure to act or its own misconduct, its grossly negligent failure to perform its obligations in compliance with this Agreement, or any liability that would be imposed by reason of its willful misfeasance or bad faith; provided that:
(i) the duties and obligations of the Co-Trustee shall be determined solely by the express provisions of this Agreement with the exception of Section 8.10, the Co-Trustee shall not be liable, individually or as Co-Trustee, except for the performance of such duties and obligations as are specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Co-Trustee, Trustee and it the Co-Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to it the Co-Trustee and conforming to the requirements of this Agreement that it reasonably believed in good faith to be genuine and to have been duly executed by the proper authorities respecting any matters arising hereunder; and
(ii) the Co-Trustee shall not be liable, individually or as Co-Trustee, for an error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Co-Trustee, unless the Co-Trustee was grossly negligent or acted in bad faith or with willful misfeasance.
(c) Except as otherwise provided in paragraph (b) above:
(i) the Co-Trustee may request and rely upon and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) the Co-Trustee may consult with counsel and any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such Opinion of Counsel;
(iii) the Co-Trustee shall not be liable, individually or as Co-Trustee, for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(iv) the Co-Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document;
(v) the Co-Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, accountants or attorneys; and
(vi) the Co-Trustee shall not be required to expend its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such liability is not assured to it.
(d) The recitals contained herein shall be taken as the statements of the Depositor or the Master Servicer, as the case may be, and the Co-Trustee assumes no responsibility for their correctness. The Co-Trustee makes no representations as to the validity or sufficiency of this Agreement, the Loan Insurance Policy or of any Mortgage Loan or related document.
(e) The Co-Trustee in its individual or any other capacity may become the owner or pledgee of Certificates with the same rights as it would have if it were not the Co-Trustee.
(f) The Master Servicer covenants and agrees (i) to pay to the Co-Trustee from time to time, and the Co-Trustee shall be entitled to, such compensation as shall be agreed in writing by the Master Servicer and the Co-Trustee (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) for all services rendered by it in the execution of the trusts hereby created and in the exercise and performance of any of the powers and duties hereunder of the Co-Trustee and (ii) to pay or reimburse the Co-Trustee, upon its request, for all reasonable expenses, disbursements and advances incurred or made by the Co-Trustee on behalf of the Trust Fund in accordance with any of the provisions of this Agreement (including, without limitation: (A) the reasonable compensation and the expenses and disbursements of its counsel, but only for representation of the Co-Trustee acting in its capacity as Co-Trustee hereunder and (B) to the extent that the Co-Trustee must engage persons not regularly in its employ to perform acts or services on behalf of the Trust Fund, which acts or services are not in the ordinary course of the duties of a trustee, paying agent or certificate registrar, in the absence of a breach or default by any party hereto, the reasonable compensation, expenses and disbursements of such persons, except any such expense, disbursement or advance as may arise from its negligence, bad faith or willful misconduct). The Co-Trustee and any director, officer, employee or agent of the Co-Trustee shall be indemnified by the Master Servicer and held harmless against any loss, liability or expense (i) incurred in connection with any legal action relating to this Agreement, the Loan Insurance Policy or the Certificates, or in connection with the performance of any of the Co-Trustee's duties hereunder, other than any loss, liability or expense incurred by reason of willful misfeasance, bad faith or negligence in the performance of any of the Co-Trustee's duties hereunder or by reason of reckless disregard of the Co-Trustee's obligations and duties hereunder and (ii) resulting from any error in any tax or information return prepared by the Master Servicer. Such indemnity shall survive the termination of this Agreement or the resignation or removal of the Co-Trustee hereunder.
(g) The Co-Trustee hereunder shall, at all times, be a corporation or association organized and doing business under the laws of a state or the United States of America, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000, subject to supervision or examination by federal or state authority and with a credit rating that would not cause any of the Rating Agencies to reduce their respective ratings of any Class of Certificates below the ratings issued on the Closing Date (or having provided such security from time to time as is sufficient to avoid such reduction), and otherwise acceptable to the Loan Insurance Policy Provider. If such corporation or association publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 8.12 the combined capital and surplus of such corporation or association shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Co-Trustee shall cease to be eligible in accordance with the provisions of this Section 8.12, the Co-Trustee shall resign immediately in the manner and with the effect specified in paragraph (h) below. The corporation or national banking association serving as Co-Trustee may have normal banking and trust relationships with the Depositor, the Seller and the Master Servicer and their respective affiliates; provided that such corporation cannot be an affiliate of the Master Servicer other than the Trustee in its role as successor to the Master Servicer. If at any time (i) the Co-Trustee ceases to be eligible in accordance with this Section 8.12(g) and fails to resign after written request by the Loan Insurance Policy Provider or the Trustee, or (ii) the Co-Trustee becomes incapable of acting, or is adjudged a as bankrupt or insolvent, or a receiver of the Co-Trustee or of its property is appointed, or any public officer takes charge of the Co-Trustee or of its property or affairs for the purpose of rehabilitation, conservation, or liquidation, then the Loan Insurance Policy Provider or Trustee may remove the Co-Trustee and appoint a successor co-trustee by written instrument, with copies delivered to the Co-Trustee, the Trustee, Loan Insurance Policy Provider and the successor co-trustee. Any successor co-trustee shall be paid pursuant to an agreement with the Master Servicer and the assets of the Trust Fund shall not be used to satisfy any obligation to pay the compensation of the successor co-trustee. Any resignation or removal of the Co-Trustee and appointment of a successor co-trustee pursuant to this Section shall become effective only upon acceptance of appointment by the successor co-trustee as provided in this Section.
(h) The Co-Trustee may at any time resign and be discharged from the trusts hereby created by giving 30 days prior written notice of resignation to the Trustee, the Loan Insurance Policy Provider, the Depositor and the Master Servicer. Upon such resignation the Trustee (x) may appoint a successor Co-Trustee meeting the requirements in paragraph (g) above and acceptable to the Master Servicer (in its sole discretion), so long as such Co-Trustee executes and delivers to the other parties hereto and to the Loan Insurance Policy Provider an instrument agreeing to be bound by the provisions of this Agreement or (y) may if permitted by the Master Servicer (in its sole discretion) assume the rights and duties of the resigning Co-Trustee so long as the Trustee executes and delivers an instrument to that effect. The Co-Trustee shall deliver the Loan Insurance Policy and any amounts held in its possession for the benefit of the Certificateholders to the successor co-trustee upon the appointment of the successor co-trustee.
(i) The Co-Trustee shall surrender the Loan Insurance Policy to the Loan Insurance Policy Provider for cancellation upon the termination of the Trust Fund.
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