Registration of and Limitations on Transfers and Exchanges of the Certificates. The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of the Certificates and of transfers and exchanges of the Certificates as set forth herein, provided, however, that no Ownership Certificate shall be issued in any such transfer and exchange representing less than a 100% Percentage Interest in such Certificate; and provided, further, that no Ownership Certificate shall be issued in any such transfer and exchange except in accordance with the provisions and conditions set forth below in this Section 3.03. The Trust Administrator shall be the initial Certificate Registrar. If the Certificate Registrar resigns or is removed, the Owner Trustee, with the consent of the Depositor, shall appoint a successor Certificate Registrar. Subject to satisfaction of the conditions set forth below, upon surrender for registration of transfer of a Certificate at the office or agency maintained pursuant to Section 3.08, the Owner Trustee shall execute, authenticate and deliver (or cause the Trust Administrator as its authenticating agent to authenticate and deliver), in the name of the designated transferee, a new Certificate evidencing the Percentage Interest of the Certificate so surrendered and dated the date of authentication by the Owner Trustee or the Certificate Registrar. Every Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by each Certificateholder or such Certificateholder's attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Certificate Registrar in accordance with its customary practice. No service charge shall be made for any registration of transfer or exchange of a Certificate, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of a Certificate or any other expense arising as a result of any registration of transfer or exchange. The preceding provisions of this Section notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register transfer or exchanges of a Certificate for a period of 15 days preceding the due date for any payment with respect to such Certificate. No transfer of a Certificate shall be made unless such transfer is exempt from the registration requirements of the Securities Act and any applicable state securities laws or is made in accordance with said Act and laws. Except in the case of an initial transfer to an Initial Holder, in the event of any such transfer, the Certificate Registrar or the Depositor shall prior to such transfer require the transferee to execute (i) an investment letter (in the form attached hereto as Exhibit D-1) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is a "qualified institutional buyer" under Rule 144A under the Securities Act, or (ii) an investment letter (in the form attached hereto as Exhibit D-2) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is an "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of the Securities Act), and any expense associated with the preparation and execution of any such investment letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. A Certificateholder desiring to effect the transfer of a Certificate shall, and does hereby agree to, indemnify the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor against any and all liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Except in the case of an initial transfer to an Initial Holder, no transfer of a Certificate shall be made unless the Certificate Registrar shall have received a representation letter (in the form attached hereto as Exhibit D-1 or D-2) from the proposed transferee of such Certificate to the effect that such proposed transferee is not an employee benefit plan or other retirement arrangement subject to Section 406 of ERISA, or Section 4975 of the Code or any substantially similar applicable law, or a Person acting on behalf of or using the assets of any such plan, which representation letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. Prior to and as a condition of the registration of any transfer, sale or other disposition of the Ownership Certificate, the Initial Holder of the Ownership Certificate and each Prospective Holder of an Ownership Certificate shall represent and warrant in writing, in the case of each Initial Holder, in substantially the form set forth in Exhibit E hereto, and in the case of each Prospective Holder, in substantially the form set forth in Exhibit F hereto, to the Owner Trustee, the Trust Administrator and the Certificate Registrar and any of their respective successors that: (i) Such Person is duly authorized to purchase the Ownership Certificate and its purchase of investments having the characteristics of the Ownership Certificate is authorized under, and not directly or indirectly in contravention of, any law, charter, trust instrument or other operative document, investment guidelines or list of permissible or impermissible investments that is applicable to the investor; (ii) Such Person understands that each holder of an Ownership Certificate, by virtue of its acceptance thereof, assents to the terms, provisions and conditions of the Agreement; and (iii) [Such Person is a REIT, a Qualified REIT Subsidiary or a Disregarded Entity.] The Owner Trustee shall cause each Certificate to contain a legend, substantially similar to the applicable legends provided in Exhibit A hereto, stating that transfer of such Certificate is subject to certain restrictions and referring prospective purchasers of the Certificates to this Section 3.03 with respect to such restrictions.
Appears in 5 contracts
Samples: Trust Agreement (CWMBS Inc), Trust Agreement (Cwabs Inc), Trust Agreement (CWHEQ, Inc.)
Registration of and Limitations on Transfers and Exchanges of the Certificates. The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of the Certificates and of transfers and exchanges of the Certificates as set forth herein, provided, however, that no Ownership Certificate shall be issued in any such transfer and exchange representing less than a 100% Percentage Interest in such Certificate; and provided, further, that no Ownership Certificate shall be issued in any such transfer and exchange except in accordance with the provisions and conditions set forth below in this Section 3.03. The Trust Administrator shall be the initial Certificate Registrar. If the Certificate Registrar resigns or is removed, the Owner Trustee, with the consent of the Depositor, shall appoint a successor Certificate Registrar. Subject to satisfaction of the conditions set forth below, upon surrender for registration of transfer of a Certificate at the office or agency maintained pursuant to Section 3.08, the Owner Trustee shall execute, authenticate and deliver (or cause the Trust Administrator as its authenticating agent to authenticate and deliver), in the name of the designated transferee, a new Certificate evidencing the Percentage Interest of the Certificate so surrendered and dated the date of authentication by the Owner Trustee or the Certificate Registrar. Every Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by each Certificateholder or such Certificateholder's ’s attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Certificate Registrar in accordance with its customary practice. No service charge shall be made for any registration of transfer or exchange of a Certificate, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of a Certificate or any other expense arising as a result of any registration of transfer or exchange. The preceding provisions of this Section notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register transfer or exchanges of a Certificate for a period of 15 days preceding the due date for any payment with respect to such Certificate. No transfer of a Certificate shall be made unless such transfer is exempt from the registration requirements of the Securities Act and any applicable state securities laws or is made in accordance with said Act and laws. Except in the case of an initial transfer to an Initial Holder, in the event of any such transfer, the Certificate Registrar or the Depositor shall prior to such transfer require the transferee to execute (i) an investment letter (in the form attached hereto as Exhibit D-1) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is a "“qualified institutional buyer" ” under Rule 144A under the Securities Act, or (ii) an investment letter (in the form attached hereto as Exhibit D-2) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is an "“accredited investor" ” (as defined in Rule 501(a)(1), (2), (3) or (7) of the Securities Act), and any expense associated with the preparation and execution of any such investment letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. A Certificateholder desiring to effect the transfer of a Certificate shall, and does hereby agree to, indemnify the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor against any and all liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Except in the case of an initial transfer to an Initial Holder, no transfer of a Certificate shall be made unless the Certificate Registrar shall have received a representation letter (in the form attached hereto as Exhibit D-1 or D-2) from the proposed transferee of such Certificate to the effect that such proposed transferee is not an employee benefit plan or other retirement arrangement subject to Section 406 of ERISA, or Section 4975 of the Code or any substantially similar applicable law, or a Person acting on behalf of or using the assets of any such plan, which representation letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. Prior to and as a condition of the registration of any transfer, sale or other disposition of the Ownership Certificate, the Initial Holder of the Ownership Certificate and each Prospective Holder of an Ownership Certificate shall represent and warrant in writing, in the case of each Initial Holder, in substantially the form set forth in Exhibit E hereto, and in the case of each Prospective Holder, in substantially the form set forth in Exhibit F hereto, to the Owner Trustee, the Trust Administrator and the Certificate Registrar and any of their respective successors that:
(i) Such Person is duly authorized to purchase the Ownership Certificate and its purchase of investments having the characteristics of the Ownership Certificate is authorized under, and not directly or indirectly in contravention of, any law, charter, trust instrument or other operative document, investment guidelines or list of permissible or impermissible investments that is applicable to the investor;
(ii) Such Person understands that each holder of an Ownership Certificate, by virtue of its acceptance thereof, assents to the terms, provisions and conditions of the Agreement; and
(iii) [Such Person is a REIT, a Qualified REIT Subsidiary or a Disregarded Entity.] . The Owner Trustee shall cause each Certificate to contain a legend, substantially similar to the applicable legends provided in Exhibit A hereto, stating that transfer of such Certificate is subject to certain restrictions and referring prospective purchasers of the Certificates to this Section 3.03 with respect to such restrictions.
Appears in 4 contracts
Samples: Trust Agreement (Aames Mortgage Investment Trust 2006-1), Trust Agreement (Aames Mortgage Investment Trust 2005-4), Trust Agreement (Structured Asset Securities Corp)
Registration of and Limitations on Transfers and Exchanges of the Certificates. The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of the Certificates and of transfers and exchanges of the Certificates as set forth herein, ; provided, however, that no Ownership Certificate shall be issued in any such transfer and exchange representing less than a 100% Percentage Interest in such Certificate; , and provided, further, that no Ownership Certificate shall be issued in any such transfer and exchange except in accordance with the provisions and conditions set forth below in this Section 3.03. The Trust Administrator shall be the initial Certificate Registrar. If the Certificate Registrar resigns or is removed, the Owner Trustee, with the consent of the Depositor, shall appoint a successor Certificate Registrar. Subject to satisfaction of the conditions set forth below, upon surrender for registration of transfer of a Certificate at the office or agency maintained pursuant to Section 3.08, the Owner Trustee shall execute, authenticate and deliver (or cause the Trust Administrator as its authenticating agent to authenticate and deliver), in the name of the designated transferee, a new Certificate evidencing the Percentage Interest of the Certificate so surrendered and dated the date of authentication by the Owner Trustee or the Certificate Registrar. Every Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by each Certificateholder or such Certificateholder's ’s attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Certificate Registrar in accordance with its customary practice. No service charge shall be made for any registration of transfer or exchange of a Certificate, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of a Certificate or any other expense arising as a result of any registration of transfer or exchange. The preceding provisions of this Section notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register transfer or exchanges of a Certificate for a period of 15 days preceding the due date for any payment with respect to such Certificate. No transfer of a Certificate shall be made unless such transfer is exempt from the registration requirements of the Securities Act and any applicable state securities laws or is made in accordance with said Act and laws. Except in the case of an initial transfer to an Initial Holder, in the event of any such transfer, the Certificate Registrar or the Depositor shall prior to such transfer require the transferee to execute (i) an investment letter (in the form attached hereto as Exhibit D-1) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is a "“qualified institutional buyer" ” under Rule 144A under the Securities Act, or (ii) an investment letter (in the form attached hereto as Exhibit D-2) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is an "“accredited investor" ” (as defined in Rule 501(a)(1), (2), (3) or (7) of the Securities Act), and any expense associated with the preparation and execution of any such investment letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. A Certificateholder desiring to effect the transfer of a Certificate shall, and does hereby agree to, indemnify the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor against any and all liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Except in the case of an initial transfer to an Initial Holder, no transfer of a Certificate shall be made unless the Certificate Registrar shall have received a representation letter (in the form attached hereto as Exhibit D-1 or D-2) from the proposed transferee of such Certificate to the effect that such proposed transferee is not an employee benefit plan or other retirement arrangement subject to Section 406 of ERISA, or Section 4975 of the Code or any substantially similar applicable law, or a Person acting on behalf of or using the assets of any such plan, which representation letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. Prior to and as a condition of the registration of any transfer, sale or other disposition of the Ownership Certificate, the each Initial Holder of the an Ownership Certificate and each Prospective Holder of an Ownership Certificate shall represent and warrant in writing, in the case of each Initial Holder, in substantially the form set forth in Exhibit E hereto, and in the case of each Prospective Holder, in substantially the form set forth in Exhibit F hereto, to the Owner Trustee, the Trust Administrator and the Certificate Registrar and any of their respective successors that:
(i) Such Person is duly authorized to purchase the Ownership Certificate and its purchase of investments having the characteristics of the Ownership Certificate is authorized under, and not directly or indirectly in contravention of, any law, charter, trust instrument or other operative document, investment guidelines or list of permissible or impermissible investments that is applicable to the investor;
(ii) Such Person understands that each holder of an Ownership Certificate, by virtue of its acceptance thereof, assents to the terms, provisions and conditions of the Agreement; and
(iii) [Such Person is a REIT, REIT or a Qualified REIT Subsidiary or a Disregarded Entity.] Subsidiary. The Owner Trustee shall cause each Certificate to contain a legend, substantially similar to the applicable legends provided in Exhibit A hereto, stating that transfer of such Certificate is subject to certain restrictions and referring prospective purchasers of the Certificates to this Section 3.03 with respect to such restrictions.
Appears in 3 contracts
Samples: Trust Agreement (NYMT Securities CORP), Trust Agreement (Fieldstone Mortgage Investment CORP), Trust Agreement (Fieldstone Mortgage Investment Trust, Series 2005-1)
Registration of and Limitations on Transfers and Exchanges of the Certificates. (a) The Securities Administrator is hereby appointed as the Certificate Registrar of the Trust. The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.083.09, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of the Certificates and of transfers and exchanges of the Certificates as set forth herein, herein provided; provided, however, that no Ownership Class R Certificate or Class S Certificate shall be issued in any such transfer and exchange representing less than a 100% Percentage Interest in such Certificate; and provided, further, that no Ownership Certificate shall be issued in any such transfer and exchange except in accordance with the provisions and conditions set forth below in this Section 3.03. The Trust Administrator shall be the initial Certificate Registrar. If the Certificate Registrar resigns or is removed, the Owner Trustee, with the consent of the Depositor, Depositor shall appoint a successor Certificate Registrar. .
(b) Subject to satisfaction of the conditions set forth below, with respect to the Certificates, upon surrender for registration of transfer of a Certificate Certificates at the office or agency maintained pursuant to Section 3.083.09, the Owner Trustee and the Certificate Register shall execute, authenticate and deliver (or cause the Trust Administrator as its authenticating agent to authenticate and deliver), in the name of the designated transferee, a new Certificate evidencing the Percentage Interest of the Residual Certificate so surrendered and dated the date of authentication by the Owner Trustee or the Certificate Registrar. At the option of a Holder, Certificates may be exchanged for other Certificates of authorized denominations of a like aggregate amount upon surrender of the Certificates to be exchanged at the office or agency maintained pursuant to Section 3.09. Every Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by each Certificateholder the Holder or such Certificateholder's Holder’s attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Certificate Registrar in accordance with its customary practice. No service charge shall be made for any registration of transfer or exchange of a Certificatethe Certificates, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of a Certificate the Certificates or any other expense arising as a result of any registration of transfer or exchange. Except for the initial issuance of the Class S Certificates or Class R Certificates on the Closing Date, no Person shall become a Certificateholder of Class S Certificates or Class R Certificates until the requirements of section 3.04(f) shall have been complied with. The preceding provisions of this Section notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any transfer or exchanges exchange of a Class S, Class E and Class R Certificate for a period of 15 days preceding the due date for any payment with respect to such Certificate. Certificates.
(c) The Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated or otherwise conveyed (collectively, for purposes of this Section 3.04 and any other Section referring to the Certificates, “transferred” or a “transfer”) only in accordance with this Section 3.04.
(d) No transfer of a Certificate shall be made unless such transfer is exempt from the made pursuant to an effective registration requirements of statement under the Securities Act and any applicable state securities laws or is exempt from the registration requirements under the Securities Act and such state securities laws. In the event that a transfer is to be made in accordance with said reliance upon an exemption from the Securities Act and such laws. Except , in order to assure compliance with the Securities Act and such laws, the Certificateholder desiring to effect such transfer and such Certificateholder’s prospective transferee shall each certify to the Securities Administrator in writing the facts (or shall be deemed to certify in the case of an initial a Book-Entry Certificate) surrounding the transfer by (x)(i) the delivery to an Initial Holder, in the event of any such transfer, Securities Administrator by the Certificate Registrar or the Depositor shall prior Certificateholder desiring to effect such transfer require the transferee to execute (i) an investment letter (of a certificate substantially in the form attached hereto as set forth in Exhibit D-1E (the “Transferor Certificate”) certifying to and (ii) the Trust, delivery by the Owner Trustee, Certificateholder’s prospective transferee of (A) a letter in substantially the Trust Administrator, form of Exhibit E (the Certificate Registrar “Investment Letter”) if the prospective transferee is an Institutional Accredited Investor or (B) a letter in substantially the form of Exhibit F (the “Rule 144A and Related Matters Certificate”) if the Depositor that such prospective transferee is a "“qualified institutional buyer" under ” as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act, or (ii) an investment letter (in the form attached hereto as Exhibit D-2) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is an "accredited investor" (as defined in Rule 501(a)(1), (2), (3”) or (7y) there shall be delivered to the Securities Administrator an Opinion of Counsel addressed to the Indenture Trustee and the Securities Administrator that such transfer may be made pursuant to an exemption from the Securities Act), and any expense associated with the preparation and execution which Opinion of any such investment letter Counsel shall not be an expense of the TrustDepositor, the Owner Sellers, the Master Servicer, the Securities Administrator or the Indenture Trustee. The Depositor shall provide to any Holder of a Certificate and any prospective transferee designated by any such Holder, information regarding the related Certificates and the Mortgage Loans and such other information as shall be necessary to satisfy the condition to eligibility set forth in Rule 144A(d)(4) for transfer of any such Certificate without registration thereof under the Securities Act pursuant to the registration exemption provided by Rule 144A. The Indenture Trustee, the Trust AdministratorSecurities Administrator and the Master Servicer shall cooperate with the Depositor in providing the Rule 144A information referenced in the preceding sentence, including providing to the Depositor such information regarding the Certificates, the Mortgage Loans and other matters regarding the Trust Fund as the Depositor shall reasonably request to meet its obligation under the preceding sentence. Each Holder of a Certificate Registrar or the Depositor. A Certificateholder desiring to effect the such transfer of a Certificate shall, and does hereby agree to, indemnify the TrustIndenture Trustee, the Depositor, the Sellers, the Owner Trustee, the Trust Administrator, the Certificate Registrar Securities Administrator and the Depositor Master Servicer against any and all liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Except in the case of an initial transfer to an Initial Holder, no transfer of a Certificate shall be made unless the Certificate Registrar shall have received a representation letter (in the form attached hereto as Exhibit D-1 or D-2) from the proposed transferee of such Certificate to the effect that such proposed transferee is not an employee benefit plan or other retirement arrangement subject to Section 406 of ERISA, or Section 4975 of the Code or any substantially similar applicable law, or a Person acting on behalf of or using the assets of any such plan, which representation letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. Prior to and as a condition of the registration of any transfer, sale or other disposition of the Ownership Certificate, the Initial Holder of the Ownership Certificate and each Prospective Holder of an Ownership Certificate shall represent and warrant in writing, in the case of each Initial Holder, in substantially the form set forth in Exhibit E hereto, and in the case of each Prospective Holder, in substantially the form set forth in Exhibit F hereto, to the Owner Trustee, the Trust Administrator and the Certificate Registrar and any of their respective successors that:.
(i) Such Person is duly authorized shall comply with the provisions of Section 3.07, as applicable, relating to purchase the Ownership Certificate and its purchase ERISA restrictions with respect to the acceptance or acquisition of investments having the characteristics such Residual Certificate.
(e) For so long as any of the Ownership Certificates are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Certificate is authorized underRegistrar agrees to cooperate with, and not directly or indirectly act in contravention accordance with the direction of, the Depositor in providing to any lawCertificateholders and to any prospective purchaser of Certificates designated by such Certificateholder, charterupon the request of such Certificateholder or prospective purchaser, trust instrument any information in the Certificate Registrar’s possession and required to be provided to such holder or prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4) under the Securities Act. Any reasonable, out-of-pocket expenses incurred by the Certificate Registrar in providing such information shall be reimbursed by the Depositor.
(f) Each Person that has or that acquires any Ownership Interest in any Class S Certificate or Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably appointed the Certificate Registrar or its designee as its attorney-in-fact to negotiate the terms of any mandatory sale under clause (v) below and to execute all instruments of transfer and to do all other operative documentthings necessary in connection with any such sale, investment guidelines and the rights of each Person acquiring any Ownership Interest in the Class S Certificate or list of permissible or impermissible investments that is applicable Class R Certificate are expressly subject to the investor;following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a Class S Certificate or Class R Certificate shall be a Permitted Transferee and shall promptly notify the Owner Trustee and the Certificate Registrar of any change or impending change in its status as a Permitted Transferee.
(ii) Such No Person understands that each holder of shall acquire an Ownership Interest in a Class S Certificate or Class R Certificate unless such Ownership Interest is a pro rata undivided interest.
(iii) No Ownership Interest in a Class S Certificate or Class R Certificate may be transferred without the express written consent of the Owner Trustee, the Note Insurer, the Depositor and the Certificate Registrar. In connection with any proposed transfer of any Ownership Interest in a Class S Certificate or Class R Certificate, by virtue the Owner Trustee shall as a condition to such consent, require delivery to it, the Depositor, the Note Insurer (with respect to a Class S Certificate only) and the Certificate Registrar in form and substance satisfactory to it, of its acceptance thereof, assents each of the following:
(A) an affidavit in the form of Exhibit C hereto from the proposed transferee to the terms, provisions effect that such transferee is a Permitted Transferee and conditions that it is not acquiring its Ownership Interest in the Class S Certificate or Class R Certificate that is the subject of the Agreementproposed transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, and certification from the proposed transferor to the effect that it does not have actual knowledge that any statements made by the proposed transferee in such affidavit is false; and
(iiiB) [Such Person a covenant of the proposed transferee to the effect that the proposed transferee agrees to be bound by and to abide by the transfer restrictions applicable to the Class S Certificate or Class R Certificate.
(iv) Any attempted or purported transfer of any Ownership Interest in a Class S Certificate or Class R Certificate in violation of the provisions of this Section 3.04 shall be absolutely null and void and shall vest no rights in the purported transferee. If any purported transferee shall, in violation of the provisions of this Section 3.04, become a Holder of a Class S Certificate or Class R Certificate, then the prior Holder of such Class S Certificate or Class R Certificate that is a REITPermitted Transferee shall, a Qualified REIT Subsidiary upon discovery that the registration of transfer of such Class S Certificate or a Disregarded Entity.] Class R Certificate was not in fact permitted by this Section 3.04, be restored to all rights as Holder thereof retroactive to the date of registration of transfer of such Class S Certificate or Class R Certificate. The Owner Trustee and the Certificate Registrar shall cause each be under no liability to any Person for any registration of transfer of any Class S Certificate or Class R Certificate that is in fact not permitted by this Section 3.04 or for making any distributions due on such Class S Certificate or Class R Certificate to contain a legend, substantially similar to the applicable legends provided in Exhibit A hereto, stating that transfer of such Certificate is subject to certain restrictions and referring prospective purchasers of the Certificates to this Section 3.03 Holder thereof or taking any other action with respect to such restrictionsHolder under the provisions of this Agreement so long as the Owner Trustee, the Depositor and the Certificate Registrar received all affidavits and covenants with respect to such transfer provided for under this Section 3.04. The Certificate Paying Agent, on behalf of the Trust, shall be entitled to recover from any Holder of a Class S Certificate or Class R Certificate that was in fact not a Permitted Transferee at the time such distributions were made all distributions made on such Class S Certificate or Class R Certificate. Any such distributions so recovered by the Certificate Paying Agent shall be distributed and delivered by the Certificate Paying Agent to the prior Holder of such Residual Certificate that is a Permitted Transferee.
(v) If any Person other than a Permitted Transferee acquires any Ownership Interest in a Class S Certificate or Class R Certificate in violation of the restrictions in this Section 3.04, then the Certificate Registrar shall have the right but not the obligation, without notice to the Holder of such Class S Certificate or Class R Certificate or any other Person having an Ownership Interest therein, to notify the underwriter to arrange for the sale of such Class S Certificate or Class R Certificate. The proceeds of such sale, net of commissions (which may include commissions payable to the Certificate Registrar or its affiliates), expenses and taxes due, if any, will be remitted by the Certificate Paying Agent to the previous Holder of such Class S Certificate or Class R Certificate that is a Permitted Transferee, except that in the event that the Certificate Paying Agent determines that the Holder of such Class S Certificate or Class R Certificate may be liable for any amount due under this Section 3.04 or any other provisions of this Agreement, the Certificate Paying Agent may withhold a corresponding amount from such remittance as security for such claim. The terms and conditions of any sale under this clause (v) shall be determined in the sole discretion of the Certificate Registrar and the Certificate Paying Agent, and neither such Person shall be liable to any Person having an Ownership Interest in a Class S Certificate or Class R Certificate as a result of its exercise of such discretion.
(vi) If any Person other than a Permitted Transferee acquires any Ownership Interest in a Class S Certificate or Class R Certificate in violation of the restrictions in this Section 3.04, then the Certificate Registrar will provide to the Internal Revenue Service, and to the persons specified in Section 860E(e)(3) of the Code, information needed to compute the tax imposed under Section 860E(e)(1) of the Code on transfers of residual interests to disqualified organizations.
(g) Each Person that has or that acquires an Ownership Interest in the Class S Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound to reimburse advances made by the Servicer to fund Draws on the HELOCs pursuant to the Servicing Agreement and to the extent set forth in Section 2.01(b) of the Sale and Servicing Agreement.
Appears in 2 contracts
Samples: Trust Agreement (Saco I Trust 2005-Gp1), Trust Agreement (Saco I Trust 2005-Gp1)
Registration of and Limitations on Transfers and Exchanges of the Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of the Certificates and of transfers and exchanges of the Certificates as set forth herein, herein provided; provided, however, that no Ownership Class R Certificate or Class L Certificate shall be issued in any such transfer and exchange representing less than a 100% Percentage Interest in such Certificate; and provided, further, that no Ownership Certificate shall be issued in any such transfer and exchange except in accordance with the provisions and conditions set forth below in this Section 3.03. The Trust Administrator shall be the initial Certificate Registrar. If the Certificate Registrar resigns or is removed, the Owner Trustee, with the consent of the Depositor, shall appoint a successor Certificate Registrar. Subject to satisfaction of the conditions set forth below, upon surrender for registration of transfer of a Certificate at the office or agency maintained pursuant to Section 3.08, the Owner Trustee shall execute, authenticate and deliver (or cause the Trust Administrator as its authenticating agent to authenticate and deliver), in the name of the designated transferee, a new Certificate evidencing the Percentage Interest of the Certificate so surrendered and dated the date of authentication by the Owner Trustee or the Certificate Registrar. Every Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by each the Certificateholder or such Certificateholder's ’s attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Certificate Registrar in accordance with its customary practice. No service charge shall be made for any registration of transfer or exchange of a Certificatethe Certificates, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of a Certificate the Certificates or any other expense arising as a result of any registration of transfer or exchange. Except for the initial issuance of the Class L and Class R Certificates on the Closing Date, no Person shall become a Certificateholder of Class L or Class R Certificates until it shall establish its non-foreign status by submitting to the Certificate Paying Agent an IRS Form W-9 and the Certificate of Non-Foreign Status set forth in Exhibit D hereto. The preceding provisions of this Section notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any transfer or exchanges exchange of a Class L Certificate or a Class R Certificate for a period of 15 days preceding the due date for any payment with respect to such Certificate. Residual Certificates.
(b) The Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated or otherwise conveyed (collectively, for purposes of this Section 3.03 and any other Section referring to the Certificates, “transferred” or a “transfer”) only in accordance with this Section 3.03.
(c) No transfer of a Certificate shall be made unless such transfer is exempt from the registration requirements of the Securities Act and any applicable state securities laws or is made in accordance with said the Securities Act and such laws. Except in Each prospective transferee of a Certificate, other than the case of an initial transfer to an Initial Holder, shall represent and warrant, in writing, to the event of any such transfer, Owner Trustee and the Certificate Registrar or and any of their respective successors that:
(I) Such Person is (A) a “qualified institutional buyer” as defined in Rule 144A under the Depositor Securities Act of 1933, as amended (the “Securities Act”), (such Person shall prior to such transfer require the transferee to execute (i) an investment letter (in the form attached hereto as Exhibit D-1C-1 to such effect) certifying to and is aware that the Trust, seller of such Certificate may be relying on the Owner Trustee, exemption from the Trust Administrator, registration requirements of the Securities Act provided by Rule 144A and is acquiring such Certificate Registrar and for its own account or for the Depositor that such transferee is a "account of one or more qualified institutional buyer" under buyers for whom it is authorized to act or (B) in the case of the Class B Certificates, an “accredited investor” (as defined in Rule 144A under 501(a)(1), (2), (3) or (7) of the Securities Act, or Act (ii) such Person shall execute an investment letter (in the form attached hereto as Exhibit D-2C-2 to such effect) certifying to and is aware that the Trust, seller of such Residual Certificate is relying on an exemption from the Owner Trustee, registration requirements of the Trust Administrator, the Securities Act and is acquiring such Residual Certificate Registrar and the Depositor for its own account;
(II) Such Person understands that such transferee Certificate has not been and will not be registered under the Securities Act and may be offered, sold, pledged or otherwise transferred only to a person (A) whom the seller reasonably believes is a “qualified institutional buyer” or (B) in the case of the Class B Certificates, an "“accredited investor" ” (as defined in Rule 501(a)(1), (2), (3) or (7) of the Securities Act), in each case in a transaction exempt from registration under the Securities Act and any expense associated with the preparation and execution of any such investment letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. A Certificateholder desiring to effect the transfer of a Certificate shall, and does hereby agree to, indemnify the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor against any and all liability that may result if the transfer is not so exempt or is not made in accordance with any applicable securities laws of any state of the United States; and
(III) Such Person shall comply with the provisions of Section 3.07, as applicable, relating to the ERISA restrictions with respect to the acceptance or acquisition of such federal Residual Certificate.
(d) For so long as any of the Certificates are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Administrator agrees to cooperate with the Depositor to provide to any Certificateholders and state lawsto any prospective purchaser of Certificates designated by such Certificateholder, upon the request of such Certificateholder or prospective purchaser, any information required to be provided to such holder or prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4) under the Securities Act. Except Any reasonable, out-of-pocket expenses incurred by the Administrator in providing such information shall be reimbursed by the case Depositor.
(e) Each prospective transferee of an initial transfer to an any Class L or Class R Certificate, other than the Initial Holder, no transfer of a Certificate shall be made unless execute and deliver the Certificate Registrar shall have received a representation letter of Non-Foreign Status (in the form attached hereto as Exhibit D-1 D).
(f) Each Person that has or D-2that acquires any Ownership Interest in any Class L or Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably appointed the Certificate Registrar or its designee as its attorney-in-fact to negotiate the terms of any mandatory sale under clause (v) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale, and the rights of each Person acquiring any Ownership Interest in the Class L or Class R Certificates are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a Class L or Class R Certificate shall be a Permitted Transferee and shall promptly notify the Owner Trustee and the Certificate Registrar of any change or impending change in its status as a Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a Class L or Class R Certificate unless such Ownership Interest is a pro rata undivided interest.
(iii) No Ownership Interest in a Class L or Class R Certificate may be transferred without the express written consent of the Owner Trustee, the Depositor and the Certificate Registrar. In connection with any proposed transfer of any Ownership Interest in a Class L or Class R Certificate, the Owner Trustee shall as a condition to such consent, require delivery to it, the Depositor and the Certificate Registrar in form and substance satisfactory to it, of each of the following:
(A) an affidavit in the form of Exhibit E-1 hereto from the proposed transferor, and an affidavit in the form of Exhibit E-2 hereto from the proposed transferee of such Certificate to the effect that such transferee is a Permitted Transferee and that it is not acquiring its Ownership Interest in the Class L or Class R Certificate that is the subject of the proposed transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee; and
(B) a covenant of the proposed transferee is not an employee benefit plan to the effect that the proposed transferee agrees to be bound by and to abide by the transfer restrictions applicable to the Class L or other retirement arrangement subject to Section 406 Class R Certificate.
(iv) Any attempted or purported transfer of ERISA, any Ownership Interest in a Class L or Section 4975 Class R Certificate in violation of the Code provisions of this Section 3.03 shall be absolutely null and void and shall vest no rights in the purported transferee. If any purported transferee shall, in violation of the provisions of this Section 3.03, become a holder of a Class L or Class R Certificate, then the prior holder of such Class L or Class R Certificate that is a Permitted Transferee shall, upon discovery that the registration of transfer of such Class L or Class R Certificate was not in fact permitted by this Section 3.03, be restored to all rights as holder thereof retroactive to the date of registration of transfer of such Class L or Class R Certificate. The Owner Trustee and the Certificate Registrar shall be under no liability to any substantially similar applicable law, or a Person acting on behalf for any registration of or using the assets transfer of any Class L or Class R Certificate that is in fact not permitted by this Section 3.03 or for making any distributions due on such plan, which representation letter shall not be an expense Class L or Class R Certificate to the holder thereof or taking any other action with respect to such holder under the provisions of the Trust, this Agreement so long as the Owner Trustee, the Trust AdministratorDepositor and the Certificate Registrar received all affidavits and covenants with respect to such transfer provided for under this Section 3.03. The Certificate Paying Agent, on behalf of the Trust, shall be entitled to recover from any holder of a Class L or Class R Certificate that was in fact not a Permitted Transferee at the time such distributions were made all distributions made on such Class L or Class R Certificate. Any such distributions so recovered by the Certificate Paying Agent shall be distributed and delivered by the Certificate Paying Agent to the prior holder of such Residual Certificate that is a Permitted Transferee.
(v) If any Person other than a Permitted Transferee acquires any Ownership Interest in a Class L or Class R Certificate in violation of the restrictions in this Section 3.03, then the Certificate Registrar shall have the right but not the obligation, without notice to the holder of such Class L or Class R Certificate or any other Person having an Ownership Interest therein, to notify the underwriter to arrange for the sale of such Class L or Class R Certificate. The proceeds of such sale, net of commissions (which may include commissions payable to the Certificate Registrar or its affiliates), expenses and taxes due, if any, will be remitted by the DepositorCertificate Paying Agent to the previous holder of such Class L or Class R Certificate that is a Permitted Transferee, except that in the event that the Certificate Paying Agent determines that the holder of such Class L or Class R Certificate may be liable for any amount due under this Section 3.03 or any other provisions of this Agreement, the Certificate Paying Agent may withhold a corresponding amount from such remittance as security for such claim. Prior to The terms and as a condition of the registration conditions of any transfer, sale or other disposition of the Ownership Certificate, the Initial Holder of the Ownership Certificate and each Prospective Holder of an Ownership Certificate under this clause (v) shall represent and warrant in writing, be determined in the case sole discretion of each Initial Holder, in substantially the form set forth in Exhibit E hereto, and in the case of each Prospective Holder, in substantially the form set forth in Exhibit F hereto, to the Owner Trustee, the Trust Administrator and the Certificate Registrar and the Certificate Paying Agent, and neither such Person shall not be liable to any Person having an Ownership Interest in a Class L or Class R Certificate as a result of their respective successors that:its exercise of such discretion.
(ivi) Such If any Person is duly authorized to purchase the other than a Permitted Transferee acquires any Ownership Interest in a Class L or Class R Certificate and its purchase of investments having the characteristics in violation of the Ownership Certificate is authorized underrestrictions in this Section 3.03, then the Administrator will provide to the Internal Revenue Service, and not directly or indirectly in contravention of, any law, charter, trust instrument or other operative document, investment guidelines or list of permissible or impermissible investments that is applicable to the investor;persons specified in Section 860E(e)(3) of the Code, information needed to compute the tax imposed under Section 860E(e)(1) of the Code on transfers of residual interests to disqualified organizations.
(iig) Such Each Person understands that each holder has or that acquires any Ownership Interest in any Class L Certificate shall be deemed by the acceptance or acquisition of an such Ownership Certificate, by virtue Interest to have agreed to be bound to make advances and purchase Additional Balances through funding of its acceptance thereof, assents the Reserve Account as and to the terms, provisions and conditions extent set forth in Section 2.01(b) of the Sale and Servicing Agreement; and
(iii) [Such Person is a REIT, a Qualified REIT Subsidiary or a Disregarded Entity.] The Owner Trustee shall cause each Certificate to contain a legend, substantially similar to the applicable legends provided in Exhibit A hereto, stating that transfer of such Certificate is subject to certain restrictions and referring prospective purchasers of the Certificates to this Section 3.03 with respect to such restrictions.
Appears in 2 contracts
Samples: Trust Agreement (Indymac MBS Inc), Trust Agreement (IndyMac Home Equity Mortgage Loan Asset-Backed Trust, Series 2006-H2)
Registration of and Limitations on Transfers and Exchanges of the Certificates. The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of the Certificates and of transfers and exchanges of the Certificates as set forth herein, ; provided, however, that no Ownership Certificate shall be issued in any such transfer and exchange representing less than a 100% Percentage Interest in such Certificate; , and provided, further, that no Ownership Certificate shall be issued in any such transfer and exchange except in accordance with the provisions and conditions set forth below in this Section 3.03. The Trust Administrator shall be the initial Certificate Registrar. If the Certificate Registrar resigns or is removed, the Owner Trustee, with the consent of the Depositor, shall appoint a successor Certificate Registrar. Subject to satisfaction of the conditions set forth below, upon surrender for registration of transfer of a Certificate at the office or agency maintained pursuant to Section 3.08, the Owner Trustee shall execute, authenticate and deliver (or cause the Trust Administrator as its authenticating agent to authenticate and deliver), in the name of the designated transferee, a new Certificate evidencing the Percentage Interest of the Certificate so surrendered and dated the date of authentication by the Owner Trustee or the Certificate Registrar. Every Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by each Certificateholder or such Certificateholder's ’s attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Certificate Registrar in accordance with its customary practice. No service charge shall be made for any registration of transfer or exchange of a Certificate, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of a Certificate or any other expense arising as a result of any registration of transfer or exchange. The preceding provisions of this Section notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register transfer or exchanges of a Certificate for a period of 15 days preceding the due date for any payment with respect to such Certificate. No transfer of a Certificate shall be made unless such transfer is exempt from the registration requirements of the Securities Act and any applicable state securities laws or is made in accordance with said Act and laws. Except in the case of an initial transfer to an Initial Holder, in the event of any such transfer, the Certificate Registrar or the Depositor shall prior to such transfer require the transferee to execute (i) an investment letter (in the form attached hereto as Exhibit D-1) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is a "“qualified institutional buyer" ” under Rule 144A under the Securities Act, or (ii) an investment letter (in the form attached hereto as Exhibit D-2) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is an "“accredited investor" ” (as defined in Rule 501(a)(1), (2), (3) or (7) of the Securities Act), and any expense associated with the preparation and execution of any such investment letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. A Certificateholder desiring to effect the transfer of a Certificate shall, and does hereby agree to, indemnify the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor against any and all liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Except in the case of an initial transfer to an Initial Holder, no transfer of a Certificate shall be made unless the Certificate Registrar shall have received a representation letter (substantially in the form attached hereto as Exhibit D-1 or D-2) from the proposed transferee of such Certificate to the effect that such proposed transferee is not an employee benefit plan or other retirement arrangement subject to Section 406 of ERISA, or Section 4975 of the Code or any substantially similar applicable law, or a Person acting on behalf of or using the assets of any such plan, which representation letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. Prior In addition, any Retained Notes will be subject to the same ERISA restrictions and as a condition of the registration of any transfer, sale or other disposition of consequences discussed above applicable to the Ownership Certificate, Certificate unless either (a) the Initial Holder Retained Notes are sold or transferred to a party that is a taxable REIT subsidiary or is not affiliated with the owner of the Ownership Certificate and each Prospective Holder at the time of an Ownership Certificate shall represent and warrant in writing, in the case of each Initial Holder, in substantially the form set forth in Exhibit E hereto, and in the case of each Prospective Holder, in substantially the form set forth in Exhibit F hereto, to the Owner Trustee, the Trust Administrator and the Certificate Registrar and any of their respective successors that:
such sale or transfer: (i) Such Person is duly authorized to purchase the Ownership Certificate and its purchase of investments having the characteristics owner of the Ownership Certificate is authorized under, a Permitted Transferee; (ii) no modifications have been made to the transaction documents; (iii) the respective ratings of the Retained Notes as of the date of such sale or transfer are not lower than the ratings of such Retained Notes as of the closing date; and not directly (iv) no adverse changes have been made to (or indirectly in contravention that would adversely affect the application of, any law, charter, trust instrument or other operative document, investment guidelines or list of permissible or impermissible investments that is ) the legal authorities applicable to the investor;
closing date tax opinion or (iib) Such Person understands that each the holder of an Ownership Certificate, by virtue the Retained Notes otherwise receives a tax opinion from a law firm generally recognized to be qualified to opine concerning the tax aspects of its acceptance thereof, assents to asset securitization that (i) the terms, provisions and conditions of the Agreement; Retained Notes “will be debt” and
(iii) [Such Person is a REIT, a Qualified REIT Subsidiary or a Disregarded Entity.] The Owner Trustee shall cause each Certificate to contain a legend, substantially similar to the applicable legends provided in Exhibit A hereto, stating that transfer of such Certificate is subject to certain restrictions and referring prospective purchasers of the Certificates to this Section 3.03 with respect to such restrictions.
Appears in 2 contracts
Samples: Trust Agreement (Fieldstone Mortgage Investment CORP), Trust Agreement (Fieldstone Mortgage Investment CORP)
Registration of and Limitations on Transfers and Exchanges of the Certificates. The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of the Certificates and of transfers and exchanges of the Certificates as set forth herein, ; provided, however, that no Ownership Certificate shall be issued in any such transfer and exchange representing less than a 100% Percentage Interest in such Certificate; , and provided, further, that no Ownership Certificate shall be issued in any such transfer and exchange except in accordance with the provisions and conditions set forth below in this Section 3.03. The Trust Administrator shall be the initial Certificate Registrar. If the Certificate Registrar resigns or is removed, the Owner Trustee, with the consent of the Depositor, shall appoint a successor Certificate Registrar. Subject to satisfaction of the conditions set forth below, upon surrender for registration of transfer of a Certificate at the office or agency maintained pursuant to Section 3.08, the Owner Trustee shall execute, authenticate and deliver (or cause the Trust Administrator as its authenticating agent to authenticate and deliver), in the name of the designated transferee, a new Certificate evidencing the Percentage Interest of the Certificate so surrendered and dated the date of authentication by the Owner Trustee or the Certificate Registrar. Every Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by each Certificateholder or such Certificateholder's ’s attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Certificate Registrar in accordance with its customary practice. No service charge shall be made for any registration of transfer or exchange of a Certificate, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of a Certificate or any other expense arising as a result of any registration of transfer or exchange. The preceding provisions of this Section notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register transfer or exchanges of a Certificate for a period of 15 days preceding the due date for any payment with respect to such Certificate. No transfer of a Certificate shall be made unless such transfer is exempt from the registration requirements of the Securities Act and any applicable state securities laws or is made in accordance with said Act and laws. Except in the case of an initial transfer to an Initial Holder, in the event of any such transfer, the Certificate Registrar or the Depositor shall prior to such transfer require the transferee to execute (i) an investment letter (in the form attached hereto as Exhibit D-1) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is a "“qualified institutional buyer" ” under Rule 144A under the Securities Act, or (ii) an investment letter (in the form attached hereto as Exhibit D-2) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is an "“accredited investor" ” (as defined in Rule 501(a)(1), (2), (3) or (7) of the Securities Act), and any expense associated with the preparation and execution of any such investment letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. A Certificateholder desiring to effect the transfer of a Certificate shall, and does hereby agree to, indemnify the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor against any and all liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Except in the case of an initial transfer to an Initial Holder, no transfer of a Certificate shall be made unless the Certificate Registrar shall have received a representation letter (substantially in the form attached hereto as Exhibit D-1 or D-2) from the proposed transferee of such Certificate to the effect that such proposed transferee is not an employee benefit plan or other retirement arrangement subject to Section 406 of ERISA, or Section 4975 of the Code or any substantially similar applicable law, or a Person acting on behalf of or using the assets of any such plan, which representation letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. In addition, any Retained Notes will be subject to the same ERISA restrictions and consequences discussed above applicable to the Ownership Certificate unless either (a) the Retained Notes are sold or transferred to a party that is a taxable REIT subsidiary or is not affiliated with the owner of the Ownership Certificate and at the time of such sale or transfer: (i) the owner of the Ownership Certificate is a Permitted Transferee; (ii) no modifications have been made to the transaction documents; (iii) the respective ratings of the Retained Notes as of the date of such sale or transfer are not lower than the rating of such Retained Note as of the closing date; and (iv) no adverse changes have been made to (or that would adversely affect the application of) the legal authorities applicable to the closing date tax opinion or (b) the holder of the Retained Notes otherwise receives a tax opinion from a law firm generally recognized to be qualified to opine concerning the tax aspects of asset securitization that (i) the Retained Notes “will be debt” and (ii) after the sale or transfer, the Trust will continue to qualify as a Qualified REIT Subsidiary for federal income tax purposes. Prior to and as a condition of the registration of any transfer, sale or other disposition of the Ownership CertificateCertificate (except for any transfer, sale or other disposition which does not result in a change in the beneficial owner of the Ownership Certificate for federal income tax purposes), each Initial Holder of the an Ownership Certificate and each Prospective Holder of an Ownership Certificate shall represent and warrant in writing, in the case of each Initial Holder, in substantially the form set forth in Exhibit E hereto, and in the case of each Prospective Holder, in substantially the form set forth in Exhibit F hereto, to the Owner Trustee, the Trust Administrator and the Certificate Registrar and any of their respective successors that:
(i) Such Person is duly authorized to purchase the Ownership Certificate and its purchase of investments having the characteristics of the Ownership Certificate is authorized under, and not directly or indirectly in contravention of, any law, charter, trust instrument or other operative document, investment guidelines or list of permissible or impermissible investments that is applicable to the investor;
(ii) Such Person understands that each holder of an Ownership Certificate, by virtue of its acceptance thereof, assents to the terms, provisions and conditions of the Agreement; and;
(iiia) [Such Person is a REIT, a Qualified REIT Subsidiary, or an entity that is disregarded for federal income tax purposes that is wholly owned by a REIT or a Qualified REIT Subsidiary or (b) in the case of a Disregarded Entity.] Prospective Holder other than the Initial Holder, such Person is a Permitted Transferee; and
(iv) Such Person will only transfer the Ownership Certificate to a person that is a Permitted Transferee. In addition, any Retained Notes will be subject to the same requirements, restrictions and consequences discussed in the preceding sentence applicable to the Ownership Certificate unless either (a) the Retained Notes are sold or transferred to a party that is a taxable REIT subsidiary or is not affiliated with the owner of the Ownership Certificate and at the time of such sale or transfer: (i) the owner of the Ownership Certificate is a Permitted Transferee; (ii) no modifications have been made to the transaction documents; (iii) the respective ratings of the Retained Notes as of the date of such sale or transfer are not lower than the rating of such Retained Note as of the closing date; and (iv) no adverse changes have been made to (or that would adversely affect the application of) the legal authorities applicable to the closing date tax opinion or (b) the holder of the Retained Notes otherwise receives a tax opinion from a law firm generally recognized to be qualified to opine concerning the tax aspects of asset securitization that (i) the Retained Notes “will be debt” and (ii) after the sale or transfer, the Trust will continue to qualify as a Qualified REIT Subsidiary for federal income tax purposes. The Owner Trustee shall cause each Certificate to contain a legend, substantially similar to the applicable legends provided in Exhibit A hereto, stating that transfer of such Certificate is subject to certain restrictions and referring prospective purchasers of the Certificates to this Section 3.03 with respect to such restrictions.
Appears in 2 contracts
Samples: Trust Agreement (Fieldstone Mortgage Investment CORP), Trust Agreement (Fieldstone Mortgage Investment Trust, Series 2006-2)
Registration of and Limitations on Transfers and Exchanges of the Certificates. The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of the Certificates and of transfers and exchanges of the Certificates as set forth herein, ; provided, however, that no Ownership Certificate shall be issued in any such transfer and exchange representing less than a 100% Percentage Interest in such Certificate; , and provided, further, that no Ownership Certificate shall be issued in any such transfer and exchange except in accordance with the provisions and conditions set forth below in this Section 3.03. The Trust Administrator shall be the initial Certificate Registrar. If the Certificate Registrar resigns or is removed, the Owner Trustee, with the consent of the Depositor, Depositor shall appoint a successor Certificate Registrar. Subject to satisfaction of the conditions set forth below, upon surrender for registration of transfer of a Certificate at the office or agency maintained pursuant to Section 3.08, the Owner Trustee shall execute, and the Certificate Registrar shall authenticate and deliver (or cause the Trust Administrator as its authenticating agent to authenticate and deliver), in the name of the designated transferee, a new Certificate evidencing the Percentage Interest of the Certificate so surrendered and dated the date of authentication by the Owner Trustee or the Certificate Registrar. Every Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by each Certificateholder or such Certificateholder's ’s attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Certificate Registrar in accordance with its customary practice. No service charge shall be made for any registration of transfer or exchange of a Certificate, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of a Certificate or any other expense arising as a result of any registration of transfer or exchange. The preceding provisions of this Section notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register transfer or exchanges of a Certificate for a period of 15 days preceding the due date for any payment with respect to such Certificate. No transfer of a Certificate shall be made unless such transfer is exempt from the registration requirements of the Securities Act and any applicable state securities laws or is made in accordance with said Act and laws. Except in the case of an initial transfer to an Initial Holder, in the event of any such transfer, the Certificate Registrar or the Depositor shall prior to such transfer require the transferee to execute (i) an investment letter (in the form attached hereto as Exhibit D-1) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is a "“qualified institutional buyer" ” under Rule 144A under the Securities Act, or (ii) an investment letter (in the form attached hereto as Exhibit D-2) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is an "“accredited investor" ” (as defined in Rule 501(a)(1), (2), (3) or (7) of the Securities Act), and any expense associated with the preparation and execution of any such investment letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. A Certificateholder desiring to effect the transfer of a Certificate shall, and does hereby agree to, indemnify the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor against any and all liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Except in the case of an initial transfer to an Initial Holder, no transfer of a Certificate shall be made unless the Certificate Registrar shall have received a representation letter (substantially in the form attached hereto as Exhibit D-1 or D-2) from the proposed transferee of such Certificate to the effect that such proposed transferee is not an employee benefit plan or other retirement arrangement subject to Section 406 of ERISA, or Section 4975 of the Code or any substantially similar applicable law, or a Person acting on behalf of or using the assets of any such plan, which representation letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. In addition, any Retained Notes will be subject to the same ERISA restrictions and consequences discussed above applicable to the Ownership Certificate unless either (a) the Retained Notes are sold or transferred to a party that is a taxable REIT subsidiary or is not affiliated with the owner of the Ownership Certificate and at the time of such sale or transfer: (i) the owner of the Ownership Certificate is a Permitted Transferee; (ii) no modifications have been made to the transaction documents; (iii) the respective ratings of the Retained Notes as of the date of such sale or transfer are not lower than the rating of such Retained Note as of the closing date; and (iv) no adverse changes have been made to (or that would adversely affect the application of) the legal authorities applicable to the closing date tax opinion or (b) the holder of the Retained Notes otherwise receives an Opinion of Counsel that (x) the Retained Notes “will be debt” and (y) such sale or transfer will not result in an entity level tax on the Trust. The Retained Notes shall be treated for tax purposes as a division of the Ownership Certificate and shall not be transferred unless the Certificate Registrar receives from either the Certificateholder or the beneficial owner (for U.S. federal income tax purposes) of the Ownership Certificate a certification substantially in the form of Exhibit G that the requirements of (a) or (b) above have been met. Prior to and as a condition of the registration of any transfer, sale or other disposition of the Ownership Certificate, the each Initial Holder of the an Ownership Certificate and each Prospective Holder of an Ownership Certificate shall represent and warrant in writing, in the case of each Initial Holder, in substantially the form set forth in Exhibit E hereto, and in the case of each Prospective Holder, in substantially the form set forth in Exhibit F hereto, to the Owner Trustee, the Trust Administrator and the Certificate Registrar and any of their respective successors that:
(ia) Such In the case of the Initial Holder, such Person is duly authorized to purchase the Ownership Certificate and its purchase a single REIT, one or more Qualified REIT Subsidiaries of investments having the characteristics of the Ownership Certificate is authorized undersuch single REIT , and not directly or indirectly in contravention of, any law, charter, trust instrument or other operative document, investment guidelines or list of permissible or impermissible investments an entity that is applicable to disregarded for federal income tax purposes that is wholly owned by such single REIT or one or more of its Qualified REIT Subsidiaries or (b) in the investor;case of a Prospective Holder other than the Initial Holder, such Person is a Permitted Transferee; and
(ii) Such Person understands will only transfer the Ownership Certificate to a person that each holder of an Ownership Certificateis a Permitted Transferee. In addition, by virtue of its acceptance thereof, assents any Retained Notes will be subject to the termssame requirements, provisions restrictions and conditions consequences discussed in the preceding sentence applicable to the Ownership Certificate unless either (a) the Retained Notes are sold or transferred to a party that is a taxable REIT subsidiary or is not affiliated with the owner of the AgreementOwnership Certificate and at the time of such sale or transfer: (i) the owner of the Ownership Certificate is a Permitted Transferee; and
(ii) no modifications have been made to the transaction documents; (iii) [Such Person is the respective ratings of the Retained Notes as of the date of such sale or transfer are not lower than the rating of such Retained Note as of the closing date; and (iv) no adverse changes have been made to (or that would adversely affect the application of) the legal authorities applicable to the closing date tax opinion or (b) the holder of the Retained Notes otherwise receives an Opinion of Counsel that (x) the Retained Notes “will be debt” and (y) any such sale or transfer will not result in an entity level tax on the Trust. The Retained Notes shall be treated for tax purposes as a REIT, division of the Ownership Certificate and shall not be transferred unless the Certificate Registrar receives from either the Certificateholder or the beneficial owner (for U.S. federal income tax purposes) of the Ownership Certificate a Qualified REIT Subsidiary certification substantially in the form of Exhibit G that the requirements of (a) or a Disregarded Entity.] (b) above have been met. The Owner Trustee shall cause each Certificate to contain a legend, substantially similar to the applicable legends provided in Exhibit A hereto, stating that transfer of such Certificate is subject to certain restrictions and referring prospective purchasers of the Certificates to this Section 3.03 with respect to such restrictions.
Appears in 1 contract
Registration of and Limitations on Transfers and Exchanges of the Certificates. The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of the Certificates and of transfers and exchanges of the Certificates as set forth herein, provided, however, that no Ownership Certificate shall be issued in any such transfer and exchange representing less than a 100% Percentage Interest in such Certificate; and provided, further, that no Ownership Certificate shall be issued in any such transfer and exchange except in accordance with the provisions and conditions set forth below in this Section 3.03. The Trust Administrator shall be the initial Certificate Registrar. If the Certificate Registrar resigns or is removed, the Owner Trustee, with the consent of the Depositor, shall appoint a successor Certificate Registrar. Subject to satisfaction of the conditions set forth below, upon surrender for registration of transfer of a Certificate at the office or agency maintained pursuant to Section 3.08, the Owner Trustee shall execute, authenticate and deliver (or cause the Trust Administrator as its authenticating agent to authenticate and deliver), in the name of the designated transferee, a new Certificate evidencing the Percentage Interest of the Certificate so surrendered and dated the date of authentication by the Owner Trustee or the Certificate Registrar. Every Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by each Certificateholder or such Certificateholder's ’s attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Certificate Registrar in accordance with its customary practice. No service charge shall be made for any registration of transfer or exchange of a Certificate, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of a Certificate or any other expense arising as a result of any registration of transfer or exchange. The preceding provisions of this Section notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register transfer or exchanges of a Certificate for a period of 15 days preceding the due date for any payment with respect to such Certificate. No transfer of a Certificate shall be made unless such transfer is exempt from the registration requirements of the Securities Act and any applicable state securities laws or is made in accordance with said Act and laws. Except in the case of an initial transfer to an Initial Holder, in the event of any such transfer, the Certificate Registrar or the Depositor shall prior to such transfer require the transferee to execute (i) an investment letter (in the form attached hereto as Exhibit D-1) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is a "“qualified institutional buyer" ” under Rule 144A under the Securities Act, or (ii) an investment letter (in the form attached hereto as Exhibit D-2) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is an "“accredited investor" ” (as defined in Rule 501(a)(1), (2), (3) or (7) of the Securities Act), and any expense associated with the preparation and execution of any such investment letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. A Certificateholder desiring to effect the transfer of a Certificate shall, and does hereby agree to, indemnify the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor against any and all liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Except in the case of an initial transfer to an Initial Holder, no transfer of a Certificate shall be made unless the Certificate Registrar shall have received a representation letter (in the form attached hereto as Exhibit D-1 or D-2) from the proposed transferee of such Certificate to the effect that such proposed transferee is not an employee benefit plan or other retirement arrangement subject to Section 406 of ERISA, or Section 4975 of the Code or any substantially similar applicable law, or a Person acting on behalf of or using the assets of any such plan, which representation letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. Prior to and as a condition of the registration of any transfer, sale or other disposition of the Ownership Certificate, the Initial Holder of the Ownership Certificate and each Prospective Holder of an Ownership Certificate shall represent and warrant in writing, in the case of each Initial Holder, in substantially the form set forth in Exhibit E hereto, and in the case of each Prospective Holder, in substantially the form set forth in Exhibit F hereto, to the Owner Trustee, the Trust Administrator and the Certificate Registrar and any of their respective successors that:
(i) Such Person is duly authorized to purchase the Ownership Certificate and its purchase of investments having the characteristics of the Ownership Certificate is authorized under, and not directly or indirectly in contravention of, any law, charter, trust instrument or other operative document, investment guidelines or list of permissible or impermissible investments that is applicable to the investor;
(ii) Such Person understands that each holder of an Ownership Certificate, by virtue of its acceptance thereof, assents to the terms, provisions and conditions of the Agreement; and
(iii) [Such Person is a REIT, a Qualified REIT Subsidiary or a Disregarded Entity.] The Owner Trustee shall cause each Certificate to contain a legend, substantially similar to the applicable legends provided in Exhibit A hereto, stating that transfer of such Certificate is subject to certain restrictions and referring prospective purchasers of the Certificates to this Section 3.03 with respect to such restrictions.
Appears in 1 contract
Samples: Trust Agreement (Indymac Abs Inc)
Registration of and Limitations on Transfers and Exchanges of the Certificates. The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of the Certificates and of transfers and exchanges of the Certificates as set forth herein, ; provided, however, that no Ownership Certificate shall be issued in any such transfer and exchange representing less than a 100% Percentage Interest in such Certificate; , and provided, further, that no Ownership Certificate shall be issued in any such transfer and exchange except in accordance with the provisions and conditions set forth below in this Section 3.03. The Trust Administrator shall be the initial Certificate Registrar. If the Certificate Registrar resigns or is removed, the Owner Trustee, with the consent of the Depositor, shall appoint a successor Certificate Registrar. Subject to satisfaction of the conditions set forth below, upon surrender for registration of transfer of a Certificate at the office or agency maintained pursuant to Section 3.08, the Owner Trustee shall execute, authenticate and deliver (or cause the Trust Administrator as its authenticating agent to authenticate and deliver), in the name of the designated transferee, a new Certificate evidencing the Percentage Interest of the Certificate so surrendered and dated the date of authentication by the Owner Trustee or the Certificate Registrar. Every Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by each Certificateholder or such Certificateholder's attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Certificate Registrar in accordance with its customary practice. No service charge shall be made for any registration of transfer or exchange of a Certificate, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of a Certificate or any other expense arising as a result of any registration of transfer or exchange. The preceding provisions of this Section notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register transfer or exchanges of a Certificate for a period of 15 days preceding the due date for any payment with respect to such Certificate. No transfer of a Certificate shall be made unless such transfer is exempt from the registration requirements of the Securities Act and any applicable state securities laws or is made in accordance with said Act and laws. Except in the case of an initial transfer to an Initial Holder, in the event of any such transfer, the Certificate Registrar or the Depositor shall prior to such transfer require the transferee to execute (i) an investment letter (in the form attached hereto as Exhibit D-1) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is a "qualified institutional buyer" under Rule 144A under the Securities Act, or (ii) an investment letter (in the form attached hereto as Exhibit D-2) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is an "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of the Securities Act), and any expense associated with the preparation and execution of any such investment letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. A Certificateholder desiring to effect the transfer of a Certificate shall, and does hereby agree to, indemnify the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor against any and all liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Except in the case of an initial transfer to an Initial Holder, no transfer of a Certificate shall be made unless the Certificate Registrar shall have received a representation letter (substantially in the form attached hereto as Exhibit D-1 or D-2) from the proposed transferee of such Certificate to the effect that such proposed transferee is not an employee benefit plan or other retirement arrangement subject to Section 406 of ERISA, or Section 4975 of the Code or any substantially similar applicable law, or a Person acting on behalf of or using the assets of any such plan, which representation letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. In addition, any Retained Notes will be subject to the same ERISA restrictions and consequences discussed above applicable to the Ownership Certificate unless either (a) the Retained Notes are sold or transferred to a party that is a taxable REIT subsidiary or is not affiliated with the owner of the Ownership Certificate and at the time of such sale or transfer: (i) the owner of the Ownership Certificate is a Permitted Transferee; (ii) no modifications have been made to the transaction documents; (iii) the respective ratings of the Retained Notes as of the date of such sale or transfer are not lower than the rating of such Retained Note as of the closing date; and (iv) no adverse changes have been made to (or that would adversely affect the application of) the legal authorities applicable to the closing date tax opinion or (b) the holder of the Retained Notes otherwise receives a tax opinion from a law firm generally recognized to be qualified to opine concerning the tax aspects of asset securitization that (i) the Retained Notes "will be debt" and (ii) after the sale or transfer, the Trust will continue to qualify as a Qualified REIT Subsidiary for federal income tax purposes. Prior to and as a condition of the registration of any transfer, sale or other disposition of the Ownership CertificateCertificate (except for any transfer, sale or other disposition which does not result in a change in the beneficial owner of the Ownership Certificate for federal income tax purposes), each Initial Holder of the an Ownership Certificate and each Prospective Holder of an Ownership Certificate shall represent and warrant in writing, in the case of each Initial Holder, in substantially the form set forth in Exhibit E hereto, and in the case of each Prospective Holder, in substantially the form set forth in Exhibit F hereto, to the Owner Trustee, the Trust Administrator and the Certificate Registrar and any of their respective successors that:
(i) Such Person is duly authorized to purchase the Ownership Certificate and its purchase of investments having the characteristics of the Ownership Certificate is authorized under, and not directly or indirectly in contravention of, any law, charter, trust instrument or other operative document, investment guidelines or list of permissible or impermissible investments that is applicable to the investor;
(ii) Such Person understands that each holder of an Ownership Certificate, by virtue of its acceptance thereof, assents to the terms, provisions and conditions of the Agreement; and;
(iiia) [Such Person is a REIT, a Qualified REIT Subsidiary, or an entity that is disregarded for federal income tax purposes that is wholly owned by a REIT or a Qualified REIT Subsidiary or (b) in the case of a Disregarded Entity.] The Owner Trustee shall cause each Prospective Holder other than the Initial Holder, such Person is a Permitted Transferee; and
(iv) Such Person will only transfer the Ownership Certificate to contain a legendperson that is a Permitted Transferee. In addition, substantially similar any Retained Notes will be subject to the same requirements, restrictions and consequences discussed in the preceding sentence applicable legends provided in Exhibit A hereto, stating to the Ownership Certificate unless either (a) the Retained Notes are sold or transferred to a party that transfer is a taxable REIT subsidiary or is not affiliated with the owner of the Ownership Certificate and at the time of such sale or transfer: (i) the owner of the Ownership Certificate is subject a Permitted Transferee; (ii) no modifications have been made to certain restrictions and referring prospective purchasers the transaction documents; (iii) the respective ratings of the Certificates Retained Notes as of the date of such sale or transfer are not lower than the rating of such Retained Note as of the closing date; and (iv) no adverse changes have been made to this Section 3.03 with respect (or that would adversely affect the application of) the legal authorities applicable to such restrictionsthe closing date tax opinion or (b) the holder of the Retained Notes otherwise receives a tax opinion from a law firm generally recognized to be qualified to opine concerning the tax aspects of asset securitization that (i) the Retained Notes "will be debt" and (ii) after the sale or transfer, the Trust will continue to qualify as a Qualified REIT Subsidiary for federal income tax purposes.
Appears in 1 contract
Samples: Trust Agreement (Fieldstone Mortgage Investment CORP)
Registration of and Limitations on Transfers and Exchanges of the Certificates. (a) The Securities Administrator is hereby appointed as the Certificate Registrar of the Trust. The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.083.09, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of the Certificates and of transfers and exchanges of the Certificates as set forth herein, herein provided; provided, however, that no Ownership Certificate related Residual Certificates nor related Class E Certificates shall be issued in any such transfer and exchange representing less than a 100% Percentage Interest in such Certificate; and provided, further, that no Ownership Certificate shall be issued in any such transfer and exchange except in accordance with the provisions and conditions set forth below in this Section 3.03. The Trust Administrator shall be the initial Certificate Registrar. If the Certificate Registrar resigns or is removed, the Owner Trustee, with the consent of the Depositor, Depositor shall appoint a successor Certificate Registrar. .
(b) Subject to satisfaction of the conditions set forth below, with respect to the Certificates, upon surrender for registration of transfer of a Certificate Certificates at the office or agency maintained pursuant to Section 3.083.09, the Owner Trustee and the Certificate Register shall execute, authenticate and deliver (or cause the Trust Administrator as its authenticating agent to authenticate and deliver), in the name of the designated transferee, a new Certificate evidencing the Percentage Interest of the Certificate so surrendered and dated the date of authentication by the Owner Trustee or the Certificate Registrar. At the option of a Holder, Certificates may be exchanged for other Certificates of authorized denominations of a like aggregate amount upon surrender of the Certificates to be exchanged at the office or agency maintained pursuant to Section 3.09. Every Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by each Certificateholder the Holder or such Certificateholder's Holder’s attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Certificate Registrar in accordance with its customary practice. No service charge shall be made for any registration of transfer or exchange of a Certificatethe Certificates, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of a Certificate the Certificates or any other expense arising as a result of any registration of transfer or exchange. Except for the initial issuance of the Residual Certificates on the Closing Date, no Person shall become a Certificateholder of the Residual Certificates until the requirements of section 3.04(g) shall have been complied with. The preceding provisions of this Section notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any transfer or exchanges exchange of a related Residual Certificate or related Class E Certificate for a period of 15 days preceding the due date for any payment with respect to such Certificate. Certificates.
(c) The Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated or otherwise conveyed (collectively, for purposes of this Section 3.04 and any other Section referring to the Certificates, “transferred” or a “transfer”) only in accordance with this Section 3.04.
(d) No transfer of a Certificate shall be made unless such transfer is exempt from the made pursuant to an effective registration requirements of statement under the Securities Act and any applicable state securities laws or is exempt from the registration requirements under the Securities Act and such state securities laws. In the event that a transfer is to be made in accordance with said reliance upon an exemption from the Securities Act and such laws. Except , in order to assure compliance with the Securities Act and such laws, the Certificateholder desiring to effect such transfer and such Certificateholder’s prospective transferee shall each certify to the Securities Administrator in writing the facts (or shall be deemed to certify in the case of an initial a Book-Entry Certificate) surrounding the transfer by (x)(i) the delivery to an Initial Holder, in the event of any such transfer, Securities Administrator by the Certificate Registrar or the Depositor shall prior Certificateholder desiring to effect such transfer require the transferee to execute (i) an investment letter (of a certificate substantially in the form attached hereto as set forth in Exhibit D-1D (the “Transferor Certificate”) certifying to and (ii) the Trust, delivery by the Owner Trustee, Certificateholder’s prospective transferee of (A) a letter in substantially the Trust Administrator, form of Exhibit E (the Certificate Registrar “Investment Letter”) if the prospective transferee is an Institutional Accredited Investor or (B) a letter in substantially the form of Exhibit F (the “Rule 144A and Related Matters Certificate”) if the Depositor that such prospective transferee is a "“qualified institutional buyer" under ” as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act, or (ii) an investment letter (in the form attached hereto as Exhibit D-2) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is an "accredited investor" (as defined in Rule 501(a)(1), (2), (3”) or (7y) there shall be delivered to the Securities Administrator an Opinion of Counsel addressed to the Indenture Trustee and the Securities Administrator that such transfer may be made pursuant to an exemption from the Securities Act), and any expense associated with the preparation and execution which Opinion of any such investment letter Counsel shall not be an expense of the TrustDepositor, the Owner TrusteeSeller, the Trust AdministratorMaster Servicer, the Certificate Registrar Securities Administrator or the DepositorIndenture Trustee. A Certificateholder The Depositor shall provide to any Holder of a Certificate and any prospective transferee designated by any such Holder, information regarding the related Certificates and the HELOCs and such other information as shall be necessary to satisfy the condition to eligibility set forth in Rule 144A(d)(4) for transfer of any such Certificate without registration thereof under the Securities Act pursuant to the registration exemption provided by Rule 144A. The Indenture Trustee and the Securities Administrator shall cooperate with the Depositor in providing the Rule 144A information referenced in the preceding sentence, including providing to the Depositor such information regarding the Certificates, the HELOCs and other matters regarding the Trust Estate as the Depositor shall reasonably request to meet its obligation under the preceding sentence. Each Holder of a Certificate desiring to effect the such transfer of a Certificate shall, and does hereby agree to, indemnify the TrustIndenture Trustee, the Depositor, the Sellers, the Owner Trustee, the Trust Administrator, the Certificate Registrar Securities Administrator and the Depositor Master Servicer against any and all liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Except in .
(e) With respect to the case of an initial transfer to an Initial Holder, no transfer of a related Class E, Class X or related Residual Certificate such Person shall comply with the provisions of Section 3.07, as applicable, relating to the ERISA restrictions with respect to the acceptance or acquisition of such related Class E, Class X or Residual Certificate.
(f) For so long as any of the Certificates are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Certificate Registrar agrees to cooperate with, and act in accordance with the direction of, the Depositor in providing to any Certificateholders and to any prospective purchaser of Certificates designated by such Certificateholder, upon the request of such Certificateholder or prospective purchaser, any information in the Certificate Registrar’s possession and required to be provided to such holder or prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4) under the Securities Act. Any reasonable, out-of-pocket expenses incurred by the Certificate Registrar in providing such information shall be reimbursed by the Depositor.
(g) Each Person that has or that acquires any Ownership Interest in any Residual Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably appointed the Certificate Registrar or its designee as its attorney-in-fact to negotiate the terms of any mandatory sale under clause (v) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale, and the rights of each Person acquiring any Ownership Interest in the Residual Certificates are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Owner Trustee and the Certificate Registrar of any change or impending change in its status as a Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a Residual Certificate unless such Ownership Interest is a pro rata undivided interest.
(iii) No Ownership Interest in a Residual Certificate may be transferred without the express written consent of the Owner Trustee, the Note Insurer, the Depositor and the Certificate Registrar. In connection with any proposed transfer of any Ownership Interest in a Residual Certificate, the Owner Trustee shall, as a condition to such consent, require delivery to it, the Depositor, the Note Insurer (with respect to a Group II Residual Certificate only) and the Certificate Registrar in form and substance satisfactory to it, each of the following:
(A) an affidavit in the form of Exhibit C hereto from the proposed transferee to the effect that such transferee is a Permitted Transferee and that it is not acquiring its Ownership Interest in a Residual Certificate that is the subject of the proposed transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, and certification from the proposed transferor to the effect that it does not have actual knowledge that any statements made unless by the proposed transferee in such affidavit is false; and
(B) a covenant of the proposed transferee to the effect that the proposed transferee agrees to be bound by and to abide by the transfer restrictions applicable to the Residual Certificates.
(iv) Any attempted or purported transfer of any Ownership Interest in a Residual Certificate in violation of the provisions of this Section 3.04(g) shall be absolutely null and void and shall vest no rights in the purported transferee. If any purported transferee shall, in violation of the provisions of this Section 3.04, become a Holder of a Residual Certificate, then the prior Holder of such Residual Certificate that is a Permitted Transferee shall, upon discovery that the registration of transfer of such Residual Certificate was not in fact permitted by this Section 3.04, be restored to all rights as Holder thereof retroactive to the date of registration of transfer of such Residual Certificate. The Owner Trustee and the Certificate Registrar shall be under no liability to any Person for any registration of transfer of any Residual Certificate that is in fact not permitted by this Section 3.04(g) or for making any distributions due on such Residual Certificate to the Holder thereof or taking any other action with respect to such Holder under the provisions of this Agreement so long as the Owner Trustee, the Depositor and the Certificate Registrar received all affidavits and covenants with respect to such transfer provided for under this Section 3.04(g). The Certificate Paying Agent, on behalf of the Trust, shall be entitled to recover from any Holder of a Residual Certificate that was in fact not a Permitted Transferee at the time such distributions were made all distributions made on such Residual Certificate. Any such distributions so recovered by the Certificate Paying Agent shall be distributed and delivered by the Certificate Paying Agent to the prior Holder of such Residual Certificate that is a Permitted Transferee.
(v) If any Person other than a Permitted Transferee acquires any Ownership Interest in a Residual Certificate in violation of the restrictions in this Section 3.04(g), then the Certificate Registrar shall have received a representation letter (in the form attached hereto as Exhibit D-1 or D-2) from right but not the proposed transferee obligation, without notice to the Holder of such Residual Certificate to the effect that such proposed transferee is not an employee benefit plan or other retirement arrangement subject to Section 406 of ERISA, or Section 4975 of the Code or any substantially similar applicable lawother Person having an Ownership Interest therein, or a Person acting on behalf to notify the underwriter to arrange for the sale of or using the assets such Residual Certificate. The proceeds of any such plansale, net of commissions (which representation letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, may include commissions payable to the Certificate Registrar or its affiliates), expenses and taxes due, if any, will be remitted by the DepositorCertificate Paying Agent to the previous Holder of such Residual Certificate that is a Permitted Transferee, except that in the event that the Certificate Paying Agent determines that the Holder of such Residual Certificate may be liable for any amount due under this Section 3.04 or any other provisions of this Agreement, the Certificate Paying Agent may withhold a corresponding amount from such remittance as security for such claim. Prior to The terms and as a condition of the registration conditions of any transfer, sale or other disposition of the Ownership Certificate, the Initial Holder of the Ownership Certificate and each Prospective Holder of an Ownership Certificate under this clause (v) shall represent and warrant in writing, be determined in the case sole discretion of each Initial Holder, in substantially the form set forth in Exhibit E hereto, and in the case of each Prospective Holder, in substantially the form set forth in Exhibit F hereto, to the Owner Trustee, the Trust Administrator and the Certificate Registrar and the Certificate Paying Agent, and neither such Person shall be liable to any Person having an Ownership Interest in a Residual Certificate as a result of their respective successors that:its exercise of such discretion.
(ivi) Such If any Person is duly authorized to purchase the other than a Permitted Transferee acquires any Ownership Interest in a Residual Certificate and its purchase of investments having the characteristics in violation of the Ownership restrictions in this Section 3.04(g), then the Certificate is authorized underRegistrar will provide to the Internal Revenue Service, and not directly or indirectly in contravention of, any law, charter, trust instrument or other operative document, investment guidelines or list of permissible or impermissible investments that is applicable to the investor;persons specified in Section 860E(e)(3) of the Code, information needed to compute the tax imposed under Section 860E(e)(1) of the Code on transfers of residual interests to disqualified organizations.
(iih) Such Each Person understands that each holder of has or that acquires an Ownership Certificate, Interest in the Class I-S Certificate or Class II-S Certificate shall be deemed by virtue the acceptance or acquisition of its acceptance thereof, assents such Ownership Interest to have agreed to be bound to reimburse advances made by the related Servicer to fund related Draws on the related HELOCs pursuant to the terms, provisions related Servicing Agreement and conditions to the extent set forth in Section 2.01(b) of the Sale and Servicing Agreement; and
(iii) [Such Person is a REIT, a Qualified REIT Subsidiary or a Disregarded Entity.] The Owner Trustee shall cause each Certificate to contain a legend, substantially similar to the applicable legends provided in Exhibit A hereto, stating that transfer of such Certificate is subject to certain restrictions and referring prospective purchasers of the Certificates to this Section 3.03 with respect to such restrictions.
Appears in 1 contract
Registration of and Limitations on Transfers and Exchanges of the Certificates. (a) The Securities Administrator is hereby appointed as the Certificate Registrar of the Trust. The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.083.09, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of the Certificates and of transfers and exchanges of the Certificates as set forth herein, herein provided; provided, however, that no Ownership Class R-1, Class R-2, Class RX or Class S Certificate shall be issued in any such transfer and exchange representing less than a 100% Percentage Interest in such Certificate; and provided, further, that no Ownership Certificate shall be issued in any such transfer and exchange except in accordance with the provisions and conditions set forth below in this Section 3.03. The Trust Administrator shall be the initial Certificate Registrar. If the Certificate Registrar resigns or is removed, the Owner Trustee, with the consent of the Depositor, Depositor shall appoint a successor Certificate Registrar. .
(b) Subject to satisfaction of the conditions set forth below, with respect to the Certificates, upon surrender for registration of transfer of a Certificate Certificates at the office or agency maintained pursuant to Section 3.083.09, the Owner Trustee and the Certificate Register shall execute, authenticate and deliver (or cause the Trust Administrator as its authenticating agent to authenticate and deliver), in the name of the designated transferee, a new Certificate evidencing the Percentage Interest of the Certificate so surrendered and dated the date of authentication by the Owner Trustee or the Certificate Registrar. At the option of a Holder, Certificates may be exchanged for other Certificates of authorized denominations of a like aggregate amount upon surrender of the Certificates to be exchanged at the office or agency maintained pursuant to Section 3.09. Every Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by each Certificateholder the Holder or such Certificateholder's Holder’s attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Certificate Registrar in accordance with its customary practice. No service charge shall be made for any registration of transfer or exchange of a Certificatethe Certificates, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of a Certificate the Certificates or any other expense arising as a result of any registration of transfer or exchange. Except for the initial issuance of the Class S, Class R-1, Class R-2 and Class RX Certificates on the Closing Date, no Person shall become a Certificateholder of Class S, Class R-1, Class R-2 or Class RX Certificates until the requirements of section 3.04(f) shall have been complied with. The preceding provisions of this Section notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any transfer or exchanges exchange of a Class S, Class E, Class R-1, Class R-2 or Class RX Certificate for a period of 15 days preceding the due date for any payment with respect to such Certificate. Certificates.
(c) The Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated or otherwise conveyed (collectively, for purposes of this Section 3.04 and any other Section referring to the Certificates, “transferred” or a “transfer”) only in accordance with this Section 3.04.
(d) No transfer of a Certificate shall be made unless such transfer is exempt from the made pursuant to an effective registration requirements of statement under the Securities Act and any applicable state securities laws or is exempt from the registration requirements under the Securities Act and such state securities laws. In the event that a transfer is to be made in accordance with said reliance upon an exemption from the Securities Act and such laws. Except , in order to assure compliance with the Securities Act and such laws, the Certificateholder desiring to effect such transfer and such Certificateholder’s prospective transferee shall each certify to the Securities Administrator in writing the facts (or shall be deemed to certify in the case of an initial a Book-Entry Certificate) surrounding the transfer by (x)(i) the delivery to an Initial Holder, in the event of any such transfer, Securities Administrator by the Certificate Registrar or the Depositor shall prior Certificateholder desiring to effect such transfer require the transferee to execute (i) an investment letter (of a certificate substantially in the form attached hereto as set forth in Exhibit D-1E (the “Transferor Certificate”) certifying to and (ii) the Trust, delivery by the Owner Trustee, Certificateholder’s prospective transferee of (A) a letter in substantially the Trust Administrator, form of Exhibit E (the Certificate Registrar “Investment Letter”) if the prospective transferee is an Institutional Accredited Investor or (B) a letter in substantially the form of Exhibit F (the “Rule 144A and Related Matters Certificate”) if the Depositor that such prospective transferee is a "“qualified institutional buyer" under ” as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act, or (ii) an investment letter (in the form attached hereto as Exhibit D-2) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is an "accredited investor" (as defined in Rule 501(a)(1), (2), (3”) or (7y) there shall be delivered to the Securities Administrator an Opinion of Counsel addressed to the Indenture Trustee and the Securities Administrator that such transfer may be made pursuant to an exemption from the Securities Act), and any expense associated with the preparation and execution which Opinion of any such investment letter Counsel shall not be an expense of the TrustDepositor, the Owner TrusteeSeller, the Trust AdministratorMaster Servicer, the Certificate Registrar Securities Administrator or the DepositorIndenture Trustee. A Certificateholder The Depositor shall provide to any Holder of a Certificate and any prospective transferee designated by any such Holder, information regarding the related Certificates and the HELOCs and such other information as shall be necessary to satisfy the condition to eligibility set forth in Rule 144A(d)(4) for transfer of any such Certificate without registration thereof under the Securities Act pursuant to the registration exemption provided by Rule 144A. The Indenture Trustee and the Securities Administrator shall cooperate with the Depositor in providing the Rule 144A information referenced in the preceding sentence, including providing to the Depositor such information regarding the Certificates, the HELOCs and other matters regarding the Trust Estate as the Depositor shall reasonably request to meet its obligation under the preceding sentence. Each Holder of a Certificate desiring to effect the such transfer of a Certificate shall, and does hereby agree to, indemnify the TrustIndenture Trustee, the Depositor, the Sellers, the Owner Trustee, the Trust Administrator, the Certificate Registrar Securities Administrator and the Depositor Master Servicer against any and all liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Except in .
(i) With respect to the case of an initial transfer to an Initial Holder, no transfer of a Class E or Residual Certificate, such Person shall comply with the provisions of Section 3.07, as applicable, relating to the ERISA restrictions with respect to the acceptance or acquisition of such Class E or Residual Certificate.
(e) For so long as any of the Certificates are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Certificate Registrar agrees to cooperate with, and act in accordance with the direction of, the Depositor in providing to any Certificateholders and to any prospective purchaser of Certificates designated by such Certificateholder, upon the request of such Certificateholder or prospective purchaser, any information in the Certificate Registrar’s possession and required to be provided to such holder or prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4) under the Securities Act. Any reasonable, out-of-pocket expenses incurred by the Certificate Registrar in providing such information shall be reimbursed by the Depositor.
(f) Each Person that has or that acquires any Ownership Interest in any Class S, Class R-1, Class R-2 or Class RX Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably appointed the Certificate Registrar or its designee as its attorney-in-fact to negotiate the terms of any mandatory sale under clause (v) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale, and the rights of each Person acquiring any Ownership Interest in the Class S, Class R-1, Class R-2 or Class RX Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a Class S, Class R-1, Class R-2 or Class RX Certificate shall be a Permitted Transferee and shall promptly notify the Owner Trustee and the Certificate Registrar of any change or impending change in its status as a Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a Class S, Class R-1, Class R-2 or Class RX Certificate unless such Ownership Interest is a pro rata undivided interest.
(iii) No Ownership Interest in a Class S, Class R-1, Class R-2 or Class RX Certificate may be transferred without the express written consent of the Owner Trustee, the Note Insurer, the Depositor and the Certificate Registrar. In connection with any proposed transfer of any Ownership Interest in a Class S, Class R-1, Class R-2 or Class RX Certificate, the Owner Trustee shall, as a condition to such consent, require delivery to it, the Depositor, the Note Insurer (with respect to a Class S Certificate only) and the Certificate Registrar in form and substance satisfactory to it, each of the following:
(A) an affidavit in the form of Exhibit C hereto from the proposed transferee to the effect that such transferee is a Permitted Transferee and that it is not acquiring its Ownership Interest in the Class S, Class R-1, Class R-2 or Class RX Certificate that is the subject of the proposed transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, and certification from the proposed transferor to the effect that it does not have actual knowledge that any statements made unless by the proposed transferee in such affidavit is false; and
(B) a covenant of the proposed transferee to the effect that the proposed transferee agrees to be bound by and to abide by the transfer restrictions applicable to the Class S, Class R-1, Class R-2 or Class RX Certificate.
(iv) Any attempted or purported transfer of any Ownership Interest in a Class S, Class R-1, Class R-2 or Class RX Certificate in violation of the provisions of this Section 3.04 shall be absolutely null and void and shall vest no rights in the purported transferee. If any purported transferee shall, in violation of the provisions of this Section 3.04, become a Holder of a Class S, Class R-1, Class R-2 or Class RX Certificate, then the prior Holder of such Class S, Class R-1, Class R-2 or Class RX Certificate that is a Permitted Transferee shall, upon discovery that the registration of transfer of such Class S, Class R-1, Class R-2 or Class RX Certificate was not in fact permitted by this Section 3.04, be restored to all rights as Holder thereof retroactive to the date of registration of transfer of such Class S, Class R-1, Class R-2 or Class RX Certificate. The Owner Trustee and the Certificate Registrar shall be under no liability to any Person for any registration of transfer of any Class S, Class R-1, Class R-2 or Class RX Certificate that is in fact not permitted by this Section 3.04 or for making any distributions due on such Class S, Class R-1, Class R-2 or Class RX Certificate to the Holder thereof or taking any other action with respect to such Holder under the provisions of this Agreement so long as the Owner Trustee, the Depositor and the Certificate Registrar received all affidavits and covenants with respect to such transfer provided for under this Section 3.04. The Certificate Paying Agent, on behalf of the Trust, shall be entitled to recover from any Holder of a Class S, Class R-1, Class R-2 or Class RX Certificate that was in fact not a Permitted Transferee at the time such distributions were made all distributions made on such Class S, Class R-1, Class R-2 or Class RX Certificate. Any such distributions so recovered by the Certificate Paying Agent shall be distributed and delivered by the Certificate Paying Agent to the prior Holder of such Class S, Class R-1, Class R-2 or Class RX Certificate that is a Permitted Transferee.
(v) If any Person other than a Permitted Transferee acquires any Ownership Interest in a Class S, Class R-1, Class R-2 or Class RX Certificate in violation of the restrictions in this Section 3.04, then the Certificate Registrar shall have received a representation letter (in the form attached hereto as Exhibit D-1 or D-2) from right but not the proposed transferee obligation, without notice to the Holder of such Class S, Class R-1, Class R-2 or Class RX Certificate to the effect that such proposed transferee is not an employee benefit plan or other retirement arrangement subject to Section 406 of ERISA, or Section 4975 of the Code or any substantially similar applicable lawother Person having an Ownership Interest therein, to notify the underwriter to arrange for the sale of such Class S, Class R-1, Class R-2 or a Person acting on behalf Class RX Certificate. The proceeds of or using the assets such sale, net of any such plan, commissions (which representation letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, may include commissions payable to the Certificate Registrar or its affiliates), expenses and taxes due, if any, will be remitted by the DepositorCertificate Paying Agent to the previous Holder of such Class S, Class R-1, Class R-2 or Class RX Certificate that is a Permitted Transferee, except that in the event that the Certificate Paying Agent determines that the Holder of such Class S, Class R-1, Class R-2 or Class RX Certificate may be liable for any amount due under this Section 3.04 or any other provisions of this Agreement, the Certificate Paying Agent may withhold a corresponding amount from such remittance as security for such claim. Prior to The terms and as a condition of the registration conditions of any transfer, sale or other disposition of the Ownership Certificate, the Initial Holder of the Ownership Certificate and each Prospective Holder of an Ownership Certificate under this clause (v) shall represent and warrant in writing, be determined in the case sole discretion of each Initial Holder, in substantially the form set forth in Exhibit E hereto, and in the case of each Prospective Holder, in substantially the form set forth in Exhibit F hereto, to the Owner Trustee, the Trust Administrator and the Certificate Registrar and the Certificate Paying Agent, and neither such Person shall be liable to any Person having an Ownership Interest in a Class S, Class R-1, Class R-2 or Class RX Certificate as a result of their respective successors that:its exercise of such discretion.
(ivi) Such If any Person is duly authorized to purchase the other than a Permitted Transferee acquires any Ownership Interest in a Class S, Class R-1, Class R-2 or Class RX Certificate and its purchase of investments having the characteristics in violation of the Ownership restrictions in this Section 3.04, then the Certificate is authorized underRegistrar will provide to the Internal Revenue Service, and not directly or indirectly in contravention of, any law, charter, trust instrument or other operative document, investment guidelines or list of permissible or impermissible investments that is applicable to the investor;persons specified in Section 860E(e)(3) of the Code, information needed to compute the tax imposed under Section 860E(e)(1) of the Code on transfers of residual interests to disqualified organizations.
(iig) Such Each Person understands that each holder of has or that acquires an Ownership Certificate, Interest in the Class S Certificate shall be deemed by virtue the acceptance or acquisition of its acceptance thereof, assents such Ownership Interest to have agreed to be bound to reimburse advances made by the Servicer to fund Draws on the HELOCs pursuant to the terms, provisions Servicing Agreement and conditions to the extent set forth in Section 2.01(b) of the Sale and Servicing Agreement; and
(iii) [Such Person is a REIT, a Qualified REIT Subsidiary or a Disregarded Entity.] The Owner Trustee shall cause each Certificate to contain a legend, substantially similar to the applicable legends provided in Exhibit A hereto, stating that transfer of such Certificate is subject to certain restrictions and referring prospective purchasers of the Certificates to this Section 3.03 with respect to such restrictions.
Appears in 1 contract
Registration of and Limitations on Transfers and Exchanges of the Certificates. The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of the Certificates and of transfers and exchanges of the Certificates as set forth herein, provided, however, that no Ownership Certificate shall be issued in any such transfer and exchange representing less than a 100% Percentage Interest in such Certificate; and provided, further, that no Ownership Certificate shall be issued in any such transfer and exchange except in accordance with the provisions and conditions set forth below in this Section 3.03. The Trust Administrator shall be the initial Certificate Registrar. If the Certificate Registrar resigns or is removed, the Owner Trustee, with the consent of the Depositor, shall appoint a successor Certificate Registrar. Subject to satisfaction of the conditions set forth below, upon surrender for registration of transfer of a Certificate at the office or agency maintained pursuant to Section 3.08, the Owner Trustee shall execute, authenticate and deliver (or cause the Trust Administrator as its authenticating agent to authenticate and deliver), in the name of the designated transferee, a new Certificate evidencing the Percentage Interest of the Certificate so surrendered and dated the date of authentication by the Owner Trustee or the Certificate Registrar. Every Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by each Certificateholder or such Certificateholder's ’s attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Certificate Registrar in accordance with its customary practice. No service charge shall be made for any registration of transfer or exchange of a Certificate, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of a Certificate or any other expense arising as a result of any registration of transfer or exchange. The preceding provisions of this Section notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register transfer or exchanges of a Certificate for a period of 15 days preceding the due date for any payment with respect to such Certificate. No transfer of a Certificate shall be made unless such transfer is exempt from the registration requirements of the Securities Act and any applicable state securities laws or is made in accordance with said Act and laws. Except in the case of an initial transfer to an Initial Holder, in the event of any such transfer, the Certificate Registrar or the Depositor shall prior to such transfer require the transferee to execute (i) an investment letter (in the form attached hereto as Exhibit D-1) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is a "“qualified institutional buyer" ” under Rule 144A under the Securities Act, or (ii) an investment letter (in the form attached hereto as Exhibit D-2) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is an "“accredited investor" ” (as defined in Rule 501(a)(1), (2), (3) or (7) of the Securities Act), and any expense associated with the preparation and execution of any such investment letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. A Certificateholder desiring to effect the transfer of a Certificate shall, and does hereby agree to, indemnify the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor against any and all liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Except in the case of an initial transfer to an Initial Holder, no transfer of a Certificate shall be made unless the Certificate Registrar shall have received a representation letter (in the form attached hereto as Exhibit D-1 or D-2) from the proposed transferee of such Certificate to the effect that such proposed transferee is not an employee benefit plan or other retirement arrangement subject to Section 406 of ERISA, or Section 4975 of the Code or any substantially similar applicable law, or a Person acting on behalf of or using the assets of any such plan, which representation letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. Prior to and as a condition of the registration of any transfer, sale or other disposition of the Ownership Certificate, the each Initial Holder of the an Ownership Certificate and each Prospective Holder of an Ownership Certificate shall represent and warrant in writing, in the case of each Initial Holder, in substantially the form set forth in Exhibit E hereto, and in the case of each Prospective Holder, in substantially the form set forth in Exhibit F hereto, to the Owner Trustee, the Trust Administrator and the Certificate Registrar and any of their respective successors that:
(i) Such Person is duly authorized to purchase the Ownership Certificate and its purchase of investments having the characteristics of the Ownership Certificate is authorized under, and not directly or indirectly in contravention of, any law, charter, trust instrument or other operative document, investment guidelines or list of permissible or impermissible investments that is applicable to the investor;
(ii) Such Person understands that each holder of an Ownership Certificate, by virtue of its acceptance thereof, assents to the terms, provisions and conditions of the Agreement; and
(iii) [Such Person is a REIT, REIT or a Qualified REIT Subsidiary or a Disregarded Entity.] Subsidiary. The Owner Trustee shall cause each Certificate to contain a legend, substantially similar to the applicable legends provided in Exhibit A hereto, stating that transfer of such Certificate is subject to certain restrictions and referring prospective purchasers of the Certificates to this Section 3.03 with respect to such restrictions.
Appears in 1 contract
Samples: Trust Agreement (Fieldstone Mortgage Investment Trust, Series 2004-4)
Registration of and Limitations on Transfers and Exchanges of the Certificates. The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of the Certificates and of transfers and exchanges of the Certificates as set forth herein, ; provided, however, that no Ownership Certificate shall be issued in any such transfer and exchange representing less than a 100% Percentage Interest in such Certificate; , and provided, further, that no Ownership Certificate shall be issued in any such transfer and exchange except in accordance with the provisions and conditions set forth below in this Section 3.03. The Trust Administrator shall be the initial Certificate Registrar. If the Certificate Registrar resigns or is removed, the Owner Trustee, with the consent of the Depositor, shall appoint a successor Certificate Registrar. Subject to satisfaction of the conditions set forth below, upon surrender for registration of transfer of a Certificate at the office or agency maintained pursuant to Section 3.08, the Owner Trustee shall execute, authenticate and deliver (or cause the Trust Administrator as its authenticating agent to authenticate and deliver), in the name of the designated transferee, a new Certificate evidencing the Percentage Interest of the Certificate so surrendered and dated the date of authentication by the Owner Trustee or the Certificate Registrar. Every Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by each Certificateholder or such Certificateholder's ’s attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Certificate Registrar in accordance with its customary practice. No service charge shall be made for any registration of transfer or exchange of a Certificate, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of a Certificate or any other expense arising as a result of any registration of transfer or exchange. The preceding provisions of this Section notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register transfer or exchanges of a Certificate for a period of 15 days preceding the due date for any payment with respect to such Certificate. No transfer of a Certificate shall be made unless such transfer is exempt from the registration requirements of the Securities Act and any applicable state securities laws or is made in accordance with said Act and laws. Except in the case of an initial transfer to an Initial Holder, in the event of any such transfer, the Certificate Registrar or the Depositor shall prior to such transfer require the transferee to execute (i) an investment letter (in the form attached hereto as Exhibit D-1) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is a "“qualified institutional buyer" ” under Rule 144A under the Securities Act, or (ii) an investment letter (in the form attached hereto as Exhibit D-2) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is an "“accredited investor" ” (as defined in Rule 501(a)(1), (2), (3) or (7) of the Securities Act), and any expense associated with the preparation and execution of any such investment letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. A Certificateholder desiring to effect the transfer of a Certificate shall, and does hereby agree to, indemnify the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor against any and all liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Except in the case of an initial transfer to an Initial Holder, no transfer of a Certificate shall be made unless the Certificate Registrar shall have received a representation letter (substantially in the form attached hereto as Exhibit D-1 or D-2) from the proposed transferee of such Certificate to the effect that such proposed transferee is not an employee benefit plan or other retirement arrangement subject to Section 406 of ERISA, or Section 4975 of the Code or any substantially similar applicable law, or a Person acting on behalf of or using the assets of any such plan, which representation letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. Prior In addition, any Retained Notes will be subject to the same ERISA restrictions and as a condition of the registration of any transfer, sale or other disposition of consequences discussed above applicable to the Ownership Certificate, Certificate unless either (a) the Initial Holder Retained Notes are sold or transferred to a party that is a taxable REIT subsidiary or is not affiliated with the owner of the Ownership Certificate and each Prospective Holder at the time of an Ownership Certificate shall represent and warrant in writing, in the case of each Initial Holder, in substantially the form set forth in Exhibit E hereto, and in the case of each Prospective Holder, in substantially the form set forth in Exhibit F hereto, to the Owner Trustee, the Trust Administrator and the Certificate Registrar and any of their respective successors that:
such sale or transfer: (i) Such Person is duly authorized to purchase the Ownership Certificate and its purchase of investments having the characteristics owner of the Ownership Certificate is authorized under, a Permitted Transferee; (ii) no modifications have been made to the transaction documents; (iii) the respective ratings of the Retained Notes as of the date of such sale or transfer are not lower than the rating of such Retained Note as of the closing date; and not directly (iv) no adverse changes have been made to (or indirectly in contravention that would adversely affect the application of, any law, charter, trust instrument or other operative document, investment guidelines or list of permissible or impermissible investments that is ) the legal authorities applicable to the investor;
closing date tax opinion or (iib) Such Person understands that each the holder of an Ownership Certificate, by virtue the Retained Notes otherwise receives a tax opinion from a law firm generally recognized to be qualified to opine concerning the tax aspects of its acceptance thereof, assents to asset securitization that (i) the terms, provisions and conditions of the Agreement; Retained Notes “will be debt” and
(iii) [Such Person is a REIT, a Qualified REIT Subsidiary or a Disregarded Entity.] The Owner Trustee shall cause each Certificate to contain a legend, substantially similar to the applicable legends provided in Exhibit A hereto, stating that transfer of such Certificate is subject to certain restrictions and referring prospective purchasers of the Certificates to this Section 3.03 with respect to such restrictions.
Appears in 1 contract
Samples: Trust Agreement (SunTrust Mortgage Securitization, LLC)
Registration of and Limitations on Transfers and Exchanges of the Certificates. The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of the Certificates and of transfers and exchanges of the Certificates as set forth herein, herein provided; provided, however, that no Ownership Certificate shall be issued in any such transfer and exchange representing less than a 100% Percentage Interest in such Certificate; , and provided, further, that no Ownership Certificate shall be issued in any such transfer and exchange except in accordance with the provisions and conditions set forth below in this Section 3.03. The Trust Administrator shall be the initial Certificate Registrar. If the Certificate Registrar resigns or is removed, the Owner Trustee, with the consent of the Depositor, shall appoint a successor Certificate Registrar. Subject to satisfaction of the conditions set forth below, upon surrender for registration of transfer of a Certificate at the office or agency maintained pursuant to Section 3.08, the Owner Trustee shall execute, authenticate and deliver (or cause the Trust Administrator as its authenticating agent to authenticate and deliver), in the name of the designated transferee, a new Certificate evidencing the Percentage Interest of the Certificate so surrendered and dated the date of authentication by the Owner Trustee or the Certificate Registrar. Every Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by each Certificateholder or such Certificateholder's ’s attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Certificate Registrar in accordance with its customary practice. No service charge shall be made for any registration of transfer or exchange of a Certificate, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of a Certificate or any other expense arising as a result of any registration of transfer or exchange. The preceding provisions of this Section notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register transfer or exchanges of a Certificate for a period of 15 days preceding the due date for any payment with respect to such Certificate. No transfer of a Certificate shall be made unless such transfer is exempt from the registration requirements of the Securities Act and any applicable state securities laws or is made in accordance with said Act and laws. Except in the case of an initial transfer to an Initial Holder, in the event of any such transfer, the Certificate Registrar or the Depositor shall prior to such transfer require the transferee to execute (i) an investment letter (in the form attached hereto as Exhibit D-1) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is a "“qualified institutional buyer" ” under Rule 144A under the Securities Act, or (ii) an investment letter (in the form attached hereto as Exhibit D-2) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is an "“accredited investor" ” (as defined in Rule 501(a)(1), (2), (3) or (7) of the Securities Act), and any expense associated with the preparation and execution of any such investment letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. A Certificateholder desiring to effect the transfer of a Certificate shall, and does hereby agree to, indemnify the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor against any and all liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Except in the case of an initial transfer to an Initial Holder, no transfer of a Certificate shall be made unless the Certificate Registrar shall have received a representation letter (in the form attached hereto as Exhibit D-1 or D-2E) from the proposed transferee of such Certificate to the effect that such proposed transferee is not an employee benefit plan or other retirement arrangement subject to Section 406 the fiduciary responsibility provisions of ERISA, or Section 4975 of the Code or any substantially similar applicable lawCode, or a Person acting on behalf of any such plan or using the assets of any such plan, which representation letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. Prior to and as a condition of the registration of any transfer, sale or other disposition of the Ownership Certificate, the each Initial Holder of the an Ownership Certificate and each Prospective Holder of an Ownership Certificate shall represent and warrant in writing, in the case of each Initial Holder, in substantially the form set forth in Exhibit E hereto, and in the case of each Prospective Holder, in substantially the form set forth in Exhibit F hereto, to the Owner Trustee, the Trust Administrator and the Certificate Registrar and any of their respective successors that:
(i) Such Person is duly authorized to purchase the Ownership Certificate and its purchase of investments having the characteristics of the Ownership Certificate is authorized under, and not directly or indirectly in contravention of, any law, charter, trust instrument or other operative document, investment guidelines or list of permissible or impermissible investments that is applicable to the investor;; and
(ii) Such Person understands that each holder of an Ownership Certificate, by virtue of its acceptance thereof, assents to the terms, provisions and conditions of the Agreement; and
(iii) [Such Person is a REIT, REIT or a Qualified REIT Subsidiary or a Disregarded Entity.] Subsidiary. The Owner Trustee shall cause each Certificate to contain a legend, substantially similar to the applicable legends provided in Exhibit A hereto, stating that transfer of such Certificate is subject to certain restrictions and referring prospective purchasers of the Certificates to this Section 3.03 with respect to such restrictions.
Appears in 1 contract
Samples: Trust Agreement (Merrill Lynch Mort Inv Fieldstone Mort Inv Tr Ser 2004-1)
Registration of and Limitations on Transfers and Exchanges of the Certificates. (a) The Indenture Trustee is hereby appointed as the Certificate Registrar of the Issuing Entity. The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.083.09, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of the Certificates and of transfers and exchanges of the Certificates as set forth herein, herein provided; provided, however, that no Ownership Class R Certificate or Class S Certificate shall be issued in any such transfer and exchange representing less than a 100% Percentage Interest in such Certificate; and provided, further, that no Ownership Certificate shall be issued in any such transfer and exchange except in accordance with the provisions and conditions set forth below in this Section 3.03. The Trust Administrator shall be the initial Certificate Registrar. If the Certificate Registrar resigns or is removed, the Owner Trustee, with the consent of the Depositor, Depositor shall appoint a successor Certificate Registrar. .
(b) Subject to satisfaction of the conditions set forth below, with respect to the Certificates, upon surrender for registration of transfer of a Certificate Certificates at the office or agency maintained pursuant to Section 3.083.09, the Owner Trustee and the Certificate Register shall execute, authenticate and deliver (or cause the Trust Administrator as its authenticating agent to authenticate and deliver), in the name of the designated transferee, a new Certificate evidencing the Percentage Interest of the Residual Certificate so surrendered and dated the date of authentication by the Owner Trustee or the Certificate Registrar. At the option of a Holder, Certificates may be exchanged for other Certificates of authorized denominations of a like aggregate amount upon surrender of the Certificates to be exchanged at the office or agency maintained pursuant to Section 3.09. Every Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by each Certificateholder the Holder or such Certificateholder's Holder’s attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Certificate Registrar in accordance with its customary practice. No service charge shall be made for any registration of transfer or exchange of a Certificatethe Certificates, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of a Certificate the Certificates or any other expense arising as a result of any registration of transfer or exchange. Except for the initial issuance of the Class S Certificates or Class R Certificates on the Closing Date, no Person shall become a Certificateholder of Class S Certificates or Class R Certificates until the requirements of section 3.04(g) shall have been complied with. The preceding provisions of this Section notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any transfer or exchanges exchange of a Certificate Class X, Class X-1, Class S and Class R Certificates for a period of 15 days preceding the due date for any payment with respect to such Certificate. Certificates.
(c) The Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated or otherwise conveyed (collectively, for purposes of this Section 3.04 and any other Section referring to the Certificates, a “transfer” or “transferred”) only in accordance with this Section 3.04.
(d) No transfer of a Certificate shall be made unless such transfer is exempt from the made pursuant to an effective registration requirements of statement under the Securities Act and any applicable state securities laws or is exempt from the registration requirements under the Securities Act and such state securities laws. In the event that a transfer is to be made in accordance with said reliance upon an exemption from the Securities Act and such laws. Except , in order to assure compliance with the Securities Act and such laws, the Certificateholder desiring to effect such transfer and such Certificateholder’s prospective transferee shall each certify to the Certificate Registrar in writing the facts (or shall be deemed to certify in the case of an initial a Book-Entry Certificate) surrounding the transfer by (i) (a) the delivery to an Initial Holder, in the event of any such transfer, the Certificate Registrar or from the Depositor shall prior Certificateholder desiring to effect such transfer require the transferee to execute (i) an investment letter (of a certificate substantially in the form attached hereto as set forth in Exhibit D-1D (the “Transferor Certificate”) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that (b) (x) if such transferee transfer is a "qualified institutional buyer" under purportedly being made in reliance upon Rule 144A under the Securities Act of 1933 (the “Securities Act”), a written certification from such Holder’s prospective transferee, substantially in the form attached to the Agreement as Exhibit F if the prospective transferee is a “qualified institutional buyer” as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”) or (y) except in the case of a transfer of a Class S Certificate, a written certification from such Holder’s prospective transferee, substantially in the form attached to the Agreement as Exhibit E (the “Investment Letter”) if the prospective transferee is an institutional “accredited investor” as defined in Section 5.01(a) of Regulation D promulgated under the Securities Act or (ii) an investment letter (in the form attached hereto as Exhibit D-2) certifying all other cases, there shall be delivered to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar an Opinion of Counsel addressed to the Indenture Trustee, Certificate Registrar, Owner Trustee and the Depositor that such transferee is transfer may be made pursuant to an "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of exemption from the Securities Act), and any expense associated with the preparation and execution which Opinion of any such investment letter Counsel shall not be an expense of the TrustDepositor, the Sponsor, the Indenture Trustee, the Certificate Paying Agent, the Owner TrusteeTrustee or the Certificate Registrar. The Depositor shall provide to any Holder of a Certificate and any prospective transferee designated by any such Holder, information regarding the Trust Administrator, related Certificates and the HELOCs and such other information as shall be necessary to satisfy the condition to eligibility set forth in Rule 144A(d)(4) for transfer of any such Certificate without registration thereof under the Securities Act pursuant to the registration exemption provided by Rule 144A. The Indenture Trustee and the Certificate Registrar or shall cooperate with the DepositorDepositor in providing the Rule 144A information referenced in the preceding sentence, including providing to the Depositor such information regarding the Certificates, the HELOCs and other matters regarding the Trust Estate as the Depositor shall reasonably request to meet its obligation under the preceding sentence. A Certificateholder Each Holder of a Certificate desiring to effect the such transfer of a Certificate shall, and does hereby agree to, indemnify the TrustIndenture Trustee, the Depositor, the Sponsor, the Owner Trustee, the Trust Administrator, Certificate Paying Agent and the Certificate Registrar and the Depositor against any and all liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Except in .
(e) With respect to the case of an initial transfer to an Initial Holder, no transfer of a Residual Certificate, such Person shall comply with the provisions of Section 3.07, as applicable, relating to the ERISA restrictions with respect to the acceptance or acquisition of such Residual Certificate.
(f) For so long as any of the Certificates are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Certificate Registrar agrees to cooperate with, and act in accordance with the direction of, the Depositor in providing to any Certificateholders and to any prospective purchaser of Certificates designated by such Certificateholder, upon the request of such Certificateholder or prospective purchaser, any information in the Certificate Registrar’s possession and required to be provided to such holder or prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4) under the Securities Act. Any reasonable, out-of-pocket expenses incurred by the Certificate Registrar in providing such information shall be reimbursed by the Depositor.
(g) Each Person that has or that acquires any Ownership Interest in any Class S Certificate or Class R Certificates shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably appointed the Certificate Registrar or its designee as its attorney-in-fact to negotiate the terms of any mandatory sale under clause (v) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale, and the rights of each Person acquiring any Ownership Interest in the Class S Certificate or Class R Certificates are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a Class S Certificate or Class R Certificate shall be a Permitted Transferee and shall promptly notify the Owner Trustee and the Certificate Registrar of any change or impending change in its status as a Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a Class S Certificate or Class R Certificate unless such Ownership Interest is a pro rata undivided interest.
(iii) No Ownership Interest in a Class S Certificate or Class R Certificate may be transferred without the express written consent of the Owner Trustee, the Note Insurer (so long as no Note Insurer Default exists), the Depositor and the Indenture Trustee. In connection with any proposed transfer of any Ownership Interest in a Class S Certificate or Class R Certificate, the Owner Trustee shall as a condition to such consent, require delivery to it, by the Depositor, the Note Insurer and the Certificate Registrar in form and substance satisfactory to it, each of the following:
(A) an affidavit in the form of Exhibit C hereto from the proposed transferee to the effect that such transferee is a Permitted Transferee and that it is not acquiring its Ownership Interest in the Class S Certificate or Class R Certificates that is the subject of the proposed transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, and certification from the proposed transferor to the effect that it does not have actual knowledge that any statements made unless by the proposed transferee in such affidavit is false; and
(B) a covenant of the proposed transferee to the effect that the proposed transferee agrees to be bound by and to abide by the transfer restrictions applicable to the Class S Certificate or Class R Certificates.
(iv) Any attempted or purported transfer of any Ownership Interest in a Class S Certificate or Class R Certificate in violation of the provisions of this Section 3.04 shall be absolutely null and void and shall vest no rights in the purported transferee. If any purported transferee shall, in violation of the provisions of this Section 3.04, become a Holder of a Class S Certificate or Class R Certificate, then the prior Holder of such Class S Certificate or Class R Certificate that is a Permitted Transferee shall, upon discovery that the registration of transfer of such Class S Certificate or Class R Certificate was not in fact permitted by this Section 3.04, be restored to all rights as Holder thereof retroactive to the date of registration of transfer of such Class S Certificate or Class R Certificate. The Owner Trustee and the Certificate Registrar shall be under no liability to any Person for any registration of transfer of any Class S Certificate or Class R Certificates that is in fact not permitted by this Section 3.04 or for making any distributions due on such Class S Certificate or Class R Certificates to the Holder thereof or taking any other action with respect to such Holder under the provisions of this Agreement so long as the Owner Trustee, the Depositor and the Certificate Registrar received all affidavits and covenants with respect to such transfer provided for under this Section 3.04. The Certificate Paying Agent, on behalf of the Issuing Entity, shall be entitled to recover from any Holder of a Class S Certificate or Class R Certificates that was in fact not a Permitted Transferee at the time such distributions were made all distributions made on such Class S Certificate or Class R Certificates. Any such distributions so recovered by the Certificate Paying Agent shall be distributed and delivered by the Certificate Paying Agent to the prior Holder of such Residual Certificate that is a Permitted Transferee.
(v) If any Person other than a Permitted Transferee acquires any Ownership Interest in a Class S Certificate or Class R Certificates in violation of the restrictions in this Section 3.04, then the Certificate Registrar shall have received a representation letter (in the form attached hereto as Exhibit D-1 or D-2) from right but not the proposed transferee obligation, without notice to the Holder of such Class S Certificate to the effect that such proposed transferee is not an employee benefit plan or other retirement arrangement subject to Section 406 of ERISA, or Section 4975 of the Code Class R Certificates or any substantially similar applicable lawother Person having an Ownership Interest therein, to notify the underwriter to arrange for the sale of such Class S Certificate or a Person acting on behalf Class R Certificates. The proceeds of or using the assets such sale, net of any such plan, commissions (which representation letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, may include commissions payable to the Certificate Registrar or its affiliates), expenses and taxes due, if any, will be remitted by the DepositorCertificate Paying Agent to the previous Holder of such Class S Certificate or Class R Certificates that is a Permitted Transferee, except that in the event that it is determined that the Holder of such Class S Certificate or Class R Certificates may be liable for any amount due under this Section 3.04 or any other provisions of this Agreement, the Certificate Paying Agent may withhold a corresponding amount from such remittance as security for such claim. Prior The terms and conditions of any sale under this clause (v) shall be determined in the sole discretion of the underwriter and such Person shall be liable to and any Person having an Ownership Interest in a Class S Certificate or Class R Certificates as a condition result of its exercise of such discretion.
(vi) If any Person other than a Permitted Transferee acquires any Ownership Interest in a Class S Certificate or Class R Certificates in violation of the registration of any transferrestrictions in this Section 3.04, sale or other disposition of the Ownership Certificate, the Initial Holder of the Ownership Certificate and each Prospective Holder of an Ownership Certificate shall represent and warrant in writing, in the case of each Initial Holder, in substantially the form set forth in Exhibit E hereto, and in the case of each Prospective Holder, in substantially the form set forth in Exhibit F hereto, to the Owner Trustee, the Trust Administrator and then the Certificate Registrar will provide to the Internal Revenue Service, and any to the persons specified in Section 860E(e)(3) of their respective successors that:the Code, information needed to compute the tax imposed under Section 860E(e)(1) of the Code on transfers of residual interests to disqualified organizations.
(ih) Such Each Person is duly authorized that has or that acquires an Ownership Interest in the Class S Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to purchase have agreed to be bound by the Ownership Certificate and its purchase provisions of investments having the characteristics Section 2.01(b) of the Ownership Certificate is authorized under, Sale and not directly or indirectly in contravention of, any law, charter, trust instrument or other operative document, investment guidelines or list of permissible or impermissible investments that is applicable to the investor;
(ii) Such Person understands that each holder of an Ownership Certificate, by virtue of its acceptance thereof, assents to the terms, provisions and conditions of the Servicing Agreement; and
(iii) [Such Person is a REIT, a Qualified REIT Subsidiary or a Disregarded Entity.] The Owner Trustee shall cause each Certificate to contain a legend, substantially similar to the applicable legends provided in Exhibit A hereto, stating that transfer of such Certificate is subject to certain restrictions and referring prospective purchasers of the Certificates to this Section 3.03 with respect to such restrictions.
Appears in 1 contract
Registration of and Limitations on Transfers and Exchanges of the Certificates. (a) The Securities Administrator is hereby appointed as the Certificate Registrar of the Trust. The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08its Corporate Trust Office, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of the Certificates and of transfers and exchanges of the Certificates as set forth herein, herein provided; provided, however, that no Ownership Class R Certificate or Class G Certificate shall be issued in any such transfer and exchange representing less than a 100% Percentage Interest in such Certificate; and provided, further, that no Ownership Certificate shall be issued in any such transfer and exchange except in accordance with the provisions and conditions set forth below in this Section 3.03. The Trust Administrator shall be the initial Certificate Registrar. If the Certificate Registrar resigns or is removed, the Owner Trustee, with the consent of the Depositor, Depositor shall appoint a successor Certificate Registrar. .
(b) Subject to satisfaction of the conditions set forth below, with respect to the Certificates, upon surrender for registration of transfer of a Certificate Certificates at the office or agency maintained pursuant to Section 3.083.09, the Owner Trustee and the Certificate Register shall execute, authenticate and deliver (or cause the Trust Administrator as its authenticating agent to authenticate and deliver), in the name of the designated transferee, a new Certificate evidencing the Percentage Interest of the Certificate so surrendered and dated the date of authentication by the Owner Trustee or the Certificate Registrar. At the option of a Holder, Certificates may be exchanged for other Certificates of authorized denominations of a like aggregate amount upon surrender of the Certificates to be exchanged at the office or agency maintained pursuant to Section 3.09. Every Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by each Certificateholder the Holder or such Certificateholder's Holder’s attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Certificate Registrar in accordance with its customary practice. No service charge shall be made for any registration of transfer or exchange of a Certificatethe Certificates, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of a Certificate the Certificates or any other expense arising as a result of any registration of transfer or exchange. Except for the initial issuance of the Class G Certificates and the Class R Certificates on the Closing Date, no Person shall become a Certificateholder of Class G Certificates or Class R Certificates until the requirements of section 3.04(f) shall have been complied with.
(c) The preceding provisions Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated or otherwise conveyed (collectively, for purposes of this Section notwithstanding3.04 and any other Section referring to the Certificates, the Owner Trustee shall not make and the Certificate Registrar shall not register transfer “transferred” or exchanges of a Certificate for a period of 15 days preceding the due date for any payment “transfer”) only in accordance with respect to such Certificate. this Section 3.04.
(d) No transfer of a Certificate shall be made unless such transfer is exempt from the made pursuant to an effective registration requirements of statement under the Securities Act and any applicable state securities laws or is exempt from the registration requirements under the Securities Act and such state securities laws. In the event that a transfer is to be made in accordance with said reliance upon an exemption from the Securities Act and such laws. Except , in order to assure compliance with the Securities Act and such laws, the Certificateholder desiring to effect such transfer and such Certificateholder’s prospective transferee shall each certify to the Securities Administrator in writing the facts (or shall be deemed to certify in the case of an initial a Book-Entry Certificate) surrounding the transfer by (x)(i) the delivery to an Initial Holder, in the event of any such transfer, Securities Administrator by the Certificate Registrar or the Depositor shall prior Certificateholder desiring to effect such transfer require the transferee to execute (i) an investment letter (of a certificate substantially in the form attached hereto as set forth in Exhibit D-1D (the “Transferor Certificate”) certifying to and (ii) the Trust, delivery by the Owner Trustee, Certificateholder’s prospective transferee of (A) a letter in substantially the Trust Administrator, form of Exhibit E (the Certificate Registrar “Investment Letter”) if the prospective transferee is an Institutional Accredited Investor or (B) a letter in substantially the form of Exhibit F (the “Rule 144A and Related Matters Certificate”) if the Depositor that such prospective transferee is a "“qualified institutional buyer" under ” as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act, or (ii) an investment letter (in the form attached hereto as Exhibit D-2) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is an "accredited investor" (as defined in Rule 501(a)(1), (2), (3”) or (7y) there shall be delivered to the Securities Administrator an Opinion of Counsel addressed to the Indenture Trustee and the Securities Administrator that such transfer may be made pursuant to an exemption from the Securities Act), and any expense associated with the preparation and execution which Opinion of any such investment letter Counsel shall not be an expense of the TrustDepositor, the Owner TrusteeSponsor, the Trust AdministratorMaster Servicer, the Certificate Registrar Securities Administrator or the DepositorIndenture Trustee. A Certificateholder The Depositor shall provide to any Holder of a Certificate and any prospective transferee designated by any such Holder, information regarding the related Certificates and the HELOCs and such other information as shall be necessary to satisfy the condition to eligibility set forth in Rule 144A(d)(4) for transfer of any such Certificate without registration thereof under the Securities Act pursuant to the registration exemption provided by Rule 144A. The Indenture Trustee and the Securities Administrator shall cooperate with the Depositor in providing the Rule 144A information referenced in the preceding sentence, including providing to the Depositor such information regarding the Certificates, the HELOCs and other matters regarding the Trust Estate as the Depositor shall reasonably request to meet its obligation under the preceding sentence. Each Holder of a Certificate desiring to effect the such transfer of a Certificate shall, and does hereby agree to, indemnify the TrustIndenture Trustee, the Depositor, the Sponsor, the Owner Trustee, the Trust Administrator, the Certificate Registrar Securities Administrator and the Depositor Master Servicer against any and all liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Except in .
(i) With respect to the case of an initial transfer to an Initial Holder, no transfer of a Residual Certificate, such Person shall comply with the provisions of Section 3.07, as applicable, relating to the ERISA restrictions with respect to the acceptance or acquisition of such Residual Certificate.
(e) For so long as any of the Certificates are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Certificate Registrar agrees to cooperate with, and act in accordance with the direction of, the Depositor in providing to any Certificateholders and to any prospective purchaser of Certificates designated by such Certificateholder, upon the request of such Certificateholder or prospective purchaser, any information in the Certificate Registrar’s possession and required to be provided to such holder or prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4) under the Securities Act. Any reasonable, out-of-pocket expenses incurred by the Certificate Registrar in providing such information shall be reimbursed by the Depositor.
(f) Each Person that has or that acquires any Ownership Interest in any Class G Certificate or Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably appointed the Certificate Registrar or its designee as its attorney-in-fact to negotiate the terms of any mandatory sale under clause (v) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale, and the rights of each Person acquiring any Ownership Interest in the Class G Certificate or Class R Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a Class G Certificate or Class R Certificate shall be a Permitted Transferee and shall promptly notify the Owner Trustee and the Certificate Registrar of any change or impending change in its status as a Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a Class G Certificate or Class R Certificate unless such Ownership Interest is a pro rata undivided interest.
(iii) No Ownership Interest in a Class G Certificate or Class R Certificate may be transferred without the express written consent of the Owner Trustee, the Note Insurer, the Depositor and the Certificate Registrar. In connection with any proposed transfer of any Ownership Interest in a Class G Certificate or Class R Certificate, the Owner Trustee shall, as a condition to such consent, require delivery to it, the Depositor, the Note Insurer (with respect to a Class G Certificate only) and the Certificate Registrar in form and substance satisfactory to it, each of the following:
(A) an affidavit in the form of Exhibit C hereto from the proposed transferee to the effect that such transferee is a Permitted Transferee and that it is not acquiring its Ownership Interest in the Class G Certificate or Class R Certificate that is the subject of the proposed transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, and certification from the proposed transferor to the effect that it does not have actual knowledge that any statements made unless by the proposed transferee in such affidavit is false; and
(B) a covenant of the proposed transferee to the effect that the proposed transferee agrees to be bound by and to abide by the transfer restrictions applicable to the Class G Certificate or Class R Certificate.
(iv) Any attempted or purported transfer of any Ownership Interest in a Class G Certificate or Class R Certificate in violation of the provisions of this Section 3.04 shall be absolutely null and void and shall vest no rights in the purported transferee. If any purported transferee shall, in violation of the provisions of this Section 3.04, become a Holder of a Class G Certificate or Class R Certificate, then the prior Holder of such Class G Certificate or Class R Certificate that is a Permitted Transferee shall, upon discovery that the registration of transfer of such Class G Certificate or Class R Certificate was not in fact permitted by this Section 3.04, be restored to all rights as Holder thereof retroactive to the date of registration of transfer of such Class G Certificate or Class R Certificate. The Owner Trustee and the Certificate Registrar shall be under no liability to any Person for any registration of transfer of any Class G Certificate or Class R Certificate that is in fact not permitted by this Section 3.04 or for making any distributions due on such Class G Certificate or Class R Certificate to the Holder thereof or taking any other action with respect to such Holder under the provisions of this Agreement so long as the Owner Trustee, the Depositor and the Certificate Registrar received all affidavits and covenants with respect to such transfer provided for under this Section 3.04. The Certificate Paying Agent, on behalf of the Trust, shall be entitled to recover from any Holder of a Class G Certificate or Class R Certificate that was in fact not a Permitted Transferee at the time such distributions were made all distributions made on such Class G Certificate or Class R Certificate. Any such distributions so recovered by the Certificate Paying Agent shall be distributed and delivered by the Certificate Paying Agent to the prior Holder of such Class G Certificate or Class R Certificate that is a Permitted Transferee.
(v) If any Person other than a Permitted Transferee acquires any Ownership Interest in a Class G Certificate or Class R Certificate in violation of the restrictions in this Section 3.04, then the Certificate Registrar shall have received a representation letter (in the form attached hereto as Exhibit D-1 or D-2) from right but not the proposed transferee obligation, without notice to the Holder of such Class G Certificate to the effect that such proposed transferee is not an employee benefit plan or other retirement arrangement subject to Section 406 of ERISA, or Section 4975 of the Code Class R Certificate or any substantially similar applicable lawother Person having an Ownership Interest therein, to notify the Underwriter to arrange for the sale of such Class G Certificate or a Person acting on behalf Class R Certificate. The proceeds of or using the assets such sale, net of any such plan, commissions (which representation letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, may include commissions payable to the Certificate Registrar or its affiliates), expenses and taxes due, if any, will be remitted by the DepositorCertificate Paying Agent to the previous Holder of such Class G Certificate or Class R Certificate that is a Permitted Transferee, except that in the event that the Certificate Paying Agent determines that the Holder of such Class G Certificate or Class R Certificate may be liable for any amount due under this Section 3.04 or any other provisions of this Agreement, the Certificate Paying Agent may withhold a corresponding amount from such remittance as security for such claim. Prior to The terms and as a condition of the registration conditions of any transfer, sale or other disposition of the Ownership Certificate, the Initial Holder of the Ownership Certificate and each Prospective Holder of an Ownership Certificate under this clause (v) shall represent and warrant in writing, be determined in the case sole discretion of each Initial Holder, in substantially the form set forth in Exhibit E hereto, and in the case of each Prospective Holder, in substantially the form set forth in Exhibit F hereto, to the Owner Trustee, the Trust Administrator and the Certificate Registrar and the Certificate Paying Agent, and neither such Person shall be liable to any Person having an Ownership Interest in a Class G Certificate or Class R Certificate as a result of their respective successors that:its exercise of such discretion.
(ivi) Such If any Person is duly authorized to purchase the other than a Permitted Transferee acquires any Ownership Interest in a Class G Certificate and its purchase of investments having the characteristics or Class R Certificate in violation of the Ownership restrictions in this Section 3.04, then the Certificate is authorized underRegistrar will provide to the Internal Revenue Service, and not directly or indirectly in contravention of, any law, charter, trust instrument or other operative document, investment guidelines or list of permissible or impermissible investments that is applicable to the investor;persons specified in Section 860E(e)(3) of the Code, information needed to compute the tax imposed under Section 860E(e)(1) of the Code on transfers of residual interests to disqualified organizations.
(iig) Such Each Person understands that each holder of has or that acquires an Ownership Certificate, Interest in the Class G Certificate shall be deemed by virtue the acceptance or acquisition of its acceptance thereof, assents such Ownership Interest to have agreed to be bound to reimburse advances made by the terms, provisions and conditions Servicer to fund Draws on the HELOCs pursuant to Section 2.01(b) of the Sale and Servicing Agreement; and
(iii) [Such Person is a REIT, a Qualified REIT Subsidiary or a Disregarded Entity.] The Owner Trustee shall cause each Certificate to contain a legend, substantially similar to the applicable legends provided in Exhibit A hereto, stating that transfer of such Certificate is subject to certain restrictions and referring prospective purchasers of the Certificates to this Section 3.03 with respect to such restrictions.
Appears in 1 contract
Samples: Trust Agreement (ACE Securities Corp. Home Equity Loan Trust, Series 2006-Gp1)
Registration of and Limitations on Transfers and Exchanges of the Certificates. (a) The Indenture Trustee is hereby appointed as the Certificate Registrar of the Trust. The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.083.09, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of the Certificates and of transfers and exchanges of the Certificates as set forth herein, herein provided; provided, however, that no Ownership Class R Certificate or Class S Certificate shall be issued in any such transfer and exchange representing less than a 100% Percentage Interest in such Certificate; and provided, further, that no Ownership Certificate shall be issued in any such transfer and exchange except in accordance with the provisions and conditions set forth below in this Section 3.03. The Trust Administrator shall be the initial Certificate Registrar. If the Certificate Registrar resigns or is removed, the Owner Trustee, with the consent of the Depositor, Depositor shall appoint a successor Certificate Registrar. .
(b) Subject to satisfaction of the conditions set forth below, with respect to the Certificates, upon surrender for registration of transfer of a Certificate Certificates at the office or agency maintained pursuant to Section 3.083.09, the Owner Trustee and the Certificate Register shall execute, authenticate and deliver (or cause the Trust Administrator as its authenticating agent to authenticate and deliver), in the name of the designated transferee, a new Certificate evidencing the Percentage Interest of the Residual Certificate so surrendered and dated the date of authentication by the Owner Trustee or the Certificate Registrar. At the option of a Holder, Certificates may be exchanged for other Certificates of authorized denominations of a like aggregate amount upon surrender of the Certificates to be exchanged at the office or agency maintained pursuant to Section 3.09. Every Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by each Certificateholder the Holder or such Certificateholder's Holder’s attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Certificate Registrar in accordance with its customary practice. No service charge shall be made for any registration of transfer or exchange of a Certificatethe Certificates, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of a Certificate the Certificates or any other expense arising as a result of any registration of transfer or exchange. Except for the initial issuance of the Class S Certificates or Class R Certificates on the Closing Date, no Person shall become a Certificateholder of Class S Certificates or Class R Certificates until the requirements of section 3.04(f) shall have been complied with. The preceding provisions of this Section notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any transfer or exchanges exchange of a Certificate Class X, Class S and Class R Certificates for a period of 15 days preceding the due date for any payment with respect to such Certificate. Certificates.
(c) The Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated or otherwise conveyed (collectively, for purposes of this Section 3.04 and any other Section referring to the Certificates, a “transfer” or “transferred”) only in accordance with this Section 3.04.
(d) No transfer of a Certificate shall be made unless such transfer is exempt from the made pursuant to an effective registration requirements of statement under the Securities Act and any applicable state securities laws or is exempt from the registration requirements under the Securities Act and such state securities laws. In the event that a transfer is to be made in accordance with said reliance upon an exemption from the Securities Act and such laws. Except , in order to assure compliance with the Securities Act and such laws, the Certificateholder desiring to effect such transfer and such Certificateholder’s prospective transferee shall each certify to the Certificate Registrar in writing the facts (or shall be deemed to certify in the case of an initial a Book-Entry Certificate) surrounding the transfer by (x)(i) the delivery to an Initial Holder, in the event of any such transfer, the Certificate Registrar or from the Depositor shall prior Certificateholder desiring to effect such transfer require the transferee to execute (i) an investment letter (of a certificate substantially in the form attached hereto as set forth in Exhibit D-1E (the “Transferor Certificate”) certifying to and (ii) the Trust, delivery by the Owner Trustee, Certificateholder’s prospective transferee of (A) a letter in substantially the Trust Administrator, form of Exhibit E (the Certificate Registrar “Investment Letter”) if the prospective transferee is an Institutional Accredited Investor or (B) a letter in substantially the form of Exhibit F (the “Rule 144A and Related Matters Certificate”) if the Depositor that such prospective transferee is a "“qualified institutional buyer" under ” as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act, ”) or (iiy) an investment letter (in the form attached hereto as Exhibit D-2) certifying there shall be delivered to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar an Opinion of Counsel addressed to the Indenture Trustee, Certificate Registrar, Owner Trustee and the Depositor that such transferee is transfer may be made pursuant to an "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of exemption from the Securities Act), and any expense associated with the preparation and execution which Opinion of any such investment letter Counsel shall not be an expense of the TrustDepositor, the Seller, the Indenture Trustee, the Certificate Paying Agent, the Owner TrusteeTrustee or the Certificate Registrar. The Depositor shall provide to any Holder of a Certificate and any prospective transferee designated by any such Holder, information regarding the Trust Administrator, related Certificates and the HELOCs and such other information as shall be necessary to satisfy the condition to eligibility set forth in Rule 144A(d)(4) for transfer of any such Certificate without registration thereof under the Securities Act pursuant to the registration exemption provided by Rule 144A. The Indenture Trustee and the Certificate Registrar or shall cooperate with the DepositorDepositor in providing the Rule 144A information referenced in the preceding sentence, including providing to the Depositor such information regarding the Certificates, the HELOCs and other matters regarding the Trust Estate as the Depositor shall reasonably request to meet its obligation under the preceding sentence. A Certificateholder Each Holder of a Certificate desiring to effect the such transfer of a Certificate shall, and does hereby agree to, indemnify the TrustIndenture Trustee, the Depositor, the Seller, the Owner Trustee, the Trust Administrator, Certificate Paying Agent and the Certificate Registrar and the Depositor against any and all liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Except in .
(i) With respect to the case of an initial transfer to an Initial Holder, no transfer of a Residual Certificate, such Person shall comply with the provisions of Section 3.07, as applicable, relating to the ERISA restrictions with respect to the acceptance or acquisition of such Residual Certificate.
(e) For so long as any of the Certificates are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Certificate Registrar agrees to cooperate with, and act in accordance with the direction of, the Depositor in providing to any Certificateholders and to any prospective purchaser of Certificates designated by such Certificateholder, upon the request of such Certificateholder or prospective purchaser, any information in the Certificate Registrar’s possession and required to be provided to such holder or prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4) under the Securities Act. Any reasonable, out-of-pocket expenses incurred by the Certificate Registrar in providing such information shall be reimbursed by the Depositor.
(f) Each Person that has or that acquires any Ownership Interest in any Class S Certificate or Class R Certificates shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably appointed the Certificate Registrar or its designee as its attorney-in-fact to negotiate the terms of any mandatory sale under clause (v) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale, and the rights of each Person acquiring any Ownership Interest in the Class S Certificate or Class R Certificates are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a Class S Certificate or Class R Certificate shall be made unless a Permitted Transferee and shall promptly notify the Owner Trustee and the Certificate Registrar of any change or impending change in its status as a Permitted Transferee.
(ii) No Person shall have received acquire an Ownership Interest in a representation letter Class S Certificate or Class R Certificate unless such Ownership Interest is a pro rata undivided interest.
(iii) No Ownership Interest in a Class S Certificate or Class R Certificate may be transferred without the express written consent of the Owner Trustee, the Depositor and the Indenture Trustee. In connection with any proposed transfer of any Ownership Interest in a Class S Certificate or Class R Certificate, the Owner Trustee shall as a condition to such consent, require delivery to it, by the Depositor and the Certificate Registrar in form and substance satisfactory to it, each of the following:
(A) an affidavit in the form attached of Exhibit C hereto as Exhibit D-1 or D-2) from the proposed transferee of such Certificate to the effect that such transferee is a Permitted Transferee and that it is not acquiring its Ownership Interest in the Class S Certificate or Class R Certificates that is the subject of the proposed transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, and certification from the proposed transferor to the effect that it does not have actual knowledge that any statements made by the proposed transferee in such affidavit is not an employee benefit plan or other retirement arrangement subject to Section 406 of ERISA, or Section 4975 false; and
(B) a covenant of the Code proposed transferee to the effect that the proposed transferee agrees to be bound by and to abide by the transfer restrictions applicable to the Class S Certificate or any substantially similar applicable law, Class R Certificates.
(iv) Any attempted or a Person acting on behalf of or using the assets purported transfer of any such plan, which representation letter shall not be an expense Ownership Interest in a Class S Certificate or Class R Certificate in violation of the Trustprovisions of this Section 3.04 shall be absolutely null and void and shall vest no rights in the purported transferee. If any purported transferee shall, in violation of the provisions of this Section 3.04, become a Holder of a Class S Certificate or Class R Certificate, then the prior Holder of such Class S Certificate or Class R Certificate that is a Permitted Transferee shall, upon discovery that the registration of transfer of such Class S Certificate or Class R Certificate was not in fact permitted by this Section 3.04, be restored to all rights as Holder thereof retroactive to the date of registration of transfer of such Class S Certificate or Class R Certificate. The Owner Trustee and the Certificate Registrar shall be under no liability to any Person for any registration of transfer of any Class S Certificate or Class R Certificates that is in fact not permitted by this Section 3.04 or for making any distributions due on such Class S Certificate or Class R Certificates to the Holder thereof or taking any other action with respect to such Holder under the provisions of this Agreement so long as the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. Prior to and as a condition of the registration of any transfer, sale or other disposition of the Ownership Certificate, the Initial Holder of the Ownership Certificate and each Prospective Holder of an Ownership Certificate shall represent and warrant in writing, in the case of each Initial Holder, in substantially the form set forth in Exhibit E hereto, and in the case of each Prospective Holder, in substantially the form set forth in Exhibit F hereto, to the Owner Trustee, the Trust Administrator Depositor and the Certificate Registrar received all affidavits and any of their respective successors that:
(i) Such Person is duly authorized to purchase the Ownership Certificate and its purchase of investments having the characteristics of the Ownership Certificate is authorized under, and not directly or indirectly in contravention of, any law, charter, trust instrument or other operative document, investment guidelines or list of permissible or impermissible investments that is applicable to the investor;
(ii) Such Person understands that each holder of an Ownership Certificate, by virtue of its acceptance thereof, assents to the terms, provisions and conditions of the Agreement; and
(iii) [Such Person is a REIT, a Qualified REIT Subsidiary or a Disregarded Entity.] The Owner Trustee shall cause each Certificate to contain a legend, substantially similar to the applicable legends provided in Exhibit A hereto, stating that transfer of such Certificate is subject to certain restrictions and referring prospective purchasers of the Certificates to this Section 3.03 covenants with respect to such restrictions.transfer provided for under this
Appears in 1 contract
Registration of and Limitations on Transfers and Exchanges of the Certificates. The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of the Certificates and of transfers and exchanges of the Certificates as set forth herein, provided, however, that no Ownership Certificate shall be issued in any such transfer and exchange representing less than a 100% Percentage Interest in such Certificate; and provided, further, that no Ownership Certificate shall be issued in any such transfer and exchange except in accordance with the provisions and conditions set forth below in this Section 3.03. The Trust Administrator shall be the initial Certificate Registrar. If the Certificate Registrar resigns or is removed, the Owner Trustee, with the consent of the Depositor, shall appoint a successor Certificate Registrar. Subject to satisfaction of the conditions set forth below, upon surrender for registration of transfer of a Certificate at the office or agency maintained pursuant to Section 3.08, the Owner Trustee shall execute, authenticate and deliver (or cause the Trust Administrator as its authenticating agent to authenticate and deliver), in the name of the designated transferee, a new Certificate evidencing the Percentage Interest of the Certificate so surrendered and dated the date of authentication by the Owner Trustee or the Certificate Registrar. Every Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by each Certificateholder or such Certificateholder's attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Certificate Registrar in accordance with its customary practice. No service charge shall be made for any registration of transfer or exchange of a Certificate, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of a Certificate or any other expense arising as a result of any registration of transfer or exchange. The preceding provisions of this Section notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register transfer or exchanges of a Certificate for a period of 15 days preceding the due date for any payment with respect to such Certificate. No transfer of a Certificate shall be made unless such transfer is exempt from the registration requirements of the Securities Act and any applicable state securities laws or is made in accordance with said Act and laws. Except in the case of an initial transfer to an Initial Holder, in the event of any such transfer, the Certificate Registrar or the Depositor shall prior to such transfer require the transferee to execute (i) an investment letter (in the form attached hereto as Exhibit D-1) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is a "qualified institutional buyer" under Rule 144A under the Securities Act, or (ii) an investment letter (in the form attached hereto as Exhibit D-2) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is an "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of the Securities Act), and any expense associated with the preparation and execution of any such investment letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. A Certificateholder desiring to effect the transfer of a Certificate shall, and does hereby agree to, indemnify the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor against any and all liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Except in the case of an initial transfer to an Initial Holder, no transfer of a Certificate shall be made unless the Certificate Registrar shall have received a representation letter (in the form attached hereto as Exhibit D-1 or D-2) from the proposed transferee of such Certificate to the effect that such proposed transferee is not an employee benefit plan or other retirement arrangement subject to Section 406 of ERISA, or Section 4975 of the Code or any substantially similar applicable law, or a Person acting on behalf of or using the assets of any such plan, which representation letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. Prior to and as a condition of the registration of any transfer, sale or other disposition of the Ownership Certificate, the Initial Holder of the Ownership Certificate and each Prospective Holder of an Ownership Certificate shall represent and warrant in writing, in the case of each Initial Holder, in substantially the form set forth in Exhibit E hereto, and in the case of each Prospective Holder, in substantially the form set forth in Exhibit F hereto, to the Owner Trustee, the Trust Administrator and the Certificate Registrar and any of their respective successors that:
(i) Such Person is duly authorized to purchase the Ownership Certificate and its purchase of investments having the characteristics of the Ownership Certificate is authorized under, and not directly or indirectly in contravention of, any law, charter, trust instrument or other operative document, investment guidelines or list of permissible or impermissible investments that is applicable to the investor;
(ii) Such Person understands that each holder of an Ownership Certificate, by virtue of its acceptance thereof, assents to the terms, provisions and conditions of the Agreement; and
(iii) [Such Person is a REIT, a Qualified REIT Subsidiary or a Disregarded Entity.] . The Owner Trustee shall cause each Certificate to contain a legend, substantially similar to the applicable legends provided in Exhibit A hereto, stating that transfer of such Certificate is subject to certain restrictions and referring prospective purchasers of the Certificates to this Section 3.03 with respect to such restrictions.
Appears in 1 contract
Samples: Trust Agreement (Aames Mortgage Investment Trust 2005-2)
Registration of and Limitations on Transfers and Exchanges of the Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of the Certificates and of transfers and exchanges of the Certificates as set forth herein, herein provided; provided, however, that no Ownership Class R Certificate or Class L Certificate shall be issued in any such transfer and exchange representing less than a 100% Percentage Interest in such Certificate; and provided, further, that no Ownership Certificate shall be issued in any such transfer and exchange except in accordance with the provisions and conditions set forth below in this Section 3.03. The Trust Administrator shall be the initial Certificate Registrar. If the Certificate Registrar resigns or is removed, the Owner Trustee, with the consent of the Depositor, shall appoint a successor Certificate Registrar. Subject to satisfaction of the conditions set forth below, upon surrender for registration of transfer of a Certificate at the office or agency maintained pursuant to Section 3.08, the Owner Trustee shall execute, authenticate and deliver (or cause the Trust Administrator as its authenticating agent to authenticate and deliver), in the name of the designated transferee, a new Certificate evidencing the Percentage Interest of the Certificate so surrendered and dated the date of authentication by the Owner Trustee or the Certificate Registrar. Every Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by each the Certificateholder or such Certificateholder's ’s attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Certificate Registrar in accordance with its customary practice. No service charge shall be made for any registration of transfer or exchange of a Certificatethe Certificates, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of a Certificate the Certificates or any other expense arising as a result of any registration of transfer or exchange. Except for the initial issuance of the Class L and Class R Certificates on the Closing Date, no Person shall become a Certificateholder of Class L or Class R Certificates until it shall establish its non-foreign status by submitting to the Certificate Paying Agent an IRS Form W-9 and the Certificate of Non-Foreign Status set forth in Exhibit D hereto. The preceding provisions of this Section notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any transfer or exchanges exchange of a Class L Certificate or a Class R Certificate for a period of 15 days preceding the due date for any payment with respect to such Certificate. Residual Certificates.
(b) The Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated or otherwise conveyed (collectively, for purposes of this Section 3.03 and any other Section referring to the Certificates, “transferred” or a “transfer”) only in accordance with this Section 3.03.
(c) No transfer of a Certificate shall be made unless such transfer is exempt from the registration requirements of the Securities Act and any applicable state securities laws or is made in accordance with said the Securities Act and such laws. Except in Each prospective transferee of a Certificate, other than the case of an initial transfer to an Initial Holder, shall represent and warrant, in writing, to the event of any such transfer, Owner Trustee and the Certificate Registrar or and any of their respective successors that:
(I) Such Person is (A) a “qualified institutional buyer” as defined in Rule 144A under the Depositor Securities Act of 1933, as amended (the “Securities Act”), (such Person shall prior to such transfer require the transferee to execute (i) an investment letter (in the form attached hereto as Exhibit D-1C-1 to such effect) certifying to and is aware that the Trust, seller of such Certificate may be relying on the Owner Trustee, exemption from the Trust Administrator, registration requirements of the Securities Act provided by Rule 144A and is acquiring such Certificate Registrar and for its own account or for the Depositor that such transferee is a "account of one or more qualified institutional buyer" under Rule 144A under the Securities Act, buyers for whom it is authorized to act or (iiB) an investment letter (in the form attached hereto as Exhibit D-2) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is an "“accredited investor" ” (as defined in Rule 501(a)(1), (2), (3) or (7) of the Securities ActAct (such Person shall execute an investment letter in the form attached hereto as Exhibit C-2 to such effect) and is aware that the seller of such Certificate is relying on an exemption from the registration requirements of the Securities Act and is acquiring such Certificate for its own account;
(II) Such Person understands that such Certificate has not been and will not be registered under the Securities Act and may be offered, sold, pledged or otherwise transferred only to a person (A) whom the seller reasonably believes is a “qualified institutional buyer” or (B) an “accredited investor” (as defined in Rule 501(a)(1), and any expense associated (2), (3)
(III) Such Person shall comply with the preparation provisions of Section 3.07, as applicable, relating to the ERISA restrictions with respect to the acceptance or acquisition of such Certificate.
(d) For so long as any of the Certificates are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Administrator agrees to cooperate with the Depositor to provide to any Certificateholders and execution to any prospective purchaser of Certificates designated by such Certificateholder, upon the request of such Certificateholder or prospective purchaser, any information required to be provided to such holder or prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4) under the Securities Act. Any reasonable, out-of-pocket expenses incurred by the Administrator in providing such information shall be reimbursed by the Depositor.
(e) Each prospective transferee of any such investment letter shall not be an expense of Class L or Class R Certificate, other than the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. A Certificateholder desiring to effect the transfer of a Certificate shall, and does hereby agree to, indemnify the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor against any and all liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Except in the case of an initial transfer to an Initial Holder, no transfer of a Certificate shall be made unless execute and deliver the Certificate Registrar shall have received a representation letter of Non-Foreign Status (in the form attached hereto as Exhibit D-1 D).
(f) Each Person that has or D-2that acquires any Ownership Interest in any Class L or Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably appointed the Certificate Registrar or its designee as its attorney-in-fact to negotiate the terms of any mandatory sale under clause (v) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale, and the rights of each Person acquiring any Ownership Interest in the Class L or Class R Certificates are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a Class L or Class R Certificate shall be a Permitted Transferee and shall promptly notify the Owner Trustee and the Certificate Registrar of any change or impending change in its status as a Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a Class L or Class R Certificate unless such Ownership Interest is a pro rata undivided interest.
(iii) No Ownership Interest in a Class L or Class R Certificate may be transferred without the express written consent of the Owner Trustee, the Depositor and the Certificate Registrar. In connection with any proposed transfer of any Ownership Interest in a Class L or Class R Certificate, the Owner Trustee shall as a condition to such consent, require delivery to it, the Depositor and the Certificate Registrar in form and substance satisfactory to it, of each of the following:
(A) an affidavit in the form of Exhibit E-1 hereto from the proposed transferor, and an affidavit in the form of Exhibit E-2 hereto from the proposed transferee of such Certificate to the effect that such transferee is a Permitted Transferee and that it is not acquiring its Ownership Interest in the Class L or Class R Certificate that is the subject of the proposed transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee; and
(B) a covenant of the proposed transferee is not an employee benefit plan to the effect that the proposed transferee agrees to be bound by and to abide by the transfer restrictions applicable to the Class L or other retirement arrangement subject to Section 406 Class R Certificate.
(iv) Any attempted or purported transfer of ERISA, any Ownership Interest in a Class L or Section 4975 Class R Certificate in violation of the Code provisions of this Section 3.03 shall be absolutely null and void and shall vest no rights in the purported transferee. If any purported transferee shall, in violation of the provisions of this Section 3.03, become a holder of a Class L or Class R Certificate, then the prior holder of such Class L or Class R Certificate that is a Permitted Transferee shall, upon discovery that the registration of transfer of such Class L or Class R Certificate was not in fact permitted by this Section 3.03, be restored to all rights as holder thereof retroactive to the date of registration of transfer of such Class L or Class R Certificate. The Owner Trustee and the Certificate Registrar shall be under no liability to any substantially similar applicable law, or a Person acting on behalf for any registration of or using the assets transfer of any Class L or Class R Certificate that is in fact not permitted by this Section 3.03 or for making any distributions due on such plan, which representation letter shall not be an expense Class L or Class R Certificate to the holder thereof or taking any other action with respect to such holder under the provisions of the Trust, this Agreement so long as the Owner Trustee, the Trust AdministratorDepositor and the Certificate Registrar received all affidavits and covenants with respect to such transfer provided for under this Section 3.03. The Certificate Paying Agent, on behalf of the Trust, shall be entitled to recover from any holder of a Class L or Class R Certificate that was in fact not a Permitted Transferee at the time such distributions were made all distributions made on such Class L or Class R Certificate. Any such distributions so recovered by the Certificate Paying Agent shall be distributed and delivered by the Certificate Paying Agent to the prior holder of such Residual Certificate that is a Permitted Transferee.
(v) If any Person other than a Permitted Transferee acquires any Ownership Interest in a Class L or Class R Certificate in violation of the restrictions in this Section 3.03, then the Certificate Registrar shall have the right but not the obligation, without notice to the holder of such Class L or Class R Certificate or any other Person having an Ownership Interest therein, to notify the underwriter to arrange for the sale of such Class L or Class R Certificate. The proceeds of such sale, net of commissions (which may include commissions payable to the Certificate Registrar or its affiliates), expenses and taxes due, if any, will be remitted by the DepositorCertificate Paying Agent to the previous holder of such Class L or Class R Certificate that is a Permitted Transferee, except that in the event that the Certificate Paying Agent determines that the holder of such Class L or Class R Certificate may be liable for any amount due under this Section 3.03 or any other provisions of this Agreement, the Certificate Paying Agent may withhold a corresponding amount from such remittance as security for such claim. Prior to The terms and as a condition of the registration conditions of any transfer, sale or other disposition of the Ownership Certificate, the Initial Holder of the Ownership Certificate and each Prospective Holder of an Ownership Certificate under this clause (v) shall represent and warrant in writing, be determined in the case sole discretion of each Initial Holder, in substantially the form set forth in Exhibit E hereto, and in the case of each Prospective Holder, in substantially the form set forth in Exhibit F hereto, to the Owner Trustee, the Trust Administrator and the Certificate Registrar and the Certificate Paying Agent, and neither such Person shall not be liable to any Person having an Ownership Interest in a Class L or Class R Certificate as a result of their respective successors that:its exercise of such discretion.
(ivi) Such If any Person is duly authorized to purchase the other than a Permitted Transferee acquires any Ownership Interest in a Class L or Class R Certificate and its purchase of investments having the characteristics in violation of the Ownership Certificate is authorized underrestrictions in this Section 3.03, then the Administrator will provide to the Internal Revenue Service, and not directly or indirectly in contravention of, any law, charter, trust instrument or other operative document, investment guidelines or list of permissible or impermissible investments that is applicable to the investor;persons specified in Section 860E(e)(3) of the Code, information needed to compute the tax imposed under Section 860E(e)(1) of the Code on transfers of residual interests to disqualified organizations.
(iig) Such Each Person understands that each holder has or that acquires any Ownership Interest in any Class L Certificate shall be deemed by the acceptance or acquisition of an such Ownership Certificate, by virtue Interest to have agreed to be bound to make advances and purchase Additional Balances through funding of its acceptance thereof, assents the Reserve Account as and to the terms, provisions and conditions extent set forth in Section 2.01(b) of the Sale and Servicing Agreement; and
(iii) [Such Person is a REIT, a Qualified REIT Subsidiary or a Disregarded Entity.] The Owner Trustee shall cause each Certificate to contain a legend, substantially similar to the applicable legends provided in Exhibit A hereto, stating that transfer of such Certificate is subject to certain restrictions and referring prospective purchasers of the Certificates to this Section 3.03 with respect to such restrictions.
Appears in 1 contract
Samples: Trust Agreement (IndyMac Home Equity Mortgage Loan Asset-Backed Trust, Series 2006-H4)
Registration of and Limitations on Transfers and Exchanges of the Certificates. The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of the Certificates and of transfers and exchanges of the Certificates as set forth herein, ; provided, however, that no Ownership Certificate shall be issued in any such transfer and exchange representing less than a 100% Percentage Interest in such Certificate; , and provided, further, that no Ownership Certificate shall be issued in any such transfer and exchange except in accordance with the provisions and conditions set forth below in this Section 3.03. The Trust Administrator shall be the initial Certificate Registrar. If the Certificate Registrar resigns or is removed, the Owner Trustee, with the consent of the Depositor, shall appoint a successor Certificate Registrar. Subject to satisfaction of the conditions set forth below, upon surrender for registration of transfer of a Certificate at the office or agency maintained pursuant to Section 3.08, the Owner Trustee shall execute, authenticate and deliver (or cause the Trust Administrator as its authenticating agent to authenticate and deliver), in the name of the designated transferee, a new Certificate evidencing the Percentage Interest of the Certificate so surrendered and dated the date of authentication by the Owner Trustee or the Certificate Registrar. Every Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by each Certificateholder or such Certificateholder's ’s attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Certificate Registrar in accordance with its customary practice. No service charge shall be made for any registration of transfer or exchange of a Certificate, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of a Certificate or any other expense arising as a result of any registration of transfer or exchange. The preceding provisions of this Section notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register transfer or exchanges of a Certificate for a period of 15 days preceding the due date for any payment with respect to such Certificate. No transfer of a Certificate shall be made unless such transfer is exempt from the registration requirements of the Securities Act and any applicable state securities laws or is made in accordance with said Act and laws. Except in the case of an initial transfer to an Initial Holder, in the event of any such transfer, the Certificate Registrar or the Depositor shall prior to such transfer require the transferee to execute (i) an investment letter (in the form attached hereto as Exhibit D-1) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is a "“qualified institutional buyer" ” under Rule 144A under the Securities Act, or (ii) an investment letter (in the form attached hereto as Exhibit D-2) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is an "“accredited investor" ” (as defined in Rule 501(a)(1), (2), (3) or (7) of the Securities Act), and any expense associated with the preparation and execution of any such investment letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. A Certificateholder desiring to effect the transfer of a Certificate shall, and does hereby agree to, indemnify the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor against any and all liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Except in the case of an initial transfer to an Initial Holder, no transfer of a Certificate shall be made unless the Certificate Registrar shall have received a representation letter (in the form attached hereto as Exhibit D-1 or D-2) from the proposed transferee of such Certificate to the effect that such proposed transferee is not an employee benefit plan or other retirement arrangement subject to Section 406 of ERISA, or Section 4975 of the Code or any substantially similar applicable law, or a Person acting on behalf of or using the assets of any such plan, which representation letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. Prior to and as a condition of the registration of any transfer, sale or other disposition of the Ownership Certificate, the each Initial Holder of the an Ownership Certificate and each Prospective Holder of an Ownership Certificate shall represent and warrant in writing, in the case of each Initial Holder, in substantially the form set forth in Exhibit E hereto, and in the case of each Prospective Holder, in substantially the form set forth in Exhibit F hereto, to the Owner Trustee, the Trust Administrator and the Certificate Registrar and any of their respective successors that:
(i) Such Person is duly authorized to purchase the Ownership Certificate and its purchase of investments having the characteristics of the Ownership Certificate is authorized under, and not directly or indirectly in contravention of, any law, charter, trust instrument or other operative document, investment guidelines or list of permissible or impermissible investments that is applicable to the investor;
(ii) Such Person understands that each holder of an Ownership Certificate, by virtue of its acceptance thereof, assents to the terms, provisions and conditions of the Agreement; and
(iii) [Such Person is a REIT, a Qualified REIT Subsidiary Subsidiary, or an entity that is disregarded for federal income tax purposes that is wholly owned by a REIT or a Disregarded Entity.] Qualified REIT Subsidiary. Notwithstanding the forgoing, any Ownership Certificate may be pledged to secure indebtedness and may be the subject of repurchase agreements treated as secured indebtedness for federal income tax purposes. The Owner Trustee shall cause each Certificate to contain a legend, substantially similar to the applicable legends provided in Exhibit A hereto, stating that transfer of such Certificate is subject to certain restrictions and referring prospective purchasers of the Certificates to this Section 3.03 with respect to such restrictions.
Appears in 1 contract
Samples: Trust Agreement (Fieldstone Mortgage Investment CORP)
Registration of and Limitations on Transfers and Exchanges of the Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of the Certificates and of transfers and exchanges of the Certificates as set forth herein, herein provided; provided, however, that no Ownership Class R Certificate or Class L Certificate shall be issued in any such transfer and exchange representing less than a 100% Percentage Interest in such Certificate; and provided, further, that no Ownership Certificate shall be issued in any such transfer and exchange except in accordance with the provisions and conditions set forth below in this Section 3.03. The Trust Administrator shall be the initial Certificate Registrar. If the Certificate Registrar resigns or is removed, the Owner Trustee, with the consent of the Depositor, shall appoint a successor Certificate Registrar. Subject to satisfaction of the conditions set forth below, upon surrender for registration of transfer of a Certificate at the office or agency maintained pursuant to Section 3.08, the Owner Trustee shall execute, authenticate and deliver (or cause the Trust Administrator as its authenticating agent to authenticate and deliver), in the name of the designated transferee, a new Certificate evidencing the Percentage Interest of the Certificate so surrendered and dated the date of authentication by the Owner Trustee or the Certificate Registrar. Every Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by each the Certificateholder or such Certificateholder's attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Certificate Registrar in accordance with its customary practice. No service charge shall be made for any registration of transfer or exchange of a Certificatethe Certificates, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of a Certificate the Certificates or any other expense arising as a result of any registration of transfer or exchange. Except for the initial issuance of the Class L and Class R Certificates on the Closing Date, no Person shall become a Certificateholder of Class L or Class R Certificates until it shall establish its non-foreign status by submitting to the Certificate Paying Agent an IRS Form W-9 and the Certificate of Non-Foreign Status set forth in Exhibit D hereto. The preceding provisions of this Section notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any transfer or exchanges exchange of a Class L Certificate or a Class R Certificate for a period of 15 days preceding the due date for any payment with respect to such Certificate. Residual Certificates.
(b) The Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated or otherwise conveyed (collectively, for purposes of this Section 3.03 and any other Section referring to the Certificates, "transferred" or a "transfer") only in accordance with this Section 3.03.
(c) No transfer of a Certificate shall be made unless such transfer is exempt from the registration requirements of the Securities Act and any applicable state securities laws or is made in accordance with said the Securities Act and such laws. Except in Each prospective transferee of a Certificate, other than the case of an initial transfer to an Initial Holder, shall represent and warrant, in writing, to the event of any such transfer, Owner Trustee and the Certificate Registrar or and any of their respective successors that:
(I) Such Person is (A) a "qualified institutional buyer" as defined in Rule 144A under the Depositor Securities Act of 1933, as amended (the "Securities Act"), (such Person shall prior to such transfer require the transferee to execute (i) an investment letter (in the form attached hereto as Exhibit D-1C-1 to such effect) certifying and is aware that the seller of such Certificate may be relying on the exemption from the registration requirements of the Securities Act provided by Rule 144A and is acquiring such Certificate for its own account or for the account of one or more qualified institutional buyers for whom it is authorized to act or (B) an "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of the Trust, Securities Act (such Person shall execute an investment letter in the Owner Trustee, form attached hereto as Exhibit C-2 to such effect) and is aware that the Trust Administrator, seller of such Certificate is relying on an exemption from the registration requirements of the Securities Act and is acquiring such Certificate Registrar and the Depositor for its own account;
(II) Such Person understands that such transferee Certificate has not been and will not be registered under the Securities Act and may be offered, sold, pledged or otherwise transferred only to a person (A) whom the seller reasonably believes is a "qualified institutional buyer" under Rule 144A under the Securities Act, or (iiB) an investment letter (in the form attached hereto as Exhibit D-2) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is an "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of the Securities Act), in each case in a transaction exempt from registration under the Securities Act and any expense associated with the preparation and execution of any such investment letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. A Certificateholder desiring to effect the transfer of a Certificate shall, and does hereby agree to, indemnify the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor against any and all liability that may result if the transfer is not so exempt or is not made in accordance with any applicable securities laws of any state of the United States; and
(III) Such Person shall comply with the provisions of Section 3.07, as applicable, relating to the ERISA restrictions with respect to the acceptance or acquisition of such federal Certificate.
(d) For so long as any of the Certificates are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, the Administrator agrees to cooperate with the Depositor to provide to any Certificateholders and state lawsto any prospective purchaser of Certificates designated by such Certificateholder, upon the request of such Certificateholder or prospective purchaser, any information required to be provided to such holder or prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4) under the Securities Act. Except Any reasonable, out-of-pocket expenses incurred by the Administrator in providing such information shall be reimbursed by the case Depositor.
(e) Each prospective transferee of an initial transfer to an any Class L or Class R Certificate, other than the Initial Holder, no transfer of a Certificate shall be made unless execute and deliver the Certificate Registrar shall have received a representation letter of Non-Foreign Status (in the form attached hereto as Exhibit D-1 D).
(f) Each Person that has or D-2that acquires any Ownership Interest in any Class L or Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably appointed the Certificate Registrar or its designee as its attorney-in-fact to negotiate the terms of any mandatory sale under clause (v) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale, and the rights of each Person acquiring any Ownership Interest in the Class L or Class R Certificates are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a Class L or Class R Certificate shall be a Permitted Transferee and shall promptly notify the Owner Trustee and the Certificate Registrar of any change or impending change in its status as a Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a Class L or Class R Certificate unless such Ownership Interest is a pro rata undivided interest.
(iii) No Ownership Interest in a Class L or Class R Certificate may be transferred without the express written consent of the Owner Trustee, the Depositor and the Certificate Registrar. In connection with any proposed transfer of any Ownership Interest in a Class L or Class R Certificate, the Owner Trustee shall as a condition to such consent, require delivery to it, the Depositor and the Certificate Registrar in form and substance satisfactory to it, of each of the following:
(A) an affidavit in the form of Exhibit E-1 hereto from the proposed transferor, and an affidavit in the form of Exhibit E-2 hereto from the proposed transferee of such Certificate to the effect that such transferee is a Permitted Transferee and that it is not acquiring its Ownership Interest in the Class L or Class R Certificate that is the subject of the proposed transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee; and
(B) a covenant of the proposed transferee is not an employee benefit plan to the effect that the proposed transferee agrees to be bound by and to abide by the transfer restrictions applicable to the Class L or other retirement arrangement subject to Section 406 Class R Certificate.
(iv) Any attempted or purported transfer of ERISA, any Ownership Interest in a Class L or Section 4975 Class R Certificate in violation of the Code provisions of this Section 3.03 shall be absolutely null and void and shall vest no rights in the purported transferee. If any purported transferee shall, in violation of the provisions of this Section 3.03, become a holder of a Class L or Class R Certificate, then the prior holder of such Class L or Class R Certificate that is a Permitted Transferee shall, upon discovery that the registration of transfer of such Class L or Class R Certificate was not in fact permitted by this Section 3.03, be restored to all rights as holder thereof retroactive to the date of registration of transfer of such Class L or Class R Certificate. The Owner Trustee and the Certificate Registrar shall be under no liability to any substantially similar applicable law, or a Person acting on behalf for any registration of or using the assets transfer of any Class L or Class R Certificate that is in fact not permitted by this Section 3.03 or for making any distributions due on such plan, which representation letter shall not be an expense Class L or Class R Certificate to the holder thereof or taking any other action with respect to such holder under the provisions of the Trust, this Agreement so long as the Owner Trustee, the Trust AdministratorDepositor and the Certificate Registrar received all affidavits and covenants with respect to such transfer provided for under this Section 3.03. The Certificate Paying Agent, on behalf of the Trust, shall be entitled to recover from any holder of a Class L or Class R Certificate that was in fact not a Permitted Transferee at the time such distributions were made all distributions made on such Class L or Class R Certificate. Any such distributions so recovered by the Certificate Paying Agent shall be distributed and delivered by the Certificate Paying Agent to the prior holder of such Residual Certificate that is a Permitted Transferee.
(v) If any Person other than a Permitted Transferee acquires any Ownership Interest in a Class L or Class R Certificate in violation of the restrictions in this Section 3.03, then the Certificate Registrar shall have the right but not the obligation, without notice to the holder of such Class L or Class R Certificate or any other Person having an Ownership Interest therein, to notify the underwriter to arrange for the sale of such Class L or Class R Certificate. The proceeds of such sale, net of commissions (which may include commissions payable to the Certificate Registrar or its affiliates), expenses and taxes due, if any, will be remitted by the DepositorCertificate Paying Agent to the previous holder of such Class L or Class R Certificate that is a Permitted Transferee, except that in the event that the Certificate Paying Agent determines that the holder of such Class L or Class R Certificate may be liable for any amount due under this Section 3.03 or any other provisions of this Agreement, the Certificate Paying Agent may withhold a corresponding amount from such remittance as security for such claim. Prior to The terms and as a condition of the registration conditions of any transfer, sale or other disposition of the Ownership Certificate, the Initial Holder of the Ownership Certificate and each Prospective Holder of an Ownership Certificate under this clause (v) shall represent and warrant in writing, be determined in the case sole discretion of each Initial Holder, in substantially the form set forth in Exhibit E hereto, and in the case of each Prospective Holder, in substantially the form set forth in Exhibit F hereto, to the Owner Trustee, the Trust Administrator and the Certificate Registrar and the Certificate Paying Agent, and neither such Person shall not be liable to any Person having an Ownership Interest in a Class L or Class R Certificate as a result of their respective successors that:its exercise of such discretion.
(ivi) Such If any Person is duly authorized to purchase the other than a Permitted Transferee acquires any Ownership Interest in a Class L or Class R Certificate and its purchase of investments having the characteristics in violation of the Ownership Certificate is authorized underrestrictions in this Section 3.03, then the Administrator will provide to the Internal Revenue Service, and not directly or indirectly in contravention of, any law, charter, trust instrument or other operative document, investment guidelines or list of permissible or impermissible investments that is applicable to the investor;persons specified in Section 860E(e)(3) of the Code, information needed to compute the tax imposed under Section 860E(e)(1) of the Code on transfers of residual interests to disqualified organizations.
(iig) Such Each Person understands that each holder has or that acquires any Ownership Interest in any Class L Certificate shall be deemed by the acceptance or acquisition of an such Ownership Certificate, by virtue Interest to have agreed to be bound to make advances and purchase Additional Balances through funding of its acceptance thereof, assents the Reserve Account as and to the terms, provisions and conditions extent set forth in Section 2.01(b) of the Sale and Servicing Agreement; and
(iii) [Such Person is a REIT, a Qualified REIT Subsidiary or a Disregarded Entity.] The Owner Trustee shall cause each Certificate to contain a legend, substantially similar to the applicable legends provided in Exhibit A hereto, stating that transfer of such Certificate is subject to certain restrictions and referring prospective purchasers of the Certificates to this Section 3.03 with respect to such restrictions.
Appears in 1 contract
Samples: Trust Agreement (Indymac MBS Inc)
Registration of and Limitations on Transfers and Exchanges of the Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of the Certificates and of transfers and exchanges of the Certificates as set forth herein, herein provided; provided, however, that no Ownership Class R Certificate or Class L Certificate shall be issued in any such transfer and exchange representing less than a 100% Percentage Interest in such Certificate; and provided, further, that no Ownership Certificate shall be issued in any such transfer and exchange except in accordance with the provisions and conditions set forth below in this Section 3.03. The Trust Administrator shall be the initial Certificate Registrar. If the Certificate Registrar resigns or is removed, the Owner Trustee, with the consent of the Depositor, shall appoint a successor Certificate Registrar. Subject to satisfaction of the conditions set forth below, upon surrender for registration of transfer of a Certificate at the office or agency maintained pursuant to Section 3.08, the Owner Trustee shall execute, authenticate and deliver (or cause the Trust Administrator as its authenticating agent to authenticate and deliver), in the name of the designated transferee, a new Certificate evidencing the Percentage Interest of the Certificate so surrendered and dated the date of authentication by the Owner Trustee or the Certificate Registrar. Every Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by each the Certificateholder or such Certificateholder's ’s attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Certificate Registrar in accordance with its customary practice. No service charge shall be made for any registration of transfer or exchange of a Certificatethe Certificates, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of a Certificate the Certificates or any other expense arising as a result of any registration of transfer or exchange. Except for the initial issuance of the Class L and Class R Certificates on the Closing Date, no Person shall become a Certificateholder of Class L or Class R Certificates until it shall establish its non-foreign status by submitting to the Certificate Paying Agent an IRS Form W-9 and the Certificate of Non-Foreign Status set forth in Exhibit D hereto. The preceding provisions of this Section notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any transfer or exchanges exchange of a Class L Certificate or a Class R Certificate for a period of 15 days preceding the due date for any payment with respect to such Certificate. Residual Certificates.
(b) The Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated or otherwise conveyed (collectively, for purposes of this Section 3.03 and any other Section referring to the Certificates, “transferred” or a “transfer”) only in accordance with this Section 3.03.
(c) No transfer of a Certificate shall be made unless such transfer is exempt from the registration requirements of the Securities Act and any applicable state securities laws or is made in accordance with said the Securities Act and such laws. Except in Each prospective transferee of a Certificate, other than the case of an initial transfer to an Initial Holder, shall represent and warrant, in writing, to the event of any such transfer, Owner Trustee and the Certificate Registrar or and any of their respective successors that:
(I) Such Person is (A) a “qualified institutional buyer” as defined in Rule 144A under the Depositor Securities Act of 1933, as amended (the “Securities Act”), (such Person shall prior to such transfer require the transferee to execute (i) an investment letter (in the form attached hereto as Exhibit D-1C-1 to such effect) certifying to and is aware that the Trust, seller of such Certificate may be relying on the Owner Trustee, exemption from the Trust Administrator, registration requirements of the Securities Act provided by Rule 144A and is acquiring such Certificate Registrar and for its own account or for the Depositor that such transferee is a "account of one or more qualified institutional buyer" under buyers for whom it is authorized to act or (B) an “accredited investor” (as defined in Rule 144A under 501(a)(1), (2), (3) or (7) of the Securities Act, or Act (ii) such Person shall execute an investment letter (in the form attached hereto as Exhibit D-2C-2 to such effect) certifying to and is aware that the Trust, seller of such Certificate is relying on an exemption from the Owner Trustee, registration requirements of the Trust Administrator, the Securities Act and is acquiring such Certificate Registrar and the Depositor for its own account;
(II) Such Person understands that such transferee Certificate has not been and will not be registered under the Securities Act and may be offered, sold, pledged or otherwise transferred only to a person (A) whom the seller reasonably believes is a “qualified institutional buyer” or (B) an "“accredited investor" ” (as defined in Rule 501(a)(1), (2), (3) or (7) of the Securities Act), in each case in a transaction exempt from registration under the Securities Act and any expense associated with the preparation and execution of any such investment letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar or the Depositor. A Certificateholder desiring to effect the transfer of a Certificate shall, and does hereby agree to, indemnify the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor against any and all liability that may result if the transfer is not so exempt or is not made in accordance with any applicable securities laws of any state of the United States; and
(III) Such Person shall comply with the provisions of Section 3.07, as applicable, relating to the ERISA restrictions with respect to the acceptance or acquisition of such federal Certificate.
(d) For so long as any of the Certificates are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Administrator agrees to cooperate with the Depositor to provide to any Certificateholders and state lawsto any prospective purchaser of Certificates designated by such Certificateholder, upon the request of such Certificateholder or prospective purchaser, any information required to be provided to such holder or prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4) under the Securities Act. Except Any reasonable, out-of-pocket expenses incurred by the Administrator in providing such information shall be reimbursed by the case Depositor.
(e) Each prospective transferee of an initial transfer to an any Class L or Class R Certificate, other than the Initial Holder, no transfer of a Certificate shall be made unless execute and deliver the Certificate Registrar shall have received a representation letter of Non-Foreign Status (in the form attached hereto as Exhibit D-1 D).
(f) Each Person that has or D-2that acquires any Ownership Interest in any Class L or Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably appointed the Certificate Registrar or its designee as its attorney-in-fact to negotiate the terms of any mandatory sale under clause (v) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale, and the rights of each Person acquiring any Ownership Interest in the Class L or Class R Certificates are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a Class L or Class R Certificate shall be a Permitted Transferee and shall promptly notify the Owner Trustee and the Certificate Registrar of any change or impending change in its status as a Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a Class L or Class R Certificate unless such Ownership Interest is a pro rata undivided interest.
(iii) No Ownership Interest in a Class L or Class R Certificate may be transferred without the express written consent of the Owner Trustee, the Depositor and the Certificate Registrar. In connection with any proposed transfer of any Ownership Interest in a Class L or Class R Certificate, the Owner Trustee shall as a condition to such consent, require delivery to it, the Depositor and the Certificate Registrar in form and substance satisfactory to it, of each of the following:
(A) an affidavit in the form of Exhibit E-1 hereto from the proposed transferor, and an affidavit in the form of Exhibit E-2 hereto from the proposed transferee of such Certificate to the effect that such transferee is a Permitted Transferee and that it is not acquiring its Ownership Interest in the Class L or Class R Certificate that is the subject of the proposed transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee; and
(B) a covenant of the proposed transferee is not an employee benefit plan to the effect that the proposed transferee agrees to be bound by and to abide by the transfer restrictions applicable to the Class L or other retirement arrangement subject to Section 406 Class R Certificate.
(iv) Any attempted or purported transfer of ERISA, any Ownership Interest in a Class L or Section 4975 Class R Certificate in violation of the Code provisions of this Section 3.03 shall be absolutely null and void and shall vest no rights in the purported transferee. If any purported transferee shall, in violation of the provisions of this Section 3.03, become a holder of a Class L or Class R Certificate, then the prior holder of such Class L or Class R Certificate that is a Permitted Transferee shall, upon discovery that the registration of transfer of such Class L or Class R Certificate was not in fact permitted by this Section 3.03, be restored to all rights as holder thereof retroactive to the date of registration of transfer of such Class L or Class R Certificate. The Owner Trustee and the Certificate Registrar shall be under no liability to any substantially similar applicable law, or a Person acting on behalf for any registration of or using the assets transfer of any Class L or Class R Certificate that is in fact not permitted by this Section 3.03 or for making any distributions due on such plan, which representation letter shall not be an expense Class L or Class R Certificate to the holder thereof or taking any other action with respect to such holder under the provisions of the Trust, this Agreement so long as the Owner Trustee, the Trust AdministratorDepositor and the Certificate Registrar received all affidavits and covenants with respect to such transfer provided for under this Section 3.03. The Certificate Paying Agent, on behalf of the Trust, shall be entitled to recover from any holder of a Class L or Class R Certificate that was in fact not a Permitted Transferee at the time such distributions were made all distributions made on such Class L or Class R Certificate. Any such distributions so recovered by the Certificate Paying Agent shall be distributed and delivered by the Certificate Paying Agent to the prior holder of such Residual Certificate that is a Permitted Transferee.
(v) If any Person other than a Permitted Transferee acquires any Ownership Interest in a Class L or Class R Certificate in violation of the restrictions in this Section 3.03, then the Certificate Registrar shall have the right but not the obligation, without notice to the holder of such Class L or Class R Certificate or any other Person having an Ownership Interest therein, to notify the underwriter to arrange for the sale of such Class L or Class R Certificate. The proceeds of such sale, net of commissions (which may include commissions payable to the Certificate Registrar or its affiliates), expenses and taxes due, if any, will be remitted by the DepositorCertificate Paying Agent to the previous holder of such Class L or Class R Certificate that is a Permitted Transferee, except that in the event that the Certificate Paying Agent determines that the holder of such Class L or Class R Certificate may be liable for any amount due under this Section 3.03 or any other provisions of this Agreement, the Certificate Paying Agent may withhold a corresponding amount from such remittance as security for such claim. Prior to The terms and as a condition of the registration conditions of any transfer, sale or other disposition of the Ownership Certificate, the Initial Holder of the Ownership Certificate and each Prospective Holder of an Ownership Certificate under this clause (v) shall represent and warrant in writing, be determined in the case sole discretion of each Initial Holder, in substantially the form set forth in Exhibit E hereto, and in the case of each Prospective Holder, in substantially the form set forth in Exhibit F hereto, to the Owner Trustee, the Trust Administrator and the Certificate Registrar and the Certificate Paying Agent, and neither such Person shall not be liable to any Person having an Ownership Interest in a Class L or Class R Certificate as a result of their respective successors that:its exercise of such discretion.
(ivi) Such If any Person is duly authorized to purchase the other than a Permitted Transferee acquires any Ownership Interest in a Class L or Class R Certificate and its purchase of investments having the characteristics in violation of the Ownership Certificate is authorized underrestrictions in this Section 3.03, then the Administrator will provide to the Internal Revenue Service, and not directly or indirectly in contravention of, any law, charter, trust instrument or other operative document, investment guidelines or list of permissible or impermissible investments that is applicable to the investor;persons specified in Section 860E(e)(3) of the Code, information needed to compute the tax imposed under Section 860E(e)(1) of the Code on transfers of residual interests to disqualified organizations.
(iig) Such Each Person understands that each holder has or that acquires any Ownership Interest in any Class L Certificate shall be deemed by the acceptance or acquisition of an such Ownership Certificate, by virtue Interest to have agreed to be bound to make advances and purchase Additional Balances through funding of its acceptance thereof, assents the Reserve Account as and to the terms, provisions and conditions extent set forth in Section 2.01(b) of the Sale and Servicing Agreement; and
(iii) [Such Person is a REIT, a Qualified REIT Subsidiary or a Disregarded Entity.] The Owner Trustee shall cause each Certificate to contain a legend, substantially similar to the applicable legends provided in Exhibit A hereto, stating that transfer of such Certificate is subject to certain restrictions and referring prospective purchasers of the Certificates to this Section 3.03 with respect to such restrictions.
Appears in 1 contract
Samples: Trust Agreement (IndyMac Home Equity Mortgage Loan Asset-Backed Trust, Series 2007-H1)
Registration of and Limitations on Transfers and Exchanges of the Certificates. (a) The Securities Administrator is hereby appointed as the Certificate Registrar of the Trust. The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.083.09, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of the Certificates and of transfers and exchanges of the Certificates as set forth herein, herein provided; provided, however, that no Ownership Certificate related Residual Certificates nor related Class E Certificates shall be issued in any such transfer and exchange representing less than a 100% Percentage Interest in such Certificate; and provided, further, that no Ownership Certificate shall be issued in any such transfer and exchange except in accordance with the provisions and conditions set forth below in this Section 3.03. The Trust Administrator shall be the initial Certificate Registrar. If the Certificate Registrar resigns or is removed, the Owner Trustee, with the consent of the Depositor, Depositor shall appoint a successor Certificate Registrar. .
(b) Subject to satisfaction of the conditions set forth below, with respect to the Certificates, upon surrender for registration of transfer of a Certificate Certificates at the office or agency maintained pursuant to Section 3.083.09, the Owner Trustee and the Certificate Register shall execute, authenticate and deliver (or cause the Trust Administrator as its authenticating agent to authenticate and deliver), in the name of the designated transferee, a new Certificate evidencing the Percentage Interest of the Certificate so surrendered and dated the date of authentication by the Owner Trustee or the Certificate Registrar. At the option of a Holder, Certificates may be exchanged for other Certificates of authorized denominations of a like aggregate amount upon surrender of the Certificates to be exchanged at the office or agency maintained pursuant to Section 3.09. Every Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by each Certificateholder the Holder or such Certificateholder's Holder’s attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Certificate Registrar in accordance with its customary practice. No service charge shall be made for any registration of transfer or exchange of a Certificatethe Certificates, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of a Certificate the Certificates or any other expense arising as a result of any registration of transfer or exchange. Except for the initial issuance of the Residual Certificates on the Closing Date, no Person shall become a Certificateholder of the Residual Certificates until the requirements of section 3.04(g) shall have been complied with. The preceding provisions of this Section notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any transfer or exchanges exchange of a related Residual Certificate or related Class E Certificate for a period of 15 days preceding the due date for any payment with respect to such Certificate. Certificates.
(c) The Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated or otherwise conveyed (collectively, for purposes of this Section 3.04 and any other Section referring to the Certificates, “transferred” or a “transfer”) only in accordance with this Section 3.04.
(d) No transfer of a Certificate shall be made unless such transfer is exempt from the made pursuant to an effective registration requirements of statement under the Securities Act and any applicable state securities laws or is exempt from the registration requirements under the Securities Act and such state securities laws. In the event that a transfer is to be made in accordance with said reliance upon an exemption from the Securities Act and such laws. Except , in order to assure compliance with the Securities Act and such laws, the Certificateholder desiring to effect such transfer and such Certificateholder’s prospective transferee shall each certify to the Securities Administrator in writing the facts (or shall be deemed to certify in the case of an initial a Book-Entry Certificate) surrounding the transfer by (x)(i) the delivery to an Initial Holder, in the event of any such transfer, Securities Administrator by the Certificate Registrar or the Depositor shall prior Certificateholder desiring to effect such transfer require the transferee to execute (i) an investment letter (of a certificate substantially in the form attached hereto as set forth in Exhibit D-1D (the “Transferor Certificate”) certifying to and (ii) the Trust, delivery by the Owner Trustee, Certificateholder’s prospective transferee of (A) a letter in substantially the Trust Administrator, form of Exhibit E (the Certificate Registrar “Investment Letter”) if the prospective transferee is an Institutional Accredited Investor or (B) a letter in substantially the form of Exhibit F (the “Rule 144A and Related Matters Certificate”) if the Depositor that such prospective transferee is a "“qualified institutional buyer" under ” as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act, or (ii) an investment letter (in the form attached hereto as Exhibit D-2) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is an "accredited investor" (as defined in Rule 501(a)(1), (2), (3”) or (7y) there shall be delivered to the Securities Administrator an Opinion of Counsel addressed to the Indenture Trustee and the Securities Administrator that such transfer may be made pursuant to an exemption from the Securities Act), and any expense associated with the preparation and execution which Opinion of any such investment letter Counsel shall not be an expense of the TrustDepositor, the Owner TrusteeSeller, the Trust AdministratorMaster Servicer, the Certificate Registrar Securities Administrator or the DepositorIndenture Trustee. A Certificateholder The Depositor shall provide to any Holder of a Certificate and any prospective transferee designated by any such Holder, information regarding the related Certificates and the HELOCs and such other information as shall be necessary to satisfy the condition to eligibility set forth in Rule 144A(d)(4) for transfer of any such Certificate without registration thereof under the Securities Act pursuant to the registration exemption provided by Rule 144A. The Indenture Trustee and the Securities Administrator shall cooperate with the Depositor in providing the Rule 144A information referenced in the preceding sentence, including providing to the Depositor such information regarding the Certificates, the HELOCs and other matters regarding the Trust Estate as the Depositor shall reasonably request to meet its obligation under the preceding sentence. Each Holder of a Certificate desiring to effect the such transfer of a Certificate shall, and does hereby agree to, indemnify the TrustIndenture Trustee, the Depositor, the Sellers, the Owner Trustee, the Trust Administrator, the Certificate Registrar Securities Administrator and the Depositor Master Servicer against any and all liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Except in .
(e) With respect to the case of an initial transfer to an Initial Holder, no transfer of a Class E, Class X or Residual Certificate such Person shall comply with the provisions of Section 3.07, as applicable, relating to the ERISA restrictions with respect to the acceptance or acquisition of such Class E, Class X or Residual Certificate.
(f) For so long as any of the Certificates are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Certificate Registrar agrees to cooperate with, and act in accordance with the direction of, the Depositor in providing to any Certificateholders and to any prospective purchaser of Certificates designated by such Certificateholder, upon the request of such Certificateholder or prospective purchaser, any information in the Certificate Registrar’s possession and required to be provided to such holder or prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4) under the Securities Act. Any reasonable, out-of-pocket expenses incurred by the Certificate Registrar in providing such information shall be reimbursed by the Depositor.
(g) Each Person that has or that acquires any Ownership Interest in any Residual Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably appointed the Certificate Registrar or its designee as its attorney-in-fact to negotiate the terms of any mandatory sale under clause (v) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale, and the rights of each Person acquiring any Ownership Interest in the Residual Certificates are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Owner Trustee and the Certificate Registrar of any change or impending change in its status as a Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a Residual Certificate unless such Ownership Interest is a pro rata undivided interest.
(iii) No Ownership Interest in a Residual Certificate may be transferred without the express written consent of the Owner Trustee, the Note Insurer, the Depositor and the Certificate Registrar. In connection with any proposed transfer of any Ownership Interest in a Residual Certificate, the Owner Trustee shall, as a condition to such consent, require delivery to it, the Depositor, the Note Insurer, the Securities Administrator and the Certificate Registrar in form and substance satisfactory to it, an affidavit and agreement in the form of Exhibit C hereto from the proposed transferee to the effect that such transferee is a Permitted Transferee and that it is not acquiring its Ownership Interest in a Residual Certificate that is the subject of the proposed transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee and that the proposed transferee agrees to be bound by and to abide by the transfer restrictions applicable to the Residual Certificates, and an affidavit from the proposed transferor in the form of Exhibit G to the effect that it does not have actual knowledge that any statements made unless by the proposed transferee in such affidavit is false.
(iv) Any attempted or purported transfer of any Ownership Interest in a Residual Certificate in violation of the provisions of this Section 3.04(g) shall be absolutely null and void and shall vest no rights in the purported transferee. If any purported transferee shall, in violation of the provisions of this Section 3.04, become a Holder of a Residual Certificate, then the prior Holder of such Residual Certificate that is a Permitted Transferee shall, upon discovery that the registration of transfer of such Residual Certificate was not in fact permitted by this Section 3.04, be restored to all rights as Holder thereof retroactive to the date of registration of transfer of such Residual Certificate. The Owner Trustee and the Certificate Registrar shall be under no liability to any Person for any registration of transfer of any Residual Certificate that is in fact not permitted by this Section 3.04(g) or for making any distributions due on such Residual Certificate to the Holder thereof or taking any other action with respect to such Holder under the provisions of this Agreement so long as the Owner Trustee, the Depositor and the Certificate Registrar received all affidavits and covenants with respect to such transfer provided for under this Section 3.04(g). The Certificate Paying Agent, on behalf of the Trust, shall be entitled to recover from any Holder of a Residual Certificate that was in fact not a Permitted Transferee at the time such distributions were made all distributions made on such Residual Certificate. Any such distributions so recovered by the Certificate Paying Agent shall be distributed and delivered by the Certificate Paying Agent to the prior Holder of such Residual Certificate that is a Permitted Transferee.
(v) If any Person other than a Permitted Transferee acquires any Ownership Interest in a Residual Certificate in violation of the restrictions in this Section 3.04(g), then the Certificate Registrar shall have received a representation letter (in the form attached hereto as Exhibit D-1 or D-2) from right but not the proposed transferee obligation, without notice to the Holder of such Residual Certificate to the effect that such proposed transferee is not an employee benefit plan or other retirement arrangement subject to Section 406 of ERISA, or Section 4975 of the Code or any substantially similar applicable lawother Person having an Ownership Interest therein, or a Person acting on behalf to notify the underwriter to arrange for the sale of or using the assets such Residual Certificate. The proceeds of any such plansale, net of commissions (which representation letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, may include commissions payable to the Certificate Registrar or its affiliates), expenses and taxes due, if any, will be remitted by the DepositorCertificate Paying Agent to the previous Holder of such Residual Certificate that is a Permitted Transferee, except that in the event that the Certificate Paying Agent determines that the Holder of such Residual Certificate may be liable for any amount due under this Section 3.04 or any other provisions of this Agreement, the Certificate Paying Agent may withhold a corresponding amount from such remittance as security for such claim. Prior to The terms and as a condition of the registration conditions of any transfer, sale or other disposition of the Ownership Certificate, the Initial Holder of the Ownership Certificate and each Prospective Holder of an Ownership Certificate under this clause (v) shall represent and warrant in writing, be determined in the case sole discretion of each Initial Holder, in substantially the form set forth in Exhibit E hereto, and in the case of each Prospective Holder, in substantially the form set forth in Exhibit F hereto, to the Owner Trustee, the Trust Administrator and the Certificate Registrar and the Certificate Paying Agent, and neither such Person shall be liable to any Person having an Ownership Interest in a Residual Certificate as a result of their respective successors that:its exercise of such discretion.
(ivi) Such If any Person is duly authorized to purchase the other than a Permitted Transferee acquires any Ownership Interest in a Residual Certificate and its purchase of investments having the characteristics in violation of the Ownership restrictions in this Section 3.04(g), then the Certificate is authorized underRegistrar will provide to the Internal Revenue Service, and not directly or indirectly in contravention of, any law, charter, trust instrument or other operative document, investment guidelines or list of permissible or impermissible investments that is applicable to the investor;persons specified in Section 860E(e)(3) of the Code, information needed to compute the tax imposed under Section 860E(e)(1) of the Code on transfers of residual interests to disqualified organizations.
(iih) Such Each Person understands that each holder of has or that acquires an Ownership Certificate, Interest in the Class S Certificate shall be deemed by virtue the acceptance or acquisition of its acceptance thereof, assents such Ownership Interest to have agreed to be bound to reimburse advances made by the Servicer to fund related Draws on the related HELOCs pursuant to the terms, provisions Servicing Agreement and conditions to the extent set forth in Section 2.01(b) of the Sale and Servicing Agreement; and
(iii) [Such Person is a REIT, a Qualified REIT Subsidiary or a Disregarded Entity.] The Owner Trustee shall cause each Certificate to contain a legend, substantially similar to the applicable legends provided in Exhibit A hereto, stating that transfer of such Certificate is subject to certain restrictions and referring prospective purchasers of the Certificates to this Section 3.03 with respect to such restrictions.
Appears in 1 contract
Samples: Trust Agreement (Greenpoint Mortgage Funding Trust 2007-He1)
Registration of and Limitations on Transfers and Exchanges of the Certificates. (a) The Securities Administrator is hereby appointed as the Certificate Registrar of the Trust. The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.083.09, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of the Certificates and of transfers and exchanges of the Certificates as set forth herein, herein provided; provided, however, that no Ownership Class R, Class RX or Class S Certificate shall be issued in any such transfer and exchange representing less than a 100% Percentage Interest in such Certificate; and provided, further, that no Ownership Certificate shall be issued in any such transfer and exchange except in accordance with the provisions and conditions set forth below in this Section 3.03. The Trust Administrator shall be the initial Certificate Registrar. If the Certificate Registrar resigns or is removed, the Owner Trustee, with the consent of the Depositor, Depositor shall appoint a successor Certificate Registrar. .
(b) Subject to satisfaction of the conditions set forth below, with respect to the Certificates, upon surrender for registration of transfer of a Certificate Certificates at the office or agency maintained pursuant to Section 3.083.09, the Owner Trustee and the Certificate Register shall execute, authenticate and deliver (or cause the Trust Administrator as its authenticating agent to authenticate and deliver), in the name of the designated transferee, a new Certificate evidencing the Percentage Interest of the Certificate so surrendered and dated the date of authentication by the Owner Trustee or the Certificate Registrar. At the option of a Holder, Certificates may be exchanged for other Certificates of authorized denominations of a like aggregate amount upon surrender of the Certificates to be exchanged at the office or agency maintained pursuant to Section 3.09. Every Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by each Certificateholder the Holder or such Certificateholder's Holder’s attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Certificate Registrar in accordance with its customary practice. No service charge shall be made for any registration of transfer or exchange of a Certificatethe Certificates, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of a Certificate the Certificates or any other expense arising as a result of any registration of transfer or exchange. Except for the initial issuance of the Class S, Class R and Class RX Certificates on the Closing Date, no Person shall become a Certificateholder of Class S, Class R or Class RX Certificates until the requirements of section 3.04(f) shall have been complied with. The preceding provisions of this Section notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any transfer or exchanges exchange of a Class S, Class E, Class R or Class RX Certificate for a period of 15 days preceding the due date for any payment with respect to such Certificate. Certificates.
(c) The Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated or otherwise conveyed (collectively, for purposes of this Section 3.04 and any other Section referring to the Certificates, “transferred” or a “transfer”) only in accordance with this Section 3.04.
(d) No transfer of a Certificate shall be made unless such transfer is exempt from the made pursuant to an effective registration requirements of statement under the Securities Act and any applicable state securities laws or is exempt from the registration requirements under the Securities Act and such state securities laws. In the event that a transfer is to be made in accordance with said reliance upon an exemption from the Securities Act and such laws. Except , in order to assure compliance with the Securities Act and such laws, the Certificateholder desiring to effect such transfer and such Certificateholder’s prospective transferee shall each certify to the Securities Administrator in writing the facts (or shall be deemed to certify in the case of an initial a Book-Entry Certificate) surrounding the transfer by (x)(i) the delivery to an Initial Holder, in the event of any such transfer, Securities Administrator by the Certificate Registrar or the Depositor shall prior Certificateholder desiring to effect such transfer require the transferee to execute (i) an investment letter (of a certificate substantially in the form attached hereto as set forth in Exhibit D-1E (the “Transferor Certificate”) certifying to and (ii) the Trust, delivery by the Owner Trustee, Certificateholder’s prospective transferee of (A) a letter in substantially the Trust Administrator, form of Exhibit E (the Certificate Registrar “Investment Letter”) if the prospective transferee is an Institutional Accredited Investor or (B) a letter in substantially the form of Exhibit F (the “Rule 144A and Related Matters Certificate”) if the Depositor that such prospective transferee is a "“qualified institutional buyer" under ” as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act, or (ii) an investment letter (in the form attached hereto as Exhibit D-2) certifying to the Trust, the Owner Trustee, the Trust Administrator, the Certificate Registrar and the Depositor that such transferee is an "accredited investor" (as defined in Rule 501(a)(1), (2), (3”) or (7y) there shall be delivered to the Securities Administrator an Opinion of Counsel addressed to the Indenture Trustee and the Securities Administrator that such transfer may be made pursuant to an exemption from the Securities Act), and any expense associated with the preparation and execution which Opinion of any such investment letter Counsel shall not be an expense of the TrustDepositor, the Owner TrusteeSeller, the Trust AdministratorMaster Servicer, the Certificate Registrar Securities Administrator or the DepositorIndenture Trustee. A Certificateholder The Depositor shall provide to any Holder of a Certificate and any prospective transferee designated by any such Holder, information regarding the related Certificates and the HELOCs and such other information as shall be necessary to satisfy the condition to eligibility set forth in Rule 144A(d)(4) for transfer of any such Certificate without registration thereof under the Securities Act pursuant to the registration exemption provided by Rule 144A. The Indenture Trustee and the Securities Administrator shall cooperate with the Depositor in providing the Rule 144A information referenced in the preceding sentence, including providing to the Depositor such information regarding the Certificates, the HELOCs and other matters regarding the Trust Estate as the Depositor shall reasonably request to meet its obligation under the preceding sentence. Each Holder of a Certificate desiring to effect the such transfer of a Certificate shall, and does hereby agree to, indemnify the TrustIndenture Trustee, the Depositor, the Sellers, the Owner Trustee, the Trust Administrator, the Certificate Registrar Securities Administrator and the Depositor Master Servicer against any and all liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Except in .
(i) With respect to the case of an initial transfer to an Initial Holder, no transfer of a Residual Certificate, such Person shall comply with the provisions of Section 3.07, as applicable, relating to the ERISA restrictions with respect to the acceptance or acquisition of such Residual Certificate.
(e) For so long as any of the Certificates are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Certificate Registrar agrees to cooperate with, and act in accordance with the direction of, the Depositor in providing to any Certificateholders and to any prospective purchaser of Certificates designated by such Certificateholder, upon the request of such Certificateholder or prospective purchaser, any information in the Certificate Registrar’s possession and required to be provided to such holder or prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4) under the Securities Act. Any reasonable, out-of-pocket expenses incurred by the Certificate Registrar in providing such information shall be reimbursed by the Depositor.
(f) Each Person that has or that acquires any Ownership Interest in any Class S, Class R or Class RX Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably appointed the Certificate Registrar or its designee as its attorney-in-fact to negotiate the terms of any mandatory sale under clause (v) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale, and the rights of each Person acquiring any Ownership Interest in the Class S, Class R or Class RX Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a Class S, Class R or Class RX Certificate shall be a Permitted Transferee and shall promptly notify the Owner Trustee and the Certificate Registrar of any change or impending change in its status as a Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a Class S, Class R or Class RX Certificate unless such Ownership Interest is a pro rata undivided interest.
(iii) No Ownership Interest in a Class S, Class R or Class RX Certificate may be transferred without the express written consent of the Owner Trustee, the Note Insurer, the Depositor and the Certificate Registrar. In connection with any proposed transfer of any Ownership Interest in a Class S, Class R or Class RX Certificate, the Owner Trustee shall, as a condition to such consent, require delivery to it, the Depositor, the Note Insurer (with respect to a Class S Certificate only) and the Certificate Registrar in form and substance satisfactory to it, each of the following:
(A) an affidavit in the form of Exhibit C hereto from the proposed transferee to the effect that such transferee is a Permitted Transferee and that it is not acquiring its Ownership Interest in the Class S, Class R or Class RX Certificate that is the subject of the proposed transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, and certification from the proposed transferor to the effect that it does not have actual knowledge that any statements made unless by the proposed transferee in such affidavit is false; and
(B) a covenant of the proposed transferee to the effect that the proposed transferee agrees to be bound by and to abide by the transfer restrictions applicable to the Class S, Class R or Class RX Certificate.
(iv) Any attempted or purported transfer of any Ownership Interest in a Class S, Class R or Class RX Certificate in violation of the provisions of this Section 3.04 shall be absolutely null and void and shall vest no rights in the purported transferee. If any purported transferee shall, in violation of the provisions of this Section 3.04, become a Holder of a Class S, Class R or Class RX Certificate, then the prior Holder of such Class S, Class R or Class RX Certificate that is a Permitted Transferee shall, upon discovery that the registration of transfer of such Class S, Class R or Class RX Certificate was not in fact permitted by this Section 3.04, be restored to all rights as Holder thereof retroactive to the date of registration of transfer of such Class S, Class R or Class RX Certificate. The Owner Trustee and the Certificate Registrar shall be under no liability to any Person for any registration of transfer of any Class S, Class R or Class RX Certificate that is in fact not permitted by this Section 3.04 or for making any distributions due on such Class S, Class R or Class RX Certificate to the Holder thereof or taking any other action with respect to such Holder under the provisions of this Agreement so long as the Owner Trustee, the Depositor and the Certificate Registrar received all affidavits and covenants with respect to such transfer provided for under this Section 3.04. The Certificate Paying Agent, on behalf of the Trust, shall be entitled to recover from any Holder of a Class S, Class R or Class RX Certificate that was in fact not a Permitted Transferee at the time such distributions were made all distributions made on such Class S, Class R or Class RX Certificate. Any such distributions so recovered by the Certificate Paying Agent shall be distributed and delivered by the Certificate Paying Agent to the prior Holder of such Class S, Class R or Class RX Certificate that is a Permitted Transferee.
(v) If any Person other than a Permitted Transferee acquires any Ownership Interest in a Class S, Class R or Class RX Certificate in violation of the restrictions in this Section 3.04, then the Certificate Registrar shall have received a representation letter (in the form attached hereto as Exhibit D-1 or D-2) from right but not the proposed transferee obligation, without notice to the Holder of such Class S, Class R or Class RX Certificate to the effect that such proposed transferee is not an employee benefit plan or other retirement arrangement subject to Section 406 of ERISA, or Section 4975 of the Code or any substantially similar applicable lawother Person having an Ownership Interest therein, to notify the underwriter to arrange for the sale of such Class S, Class R or a Person acting on behalf Class RX Certificate. The proceeds of or using the assets such sale, net of any such plan, commissions (which representation letter shall not be an expense of the Trust, the Owner Trustee, the Trust Administrator, may include commissions payable to the Certificate Registrar or its affiliates), expenses and taxes due, if any, will be remitted by the DepositorCertificate Paying Agent to the previous Holder of such Class S, Class R or Class RX Certificate that is a Permitted Transferee, except that in the event that the Certificate Paying Agent determines that the Holder of such Class S, Class R or Class RX Certificate may be liable for any amount due under this Section 3.04 or any other provisions of this Agreement, the Certificate Paying Agent may withhold a corresponding amount from such remittance as security for such claim. Prior to The terms and as a condition of the registration conditions of any transfer, sale or other disposition of the Ownership Certificate, the Initial Holder of the Ownership Certificate and each Prospective Holder of an Ownership Certificate under this clause (v) shall represent and warrant in writing, be determined in the case sole discretion of each Initial Holder, in substantially the form set forth in Exhibit E hereto, and in the case of each Prospective Holder, in substantially the form set forth in Exhibit F hereto, to the Owner Trustee, the Trust Administrator and the Certificate Registrar and the Certificate Paying Agent, and neither such Person shall be liable to any Person having an Ownership Interest in a Class S, Class R or Class RX Certificate as a result of their respective successors that:its exercise of such discretion.
(ivi) Such If any Person is duly authorized to purchase the other than a Permitted Transferee acquires any Ownership Interest in a Class S, Class R or Class RX Certificate and its purchase of investments having the characteristics in violation of the Ownership restrictions in this Section 3.04, then the Certificate is authorized underRegistrar will provide to the Internal Revenue Service, and not directly or indirectly in contravention of, any law, charter, trust instrument or other operative document, investment guidelines or list of permissible or impermissible investments that is applicable to the investor;persons specified in Section 860E(e)(3) of the Code, information needed to compute the tax imposed under Section 860E(e)(1) of the Code on transfers of residual interests to disqualified organizations.
(iig) Such Each Person understands that each holder of has or that acquires an Ownership Certificate, Interest in the Class S Certificate shall be deemed by virtue the acceptance or acquisition of its acceptance thereof, assents such Ownership Interest to have agreed to be bound to reimburse advances made by the Servicer to fund Draws on the HELOCs pursuant to the terms, provisions Servicing Agreement and conditions to the extent set forth in Section 2.01(b) of the Sale and Servicing Agreement; and
(iii) [Such Person is a REIT, a Qualified REIT Subsidiary or a Disregarded Entity.] The Owner Trustee shall cause each Certificate to contain a legend, substantially similar to the applicable legends provided in Exhibit A hereto, stating that transfer of such Certificate is subject to certain restrictions and referring prospective purchasers of the Certificates to this Section 3.03 with respect to such restrictions.
Appears in 1 contract
