Registration of Certificates; Transfer and Exchange of Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.8, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of Transfers and exchanges of Certificates as herein provided. Wilmington Trust Company shall be the initial Certificate Registrar. No Transfer of a Certificate shall be recognized except upon registration of such Transfer in the Certificate Register. (b) No Certificateholder shall Transfer any Certificate initially held by it unless such transfer is made pursuant to an effective registration statement or otherwise in accordance with the requirements under the Securities Act and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If a transfer is to be made in reliance upon an exemption from the Securities Act, and under the applicable state securities laws, (i) the Certificate Registrar shall require an Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the Depositor that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the Securities Act, applicable state securities laws and other relevant laws, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Trustee, and (ii) the Certificate Registrar shall require the transferee to execute a certification acceptable to and in form and substance satisfactory to the Certificate Registrar setting forth the facts surrounding such transfer. (c) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which consent may be withheld in the sole discretion of the Depositor; provided, however, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of the Transfer will be, a Certificateholder. Each Certificate shall bear a legend to the following effect unless determined otherwise by the Administrator (as certified to the Certificate Registrar in an Officer's Certificate) consistent with applicable law: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN A DENOMINATION OF AT LEAST $1,000,000, ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C TO THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D TO THE TRUST AGREEMENT, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, AND THE CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT E TO THE TRUST AGREEMENT OR (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, OR (4) TO THE DEPOSITOR OR ITS AFFILIATES, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND SECURITIES AND BLUE SKY LAWS OF THE STATES OF THE UNITED STATES. IN ADDITION, EXCEPT IN THE CASE OF TRANSFERS TO EXISTING CERTIFICATEHOLDERS, THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY WITH THE EXPRESS WRITTEN CONSENT OF THE DEPOSITOR (WHICH CONSENT MAY BE WITHHELD FOR ANY REASON OR FOR NO REASON)." As a condition to the registration of any Transfer of a Certificate, the prospective transferee of such a Certificate shall represent to the Owner Trustee and the Certificate Registrar the following: (i) It has neither acquired nor will it Transfer any Certificate it purchases (or any interest therein) or cause any such Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. (ii) It either (A) is not, and will not become, a partnership, Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes, or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 80% or more (or such other percentage as the Depositor may establish prior to the time of such proposed Transfer) of the value of such interests to be attributable to such transferee's ownership of Certificates. (iii) It understands that no subsequent Transfer of the Certificates is permitted unless (A) such Transfer is of a Certificate with a denomination of at least $1,000,000 and (B) the Depositor consents in writing (which consent may be withheld for any reason or for no reason) to the proposed Transfer; provided, however, that no such consent shall be required where the proposed transferee is, and at the time of the Transfer will be, a Holder of a Certificate. (iv) It understands that the opinion of tax counsel that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs (i), (ii) and (iii) above. (v) If it is acquiring any Certificates as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the acknowledgments, representations and agreements contained herein on behalf of each such account. (vi) It is not (A) an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (B) a plan described in Section 4975(e)(1) of the Code, (C) a governmental plan, as defined in Section 3(32) of ERISA, subject to any Federal, state or local law which is, to a material extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the Code, (D) an entity whose underlying assets include plan assets by reason of a plan's investment in the entity (within the meaning of Department of Labor Regulation 29 C.F.R. ss. 2510.3-101) or (E) a person investing "plan assets" of any such plan (excluding, for purposes of this clause (E), any entity registered under the Investment Company Act of 1940, as amended). (vii) It is a Person who is either (A) (1) a citizen or resident of the United States, (2) a corporation, partnership or other entity organized in or under the laws of the United States or any political subdivision thereof or (3) a Person not described in (1) or (2) whose ownership of the Certificates is effectively connected with such Person's conduct of a trade or business within the United States (within the meaning of the Code) and who provides the Depositor and the Owner Trustee an IRS Form W-8ECI (and such other certifications, representations or opinions of counsel as may be requested by the Depositor or the Owner Trustee) or (B) an estate or trust the income of which is includible in gross income for United States Federal income tax purposes, regardless of source. (viii) It understands that any purported Transfer of any Certificate (or any interest therein) in contravention of any of the restrictions and conditions (including any violation of the representation in paragraph (ii) above by an investor who continues to hold such Certificates occurring any time after the Transfer in which it acquired such Certificates) in this Section 3.4 shall be a Void Transfer, and the purported transferee in a Void Transfer shall not be recognized by the Trust or any other Person as a Certificateholder for any purpose. (ix) It agrees that if it determines to Transfer any of the Certificates it will cause its proposed transferee to provide to the Trust and the Certificate Registrar a letter substantially in the form of Exhibit D or E hereof, as applicable, or such other written statement as the Depositor shall prescribe. (d) By acceptance of any Certificate, the Certificateholder thereof specifically agrees with and represents to the Depositor, the Certificate Registrar and the Trust that no Transfer of such Certificate shall be made unless the registration requirements of the Securities Act and any applicable state securities laws are complied with, or such Transfer is exempt from the registration requirements under the Securities Act because the Transfer satisfies one of the following: (i) such Transfer is in compliance with Rule 144A under the Securities Act ("Rule 144A"), to a transferee who the transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer and to whom notice is given that such transfer is being made in reliance upon Rule 144A and (x) the transferor executes and delivers to the Trust and the Certificate Registrar a Rule 144A transferor certificate substantially in the form attached as Exhibit C and (y) the transferee executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit D; (ii) after the appropriate holding period, such Transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the Trust or the Certificate Registrar, delivers an Opinion of Counsel in form and substance satisfactory to the Trust and the Depositor; or (iii) such Transfer is to an institutional accredited investor as defined in rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act in a transaction exempt from the registration requirements of the Securities Act, such Transfer is in accordance with any applicable securities laws of any state of the United States or any other jurisdiction, and such investor executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit E. (e) The Trust shall make available to the prospective transferor and transferee information requested to satisfy the requirements of paragraph (d)(4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information shall include any or all of the following items requested by the prospective transferee: (i) each statement delivered to Certificateholders pursuant to Section 4.9 of the Sale and Servicing Agreement on each Payment Date preceding such request; and (ii) such other information as is reasonably available to the Owner Trustee in order to comply with requests for information pursuant to Rule 144A under the Securities Act. None of the Depositor, the Certificate Registrar or the Trust is under an obligation to register any Certificate under the Securities Act or any other securities law. (f) Upon surrender for registration of Transfer of any Certificate at the office or agency maintained pursuant to Section 3.8 and upon compliance with any provisions of this Agreement relating to such Transfer, the Owner Trustee shall execute, authenticate and deliver (or shall cause Wilmington Trust Company, as its authenticating agent, to authenticate and deliver), in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate amount dated the date of authentication by the Owner Trustee or any authenticating agent. Subject to Sections 3.4(b) and 3.4(c), at the option of a Certificateholder, 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 3.8. Every Certificate presented or surrendered for registration of Transfer or exchange shall be accompanied by a written instrument of transfer and accompanied by IRS Form W-8ECI in form satisfactory to the Owner Trustee and the Certificate Registrar, duly executed by the Certificateholder or his 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 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 Certificates. (g) The provisions of this Section 3.4 and of this Agreement generally are intended to prevent the Trust from being characterized as a "publicly traded partnership" within the meaning of Section 7704 of the Code, in reliance on Treasury Regulation ss. 1.7704-1(e) and (h), and the Depositor shall take such intent into account in determining whether or not to consent to any proposed Transfer of any Certificate. The preceding provisions of this Section 3.4 notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any Transfer or exchange of Certificates for a period of 15 days preceding the due date for any payment with respect to the Certificates. Notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities Act, the Exchange Act, applicable state securities law or the Investment Company Act of 1940, as amended; provided, however, that if a certification is specifically required to be delivered to the Owner Trustee by a purchaser or transferee of a Certificate, the Owner Trustee shall be under a duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and to register transfers only upon receipt of documents and certifications specified herein and shall promptly notify the party delivering the same if such certification does not so conform.

Appears in 6 contracts

Samples: Trust Agreement (Mmca Auto Owner Trust 2002-4), Trust Agreement (Mmca Auto Owner Trust 2002-5), Trust Agreement (Mmca Auto Receivables Trust)

Registration of Certificates; Transfer and Exchange of Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.8, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of ~~Transfers~~ transfers and exchanges of Certificates as herein provided. ~~Wilmington Trust Company~~ The Owner Trustee shall be the initial Certificate Registrar. No ~~Transfer~~ transfer of a Certificate shall be recognized except upon registration of such ~~Transfer~~ transfer in the Certificate Register. (b) The Certificates have not been and will not be registered under the Securities Act and will not be listed on any exchange. No ~~Certificateholder~~ transfer of a Certificate shall ~~Transfer any Certificate initially held by it~~ be made unless such transfer is made pursuant to an effective registration statement under the Securities Act and any applicable state securities laws or ~~otherwise in accordance with~~ is exempt from the registration requirements under the Securities Act and ~~effective registration or qualification under applicable~~ such state securities laws~~, or is made in a transaction which does not require such registration or qualification~~. If In the event that a transfer is to be made in reliance upon an exemption from the Securities ~~Act,~~ Act and ~~under the applicable~~ state securities laws, ~~(i)~~ in order to ensure compliance with the ~~Certificate Registrar shall require an Opinion of Counsel reasonably satisfactory~~ Securities Act and such laws, the Certificateholder desiring to ~~the Certificate Registrar and the Depositor that~~ effect such transfer ~~may be made pursuant to an exemption, describing the applicable exemption~~ and the basis therefor, from the Securities Act, applicable state securities laws and other relevant laws, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Trustee, and (ii) the Certificate Registrar shall require the transferee to execute a certification acceptable to and in form and substance satisfactory to the Certificate Registrar setting forth the facts surrounding such transfer. (c) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which consent may be withheld in the sole discretion of the Depositor; provided, however, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of the Transfer will be, a Certificateholder~~. Each Certificate shall bear a legend to the following effect unless determined otherwise by the Administrator (as certified to the Certificate Registrar in an Officer~~'s Certificate) consistent with applicable law: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN A DENOMINATION OF AT LEAST $1,000,000, ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C TO THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D TO THE TRUST AGREEMENT, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, AND THE CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a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s a condition to the registration of any Transfer of a Certificate, the prospective transferee ~~of such a Certificate~~ shall ~~represent~~ each certify to the Owner Trustee in writing the facts surrounding the transfer in substantially the forms set forth in Exhibit C (the "Transferor Certificate") and either Exhibit D (the ~~Certificate Registrar the following: (i) It has neither acquired nor will it Transfer any Certificate it purchases (or any interest therein~~"Investment Letter") or ~~cause~~ Exhibit E (the "Rule 144A Letter"). The Company shall provide to any such Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. (ii) It either (A) is not, and will not become, a partnership, Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes, or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 80% or more (or such other percentage as the Depositor may establish prior to the time of such proposed Transfer) of the value of such interests to be attributable to such transferee's ownership of Certificates. (iii) It understands that no subsequent Transfer of the Certificates is permitted unless (A) such Transfer is Certificateholder of a Certificate ~~with a denomination of at least $1,000,000~~ and ~~(B)~~ any prospective transferee designated by any such Certificateholder, information regarding the ~~Depositor consents in writing (which consent may be withheld for any reason or for no reason)~~ Certificates and, based solely on information received from the Servicer, the Receivables and, to the ~~proposed Transfer; provided~~extent reasonably obtainable by the Company, ~~however, that no~~ such ~~consent~~ other information as shall be ~~required where~~ necessary to satisfy the ~~proposed transferee is, and at the time of the Transfer will be, a Holder of a Certificate. (iv~~condition to eligibility set forth in Rule 144A(d)(4) It understands that the opinion of tax counsel that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs (i), (ii) and (iii) above. (v) If it is acquiring any Certificates as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the acknowledgments, representations and agreements contained herein on behalf of each such account. (vi) It is not (A) an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (B) a plan described in Section 4975(e)(1) of the Code, (C) a governmental plan, as defined in Section 3(32) of ERISA, subject to any Federal, state or local law which is, to a material extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the Code, (D) an entity whose underlying assets include plan assets by reason of a plan's investment in the entity (within the meaning of Department of Labor Regulation 29 C.F.R. ss. 2510.3-101) or (E) a person investing "plan assets" transfer of any such plan (excluding, for purposes of this clause (E), any entity registered under the Investment Company Act of 1940, as amended). (vii) It is a Person who is either (A) (1) a citizen or resident of the United States, (2) a corporation, partnership or other entity organized in or under the laws of the United States or any political subdivision Certificate without registration thereof or (3) a Person not described in (1) or (2) whose ownership of the Certificates is effectively connected with such Person's conduct of a trade or business within the United States (within the meaning of the Code) and who provides the Depositor and the Owner Trustee an IRS Form W-8ECI (and such other certifications, representations or opinions of counsel as may be requested by the Depositor or the Owner Trustee) or (B) an estate or trust the income of which is includible in gross income for United States Federal income tax purposes, regardless of source. (viii) It understands that any purported Transfer of any Certificate (or any interest therein) in contravention of any of the restrictions and conditions (including any violation of the representation in paragraph (ii) above by an investor who continues to hold such Certificates occurring any time after the Transfer in which it acquired such Certificates) in this Section 3.4 shall be a Void Transfer, and the purported transferee in a Void Transfer shall not be recognized by the Trust or any other Person as a Certificateholder for any purpose. (ix) It agrees that if it determines to Transfer any of the Certificates it will cause its proposed transferee to provide to the Trust and the Certificate Registrar a letter substantially in the form of Exhibit D or E hereof, as applicable, or such other written statement as the Depositor shall prescribe. (d) By acceptance of any Certificate, the Certificateholder thereof specifically agrees with and represents to the Depositor, the Certificate Registrar and the Trust that no Transfer of such Certificate shall be made unless the registration requirements of the Securities Act and any applicable state securities laws are complied with, or such Transfer is exempt from the registration requirements under the Securities Act ~~because~~ pursuant to the ~~Transfer satisfies one~~ registration exemption provided by Rule 144A. Each Holder of a Certificate desiring to effect such a transfer shall, and does hereby agree to, indemnify the ~~following: (i) such Transfer~~ Trust, the Owner Trustee, and the Company against any liability that may result if the transfer is not so exempt or is not made in ~~compliance~~ accordance with ~~Rule 144A under~~ federal and state securities laws. The Owner Trustee shall cause each Certificate to contain a legend in the ~~Securities Act ("Rule 144A"), to a transferee who~~ form set forth on the ~~transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account~~ form of Certificate attached hereto as Exhibit A. The Certificates may not be acquired by or for the account of a ~~Qualified Institutional Buyer~~ Benefit Plan. By accepting and ~~to whom notice is given that such transfer is being made in reliance upon Rule 144A and (x) the transferor executes and delivers to the Trust and the Certificate Registrar~~ holding a Rule 144A transferor certificate substantially in the form attached as Exhibit C and (y) the transferee executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit D; (ii) after the appropriate holding period, such Transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the Trust or the Certificate Registrar, delivers an Opinion of Counsel in form and substance satisfactory to the Trust and the Depositor; or (iii) such Transfer is to an institutional accredited investor as defined in rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act in a transaction exempt from the registration requirements of the Securities Act, such Transfer is in accordance with any applicable securities laws of any state of the United States or any other jurisdiction, and such investor executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit E. (e) The Trust shall make available to the prospective transferor and transferee information requested to satisfy the requirements of paragraph (d)(4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information shall include any or all of the following items requested by the prospective transferee: (i) each statement delivered to Certificateholders pursuant to Section 4.9 of the Sale and Servicing Agreement on each Payment Date preceding such request; and (ii) such other information as is reasonably available to the Owner Trustee in order to comply with requests for information pursuant to Rule 144A under the Securities Act. None of the DepositorCertificate, the ~~Certificate Registrar or the Trust~~ Holder thereof shall be deemed to have represented and warranted that it is ~~under an obligation to register any Certificate under the Securities Act or any other securities law~~not a Benefit Plan. (fc) Upon surrender for registration of ~~Transfer~~ transfer of any Certificate at the office or agency maintained pursuant to Section 3.8 and upon compliance with any provisions of this Agreement relating to such ~~Transfer~~transfer, the Owner Trustee shall execute, authenticate and ~~deliver (or shall cause Wilmington Trust Company, as its authenticating agent, to authenticate and~~ deliver), in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations ~~of a like~~ and aggregate amount dated the date of authentication by the Owner Trustee or any authenticating agent. ~~Subject to Sections 3.4(b) and 3.4(c), at~~ At the option of a Certificateholder, Certificates may be exchanged for other Certificates of authorized denominations ~~of a like~~ and aggregate amount upon surrender of the Certificates to be exchanged at the office or agency maintained pursuant to Section 3.8. Every Certificate presented or surrendered for registration of ~~Transfer~~ transfer or exchange shall be accompanied by a written instrument of transfer ~~and accompanied by IRS Form W-8ECI~~ in form satisfactory to the Owner Trustee and the Certificate Registrar, duly executed by the related Certificateholder or ~~his~~ such Certificateholder's attorney duly authorized in writing. Each Certificate surrendered for registration of ~~Transfer~~ 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~~ transfer or exchange of 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~~ transfer or exchange of Certificates. (g) The provisions of this Section 3.4 and of this Agreement generally are intended to prevent the Trust from being characterized as a "publicly traded partnership" within the meaning of Section 7704 of the Code, in reliance on Treasury Regulation ss. 1.7704-1(e) and (h), and the Depositor shall take such intent into account in determining whether or not to consent to any proposed Transfer of any Certificate. The preceding provisions of this Section 3.4 notwithstanding, the Owner Trustee shall not make and the Certificate Registrar ~~shall~~ need not register any ~~Transfer~~ transfer or exchange of Certificates for a period of 15 fifteen (15) days preceding ~~the due date~~ any Payment Date for any payment with respect to the Certificates. Notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities Act, the Exchange Act, applicable state securities law or the Investment Company Act of 1940, as amended; provided, however, that if a certification is specifically required to be delivered to the Owner Trustee by a purchaser or transferee of a Certificate, the Owner Trustee shall be under a duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and to register transfers only upon receipt of documents and certifications specified herein and shall promptly notify the party delivering the same if such certification does not so conform.

Appears in 4 contracts

Samples: Trust Agreement (USAA Auto Owner Trust 2006-1), Trust Agreement (USAA Auto Owner Trust 2006-2), Trust Agreement (USAA Auto Owner Trust 2006-3)

Registration of Certificates; Transfer and Exchange of Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section ~~3.8~~3.9, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of Transfers and exchanges of Certificates as herein provided. ~~Wilmington Trust Company~~ The Bank shall be the initial Certificate Registrar. No Transfer of a Certificate shall be recognized except upon registration of such Transfer in the Certificate Register. (b) ~~No Certificateholder shall Transfer any~~ Each Class C Certificate ~~initially held by it unless such transfer is made pursuant to an effective registration statement or otherwise in accordance with the requirements under the Securities Act~~ and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If a transfer is to be made in reliance upon an exemption from the Securities Act, and under the applicable state securities laws, (i) the Certificate Registrar shall require an Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the Depositor that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the Securities Act, applicable state securities laws and other relevant laws, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Trustee, and (ii) the Certificate Registrar shall require the transferee to execute a certification acceptable to and in form and substance satisfactory to the Certificate Registrar setting forth the facts surrounding such transfer. (c) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which consent may be withheld in the sole discretion of the Depositor; provided, however, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of the Transfer will be, a Certificateholder. Each Class D Certificate shall bear a legend to the following effect unless determined otherwise by the Administrator (as certified to the ~~Certificate Registrar~~ Owner Trustee in an ~~Officer's~~ Officers Certificate) and the Owner Trustee consistent with applicable law: "THIS CERTIFICATE HAS NOT BEEN ~~AND WILL NOT BE~~ REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN ~~A DENOMINATION OF AT LEAST $1,000,000, ONLY IN~~ COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE ~~144A~~ l44A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C E TO THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D C TO THE TRUST AGREEMENT, WITH SUCH CHANGES THEREIN AS MAY BE APPROVED BY THE DEPOSITOR, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, THE INITIAL PURCHASER AND THE CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST AND THE INITIAL PURCHASER THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT E D TO THE TRUST AGREEMENT OR (B) THE RECEIPT BY THE ~~TRUST~~ TRUST, THE INITIAL PURCHASER AND THE CERTIFICATE REGISTRAR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE TRUST AND THE INITIAL PURCHASER THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, OR (4) TO THE DEPOSITOR OR ITS AFFILIATES, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND SECURITIES AND BLUE SKY LAWS OF THE STATES OF THE UNITED STATES. IN ADDITION, EXCEPT IN THE CASE OF TRANSFERS TO EXISTING CERTIFICATEHOLDERS, THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY WITH THE EXPRESS WRITTEN CONSENT OF THE DEPOSITOR (WHICH CONSENT MAY BE WITHHELD FOR ANY REASON OR FOR NO REASON)." As a condition to the registration of any Transfer of a Certificate, the prospective transferee of such a Certificate shall be required to represent in writing to the Owner Trustee, the Certificate Registrar and the Initial Purchaser the following, unless determined otherwise by the Administrator (as certified to the Owner Trustee ~~and the Certificate Registrar the following:~~in an Officer's Certificate): (i) It has neither acquired nor will it Transfer any Certificate it purchases (or any interest therein) or cause any such Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. (ii) It either (A) is not, and will not become, a partnership, Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes, or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 80% or more (or such other percentage as the Depositor may establish prior to the time of such proposed Transfer) of the value of such interests to be attributable to such transferee's ownership of Certificates. (iii) It understands that no subsequent Transfer of the Certificates is permitted unless it causes its proposed transferee to provide to the Trust, the Certificate Registrar and the Initial Purchaser a letter substantially in the form of Exhibit C or Exhibit D hereof (with such changes therein as may be approved by the Depositor), as applicable, or such other written statement as the Depositor shall prescribe. (ii) It is either: (A) such Transfer is of a Certificate with a denomination of at least $1,000,000 and (B) the Depositor consents in writing (which consent may be withheld for any reason or for no reason) to the proposed Transfer; provided, however, that no such consent shall be required where the proposed transferee isnot, and ~~at the time of the Transfer will be, a Holder of a Certificate.~~ each account (ivif any) It understands that the opinion of tax counsel that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs (i), (ii) and (iii) above. (v) If for which it is ~~acquiring any~~ purchasing the Certificates as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the acknowledgments, representations and agreements contained herein on behalf of each such account. (vi) It is not (A1) an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (B2) a plan described in Section 4975(e)(1) of the Code that is subject to Section 4975 of the Code, (C3) a governmental plan, as defined in Section 3(32) of ERISA, subject to any ~~Federal~~federal, ~~state~~ State or local law which is, to a material extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the Code, (D4) an entity whose underlying assets include plan assets by reason of a ~~plan's~~ plans investment in the entity (within the meaning of Department of Labor Regulation 29 C.F.R. ss. 2510.3-~~101~~101 or otherwise under ERISA) or (E5) a person investing "plan assets" of any such plan (~~excluding~~including without limitation, for purposes of this clause (E5), an insurance company general account, but excluding any entity registered under the Investment Company Act of 1940, as amended); or (B) an insurance company acting on behalf of a general account and (1) on the date of purchase less than 25% (or such lower percentage as may be determined by the Depositor) of the assets of such general account (as reasonably determined by it) constitute "plan assets" for purposes of Title I of ERISA and Section 4975 of the Code, (2) the purchase and holding of such Certificates are eligible for exemptive relief under Sections (I) and (III) of Prohibited Transaction Class Exemption 95-60, and (3) the purchaser agrees that if, after the purchaser's initial acquisition of the Certificates, at any time during any calendar quarter 25% (or such lower percentage as may be determined by the Depositor) or more of the assets of such general account (as reasonably determined by it no less frequently than each calendar quarter) constitute "plan assets" for purposes of Title I of ERISA or Section 4975 of the Code and no exemption or exception from the prohibited transaction rules applies to the continued holding of the Certificates under Section 401(c) of ERISA and the final regulations thereunder or under an exemption or regulation issued by the United States Department of Labor under ERISA, it will dispose of all Certificates then held in its general account by the end of the next following calendar quarter. (~~vii~~iii) It is a ~~Person~~ person who is ~~either~~ (A~~) (1~~) a citizen or resident of the United States, (2B) a ~~corporation,~~ corporation or partnership ~~or other entity~~ organized in or under the laws of the United States or any political subdivision ~~thereof~~ thereof, (c) an estate the income of which is includible in gross income for United States tax purposes, regardless of its source, (D) a trust if a U.S. court is able to exercise primary supervision over the administration of such trust and one or more persons described in clause (A), (B), (C) or (3E) of this paragraph (iii) has the authority to control all substantial decisions of the trust or (E) a ~~Person~~ person not described in clauses (1A) or through (2D) of this paragraph (iii) whose ownership of the Certificates is effectively connected with such ~~Person's~~ persons conduct of a trade or business within the United States (within the meaning of the Code) and who provides the ~~Depositor~~ Trust and the ~~Owner Trustee~~ Depositor with an IRS Form ~~W-8ECI~~ 4224 (and such other certifications, ~~representations~~ representations, or opinions of counsel as may be requested by the ~~Depositor~~ Trust or the ~~Owner Trustee) or (B) an estate or trust the income of which is includible in gross income for United States Federal income tax purposes, regardless of source~~Depositor). (~~viii~~iv) It understands that any purported Transfer of any Certificate (or any interest therein) in contravention of any of the restrictions and conditions (including any violation of the representation in paragraph (ii) above by an investor who continues to hold such Certificates occurring any time after the Transfer in which it acquired such Certificates) contained in this Section ~~3.4 shall~~ will be a Void Transfer, and the purported transferee in a Void Transfer ~~shall~~ will not be recognized by the Trust or any other ~~Person~~ person as a Certificateholder for any purpose. (ix) It agrees that if it determines to Transfer any of the Certificates it will cause its proposed transferee to provide to the Trust and the Certificate Registrar a letter substantially in the form of Exhibit D or E hereof, as applicable, or such other written statement as the Depositor shall prescribe. (dc) By acceptance of any Certificate, the Certificateholder thereof specifically agrees with and represents to the Depositor, the ~~Certificate Registrar~~ Trust and the ~~Trust~~ Certificate Registrar, that no Transfer of such Certificate shall be made unless the registration requirements of the Securities Act and any applicable ~~state~~ State securities laws are complied with, or such Transfer is exempt from the registration requirements under the Securities Act because the Transfer satisfies one of the following: (i) such Transfer is in compliance with Rule 144A under the Securities Act ("Rule 144A"), to a transferee who the transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer and to whom notice is given that such ~~transfer~~ Transfer is being made in reliance upon Rule 144A under the Securities Act and (x) the transferor executes and delivers to the Trust and the Certificate ~~Registrar~~ Registrar, a Rule 144A transferor certificate substantially in the form attached as Exhibit C E and (y) the transferee executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit DC; (ii) after the appropriate holding period, such Transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the ~~Trust~~ Trust, the Certificate Registrar or the ~~Certificate Registrar~~Initial Purchaser, delivers an Opinion of Counsel in form and substance satisfactory to the Trust and the ~~Depositor~~Initial Purchaser; or (iii) such Transfer is to an institutional accredited investor as defined in rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act in a transaction exempt from the registration requirements of the Securities Act, such Transfer is in accordance with any applicable securities laws of any ~~state~~ State of the United States or any other jurisdiction, and such investor executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit E.D. (ed) The ~~Trust~~ Depositor shall make available to the prospective transferor and transferee of a Certificate information requested to satisfy the requirements of paragraph (~~d)(4~~d) (4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information shall include any or all of the following items requested by the prospective transferee: (i) the private placement memorandum, if any, relating to the Certificates, and any amendments or supplements thereto; (ii) each statement delivered to Certificateholders pursuant to Section ~~4.9 of the Sale and Servicing Agreement~~ 5.2(b) on each ~~Payment~~ Distribution Date preceding such request; and (iiiii) such other information as is reasonably available to the Owner Trustee in order to comply with requests for information pursuant to Rule 144A under the Securities Act. None of the Depositor, the Certificate Registrar or the ~~Trust~~ Owner Trustee is under an obligation to register any Certificate under the Securities Act or any other securities law. (fe) Upon surrender for registration of Transfer of any Certificate at the office or agency maintained pursuant to Section ~~3.8~~ 3.9 and upon compliance with any provisions of this Agreement relating to such Transfer, the Owner Trustee shall execute, authenticate and ~~deliver (or shall cause Wilmington Trust Company, as its authenticating agent, to authenticate and~~ deliver), in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like Class and aggregate amount dated the date of authentication by the Owner Trustee or any authenticating agent. ~~Subject to Sections 3.4(b) and 3.4(c), at~~ At the option of a Certificateholder, Certificates may be exchanged for other Certificates of authorized denominations of a like Class and aggregate amount upon surrender of the Certificates to be exchanged at the office or agency maintained pursuant to Section ~~3.8~~3.9. Every Certificate presented or surrendered for registration of Transfer or exchange shall be accompanied by a written instrument of transfer ~~and accompanied by IRS Form W-8ECI~~ in form satisfactory to the Owner Trustee and the Certificate Registrar, duly executed by the Certificateholder or his attorney ~~duly authorized~~ in writing, with such signature guaranteed by a member firm of the New York Stock Exchange or a commercial bank or trust company. 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 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 Certificates. (g) The provisions of this Section 3.4 and of this Agreement generally are intended to prevent the Trust from being characterized as a "publicly traded partnership" within the meaning of Section 7704 of the Code, in reliance on Treasury Regulation ss. 1.7704-1(e) and (h), and the Depositor shall take such intent into account in determining whether or not to consent to any proposed Transfer of any Certificate. The preceding provisions of this Section ~~3.4~~ 3.5 notwithstanding, the Owner Trustee shall not make and the Certificate Registrar ~~shall~~ need not register any Transfer or exchange of Certificates for a period of 15 fifteen (15) days preceding ~~the due date~~ any Distribution Date for any payment with respect to the Certificates. Notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities Act, the Exchange Act, applicable state securities law or the Investment Company Act of 1940, as amended; provided, however, that if a certification is specifically required to be delivered to the Owner Trustee by a purchaser or transferee of a Certificate, the Owner Trustee shall be under a duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and to register transfers only upon receipt of documents and certifications specified herein and shall promptly notify the party delivering the same if such certification does not so conform.

Appears in 4 contracts

Samples: Trust Agreement (Ford Credit Auto Receivables Two LLC), Trust Agreement (Ford Credit Auto Receivables Two L P), Trust Agreement (Ford Credit Auto Receivables Two LLC)

Registration of Certificates; Transfer and Exchange of Certificates. (a) The ~~Certificate Registrar~~ Owner Trustee shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.8, a ~~Certificate Register~~ register in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of ~~Transfers~~ transfers and exchanges of Certificates as herein provided~~. Wilmington Trust Company shall~~ . (b) The Certificates have not been and will not be registered under the ~~initial Certificate Registrar~~Securities Act and will not be listed on any exchange. No ~~Transfer~~ transfer of a Certificate shall be ~~recognized except upon registration of such Transfer in the Certificate Register. (b) No Certificateholder shall Transfer any Certificate initially held by it~~ made unless such transfer is made pursuant to an effective registration statement under the Securities Act and any applicable state securities laws or ~~otherwise in accordance with~~ is exempt from the registration requirements under the Securities Act and ~~effective registration or qualification under applicable~~ such state securities laws~~, or is made in a transaction which does not require such registration or qualification~~. If In the event that a transfer is to be made in reliance upon an exemption from the Securities ~~Act,~~ Act and ~~under the applicable~~ state securities laws, ~~(i) the Certificate Registrar shall require an Opinion of Counsel reasonably satisfactory~~ in order to the Certificate Registrar and the Depositor that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the Securities Act, applicable state securities laws and other relevant laws, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Trustee, and (ii) the Certificate Registrar shall require the transferee to execute a certification acceptable to and in form and substance satisfactory to the Certificate Registrar setting forth the facts surrounding such transfer. (c) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which consent may be withheld in the sole discretion of the Depositor; provided, however, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of the Transfer will be, a Certificateholder. Each Certificate shall bear a legend to the following effect unless determined otherwise by the Administrator (as certified to the Certificate Registrar in an Officer's Certificate) consistent ensure compliance with applicable law: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN A DENOMINATION OF AT LEAST $1,000,000, ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C TO THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D TO THE TRUST AGREEMENT, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, AND THE CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a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s a condition to the registration of any Transfer of a Certificate, the prospective transferee of such a Certificate shall represent to the Owner Trustee and the Certificate Registrar the following: (i) It has neither acquired nor will it Transfer any Certificate it purchases (or any interest therein) or cause any such Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. (ii) It either (A) is not, and will not become, a partnership, Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes, or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 80% or more (or such other percentage as the Depositor may establish prior to the time of such proposed Transfer) of the value of such interests to be attributable to such transferee's ownership of Certificates. (iii) It understands that no subsequent Transfer of the Certificates is permitted unless (A) such Transfer is of a Certificate with a denomination of at least $1,000,000 and (B) the Depositor consents in writing (which consent may be withheld for any reason or for no reason) to the proposed Transfer; provided, however, that no such consent shall be required where the proposed transferee is, and at the time of the Transfer will be, a Holder of a Certificate. (iv) It understands that the opinion of tax counsel that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs (i), (ii) and (iii) above. (v) If it is acquiring any Certificates as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the acknowledgments, representations and agreements contained herein on behalf of each such account. (vi) It is not (A) an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (B) a plan described in Section 4975(e)(1) of the Code, (C) a governmental plan, as defined in Section 3(32) of ERISA, subject to any Federal, state or local law which is, to a material extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the Code, (D) an entity whose underlying assets include plan assets by reason of a plan's investment in the entity (within the meaning of Department of Labor Regulation 29 C.F.R. ss. 2510.3-101) or (E) a person investing "plan assets" of any such plan (excluding, for purposes of this clause (E), any entity registered under the Investment Company Act of 1940, as amended). (vii) It is a Person who is either (A) (1) a citizen or resident of the United States, (2) a corporation, partnership or other entity organized in or under the laws of the United States or any political subdivision thereof or (3) a Person not described in (1) or (2) whose ownership of the Certificates is effectively connected with such Person's conduct of a trade or business within the United States (within the meaning of the Code) and who provides the Depositor and the Owner Trustee an IRS Form W-8ECI (and such other certifications, representations or opinions of counsel as may be requested by the Depositor or the Owner Trustee) or (B) an estate or trust the income of which is includible in gross income for United States Federal income tax purposes, regardless of source. (viii) It understands that any purported Transfer of any Certificate (or any interest therein) in contravention of any of the restrictions and conditions (including any violation of the representation in paragraph (ii) above by an investor who continues to hold such Certificates occurring any time after the Transfer in which it acquired such Certificates) in this Section 3.4 shall be a Void Transfer, and the purported transferee in a Void Transfer shall not be recognized by the Trust or any other Person as a Certificateholder for any purpose. (ix) It agrees that if it determines to Transfer any of the Certificates it will cause its proposed transferee to provide to the Trust and the Certificate Registrar a letter substantially in the form of Exhibit D or E hereof, as applicable, or such other written statement as the Depositor shall prescribe. (d) By acceptance of any Certificate, the Certificateholder thereof specifically agrees with and represents to the Depositor, the Certificate Registrar and the Trust that no Transfer of such Certificate shall be made unless the registration requirements of the Securities Act and such laws, the Certificateholder desiring to effect such transfer and such Certificateholder’s prospective transferee shall each certify to the Owner Trustee, the Indenture Trustee and the Depositor (if the Depositor is not the Certificateholder) in writing the facts surrounding the transfer in substantially the forms set forth in Exhibit C (the “Transferor Certificate”) and either Exhibit D (the “Investment Letter”) or Exhibit E (the “Rule 144A Letter”). The Depositor shall provide to any ~~applicable state securities laws are complied with~~Certificateholder of a Certificate and any prospective transferee designated by any such Certificateholder, ~~or such Transfer is exempt~~ information regarding the Certificates and, based solely on information received from the Servicer, the Receivables and, to the extent reasonably obtainable by the Depositor, 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 ~~requirements~~ thereof under the Securities Act ~~because~~ pursuant to the ~~Transfer satisfies one~~ registration exemption provided by Rule 144A. Each holder of a Certificate desiring to effect such a transfer shall, and does hereby agree to, indemnify the ~~following: (i) such Transfer~~ Trust, the Owner Trustee, and the Depositor against any liability that may result if the transfer is not so exempt or is not made in ~~compliance~~ accordance with ~~Rule 144A under~~ federal and state securities laws. The Owner Trustee shall cause each Certificate to contain a legend in the ~~Securities Act ("Rule 144A"), to a transferee who~~ form set forth on the ~~transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account~~ form of Certificate attached hereto as Exhibit A. The Certificates may not be acquired by or for the account of a ~~Qualified Institutional Buyer~~ Benefit Plan. By accepting and ~~to whom notice is given that such transfer is being made in reliance upon Rule 144A and (x) the transferor executes and delivers to the Trust and the Certificate Registrar~~ holding a Rule 144A transferor certificate substantially in the form attached as Exhibit C and (y) the transferee executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit D; (ii) after the appropriate holding period, such Transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the Trust or the Certificate Registrar, delivers an Opinion of Counsel in form and substance satisfactory to the Trust and the Depositor; or (iii) such Transfer is to an institutional accredited investor as defined in rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act in a transaction exempt from the registration requirements of the Securities Act, such Transfer is in accordance with any applicable securities laws of any state of the United States or any other jurisdiction, and such investor executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit E. (e) The Trust shall make available to the prospective transferor and transferee information requested to satisfy the requirements of paragraph (d)(4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information shall include any or all of the following items requested by the prospective transferee: (i) each statement delivered to Certificateholders pursuant to Section 4.9 of the Sale and Servicing Agreement on each Payment Date preceding such request; and (ii) such other information as is reasonably available to the Owner Trustee in order to comply with requests for information pursuant to Rule 144A under the Securities Act. None of the DepositorCertificate, the ~~Certificate Registrar or the Trust~~ holder thereof shall be deemed to have represented and warranted that it is ~~under an obligation to register any Certificate under the Securities Act or any other securities law~~not a Benefit Plan. (fc) Upon surrender for registration of ~~Transfer~~ transfer of any Certificate at the office or agency maintained pursuant to Section 3.8 and upon compliance with any provisions of this Agreement relating to such ~~Transfer~~transfer, the Owner Trustee shall execute, authenticate and ~~deliver (or shall cause Wilmington Trust Company, as its authenticating agent, to authenticate and~~ deliver), in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations ~~of a like~~ and aggregate amount dated the date of authentication by the Owner Trustee or any authenticating agent. ~~Subject to Sections 3.4(b) and 3.4(c), at~~ At the option of a Certificateholder, Certificates may be exchanged for other Certificates of authorized denominations ~~of a like~~ and aggregate amount upon surrender of the Certificates to be exchanged at the office or agency maintained pursuant to Section 3.8. Every Certificate presented or surrendered for registration of ~~Transfer~~ transfer or exchange shall be accompanied by a written instrument of transfer ~~and accompanied by IRS Form W-8ECI~~ in form satisfactory to the Owner ~~Trustee and the Certificate Registrar~~Trustee, duly executed by the related Certificateholder or ~~his~~ such Certificateholder’s attorney duly authorized in writing. Each Certificate surrendered for registration of ~~Transfer~~ transfer or exchange shall be cancelled and subsequently disposed of by the ~~Certificate Registrar~~ Owner Trustee in accordance with its customary practice. No service charge shall be made for any registration of ~~Transfer~~ transfer or exchange of 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~~ transfer or exchange of Certificates. (g) The provisions of this Section 3.4 and of this Agreement generally are intended to prevent the Trust from being characterized as a "publicly traded partnership" within the meaning of Section 7704 of the Code, in reliance on Treasury Regulation ss. 1.7704-1(e) and (h), and the Depositor shall take such intent into account in determining whether or not to consent to any proposed Transfer of any Certificate. The preceding provisions of this Section 3.4 notwithstanding, the Owner Trustee shall not make ~~and the Certificate Registrar shall not register~~ any ~~Transfer~~ transfer or exchange of Certificates for a period of 15 fifteen (15) days preceding ~~the due date~~ any Payment Date for any payment with respect to the Certificates. Notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities Act, the Exchange Act, applicable state securities law or the Investment Company Act of 1940, as amended; provided, however, that if a certification is specifically required to be delivered to the Owner Trustee by a purchaser or transferee of a Certificate, the Owner Trustee shall be under a duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and to register transfers only upon receipt of documents and certifications specified herein and shall promptly notify the party delivering the same if such certification does not so conform.

Appears in 3 contracts

Samples: Trust Agreement (USAA Auto Owner Trust 2007-2), Trust Agreement (USAA Auto Owner Trust 2007-1), Trust Agreement (USAA Auto Owner Trust 2008-1)

Registration of Certificates; Transfer and Exchange of Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.8, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of Transfers and exchanges of Certificates as herein provided. Wilmington Trust Company shall be the initial Certificate Registrar. No Transfer of a Certificate shall be recognized except upon registration of such Transfer in the Certificate Register. (b) No Certificateholder shall Transfer any Certificate initially held by it unless such transfer is made pursuant to an effective registration statement or otherwise in accordance with the requirements under the Securities Act of 1933, as amended (the "1933 Act"), and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If a transfer is to be made in reliance upon an exemption from the ~~Securities~~ 1933 Act, and under the applicable state securities laws, (i) the Certificate Registrar shall require an Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the Depositor that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the ~~Securities~~ 1933 Act, applicable state securities laws and other relevant laws, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Trustee, and (ii) the Certificate Registrar shall require the transferee to execute a certification acceptable to and in form and substance satisfactory to the Certificate Registrar setting forth the facts surrounding such transfer. (c) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which consent may be withheld in the sole discretion of the Depositor; , provided, however, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of the Transfer will be, a Certificateholder. Each Certificate shall bear a legend to the following effect unless determined otherwise by the Administrator (as certified to the Certificate Registrar in an Officer's Certificate) consistent with applicable law: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN A DENOMINATION OF AT LEAST $1,000,000, ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C TO THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D TO THE TRUST AGREEMENT, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, AND THE CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a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s a condition to the registration of any Transfer of a Certificate, the prospective transferee of such a Certificate shall represent to the Owner Trustee and the Certificate Registrar the following: (i) It has neither acquired nor will it Transfer any Certificate it purchases (or any interest therein) or cause any such Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of ~~Section~~ section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. (ii) It either (A) is not, and will not become, a partnership, Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes, or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 80% or more (or such other percentage as the Depositor may establish prior to the time of such proposed Transfer) of the value of such interests to be attributable to such transferee's ownership of Certificates. (iii) It understands that no subsequent Transfer of the Certificates is permitted unless (A) such Transfer is of a Certificate with a denomination of at least $1,000,000 and (B) the Depositor consents in writing (which consent may be withheld for any reason or for no reason) to the proposed Transfer; provided, however, that no such consent shall be required where the proposed transferee is, and at the time of the Transfer will be, a Holder of a Certificate. (iv) It understands that the opinion of tax counsel that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs (i), (ii) and (iii) above. (v) If it is acquiring any Certificates as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the acknowledgments, representations and agreements contained herein on behalf of each such account. (vi) It is not (A) an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (B) a plan described in Section 4975(e)(1) of the Code, (C) a governmental plan, as defined in Section 3(32) of ERISA, subject to any Federal, state or local law which is, to a material extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the Code, (D) an entity whose underlying assets include plan assets by reason of a plan's investment in the entity (within the meaning of Department of Labor Regulation 29 C.F.R. ss. 2510.3-101) or (E) a person investing "plan assets" of any such plan (excluding, for purposes of this clause (E), any entity registered under the Investment Company Act of 1940, as amended). (vii) It is a Person who is either (A) (1) a citizen or resident of the United States, (2) a corporation, partnership or other entity organized in or under the laws of the United States or any political subdivision thereof or (3) a Person not described in (1) or (2) whose ownership of the Certificates is effectively connected with such Person's conduct of a trade or business within the United States (within the meaning of the Code) and who provides the Depositor and the Owner Trustee an IRS Form ~~W-8ECI~~ 4224 (and such other certifications, representations or opinions of counsel as may be requested by the Depositor or the Owner Trustee) or (B) an estate or trust the income of which is includible in gross income for United States Federal income tax purposes, regardless of source. (viii) It understands that any purported Transfer of any Certificate (or any interest therein) in contravention of any of the restrictions and conditions (including any violation of the representation in paragraph (ii) above by an investor who continues to hold such Certificates occurring any time after the Transfer in which it acquired such Certificates) in this Section 3.4 shall be a Void Transfer, and the purported transferee in a Void Transfer shall not be recognized by the Trust or any other Person as a Certificateholder for any purpose. (ix) It agrees that if it determines to Transfer any of the Certificates it will cause its proposed transferee to provide to the Trust and the Certificate Registrar a letter substantially in the form of Exhibit D or E hereof, as applicable, or such other written statement as the Depositor shall prescribe. (d) By acceptance of any Certificate, the Certificateholder thereof specifically agrees with and represents to the Depositor, the Certificate Registrar and the Trust that no Transfer of such Certificate shall be made unless the registration requirements of the Securities Act and any applicable state securities laws are complied with, or such Transfer is exempt from the registration requirements under the Securities Act because the Transfer satisfies one of the following: (i) such Transfer is in compliance with Rule 144A under the Securities Act ("Rule 144A"), to a transferee who the transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer and to whom notice is given that such transfer is being made in reliance upon Rule 144A under the Securities Act and (x) the transferor executes and delivers to the Trust and the Certificate Registrar a Rule 144A transferor certificate substantially in the form attached as Exhibit C and (y) the transferee executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit D; (ii) after the appropriate holding period, such Transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the Trust or the Certificate Registrar, delivers an Opinion of Counsel in form and substance satisfactory to the Trust and the Depositor; or (iii) such Transfer is to an institutional accredited investor as defined in rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act in a transaction exempt from the registration requirements of the Securities Act, such Transfer is in accordance with any applicable securities laws of any state of the United States or any other jurisdiction, and such investor executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit E. (e) The Trust shall make available to the prospective transferor and transferee information requested to satisfy the requirements of paragraph (d)(4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information shall include any or all of the following items requested by the prospective transferee: (i) each statement delivered to Certificateholders pursuant to Section ~~4.9~~ 4.11 of the Sale and Servicing Agreement on each Payment Date preceding such request; and (ii) such other information as is reasonably available to the Owner Trustee in order to comply with requests for information pursuant to Rule 144A under the Securities Act. None of the Depositor, the Certificate Registrar or the Trust is under an obligation to register any Certificate under the Securities Act or any other securities law. (f) Upon surrender for registration of Transfer of any Certificate at the office or agency maintained pursuant to Section 3.8 and upon compliance with any provisions of this Agreement relating to such Transfer, the Owner Trustee shall execute, authenticate and deliver (or shall cause Wilmington Trust Company, as its authenticating agent, to authenticate and deliver), in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate amount dated the date of authentication by the Owner Trustee or any authenticating agent. Subject to Sections 3.4(b) and 3.4(c), at the option of a Certificateholder, 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 3.8. Every Certificate presented or surrendered for registration of Transfer or exchange shall be accompanied by a written instrument of transfer and accompanied by IRS Form ~~W-8ECI~~ 4224 or W-9 in form satisfactory to the Owner Trustee and the Certificate Registrar, duly executed by the Certificateholder or his 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 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 Certificates. (g) The provisions of this Section 3.4 and of this Agreement generally are intended to prevent the Trust from being characterized as a "publicly traded partnership" within the meaning of Section 7704 of the Code, in reliance on ~~Treasury Regulation ss~~Treas. ~~1.7704~~Reg. xx.xx. 1. 7704-1(e) and (h), and the Depositor shall take such intent into account in determining whether or not to consent to any proposed Transfer of any Certificate. The preceding provisions of this Section 3.4 notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any Transfer or exchange of Certificates for a period of 15 fifteen (15) days preceding the due date for any payment with respect to the Certificates. Notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities Act, the Exchange Act, applicable state securities law or the Investment Company Act of 1940, as amended; provided, however, that if a certification is specifically required to be delivered to the Owner Trustee by a purchaser or transferee of a Certificate, the Owner Trustee shall be under a duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and to register transfers only upon receipt of documents and certifications specified herein and shall promptly notify the party delivering the same if such certification does not so conform.

Appears in 2 contracts

Samples: Trust Agreement (Mmca Auto Receivables Trust), Trust Agreement (Mmca Auto Receivables Trust)

Registration of Certificates; Transfer and Exchange of Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section ~~3.8~~3.9, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of Transfers and exchanges of Certificates as herein provided. ~~Wilmington Trust Company~~ Wachovia Bank of Delaware, National Association shall be the initial Certificate Registrar. No Transfer of a Certificate shall be recognized except upon registration of such Transfer in the Certificate Register. (b) No Certificateholder shall Transfer any Certificate initially held by it unless such transfer is made pursuant to an effective registration statement or otherwise in accordance with the requirements under the Securities Act and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If a transfer is to be made in reliance upon an exemption from the Securities Act, and under the applicable state securities laws, (i) the Certificate Registrar shall require an Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the Depositor that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the Securities Act, applicable state securities laws and other relevant laws, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Trustee, and (ii) the Certificate Registrar shall require the transferee to execute a certification acceptable to and in form and substance satisfactory to the Certificate Registrar setting forth the facts surrounding such transfer. (c) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which consent may be withheld in the sole discretion of the Depositor; provided, however, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of the Transfer will be, a Certificateholder. Each Class D Certificate shall bear a legend to the following effect unless determined otherwise by the Administrator (as certified to the ~~Certificate Registrar~~ Owner Trustee in an Officer's Certificate) and the Owner Trustee consistent with applicable law: "THIS CERTIFICATE HAS NOT BEEN ~~AND WILL NOT BE~~ REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN ~~A DENOMINATION OF AT LEAST $1,000,000, ONLY IN~~ COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (I) (A) (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE ~~144A~~ l44A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C D TO THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D B TO THE TRUST AGREEMENT, WITH SUCH CHANGES THEREIN AS MAY BE APPROVED BY THE OWNER TRUSTEE AND DEPOSITOR, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, THE INITIAL PURCHASER AND THE CERTIFICATE REGISTRAR OF ~~SUCH EVIDENCE~~ AN OPINION OF COUNSEL ACCEPTABLE TO THE ~~TRUST~~ OWNER TRUSTEE AND THE DEPOSITOR THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT E C TO THE TRUST AGREEMENT OR (B) THE RECEIPT BY THE ~~TRUST~~ TRUST, THE INITIAL PURCHASER AND THE CERTIFICATE REGISTRAR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE ~~TRUST~~ OWNER TRUSTEE AND THE DEPOSITOR THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE ~~LAWS~~LAWS AND (B) IN THE CASE OF A TRANSFER PURSUANT TO CLAUSES (A)(1), (2) OR (3), THE RECEIPT BY THE OWNER TRUSTEE AND THE DEPOSITOR OF THE STATE TAX OPINION REQUIRED BY SECTION 3.3(a) OF THE TRUST AGREEMENT, OR (4II) TO THE DEPOSITOR OR ITS AFFILIATES, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND SECURITIES AND BLUE SKY LAWS OF THE STATES OF THE UNITED STATES. IN ADDITION, EXCEPT IN THE CASE OF TRANSFERS TO EXISTING CERTIFICATEHOLDERS, THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY WITH THE EXPRESS WRITTEN CONSENT OF THE DEPOSITOR (WHICH CONSENT MAY BE WITHHELD FOR ANY REASON OR FOR NO REASON)." As a condition to the registration of any Transfer of a Certificate, the prospective transferee of such a Certificate shall be required to represent in writing to the Owner Trustee, the Certificate Registrar and the Initial Purchaser the following, unless determined otherwise by the Administrator (as certified to the Owner Trustee ~~and the Certificate Registrar the following:~~in an Officer's Certificate): (i) It has neither acquired nor will it Transfer any Certificate it purchases (or any interest therein) or cause any such Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. (ii) It either (A) is not, and will not become, a partnership, Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes, or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 80% or more (or such other percentage as the Depositor may establish prior to the time of such proposed Transfer) of the value of such interests to be attributable to such transferee's ownership of Certificates. (iii) It understands that no subsequent Transfer of the Certificates is permitted unless it causes its proposed transferee to provide to the Trust, the Certificate Registrar and the Initial Purchaser a letter substantially in the form of Exhibit B or Exhibit C hereof (with such changes therein as may be approved by the Depositor), as applicable, or such other written statement as the Depositor shall prescribe. (ii) It is either: (A) such Transfer is of a Certificate with a denomination of at least $1,000,000 and (B) the Depositor consents in writing (which consent may be withheld for any reason or for no reason) to the proposed Transfer; provided, however, that no such consent shall be required where the proposed transferee isnot, and ~~at the time of the Transfer will be, a Holder of a Certificate.~~ each account (ivif any) It understands that the opinion of tax counsel that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs (i), (ii) and (iii) above. (v) If for which it is ~~acquiring any~~ purchasing the Certificates as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the acknowledgments, representations and agreements contained herein on behalf of each such account. (vi) It is not (A1) an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (B2) a plan described in Section 4975(e)(1) of the Code that is subject to Section 4975 of the Code, (C3) a governmental plan, as defined in Section 3(32) of ERISA, subject to any ~~Federal~~federal, ~~state~~ State or local law which is, to a material extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the Code, (D4) an entity whose underlying assets include plan assets by reason of a ~~plan's~~ plans investment in the entity (within the meaning of Department of Labor Regulation 29 C.F.R. ss. 2510.3-~~101~~101 or otherwise under ERISA) or (E5) a person investing "plan assets" of any such plan (~~excluding~~including without limitation, for purposes of this clause (E5), an insurance company general account, but excluding any entity registered under the Investment Company Act of 1940, as amended); or (B) an insurance company acting on behalf of a general account and (1) on the date of purchase less than 25% (or such lower percentage as may be determined by the Depositor) of the assets of such general account (as reasonably determined by it) constitute "plan assets" for purposes of Title I of ERISA and Section 4975 of the Code, (2) the purchase and holding of such Certificates are eligible for exemptive relief under Sections (I) and (III) of Prohibited Transaction Class Exemption 95-60, and (3) the purchaser agrees that if, after the purchaser's initial acquisition of the Certificates, at any time during any calendar quarter 25% (or such lower percentage as may be determined by the Depositor) or more of the assets of such general account (as reasonably determined by it no less frequently than each calendar quarter) constitute "plan assets" for purposes of Title I of ERISA or Section 4975 of the Code and no exemption or exception from the prohibited transaction rules applies to the continued holding of the Certificates under Section 401(c) of ERISA and the final regulations thereunder or under an exemption or regulation issued by the United States Department of Labor under ERISA, it will dispose of all Certificates then held in its general account by the end of the next following calendar quarter. (~~vii~~iii) It is a ~~Person~~ person who is ~~either~~ (A~~) (1~~) a citizen or resident of the United States, (2B) a ~~corporation,~~ corporation or partnership ~~or other entity~~ organized in or under the laws of the United States or any political subdivision ~~thereof~~ thereof, (c) an estate the income of which is includible in gross income for United States tax purposes, regardless of its source, (D) a trust if a U.S. court is able to exercise primary supervision over the administration of such trust and one or more persons described in clause (A), (B), (C) or (3E) of this paragraph (iii) has the authority to control all substantial decisions of the trust or (E) a ~~Person~~ person not described in clauses (1A) or through (2D) of this paragraph (iii) whose ownership of the Certificates is effectively connected with such ~~Person's~~ persons conduct of a trade or business within the United States (within the meaning of the Code) and who provides the ~~Depositor~~ Trust and the ~~Owner Trustee~~ Depositor with an IRS Form ~~W-8ECI~~ 8-ECI (and such other certifications, ~~representations~~ representations, or opinions of counsel as may be requested by the ~~Depositor~~ Trust or the ~~Owner Trustee) or (B) an estate or trust the income of which is includible in gross income for United States Federal income tax purposes, regardless of source~~Depositor). (~~viii~~iv) It understands that any purported Transfer of any Certificate (or any interest therein) in contravention of any of the restrictions and conditions (including any violation of the representation in paragraph (ii) above by an investor who continues to hold such Certificates occurring any time after the Transfer in which it acquired such Certificates) contained in this Section ~~3.4 shall~~ will be a Void Transfer, and the purported transferee in a Void Transfer ~~shall~~ will not be recognized by the Trust or any other ~~Person~~ person as a Certificateholder for any purpose. (ix) It agrees that if it determines to Transfer any of the Certificates it will cause its proposed transferee to provide to the Trust and the Certificate Registrar a letter substantially in the form of Exhibit D or E hereof, as applicable, or such other written statement as the Depositor shall prescribe. (dc) By acceptance of any Certificate, the Certificateholder thereof specifically agrees with and represents to the Depositor, the ~~Certificate Registrar~~ Trust and the ~~Trust~~ Certificate Registrar, that no Transfer of such Certificate shall be made unless the registration requirements of the Securities Act and any applicable ~~state~~ State securities laws are complied with, or such Transfer is exempt from the registration requirements under the Securities Act because the Transfer satisfies one of the following: (i) such Transfer is in compliance with Rule 144A under the Securities Act ("Rule 144A"), to a transferee who the transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer and to whom notice is given that such ~~transfer~~ Transfer is being made in reliance upon Rule 144A under the Securities Act and (x) the transferor executes and delivers to the Trust and the Certificate ~~Registrar~~ Registrar, a Rule 144A transferor certificate substantially in the form attached as Exhibit C D and (y) the transferee executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit DB; (ii) after the appropriate holding period, such Transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the ~~Trust~~ Trust, the Certificate Registrar or the ~~Certificate Registrar~~Initial Purchaser, delivers an Opinion of Counsel in form and substance satisfactory to the Trust and the ~~Depositor~~Initial Purchaser; or (iii) such Transfer is to an institutional accredited investor as defined in rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act in a transaction exempt from the registration requirements of the Securities Act, such Transfer is in accordance with any applicable securities laws of any ~~state~~ State of the United States or any other jurisdiction, and such investor executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit E.C. (ed) The ~~Trust~~ Depositor shall make available to the prospective transferor and transferee of a Certificate information requested to satisfy the requirements of paragraph (~~d)(4~~d) (4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information shall include any or all of the following items requested by the prospective transferee: (i) the private placement memorandum, if any, relating to the Certificates, and any amendments or supplements thereto; (ii) each statement delivered to Certificateholders pursuant to Section ~~4.9 of the Sale and Servicing Agreement~~ 5.2(b) on each Payment Date preceding such request; and (iiiii) such other information as is reasonably available to the Owner Trustee in order to comply with requests for information pursuant to Rule 144A under the Securities Act. None of the Depositor, the Certificate Registrar or the ~~Trust~~ Owner Trustee is under an obligation to register any Certificate under the Securities Act or any other securities law. (fe) Upon surrender for registration of Transfer of any Certificate at the office or agency maintained pursuant to Section ~~3.8~~ 3.9 and upon compliance with any provisions of this Agreement relating to such Transfer, the Owner Trustee shall execute, authenticate and ~~deliver (or shall cause Wilmington Trust Company, as its authenticating agent, to authenticate and~~ deliver), in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like Class and aggregate amount dated the date of authentication by the Owner Trustee or any authenticating agent. ~~Subject to Sections 3.4(b) and 3.4(c), at~~ At the option of a Certificateholder, Certificates may be exchanged for other Certificates of authorized denominations of a like Class and aggregate amount upon surrender of the Certificates to be exchanged at the office or agency maintained pursuant to Section ~~3.8~~3.9. Every Certificate presented or surrendered for registration of Transfer or exchange shall be accompanied by a written instrument of transfer ~~and accompanied by IRS Form W-8ECI~~ in form satisfactory to the Owner Trustee and the Certificate Registrar, duly executed by the Certificateholder or his attorney ~~duly authorized~~ in writing, with such signature guaranteed by a member firm of the New York Stock Exchange or a commercial bank or trust company. 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 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 Certificates. (g) The provisions of this Section 3.4 and of this Agreement generally are intended to prevent the Trust from being characterized as a "publicly traded partnership" within the meaning of Section 7704 of the Code, in reliance on Treasury Regulation ss. 1.7704-1(e) and (h), and the Depositor shall take such intent into account in determining whether or not to consent to any proposed Transfer of any Certificate. The preceding provisions of this Section ~~3.4~~ 3.5 notwithstanding, the Owner Trustee shall not make and the Certificate Registrar ~~shall~~ need not register any Transfer or exchange of Certificates for a period of 15 fifteen (15) days preceding ~~the due date~~ any Payment Date for any payment with respect to the Certificates. Notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities Act, the Exchange Act, applicable state securities law or the Investment Company Act of 1940, as amended; provided, however, that if a certification is specifically required to be delivered to the Owner Trustee by a purchaser or transferee of a Certificate, the Owner Trustee shall be under a duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and to register transfers only upon receipt of documents and certifications specified herein and shall promptly notify the party delivering the same if such certification does not so conform.

Appears in 2 contracts

Samples: Trust Agreement (Ford Credit Auto Receivables Two LLC), Trust Agreement (Ford Credit Auto Receivables Two LLC)

Registration of Certificates; Transfer and Exchange of Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.8, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of Transfers and exchanges of Certificates as herein provided. Wilmington Trust Company shall be the initial Certificate Registrar. No Transfer of a Certificate shall be recognized except upon registration of such Transfer in the Certificate Register. (b) No Certificateholder shall Transfer any Certificate initially held by it unless such transfer is made pursuant to an effective registration statement or otherwise in accordance with the requirements under the Securities Act of 1933, as amended (the "1933 Act"), and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If a transfer is to be made in reliance upon an exemption from the ~~Securities~~ 1933 Act, and under the applicable state securities laws, (i) the Certificate Registrar shall require an Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the Depositor that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the ~~Securities~~ 1933 Act, applicable state securities laws and other relevant laws, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Trustee, and (ii) the Certificate Registrar shall require the transferee to execute a certification acceptable to and in form and substance satisfactory to the Certificate Registrar setting forth the facts surrounding such transfer. (c) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which consent may be withheld in the sole discretion of the Depositor; , provided, however, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of the Transfer will be, a Certificateholder. Each Certificate shall bear a legend to the following effect unless determined otherwise by the Administrator (as certified to the Certificate Registrar in an Officer's Certificate) consistent with applicable law: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN A DENOMINATION OF AT LEAST $1,000,000, ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C D TO THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D E TO THE TRUST AGREEMENT, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, AND THE CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a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s a condition to the registration of any Transfer of a Certificate, the prospective transferee of such a Certificate shall represent to the Owner Trustee and the Certificate Registrar the following: : (i) It has neither acquired nor will it Transfer any Certificate it purchases (or any interest therein) or cause any such Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of ~~Section~~ section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. (ii) It either (A) is not, and will not become, a partnership, Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes, or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 80% or more (or such other percentage as the Depositor may establish prior to the time of such proposed Transfer) of the value of such interests to be attributable to such transferee's ownership of Certificates. (iii) It understands that no subsequent Transfer of the Certificates is permitted unless (A) such Transfer is of a Certificate with a denomination of at least $1,000,000 and (B) the Depositor consents in writing (which consent may be withheld for any reason or for no reason) to the proposed Transfer; provided, however, that no such consent shall be required where the proposed transferee is, and at the time of the Transfer will be, a Holder of a Certificate. (iv) It understands that the opinion of tax counsel that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs (i), (ii) and (iii) above. (v) If it is acquiring any Certificates as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the acknowledgments, representations and agreements contained herein on behalf of each such account. (vi) It is not (A) an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (B) a plan described in Section 4975(e)(1) of the Code, (C) a governmental plan, as defined in Section 3(32) of ERISA, subject to any Federal, state or local law which is, to a material extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the Code, (D) an entity whose underlying assets include plan assets by reason of a plan's investment in the entity (within the meaning of Department of Labor Regulation 29 C.F.R. ss. 2510.3-101) or (E) a person investing "plan assets" of any such plan (excluding, for purposes of this clause (E), any entity registered under the Investment Company Act of 1940, as amended). (vii) It is a Person who is either (A) (1) a citizen or resident of the United States, (2) a corporation, partnership or other entity organized in or under the laws of the United States or any political subdivision thereof or (3) a Person not described in (1) or (2) whose ownership of the Certificates is effectively connected with such Person's conduct of a trade or business within the United States (within the meaning of the Code) and who provides the Depositor and the Owner Trustee an IRS Form W-8ECI (and such other certifications, representations or opinions of counsel as may be requested by the Depositor or the Owner Trustee) or (B) an estate or trust the income of which is includible in gross income for United States Federal income tax purposes, regardless of source. (viii) It understands that any purported Transfer of any Certificate (or any interest therein) in contravention of any of the restrictions and conditions (including any violation of the representation in paragraph (ii) above by an investor who continues to hold such Certificates occurring any time after the Transfer in which it acquired such Certificates) in this Section 3.4 shall be a Void Transfer, and the purported transferee in a Void Transfer shall not be recognized by the Trust or any other Person as a Certificateholder for any purpose. (ix) It agrees that if it determines to Transfer any of the Certificates it will cause its proposed transferee to provide to the Trust and the Certificate Registrar a letter substantially in the form of Exhibit D or E hereof, as applicable, or such other written statement as the Depositor shall prescribe. (d) By acceptance of any Certificate, the Certificateholder thereof specifically agrees with and represents to the Depositor, the Certificate Registrar and the Trust that no Transfer of such Certificate shall be made unless the registration requirements of the Securities Act and any applicable state securities laws are complied with, or such Transfer is exempt from the registration requirements under the Securities Act because the Transfer satisfies one of the following: (i) such Transfer is in compliance with Rule 144A under the Securities Act ("Rule 144A"), to a transferee who the transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer and to whom notice is given that such transfer is being made in reliance upon Rule 144A and (x) the transferor executes and delivers to the Trust and the Certificate Registrar a Rule 144A transferor certificate substantially in the form attached as Exhibit C and (y) the transferee executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit D; (ii) after the appropriate holding period, such Transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the Trust or the Certificate Registrar, delivers an Opinion of Counsel in form and substance satisfactory to the Trust and the Depositor; or (iii) such Transfer is to an institutional accredited investor as defined in rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act in a transaction exempt from the registration requirements of the Securities Act, such Transfer is in accordance with any applicable securities laws of any state of the United States or any other jurisdiction, and such investor executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit E. (e) The Trust shall make available to the prospective transferor and transferee information requested to satisfy the requirements of paragraph (d)(4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information shall include any or all of the following items requested by the prospective transferee: (i) each statement delivered to Certificateholders pursuant to Section 4.9 of the Sale and Servicing Agreement on each Payment Date preceding such request; and (ii) such other information as is reasonably available to the Owner Trustee in order to comply with requests for information pursuant to Rule 144A under the Securities Act. None of the Depositor, the Certificate Registrar or the Trust is under an obligation to register any Certificate under the Securities Act or any other securities law. (f) Upon surrender for registration of Transfer of any Certificate at the office or agency maintained pursuant to Section 3.8 and upon compliance with any provisions of this Agreement relating to such Transfer, the Owner Trustee shall execute, authenticate and deliver (or shall cause Wilmington Trust Company, as its authenticating agent, to authenticate and deliver), in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate amount dated the date of authentication by the Owner Trustee or any authenticating agent. Subject to Sections 3.4(b) and 3.4(c), at the option of a Certificateholder, 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 3.8. Every Certificate presented or surrendered for registration of Transfer or exchange shall be accompanied by a written instrument of transfer and accompanied by IRS Form W-8ECI in form satisfactory to the Owner Trustee and the Certificate Registrar, duly executed by the Certificateholder or his 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 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 Certificates. (g) The provisions of this Section 3.4 and of this Agreement generally are intended to prevent the Trust from being characterized as a "publicly traded partnership" within the meaning of Section 7704 of the Code, in reliance on Treasury Regulation ss. 1.7704-1(e) and (h), and the Depositor shall take such intent into account in determining whether or not to consent to any proposed Transfer of any Certificate. The preceding provisions of this Section 3.4 notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any Transfer or exchange of Certificates for a period of 15 days preceding the due date for any payment with respect to the Certificates. Notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities Act, the Exchange Act, applicable state securities law or the Investment Company Act of 1940, as amended; provided, however, that if a certification is specifically required to be delivered to the Owner Trustee by a purchaser or transferee of a Certificate, the Owner Trustee shall be under a duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and to register transfers only upon receipt of documents and certifications specified herein and shall promptly notify the party delivering the same if such certification does not so conform.

Appears in 2 contracts

Samples: Trust Agreement (Mmca Auto Receivables Inc), Trust Agreement (Mmca Auto Receivables Inc)

Registration of Certificates; Transfer and Exchange of Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.8, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of Transfers and exchanges of Certificates as herein provided. Wilmington Trust Company shall be the initial Certificate Registrar. No Transfer of a Certificate shall be recognized except upon registration of such Transfer in the Certificate Register. (b) No Certificateholder shall Transfer any Certificate initially held by it unless such transfer is made pursuant to an effective registration statement or otherwise in accordance with the requirements under the Securities Act and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If a transfer is to be made in reliance upon an exemption from the Securities Act, and under the applicable state securities laws, (i) the Certificate Registrar shall require an Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the Depositor that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the Securities Act, applicable state securities laws and other relevant laws, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Trustee, and (ii) the Certificate Registrar shall require the transferee to execute a certification acceptable to and in form and substance satisfactory to the Certificate Registrar setting forth the facts surrounding such transfer. (c) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which consent may be withheld in the sole discretion of the Depositor; provided, however, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of the Transfer will be, a Certificateholder. Each Certificate shall bear a legend to the following effect unless determined otherwise by the Administrator (as certified to the Certificate Registrar in an Officer's Certificate) consistent with applicable law: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN A DENOMINATION OF AT LEAST $1,000,000, ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C TO THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D TO THE TRUST AGREEMENT, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, AND THE CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a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s a condition to the registration of any Transfer of a Certificate, the prospective transferee of such a Certificate shall represent to the Owner Trustee and the Certificate Registrar the following: (i) It has neither acquired nor will it Transfer any Certificate it purchases (or any interest therein) or cause any such Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. (ii) It either (A) is not, and will not become, a partnership, Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes, or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 80% or more (or such other percentage as the Depositor may establish prior to the time of such proposed Transfer) of the value of such interests to be attributable to such transferee's ownership of Certificates. (iii) It understands that no subsequent Transfer of the Certificates is permitted unless (A) such Transfer is of a Certificate with a denomination of at least $1,000,000 and (B) the Depositor consents in writing (which consent may be withheld for any reason or for no reason) to the proposed Transfer; provided, however, that no such consent shall be required where the proposed transferee is, and at the time of the Transfer will be, a Holder of a Certificate. (iv) It understands that the opinion of tax counsel that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs (i), (ii) and (iii) above. (v) If it is acquiring any Certificates as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the acknowledgments, representations and agreements contained herein on behalf of each such account. (vi) It is not (A) an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (B) a plan described in Section 4975(e)(1) of the Code, (C) a governmental plan, as defined in Section 3(32) of ERISA, subject to any Federal, state or local law which is, to a material extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the Code, (D) an entity whose underlying assets include plan assets by reason of a plan's investment in the entity (within the meaning of Department of Labor Regulation 29 ~~C.F.R. ss~~C.F.R.ss. 2510.3-101) or (E) a person investing "plan ~~assets~~axxxxx" of xf any such plan (excluding, for purposes of this clause (E), any entity registered under the Investment Company Act of 1940, as amended). (vii) It is a Person who is either (A) (1) a citizen or resident of the United States, (2) a corporation, partnership or other entity organized in or under the laws of the United States or any political subdivision thereof or (3) a Person not described in (1) or (2) whose ownership of the Certificates is effectively connected with such Person's conduct of a trade or business within the United States (within the meaning of the Code) and who provides the Depositor and the Owner Trustee an IRS Form W-8ECI (and such other certifications, representations or opinions of counsel as may be requested by the Depositor or the Owner Trustee) or (B) an estate or trust the income of which is includible in gross income for United States Federal income tax purposes, regardless of source. (viii) It understands that any purported Transfer of any Certificate (or any interest therein) in contravention of any of the restrictions and conditions (including any violation of the representation in paragraph (ii) above by an investor who continues to hold such Certificates occurring any time after the Transfer in which it acquired such Certificates) in this Section 3.4 shall be a Void Transfer, and the purported transferee in a Void Transfer shall not be recognized by the Trust or any other Person as a Certificateholder for any purpose. (ix) It agrees that if it determines to Transfer any of the Certificates it will cause its proposed transferee to provide to the Trust and the Certificate Registrar a letter substantially in the form of Exhibit D or E hereof, as applicable, or such other written statement as the Depositor shall prescribe. (d) By acceptance of any Certificate, the Certificateholder thereof specifically agrees with and represents to the Depositor, the Certificate Registrar and the Trust that no Transfer of such Certificate shall be made unless the registration requirements of the Securities Act and any applicable state securities laws are complied with, or such Transfer is exempt from the registration requirements under the Securities Act because the Transfer satisfies one of the following: (i) such Transfer is in compliance with Rule 144A under the Securities Act ("Rule 144A"), to a transferee who the transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer and to whom notice is given that such transfer is being made in reliance upon Rule 144A and (x) the transferor executes and delivers to the Trust and the Certificate Registrar a Rule 144A transferor certificate substantially in the form attached as Exhibit C and (y) the transferee executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit D; (ii) after the appropriate holding period, such Transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the Trust or the Certificate Registrar, delivers an Opinion of Counsel in form and substance satisfactory to the Trust and the Depositor; or (iii) such Transfer is to an institutional accredited investor as defined in rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act in a transaction exempt from the registration requirements of the Securities Act, such Transfer is in accordance with any applicable securities laws of any state of the United States or any other jurisdiction, and such investor executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit E. (e) The Trust shall make available to the prospective transferor and transferee information requested to satisfy the requirements of paragraph (d)(4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information shall include any or all of the following items requested by the prospective transferee: (i) each statement delivered to Certificateholders pursuant to Section 4.9 of the Sale and Servicing Agreement on each Payment Date preceding such request; and (ii) such other information as is reasonably available to the Owner Trustee in order to comply with requests for information pursuant to Rule 144A under the Securities Act. None of the Depositor, the Certificate Registrar or the Trust is under an obligation to register any Certificate under the Securities Act or any other securities law. (f) Upon surrender for registration of Transfer of any Certificate at the office or agency maintained pursuant to Section 3.8 and upon compliance with any provisions of this Agreement relating to such Transfer, the Owner Trustee shall execute, authenticate and deliver (or shall cause Wilmington Trust Company, as its authenticating agent, to authenticate and deliver), in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate amount dated the date of authentication by the Owner Trustee or any authenticating agent. Subject to Sections 3.4(b) and 3.4(c), at the option of a Certificateholder, 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 3.8. Every Certificate presented or surrendered for registration of Transfer or exchange shall be accompanied by a written instrument of transfer and accompanied by IRS Form W-8ECI in form satisfactory to the Owner Trustee and the Certificate Registrar, duly executed by the Certificateholder or his 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 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 Certificates. (g) The provisions of this Section 3.4 and of this Agreement generally are intended to prevent the Trust from being characterized as a "publicly traded partnership" within the meaning of Section 7704 of the Code, in reliance on Treasury Regulation ss. 1.7704-1(e) and (h), and the Depositor shall take such intent into account in determining whether or not to consent to any proposed Transfer of any Certificate. The preceding provisions of this Section 3.4 notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any Transfer or exchange of Certificates for a period of 15 days preceding the due date for any payment with respect to the Certificates. Notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities Act, the Exchange Act, applicable state securities law or the Investment Company Act of 1940, as amended; provided, however, that if a certification is specifically required to be delivered to the Owner Trustee by a purchaser or transferee of a Certificate, the Owner Trustee shall be under a duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and to register transfers only upon receipt of documents and certifications specified herein and shall promptly notify the party delivering the same if such certification does not so conform.

Appears in 2 contracts

Samples: Trust Agreement (Mmca Auto Owner Trust 2002-1), Trust Agreement (Mmca Auto Receivables Trust)

Registration of Certificates; Transfer and Exchange of Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section ~~3.8~~3.9, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of Transfers and exchanges of Certificates as herein provided. ~~Wilmington Trust Company~~ Wachovia Bank of Delaware, National Association shall be the initial Certificate Registrar. No Transfer of a Certificate shall be recognized except upon registration of such Transfer in the Certificate Register. (b) No Certificateholder shall Transfer any Certificate initially held by it unless such transfer is made pursuant to an effective registration statement or otherwise in accordance with the requirements under the Securities Act and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If a transfer is to be made in reliance upon an exemption from the Securities Act, and under the applicable state securities laws, (i) the Certificate Registrar shall require an Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the Depositor that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the Securities Act, applicable state securities laws and other relevant laws, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Trustee, and (ii) the Certificate Registrar shall require the transferee to execute a certification acceptable to and in form and substance satisfactory to the Certificate Registrar setting forth the facts surrounding such transfer. (c) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which consent may be withheld in the sole discretion of the Depositor; provided, however, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of the Transfer will be, a Certificateholder. Each Class D Certificate shall bear a legend to the following effect unless determined otherwise by the Administrator (as certified to the ~~Certificate Registrar~~ Owner Trustee in an Officer's Certificate) and the Owner Trustee consistent with applicable law: "THIS CERTIFICATE HAS NOT BEEN ~~AND WILL NOT BE~~ REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN ~~A DENOMINATION OF AT LEAST $1,000,000, ONLY IN~~ COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (I) (A) (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE ~~144A~~ l44A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C D TO THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D B TO THE TRUST AGREEMENT, WITH SUCH CHANGES THEREIN AS MAY BE APPROVED BY THE OWNER TRUSTEE AND DEPOSITOR, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, THE INITIAL PURCHASER AND THE CERTIFICATE REGISTRAR OF ~~SUCH EVIDENCE~~ AN OPINION OF COUNSEL ACCEPTABLE TO THE ~~TRUST~~ OWNER TRUSTEE AND THE DEPOSITOR THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT E C TO THE TRUST AGREEMENT OR (B) THE RECEIPT BY THE ~~TRUST~~ TRUST, THE INITIAL PURCHASER AND THE CERTIFICATE REGISTRAR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE ~~TRUST~~ OWNER TRUSTEE AND THE DEPOSITOR THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE ~~LAWS~~LAWS AND (B) IN THE CASE OF A TRANSFER PURSUANT TO CLAUSES (A)(1), (2) OR (3), THE RECEIPT BY THE OWNER TRUSTEE AND THE DEPOSITOR OF THE STATE TAX OPINION REQUIRED BY SECTION 3.3(a) OF THE TRUST AGREEMENT, OR (4II) TO THE DEPOSITOR OR ITS AFFILIATES, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND SECURITIES AND BLUE SKY LAWS OF THE STATES OF THE UNITED STATES. IN ADDITION, EXCEPT IN THE CASE OF TRANSFERS TO EXISTING CERTIFICATEHOLDERS, THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY WITH THE EXPRESS WRITTEN CONSENT OF THE DEPOSITOR (WHICH CONSENT MAY BE WITHHELD FOR ANY REASON OR FOR NO REASON)." As a condition to the registration of any Transfer of a Certificate, the prospective transferee of such a Certificate shall be required to represent in writing to the Owner Trustee, the Certificate Registrar and the Initial Purchaser the following, unless determined otherwise by the Administrator (as certified to the Owner Trustee ~~and the Certificate Registrar the following:~~in an Officer's Certificate): (i) It has neither acquired nor will it Transfer any Certificate it purchases (or any interest therein) or cause any such Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. (ii) It either (A) is not, and will not become, a partnership, Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes, or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 80% or more (or such other percentage as the Depositor may establish prior to the time of such proposed Transfer) of the value of such interests to be attributable to such transferee's ownership of Certificates. (iii) It understands that no subsequent Transfer of the Certificates is permitted unless it causes its proposed transferee to provide to the Trust, the Certificate Registrar and the Initial Purchaser a letter substantially in the form of Exhibit B or Exhibit C hereof (with such changes therein as may be approved by the Depositor), as applicable, or such other written statement as the Depositor shall prescribe. (ii) It is either: (A) such Transfer is of a Certificate with a denomination of at least $1,000,000 and (B) the Depositor consents in writing (which consent may be withheld for any reason or for no reason) to the proposed Transfer; provided, however, that no such consent shall be required where the proposed transferee isnot, and ~~at the time of the Transfer will be, a Holder of a Certificate.~~ each account (ivif any) It understands that the opinion of tax counsel that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs (i), (ii) and (iii) above. (v) If for which it is ~~acquiring any~~ purchasing the Certificates as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the acknowledgments, representations and agreements contained herein on behalf of each such account. (vi) It is not (A1) an employee benefit plan, as defined in Section 3(3) of ERISA, ~~that is~~ whether or not subject to Title I of ERISA, (B2) a plan described in Section 4975(e)(1) of the Code whether or not subject to Section 4975 of the Code, (C3) a governmental plan, as defined in Section 3(32) of ERISA, ~~subject to any Federal, state or local law which is, to a material extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the Code,~~ (D4) an entity whose underlying assets include plan assets by reason of a plan's investment in the entity (within the meaning of Department of Labor Regulation 29 C.F.R. ss. 2510.3-~~101~~101 or otherwise under ERISA) or (E5) a person investing "plan assets" of any such plan (~~excluding~~including without limitation, for purposes of this clause (E5), an insurance company general account, but excluding any entity registered under the Investment Company Act of 1940, as amended); or (B) an insurance company acting on behalf of a general account and (1) on the date of purchase less than 25% (or such lower percentage as may be determined by the Depositor) of the assets of such general account (as reasonably determined by it) constitute "plan assets" for purposes of Title I of ERISA and Section 4975 of the Code, (2) the purchase and holding of such Certificates are eligible for exemptive relief under Section (I) of Prohibited Transaction Class Exemption 95-60, and (3) the purchaser agrees that if, after the purchaser's initial acquisition of the Certificates, at any time during any calendar quarter 25% (or such lower percentage as may be determined by the Depositor) or more of the assets of such general account (as reasonably determined by it no less frequently than each calendar quarter) constitute "plan assets" for purposes of Title I of ERISA or Section 4975 of the Code and no exemption or exception from the prohibited transaction rules applies to the continued holding of the Certificates under Section 401(c) of ERISA and the final regulations thereunder or under an exemption or regulation issued by the United States Department of Labor under ERISA, it will dispose of all Certificates then held in its general account by the end of the next following calendar quarter. (~~vii~~iii) It is a ~~Person~~ person who is ~~either~~ (A~~) (1~~) a citizen or resident of the United States, (2B) a ~~corporation,~~ corporation or partnership ~~or other entity~~ organized in or under the laws of the United States or any political subdivision ~~thereof~~ thereof, (C) an estate the income of which is includible in gross income for United States tax purposes, regardless of its source, (D) a trust if a U.S. court is able to exercise primary supervision over the administration of such trust and one or more persons described in clause (A), (B), (C) or (3E) of this paragraph (iii) has the authority to control all substantial decisions of the trust or (E) a ~~Person~~ person not described in clauses (1A) or through (2D) of this paragraph (iii) whose ownership of the Certificates is effectively connected with such ~~Person's~~ persons conduct of a trade or business within the United States (within the meaning of the Code) and who provides the ~~Depositor~~ Trust and the ~~Owner Trustee~~ Depositor with an IRS Form W-8ECI (and such other certifications, ~~representations~~ representations, or opinions of counsel as may be requested by the ~~Depositor~~ Trust or the ~~Owner Trustee) or (B) an estate or trust the income of which is includible in gross income for United States Federal income tax purposes, regardless of source~~Depositor). (~~viii~~iv) It understands that any purported Transfer of any Certificate (or any interest therein) in contravention of any of the restrictions and conditions (including any violation of the representation in paragraph (ii) above by an investor who continues to hold such Certificates occurring any time after the Transfer in which it acquired such Certificates) contained in this Section ~~3.4 shall~~ will be a Void Transfer, and the purported transferee in a Void Transfer ~~shall~~ will not be recognized by the Trust or any other ~~Person~~ person as a Certificateholder for any purpose. (ix) It agrees that if it determines to Transfer any of the Certificates it will cause its proposed transferee to provide to the Trust and the Certificate Registrar a letter substantially in the form of Exhibit D or E hereof, as applicable, or such other written statement as the Depositor shall prescribe. (dc) By acceptance of any Certificate, the Certificateholder thereof specifically agrees with and represents to the Depositor, the ~~Certificate Registrar~~ Trust and the ~~Trust~~ Certificate Registrar, that no Transfer of such Certificate shall be made unless the registration requirements of the Securities Act and any applicable ~~state~~ State securities laws are complied with, or such Transfer is exempt from the registration requirements under the Securities Act because the Transfer satisfies one of the following: (i) such Transfer is in compliance with Rule 144A under the Securities Act ("Rule 144A"), to a transferee who the transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer and to whom notice is given that such ~~transfer~~ Transfer is being made in reliance upon Rule 144A under the Securities Act and (x) the transferor executes and delivers to the Trust and the Certificate ~~Registrar~~ Registrar, a Rule 144A transferor certificate substantially in the form attached as Exhibit C D and (y) the transferee executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit DB; (ii) after the appropriate holding period, such Transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the ~~Trust~~ Trust, the Certificate Registrar or the ~~Certificate Registrar~~Initial Purchaser, delivers an Opinion of Counsel in form and substance satisfactory to the Trust and the ~~Depositor~~Initial Purchaser; or (iii) such Transfer is to an institutional accredited investor as defined in rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act in a transaction exempt from the registration requirements of the Securities Act, such Transfer is in accordance with any applicable securities laws of any ~~state~~ State of the United States or any other jurisdiction, and such investor executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit E.C. (ed) The ~~Trust~~ Depositor shall make available to the prospective transferor and transferee of a Certificate information requested to satisfy the requirements of paragraph (~~d)(4~~d) (4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information shall include any or all of the following items requested by the prospective transferee: (i) the private placement memorandum, if any, relating to the Certificates, and any amendments or supplements thereto; (ii) each statement delivered to Certificateholders pursuant to Section ~~4.9 of the Sale and Servicing Agreement~~ 5.2(b) on each Payment Date preceding such request; and (iiiii) such other information as is reasonably available to the Owner Trustee in order to comply with requests for information pursuant to Rule 144A under the Securities Act. None of the Depositor, the Certificate Registrar or the ~~Trust~~ Owner Trustee is under an obligation to register any Certificate under the Securities Act or any other securities law. (fe) Upon surrender for registration of Transfer of any Certificate at the office or agency maintained pursuant to Section ~~3.8~~ 3.9 and upon compliance with any provisions of this Agreement relating to such Transfer, the Owner Trustee shall execute, authenticate and ~~deliver (or shall cause Wilmington Trust Company, as its authenticating agent, to authenticate and~~ deliver), in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like Class and aggregate amount dated the date of authentication by the Owner Trustee or any authenticating agent. ~~Subject to Sections 3.4(b) and 3.4(c), at~~ At the option of a Certificateholder, Certificates may be exchanged for other Certificates of authorized denominations of a like Class and aggregate amount upon surrender of the Certificates to be exchanged at the office or agency maintained pursuant to Section ~~3.8~~3.9. Every Certificate presented or surrendered for registration of Transfer or exchange shall be accompanied by a written instrument of transfer ~~and accompanied by IRS Form W-8ECI~~ in form satisfactory to the Owner Trustee and the Certificate Registrar, duly executed by the Certificateholder or his attorney ~~duly authorized~~ in writing, with such signature guaranteed by a member firm of the New York Stock Exchange or a commercial bank or trust company. 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 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 Certificates. (g) The provisions of this Section 3.4 and of this Agreement generally are intended to prevent the Trust from being characterized as a "publicly traded partnership" within the meaning of Section 7704 of the Code, in reliance on Treasury Regulation ss. 1.7704-1(e) and (h), and the Depositor shall take such intent into account in determining whether or not to consent to any proposed Transfer of any Certificate. The preceding provisions of this Section ~~3.4~~ 3.5 notwithstanding, the Owner Trustee shall not make and the Certificate Registrar ~~shall~~ need not register any Transfer or exchange of Certificates for a period of 15 fifteen (15) days preceding ~~the due date~~ any Payment Date for any payment with respect to the Certificates. Notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities Act, the Exchange Act, applicable state securities law or the Investment Company Act of 1940, as amended; provided, however, that if a certification is specifically required to be delivered to the Owner Trustee by a purchaser or transferee of a Certificate, the Owner Trustee shall be under a duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and to register transfers only upon receipt of documents and certifications specified herein and shall promptly notify the party delivering the same if such certification does not so conform.

Appears in 2 contracts

Samples: Trust Agreement (Ford Credit Auto Owner Trust 2005-B), Trust Agreement (Ford Credit Auto Owner Trust 2004-A)

Registration of Certificates; Transfer and Exchange of Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.8, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of Transfers and exchanges of Certificates as herein provided. Wilmington Trust Company shall be the initial Certificate Registrar. No Transfer of a Certificate shall be recognized except upon registration of such Transfer in the Certificate Register. (b) No Certificateholder shall Transfer any Certificate initially held by it unless such transfer is made pursuant to an effective registration statement or otherwise in accordance with the requirements under the Securities Act of 1933, as amended (the "1933 Act"), and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If a transfer is to be made in reliance upon an exemption from the ~~Securities~~ 1933 Act, and under the applicable state securities laws, (i) the Certificate Registrar shall require an Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the Depositor that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the ~~Securities~~ 1933 Act, applicable state securities laws and other relevant laws, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Trustee, and (ii) the Certificate Registrar shall require the transferee to execute a certification acceptable to and in form and substance satisfactory to the Certificate Registrar setting forth the facts surrounding such transfer. (c) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which consent may be withheld in the sole discretion of the Depositor; , provided, however, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of the Transfer will be, a Certificateholder. Each Certificate (other than the Retained Certificate) shall bear a legend to the following effect unless determined otherwise by the Administrator (as certified to the Certificate Registrar in an Officer's Certificate) consistent with applicable law: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN A DENOMINATION OF AT LEAST $1,000,000, ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C D TO THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D E TO THE TRUST AGREEMENT, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, AND THE CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a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s a condition to the registration of any Transfer of a Certificate, the prospective transferee of such a Certificate shall represent to the Owner Trustee and the Certificate Registrar the following: (i) It has neither acquired nor will it Transfer any Certificate it purchases (or any interest therein) or cause any such Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of ~~Section~~ section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. (ii) It either (A) is not, and will not become, a partnership, Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes, or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 80% or more (or such other percentage as the Depositor may establish prior to the time of such proposed Transfer) of the value of such interests to be attributable to such transferee's ownership of Certificates. (iii) It understands that no subsequent Transfer of the Certificates is permitted unless (A) such Transfer is of a Certificate with a denomination of at least $1,000,000 and (B) the Depositor consents in writing (which consent may be withheld for any reason or for no reason) to the proposed Transfer; provided, however, that no such consent shall be required where the proposed transferee is, and at the time of the Transfer will be, a Holder of a Certificate. (iv) It understands that the opinion of tax counsel that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs (i), (ii) and (iii) above. (v) If it is acquiring any Certificates as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the acknowledgments, representations and agreements contained herein on behalf of each such account. (vi) It is not (A) an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (B) a plan described in Section 4975(e)(1) of the Code, (C) a governmental plan, as defined in Section 3(32) of ERISA, subject to any Federal, state or local law which is, to a material extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the Code, (D) an entity whose underlying assets include plan assets by reason of a plan's investment in the entity (within the meaning of Department of Labor Regulation 29 C.F.R. ~~ss.~~ Section 2510.3-101) or (E) a person investing "plan assets" of any such plan (excluding, for purposes of this clause (E), any entity registered under the Investment Company Act of 1940, as amended). (vii) It is a Person who is either (A) (1) a citizen or resident of the United States, (2) a corporation, partnership or other entity organized in or under the laws of the United States or any political subdivision thereof or (3) a Person not described in (1) or (2) whose ownership of the Certificates is effectively connected with such Person's conduct of a trade or business within the United States (within the meaning of the Code) and who provides the Depositor and the Owner Trustee an IRS Form ~~W-8ECI~~ 4224 (and such other certifications, representations or opinions of counsel as may be requested by the Depositor or the Owner Trustee) or (B) an estate or trust the income of which is includible in gross income for United States Federal income tax purposes, regardless of source. (viii) It understands that any purported Transfer of any Certificate (or any interest therein) in contravention of any of the restrictions and conditions (including any violation of the representation in paragraph (ii) above by an investor who continues to hold such Certificates occurring any time after the Transfer in which it acquired such Certificates) in this Section 3.4 shall be a Void Transfer, and the purported transferee in a Void Transfer shall not be recognized by the Trust or any other Person as a Certificateholder for any purpose. (ix) It agrees that if it determines to Transfer any of the Certificates it will cause its proposed transferee to provide to the Trust and the Certificate Registrar a letter substantially in the form of Exhibit D E or E F hereof, as applicable, or such other written statement as the Depositor shall prescribe. (d) By acceptance of any Certificate, the Certificateholder thereof specifically agrees with and represents to the Depositor, the Certificate Registrar and the Trust that no Transfer of such Certificate shall be made unless the registration requirements of the Securities Act and any applicable state securities laws are complied with, or such Transfer is exempt from the registration requirements under the Securities Act because the Transfer satisfies one of the following: (i) such Transfer is in compliance with Rule 144A under the Securities Act ("Rule 144A"), to a transferee who the transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer and to whom notice is given that such transfer is being made in reliance upon Rule 144A under the Securities Act and (x) the transferor executes and delivers to the Trust and the Certificate Registrar a Rule 144A transferor certificate substantially in the form attached as Exhibit C D and (y) the transferee executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit D;E. (ii) after the appropriate holding period, such Transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the Trust or the Certificate Registrar, delivers an Opinion of Counsel in form and substance satisfactory to the Trust and the Depositor; orand (iii) such Transfer is to an institutional accredited investor as defined in rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act in a transaction exempt from the registration requirements of the Securities Act, such Transfer is in accordance with any applicable securities laws of any state of the United States or any other jurisdiction, and such investor executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit E.F. (e) The Trust shall make available to the prospective transferor and transferee information requested to satisfy the requirements of paragraph (d)(4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information shall include any or all of the following items requested by the prospective transferee: (i) each statement delivered to Certificateholders pursuant to Section 4.9 of the Sale and Servicing Agreement on each Payment Date preceding such request; and (ii) such other information as is reasonably available to the Owner Trustee in order to comply with requests for information pursuant to Rule 144A under the Securities Act. None of the Depositor, the Certificate Registrar or the Trust is under an obligation to register any Certificate under the Securities Act or any other securities law. (f) Upon surrender for registration of Transfer of any Certificate at the office or agency maintained pursuant to Section 3.8 and upon compliance with any provisions of this Agreement relating to such Transfer, the Owner Trustee shall execute, authenticate and deliver (or shall cause Wilmington Trust Company, as its authenticating agent, to authenticate and deliver), in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate amount dated the date of authentication by the Owner Trustee or any authenticating agent. Subject to Sections 3.4(b) and 3.4(c), at the option of a Certificateholder, 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 3.8. Every Certificate presented or surrendered for registration of Transfer or exchange shall be accompanied by a written instrument of transfer and accompanied by IRS Form ~~W-8ECI~~ 4224 or W-9 in form satisfactory to the Owner Trustee and the Certificate Registrar, duly executed by the Certificateholder or his 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 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 Certificates. (g) The provisions of this Section 3.4 and of this Agreement generally are intended to prevent the Trust from being characterized as a "publicly traded partnership" within the meaning of Section 7704 of the Code, in reliance on ~~Treasury Regulation ss~~Treas. Reg. Sections 1.7704-1(e) and (h), and the Depositor shall take such intent into account in determining whether or not to consent to any proposed Transfer of any Certificate. The preceding provisions of this Section 3.4 notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any Transfer or exchange of Certificates for a period of 15 fifteen (15) days preceding the due date for any payment with respect to the Certificates. Notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities ~~Act~~Act of 1933, as amended, the ~~Exchange Act~~Securities Act of 1934, as amended applicable state securities law or the Investment Company ~~Act of 1940, as amended~~Act; ~~provided,~~ provided however, that if a certification is specifically required to be delivered to the Owner Trustee by a purchaser or transferee of a Certificate, the Owner Trustee shall be under a duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and to register transfers only upon receipt of documents and certifications specified herein and shall promptly notify the party delivering the same if such certification does not so conform.

Appears in 1 contract

Samples: Trust Agreement (Mmca Auto Receivables Inc)

Registration of Certificates; Transfer and Exchange of Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.8, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of Transfers and exchanges of Certificates as herein provided. Wilmington Trust Company shall be the initial Certificate Registrar. No Transfer of a Certificate shall be recognized except upon registration of such Transfer in the Certificate Register. (b) No Certificateholder shall Transfer any Certificate initially held by it unless such transfer is made pursuant to an effective registration statement or otherwise in accordance with the requirements under the Securities Act and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If a transfer is to be made in reliance upon an exemption from the Securities Act, and under the applicable state securities laws, (i) the Certificate Registrar shall require an Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the Depositor that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the Securities Act, applicable state securities laws and other relevant laws, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Trustee, and (ii) the Certificate Registrar shall require the transferee to execute a certification acceptable to and in form and substance satisfactory to the Certificate Registrar setting forth the facts surrounding such transfer. (c) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which consent may be withheld in the sole discretion of the Depositor; provided, however, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of the Transfer will be, a Certificateholder. Each Certificate shall bear a legend to the following effect unless determined otherwise by the Administrator (as certified to the Certificate Registrar in an Officer's Certificate) consistent with applicable law: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN A DENOMINATION OF AT LEAST $1,000,000, ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C TO THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D TO THE TRUST AGREEMENT, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, AND THE CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a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s a condition to the registration of any Transfer of a Certificate, the prospective transferee of such a Certificate shall represent to the Owner Trustee and the Certificate Registrar the following: (i) It has neither acquired nor will it Transfer any Certificate it purchases (or any interest therein) or cause any such Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of ~~Section~~ section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. (ii) It either (A) is not, and will not become, a partnership, Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes, or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 80% or more (or such other percentage as the Depositor may establish prior to the time of such proposed Transfer) of the value of such interests to be attributable to such transferee's ownership of Certificates. (iii) It understands that no subsequent Transfer of the Certificates is permitted unless (A) such Transfer is of a Certificate with a denomination of at least $1,000,000 and (B) the Depositor consents in writing (which consent may be withheld for any reason or for no reason) to the proposed Transfer; provided, however, that no such consent shall be required where the proposed transferee is, and at the time of the Transfer will be, a Holder of a Certificate. (iv) It understands that the opinion of tax counsel that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs (i), (ii) and (iii) above. (v) If it is acquiring any Certificates as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the acknowledgments, representations and agreements contained herein on behalf of each such account. (vi) It is not (A) an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (B) a plan described in Section 4975(e)(1) of the Code, (C) a governmental plan, as defined in Section 3(32) of ERISA, subject to any Federal, state or local law which is, to a material extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the Code, (D) an entity whose underlying assets include plan assets by reason of a plan's investment in the entity (within the meaning of Department of Labor Regulation 29 C.F.R. ss. 2510.3-101) or (E) a person investing "plan assets" of any such plan (excluding, for purposes of this clause (E), any entity registered under the Investment Company Act of 1940, as amended). (vii) It is a Person who is either (A) (1) a citizen or resident of the United States, (2) a corporation, partnership or other entity organized in or under the laws of the United States or any political subdivision thereof or (3) a Person not described in (1) or (2) whose ownership of the Certificates is effectively connected with such Person's conduct of a trade or business within the United States (within the meaning of the Code) and who provides the Depositor and the Owner Trustee an IRS Form ~~W-8ECI~~ 4224 (and such other certifications, representations or opinions of counsel as may be requested by the Depositor or the Owner Trustee) or (B) an estate or trust the income of which is includible in gross income for United States Federal income tax purposes, regardless of source. (viii) It understands that any purported Transfer of any Certificate (or any interest therein) in contravention of any of the restrictions and conditions (including any violation of the representation in paragraph (ii) above by an investor who continues to hold such Certificates occurring any time after the Transfer in which it acquired such Certificates) in this Section 3.4 shall be a Void Transfer, and the purported transferee in a Void Transfer shall not be recognized by the Trust or any other Person as a Certificateholder for any purpose. (ix) It agrees that if it determines to Transfer any of the Certificates it will cause its proposed transferee to provide to the Trust and the Certificate Registrar a letter substantially in the form of Exhibit D or E hereof, as applicable, or such other written statement as the Depositor shall prescribe. (d) By acceptance of any Certificate, the Certificateholder thereof specifically agrees with and represents to the Depositor, the Certificate Registrar and the Trust that no Transfer of such Certificate shall be made unless the registration requirements of the Securities Act and any applicable state securities laws are complied with, or such Transfer is exempt from the registration requirements under the Securities Act because the Transfer satisfies one of the following: (i) such Transfer is in compliance with Rule 144A under the Securities Act ("Rule 144A"), to a transferee who the transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer and to whom notice is given that such transfer is being made in reliance upon Rule 144A under the Securities Act and (x) the transferor executes and delivers to the Trust and the Certificate Registrar a Rule 144A transferor certificate substantially in the form attached as Exhibit C and (y) the transferee executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit D; (ii) after the appropriate holding period, such Transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the Trust or the Certificate Registrar, delivers an Opinion of Counsel in form and substance satisfactory to the Trust and the Depositor; or (iii) such Transfer is to an institutional accredited investor as defined in rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act in a transaction exempt from the registration requirements of the Securities Act, such Transfer is in accordance with any applicable securities laws of any state of the United States or any other jurisdiction, and such investor executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit E. (e) The Trust shall make available to the prospective transferor and transferee information requested to satisfy the requirements of paragraph (d)(4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information shall include any or all of the following items requested by the prospective transferee: (i) each statement delivered to Certificateholders pursuant to Section 4.9 of the Sale and Servicing Agreement on each Payment Date preceding such request; and (ii) such other information as is reasonably available to the Owner Trustee in order to comply with requests for information pursuant to Rule 144A under the Securities Act. None of the Depositor, the Certificate Registrar or the Trust is under an obligation to register any Certificate under the Securities Act or any other securities law. (f) Upon surrender for registration of Transfer of any Certificate at the office or agency maintained pursuant to Section 3.8 and upon compliance with any provisions of this Agreement relating to such Transfer, the Owner Trustee shall execute, authenticate and deliver (or shall cause Wilmington Trust Company, as its authenticating agent, to authenticate and deliver), in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate amount dated the date of authentication by the Owner Trustee or any authenticating agent. Subject to Sections 3.4(b) and 3.4(c), at the option of a Certificateholder, 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 3.8. Every Certificate presented or surrendered for registration of Transfer or exchange shall be accompanied by a written instrument of transfer and accompanied by IRS Form ~~W-8ECI~~ 4224 or W-9 in form satisfactory to the Owner Trustee and the Certificate Registrar, duly executed by the Certificateholder or his 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 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 Certificates. (g) The provisions of this Section 3.4 and of this Agreement generally are intended to prevent the Trust from being characterized as a "publicly traded partnership" within the meaning of Section 7704 of the Code, in reliance on ~~Treasury Regulation ss~~Treas. ~~1.7704~~Reg. xx.xx. 1. 7704-1(e) and (h), and the Depositor shall take such intent into account in determining whether or not to consent to any proposed Transfer of any Certificate. The preceding provisions of this Section 3.4 notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any Transfer or exchange of Certificates for a period of 15 fifteen (15) days preceding the due date for any payment with respect to the Certificates. Notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities Act, the Exchange Act, applicable state securities law or the Investment Company Act of 1940, as amended; provided, however, that if a certification is specifically required to be delivered to the Owner Trustee by a purchaser or transferee of a Certificate, the Owner Trustee shall be under a duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and to register transfers only upon receipt of documents and certifications specified herein and shall promptly notify the party delivering the same if such certification does not so conform.

Appears in 1 contract

Samples: Trust Agreement (Mmca Auto Owner Trust 2001-1)

Registration of Certificates; Transfer and Exchange of Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section ~~3.8~~3.9, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of Transfers and exchanges of Certificates as herein provided. ~~Wilmington Trust Company~~ The Bank shall be the initial Certificate Registrar. No Transfer of a Certificate shall be recognized except upon registration of such Transfer in the Certificate Register. (b) ~~No Certificateholder shall Transfer any~~ Each Class C Certificate ~~initially held by it unless such transfer is made pursuant to an effective registration statement or otherwise in accordance with the requirements under the Securities Act~~ and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If a transfer is to be made in reliance upon an exemption from the Securities Act, and under the applicable state securities laws, (i) the Certificate Registrar shall require an Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the Depositor that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the Securities Act, applicable state securities laws and other relevant laws, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Trustee, and (ii) the Certificate Registrar shall require the transferee to execute a certification acceptable to and in form and substance satisfactory to the Certificate Registrar setting forth the facts surrounding such transfer. (c) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which consent may be withheld in the sole discretion of the Depositor; provided, however, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of the Transfer will be, a Certificateholder. Each Class D Certificate shall bear a legend to the following effect unless determined otherwise by the Administrator (as certified to the ~~Certificate Registrar~~ Owner Trustee in an ~~Officer's~~ Officers Certificate) and the Owner Trustee consistent with applicable law: "THIS CERTIFICATE HAS NOT BEEN ~~AND WILL NOT BE~~ REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN ~~A DENOMINATION OF AT LEAST $1,000,000, ONLY IN~~ COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE ~~144A~~ l44A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS ~~INFORMED~~IN FORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C E TO THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D C TO THE TRUST AGREEMENT, WITH SUCH CHANGES THEREIN AS MAY BE APPROVED BY THE DEPOSITOR, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, THE INITIAL PURCHASER AND THE CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST AND THE INITIAL PURCHASER THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT E D TO THE TRUST AGREEMENT OR (B) THE RECEIPT BY THE ~~TRUST~~ TRUST, THE INITIAL PURCHASER AND THE CERTIFICATE REGISTRAR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE TRUST AND THE INITIAL PURCHASER THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, OR (4) TO THE DEPOSITOR OR ITS AFFILIATES, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND SECURITIES AND BLUE SKY LAWS OF THE STATES OF THE UNITED STATES. IN ADDITION, EXCEPT IN THE CASE OF TRANSFERS TO EXISTING CERTIFICATEHOLDERS, THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY WITH THE EXPRESS WRITTEN CONSENT OF THE DEPOSITOR (WHICH CONSENT MAY BE WITHHELD FOR ANY REASON OR FOR NO REASON)." As a condition to the registration of any Transfer of a Certificate, the prospective transferee of such a Certificate shall be required to represent in writing to the Owner Trustee, the Certificate Registrar and the Initial Purchaser the following, unless determined otherwise by the Administrator (as certified to the Owner Trustee ~~and the Certificate Registrar the following:~~in an Officers Certificate): (i) It has neither acquired nor will it Transfer any Certificate it purchases (or any interest therein) or cause any such Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. (ii) It either (A) is not, and will not become, a partnership, Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes, or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 80% or more (or such other percentage as the Depositor may establish prior to the time of such proposed Transfer) of the value of such interests to be attributable to such transferee's ownership of Certificates. (iii) It understands that no subsequent Transfer of the Certificates is are permitted unless it causes its proposed transferee to provide to the Trust, the Certificate Registrar and the Initial Purchaser a letter substantially in the form of Exhibit C or Exhibit D hereof (with such changes therein as may be approved by the Depositor), as applicable, or such other written statement as the Depositor shall prescribe. (ii) It is either: (A) such Transfer is of a Certificate with a denomination of at least $1,000,000 and (B) the Depositor consents in writing (which consent may be withheld for any reason or for no reason) to the proposed Transfer; provided, however, that no such consent shall be required where the proposed transferee isnot, and ~~at the time of the Transfer will be, a Holder of a Certificate.~~ each account (ivif any) It understands that the opinion of tax counsel that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs (i), (ii) and (iii) above. (v) If for which it is ~~acquiring any~~ purchasing the Certificates as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the acknowledgments, representations and agreements contained herein on behalf of each such account. (vi) It is are not (A1) an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (B2) a plan described in Section 4975(e)(1) of the Code that is subject to Section 4975 of the Code, (C3) a governmental plan, as defined in Section 3(32) of ERISA, subject to any ~~Federal~~federal, ~~state~~ State or local law which is, to a material extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the Code, (D4) an entity whose underlying assets include plan assets by reason of a ~~plan's~~ plans investment in the entity (within the meaning of Department of Labor Regulation 29 C.F.R. ss. 2510.3-~~101~~101 or otherwise under ERISA) or (E5) a person investing "plan assets" of any such plan (~~excluding~~including without limitation, for purposes of this clause (E5), an insurance company general account, but excluding any entity registered under the Investment Company Act of 1940, as amended).; or (~~vii~~B) ~~It is~~ an insurance company acting on behalf of a ~~Person who is either (A)~~ general account and (1) ~~a citizen~~ on the date of purchase less than 25% (or ~~resident~~ such lower percentage as may be determined by the Depositor) of the ~~United States~~assets of such general account (as reasonably determined by it) constitute "plan assets" for purposes of Title I of ERISA and Section 4975 of the Code, (2) ~~a corporation~~the purchase and holding of such Certificates are eligible for exemptive relief under Sections (I) and (III) of Prohibited Transaction Class Exemption 95-60, ~~partnership or other entity organized in or under the laws of the United States or any political subdivision thereof or~~ and (3) ~~a Person not described in (1) or (2) whose ownership~~ the purchaser agrees that if, after the purchasers initial acquisition of the Certificates is effectively connected with such Person's conduct of a trade or business within the United States (within the meaning of the Code) and who provides the Depositor and the Owner Trustee an IRS Form W-8ECI (and such other certificationsCertificates, representations or opinions of counsel as may be requested by the Depositor or the Owner Trustee) or (B) an estate or trust the income of which is includible in gross income for United States Federal income tax purposes, regardless of source. (viii) It understands that at any ~~purported Transfer of~~ time during any ~~Certificate~~ calendar quarter 25% (or ~~any interest therein) in contravention of any of the restrictions and conditions (including any violation of the representation in paragraph (ii) above by an investor who continues to hold~~ such Certificates occurring any time after the Transfer in which it acquired such Certificates) in this Section 3.4 shall be a Void Transfer, and the purported transferee in a Void Transfer shall not be recognized by the Trust or any other Person as a Certificateholder for any purpose. (ix) It agrees that if it determines to Transfer any of the Certificates it will cause its proposed transferee to provide to the Trust and the Certificate Registrar a letter substantially in the form of Exhibit D or E hereof, as applicable, or such other written statement as the Depositor shall prescribe. (d) By acceptance of any Certificate, the Certificateholder thereof specifically agrees with and represents to the Depositor, the Certificate Registrar and the Trust that no Transfer of such Certificate shall be made unless the registration requirements of the Securities Act and any applicable state securities laws are complied with, or such Transfer is exempt from the registration requirements under the Securities Act because the Transfer satisfies one of the following: (i) such Transfer is in compliance with Rule 144A under the Securities Act ("Rule 144A"), to a transferee who the transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer and to whom notice is given that such transfer is being made in reliance upon Rule 144A and (x) the transferor executes and delivers to the Trust and the Certificate Registrar a Rule 144A transferor certificate substantially in the form attached as Exhibit C and (y) the transferee executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit D; (ii) after the appropriate holding period, such Transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the Trust or the Certificate Registrar, delivers an Opinion of Counsel in form and substance satisfactory to the Trust and the Depositor; or (iii) such Transfer is to an institutional accredited investor as defined in rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act in a transaction exempt from the registration requirements of the Securities Act, such Transfer is in accordance with any applicable securities laws of any state of the United States or any other jurisdiction, and such investor executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit E. (e) The Trust shall make available to the prospective transferor and transferee information requested to satisfy the requirements of paragraph (d)(4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information shall include any or all of the following items requested by the prospective transferee: (i) each statement delivered to Certificateholders pursuant to Section 4.9 of the Sale and Servicing Agreement on each Payment Date preceding such request; and (ii) such other information as is reasonably available to the Owner Trustee in order to comply with requests for information pursuant to Rule 144A under the Securities Act. None of the Depositor, the Certificate Registrar or the Trust is under an obligation to register any Certificate under the Securities Act or any other securities law. (f) Upon surrender for registration of Transfer of any Certificate at the office or agency maintained pursuant to Section 3.8 and upon compliance with any provisions of this Agreement relating to such Transfer, the Owner Trustee shall execute, authenticate and deliver (or shall cause Wilmington Trust Company, as its authenticating agent, to authenticate and deliver), in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate amount dated the date of authentication by the Owner Trustee or any authenticating agent. Subject to Sections 3.4(b) and 3.4(c), at the option of a Certificateholder, 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 3.8. Every Certificate presented or surrendered for registration of Transfer or exchange shall be accompanied by a written instrument of transfer and accompanied by IRS Form W-8ECI in form satisfactory to the Owner Trustee and the Certificate Registrar, duly executed by the Certificateholder or his 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 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 Certificates. (g) The provisions of this Section 3.4 and of this Agreement generally are intended to prevent the Trust from being characterized as a "publicly traded partnership" within the meaning of Section 7704 of the Code, in reliance on Treasury Regulation ss. 1.7704-1(e) and (h), and the Depositor shall take such intent into account in determining whether or not to consent to any proposed Transfer of any Certificate. The preceding provisions of this Section 3.4 notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any Transfer or exchange of Certificates for a period of 15 days preceding the due date for any payment with respect to the Certificates. Notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities Act, the Exchange Act, applicable state securities law or the Investment Company Act of 1940, as amended; provided, however, that if a certification is specifically required to be delivered to the Owner Trustee by a purchaser or transferee of a Certificate, the Owner Trustee shall be under a duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and to register transfers only upon receipt of documents and certifications specified herein and shall promptly notify the party delivering the same if such certification does not so conform.lower percentage

Appears in 1 contract

Samples: Trust Agreement (Ford Credit Auto Receivables Two L P)

Registration of Certificates; Transfer and Exchange of Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.8, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of Transfers and exchanges of Certificates as herein provided. Wilmington Trust Company shall be the initial Certificate Registrar. No Transfer of a Certificate shall be recognized except upon registration of such Transfer in the Certificate Register. (b) No Certificateholder shall Transfer any Certificate initially held by it unless such transfer is made pursuant to an effective registration statement or otherwise in accordance with the requirements under the Securities Act of 1933, as amended (the "1933 ACT"), and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If a transfer is to be made in reliance upon an exemption from the ~~Securities~~ 1933 Act, and under the applicable state securities laws, (i) the Certificate Registrar shall require an Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the Depositor that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the ~~Securities~~ 1933 Act, applicable state securities laws and other relevant laws, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Trustee, and (ii) the Certificate Registrar shall require the transferee to execute a certification acceptable to and in form and substance satisfactory to the Certificate Registrar setting forth the facts surrounding such transfer. (c) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which consent may be withheld in the sole discretion of the Depositor~~; provided~~, ~~however~~PROVIDED, HOWEVER, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of the Transfer will be, a Certificateholder. Each Certificate (other than the Certificate issued to the Depositor pursuant to Section 3.10(i)) shall bear a legend to the following effect unless determined otherwise by the Administrator (as certified to the Certificate Registrar in an Officer's Certificate) consistent with applicable law: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN A DENOMINATION OF AT LEAST $1,000,000, ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C E TO THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D F TO THE TRUST AGREEMENT, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, AND THE CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a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s a condition to the registration of any Transfer of a Certificate, the prospective transferee of such a Certificate shall represent to the Owner Trustee and the Certificate Registrar the following: (i) It has neither acquired nor will it Transfer any Certificate it purchases (or any interest therein) or cause any such Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of ~~Section~~ section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. (ii) It either (A) is not, and will not become, a partnership, Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes, or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 80% or more (or such other percentage as the Depositor may establish prior to the time of such proposed Transfer) of the value of such interests to be attributable to such transferee's ownership of Certificates. (iii) It understands that no subsequent Transfer of the Certificates is permitted unless (A) such Transfer is of a Certificate with a denomination of at least $1,000,000 and (B) the Depositor consents in writing (which consent may be withheld for any reason or for no reason) to the proposed Transfer; ~~provided~~PROVIDED, ~~however~~HOWEVER, that no such consent shall be required where the proposed transferee is, and at the time of the Transfer will be, a Holder of a Certificate. (iv) It understands that the opinion of tax counsel that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs (i), (ii) and (iii) above. (v) If it is acquiring any Certificates as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the ~~acknowledgments~~acknowledgements, representations and agreements contained herein on behalf of each such account. (vi) It is not (A) an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (B) a plan described in Section 4975(e)(1) of the Code, (C) a governmental plan, as defined in Section 3(32) of ERISA, subject to any Federal, state or local law which is, to a material extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the Code, (D) an entity whose underlying assets include plan assets by reason of a plan's investment in the entity (within the meaning of Department of Labor Regulation 29 C.F.R. ~~ss.~~ Section 2510.3-101) or (E) a person investing "plan assets" of any such plan (excluding, for purposes of this clause (E), any entity registered under the Investment Company Act of 1940, as amended). (vii) It is a Person who is either (A) (1) a citizen or resident of the United States, (2) a corporation, partnership or other entity organized in or under the laws of the United States or any political subdivision thereof or (3) a Person not described in (1) or (2) whose ownership of the Certificates is effectively connected with such Person's conduct of a trade or business within the United States (within the meaning of the Code) and who provides the Depositor and the Owner Trustee an IRS Form ~~W-8ECI~~ 4224 (and such other certifications, representations or opinions of counsel as may be requested by the Depositor or the Owner Trustee) or (B) an estate or trust the income of which is includible in gross income for United States Federal income tax purposes, regardless of source. (viii) It understands that any purported Transfer of any Certificate (or any interest therein) in contravention of any of the restrictions and conditions (including any violation of the representation in paragraph (ii) above by an investor who continues to hold such Certificates occurring any time after the Transfer in which it acquired such Certificates) in this Section 3.4 shall be a Void Transfer, and the purported transferee in a Void Transfer shall not be recognized by the Trust or any other Person as a Certificateholder for any purpose. (ix) It agrees that if it determines to Transfer any of the Certificates it will cause its proposed transferee to provide to the Trust and the Certificate Registrar a letter substantially in the form of Exhibit D F or E G hereof, as applicable, or such other written statement as the Depositor shall prescribe. (d) By acceptance of any Certificate, the Certificateholder thereof specifically agrees with and represents to the Depositor, the Certificate Registrar and the Trust that no Transfer of such Certificate shall be made unless the registration requirements of the Securities Act and any applicable state securities laws are complied with, or such Transfer is exempt from the registration requirements under the Securities Act because the Transfer satisfies one of the following: (i) such Transfer is in compliance with Rule 144A under the Securities Act ("~~Rule~~ RULE 144A"), to a transferee who the transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer and to whom notice is given that such transfer is being made in reliance upon Rule 144A under the Securities Act and (x) the transferor executes and delivers to the Trust and the Certificate Registrar a Rule 144A transferor certificate substantially in the form attached as Exhibit C E and (y) the transferee executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit D;F. (ii) after the appropriate holding period, such Transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the Trust or the Certificate Registrar, delivers an Opinion of Counsel in form and substance satisfactory to the Trust and the Depositor; orand (iii) such Transfer is to an institutional accredited investor as defined in rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act in a transaction exempt from the registration requirements of the Securities Act, such Transfer is in accordance with any applicable securities laws of any state of the United States or any other jurisdiction, and such investor executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit E.G. (e) The Trust shall make available to the prospective transferor and transferee information requested to satisfy the requirements of paragraph (d)(4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information shall include any or all of the following items requested by the prospective transferee: (i) each statement delivered to Certificateholders pursuant to Section 4.9 of the Sale and Servicing Agreement on each Payment Date preceding such request; and (ii) such other information as is reasonably available to the Owner Trustee in order to comply with requests for information pursuant to Rule 144A under the Securities Act. None of the Depositor, the Certificate Registrar or the Trust is under an obligation to register any Certificate under the Securities Act or any other securities law. (f) Upon surrender for registration of Transfer of any Certificate at the office or agency maintained pursuant to Section 3.8 and upon compliance with any provisions of this Agreement relating to such Transfer, the Owner Trustee shall execute, authenticate and deliver (or shall cause Wilmington Trust Company, as its authenticating agent, to authenticate and deliver), in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate amount dated the date of authentication by the Owner Trustee or any authenticating agent. Subject to Sections 3.4(b) and 3.4(c), at the option of a Certificateholder, 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 3.8. Every Certificate presented or surrendered for registration of Transfer or exchange shall be accompanied by a written instrument of transfer and accompanied by IRS Form W-8ECI in form satisfactory to the Owner Trustee and the Certificate Registrar, duly executed by the Certificateholder or his 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 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 Certificates. (g) The provisions of this Section 3.4 and of this Agreement generally are intended to prevent the Trust from being characterized as a "publicly traded partnership" within the meaning of Section 7704 of the Code, in reliance on Treasury Regulation ss. 1.7704-1(e) and (h), and the Depositor shall take such intent into account in determining whether or not to consent to any proposed Transfer of any Certificate. The preceding provisions of this Section 3.4 notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any Transfer or exchange of Certificates for a period of 15 days preceding the due date for any payment with respect to the Certificates. Notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities Act, the Exchange Act, applicable state securities law or the Investment Company Act of 1940, as amended; provided, however, that if a certification is specifically required to be delivered to the Owner Trustee by a purchaser or transferee of a Certificate, the Owner Trustee shall be under a duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and to register transfers only upon receipt of documents and certifications specified herein and shall promptly notify the party delivering the same if such certification does not so conform.of

Appears in 1 contract

Samples: Trust Agreement (Mmca Auto Receivables Inc)

Registration of Certificates; Transfer and Exchange of Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.8, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of Transfers and exchanges of Certificates as herein provided. Wilmington Trust Company shall be the initial Certificate Registrar. No Transfer of a Certificate shall be recognized except upon registration of such Transfer in the Certificate Register. (b) No Certificateholder shall Transfer any Certificate initially held by it unless such transfer is made pursuant to an effective registration statement or otherwise in accordance with the requirements under the Securities Act and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If a transfer is to be made in reliance upon an exemption from the Securities Act, and under the applicable state securities laws, (i) the Certificate Registrar shall require an Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the Depositor that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the Securities Act, applicable state securities laws and other relevant laws, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Trustee, and (ii) the Certificate Registrar shall require the transferee to execute a certification acceptable to and in form and substance satisfactory to the Certificate Registrar setting forth the facts surrounding such transfer. (c) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which consent may be withheld in the sole discretion of the Depositor; provided, however, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of the Transfer will be, a Certificateholder. Each Certificate shall bear a legend to the following effect unless determined otherwise by the Administrator (as certified to the Certificate Registrar in an Officer's Certificate) consistent with applicable law: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN A DENOMINATION OF AT LEAST $1,000,000, ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C TO THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D TO THE TRUST AGREEMENT, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, AND THE CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a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s a condition to the registration of any Transfer of a Certificate, the prospective transferee of such a Certificate shall represent to the Owner Trustee and the Certificate Registrar the following: (i) It has neither acquired nor will it Transfer any Certificate it purchases (or any interest therein) or cause any such Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of ~~Section~~ section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. (ii) It either (A) is not, and will not become, a partnership, Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes, or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 80% or more (or such other percentage as the Depositor may establish prior to the time of such proposed Transfer) of the value of such interests to be attributable to such transferee's ownership of Certificates. (iii) It understands that no subsequent Transfer of the Certificates is permitted unless (A) such Transfer is of a Certificate with a denomination of at least $1,000,000 and (B) the Depositor consents in writing (which consent may be withheld for any reason or for no reason) to the proposed Transfer; provided, however, that no such consent shall be required where the proposed transferee is, and at the time of the Transfer will be, a Holder of a Certificate. (iv) It understands that the opinion of tax counsel that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs (i), (ii) and (iii) above. (v) If it is acquiring any Certificates as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the acknowledgments, representations and agreements contained herein on behalf of each such account. (vi) It is not (A) an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (B) a plan described in Section 4975(e)(1) of the Code, (C) a governmental plan, as defined in Section 3(32) of ERISA, subject to any Federal, state or local law which is, to a material extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the Code, (D) an entity whose underlying assets include plan assets by reason of a plan's investment in the entity (within the meaning of Department of Labor Regulation 29 ~~C.F.R. ss~~C.F.R.ss. 2510.3-101) or (E) a person investing "plan ~~assets~~axxxxx" of xf any such plan (excluding, for purposes of this clause (E), any entity registered under the Investment Company Act of 1940, as amended). (vii) It is a Person who is either (A) (1) a citizen or resident of the United States, (2) a corporation, partnership or other entity organized in or under the laws of the United States or any political subdivision thereof or (3) a Person not described in (1) or (2) whose ownership of the Certificates is effectively connected with such Person's conduct of a trade or business within the United States (within the meaning of the Code) and who provides the Depositor and the Owner Trustee an IRS Form W-8ECI (and such other certifications, representations or opinions of counsel as may be requested by the Depositor or the Owner Trustee) or (B) an estate or trust the income of which is includible in gross income for United States Federal income tax purposes, regardless of source. (viii) It understands that any purported Transfer of any Certificate (or any interest therein) in contravention of any of the restrictions and conditions (including any violation of the representation in paragraph (ii) above by an investor who continues to hold such Certificates occurring any time after the Transfer in which it acquired such Certificates) in this Section 3.4 shall be a Void Transfer, and the purported transferee in a Void Transfer shall not be recognized by the Trust or any other Person as a Certificateholder for any purpose. (ix) It agrees that if it determines to Transfer any of the Certificates it will cause its proposed transferee to provide to the Trust and the Certificate Registrar a letter substantially in the form of Exhibit D or E hereof, as applicable, or such other written statement as the Depositor shall prescribe. (d) By acceptance of any Certificate, the Certificateholder thereof specifically agrees with and represents to the Depositor, the Certificate Registrar and the Trust that no Transfer of such Certificate shall be made unless the registration requirements of the Securities Act and any applicable state securities laws are complied with, or such Transfer is exempt from the registration requirements under the Securities Act because the Transfer satisfies one of the following: (i) such Transfer is in compliance with Rule 144A under the Securities Act ("Rule 144A"), to a transferee who the transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer and to whom notice is given that such transfer is being made in reliance upon Rule 144A under the Securities Act and (x) the transferor executes and delivers to the Trust and the Certificate Registrar a Rule 144A transferor certificate substantially in the form attached as Exhibit C and (y) the transferee executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit D; (ii) after the appropriate holding period, such Transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the Trust or the Certificate Registrar, delivers an Opinion of Counsel in form and substance satisfactory to the Trust and the Depositor; or (iii) such Transfer is to an institutional accredited investor as defined in rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act in a transaction exempt from the registration requirements of the Securities Act, such Transfer is in accordance with any applicable securities laws of any state of the United States or any other jurisdiction, and such investor executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit E. (e) The Trust shall make available to the prospective transferor and transferee information requested to satisfy the requirements of paragraph (d)(4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information shall include any or all of the following items requested by the prospective transferee: (i) each statement delivered to Certificateholders pursuant to Section 4.9 of the Sale and Servicing Agreement on each Payment Date preceding such request; and (ii) such other information as is reasonably available to the Owner Trustee in order to comply with requests for information pursuant to Rule 144A under the Securities Act. None of the Depositor, the Certificate Registrar or the Trust is under an obligation to register any Certificate under the Securities Act or any other securities law. (f) Upon surrender for registration of Transfer of any Certificate at the office or agency maintained pursuant to Section 3.8 and upon compliance with any provisions of this Agreement relating to such Transfer, the Owner Trustee shall execute, authenticate and deliver (or shall cause Wilmington Trust Company, as its authenticating agent, to authenticate and deliver), in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate amount dated the date of authentication by the Owner Trustee or any authenticating agent. Subject to Sections 3.4(b) and 3.4(c), at the option of a Certificateholder, 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 3.8. Every Certificate presented or surrendered for registration of Transfer or exchange shall be accompanied by a written instrument of transfer and accompanied by IRS Form W-8ECI in form satisfactory to the Owner Trustee and the Certificate Registrar, duly executed by the Certificateholder or his 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 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 Certificates. (g) The provisions of this Section 3.4 and of this Agreement generally are intended to prevent the Trust from being characterized as a "publicly traded partnership" within the meaning of Section 7704 of the Code, in reliance on ~~Treasury Regulation ss~~Treas. ~~1.7704~~Reg. ss.ss. 1. 7704-1(e) and (h), and the Depositor shall take such ~~intent~~ inxxxx into account in determining whether or not to consent to any proposed Transfer of any Certificate. The preceding provisions of this Section 3.4 notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any Transfer or exchange of Certificates for a period of 15 fifteen (15) days preceding the due date for any payment with respect to the Certificates. Notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities Act, the Exchange Act, applicable state securities law or the Investment Company Act of 1940, as amended; provided, however, that if a certification is specifically required to be delivered to the Owner Trustee by a purchaser or transferee of a Certificate, the Owner Trustee shall be under a duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and to register transfers only upon receipt of documents and certifications specified herein and shall promptly notify the party delivering the same if such certification does not so conform.

Appears in 1 contract

Samples: Trust Agreement (Mmca Auto Owner Trust 2001-3)

Registration of Certificates; Transfer and Exchange of Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.8, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of Transfers and exchanges of Certificates as herein provided. Wilmington Trust Company shall be the initial Certificate Registrar. No Transfer of a Certificate shall be recognized except upon registration of such Transfer in the Certificate Register. (b) No Certificateholder shall Transfer any Certificate initially held by it unless such transfer is made pursuant to an effective registration statement or otherwise in accordance with the requirements under the Securities Act of 1933, as amended (the "1933 Act"), and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If a transfer is to be made in reliance upon an exemption from the ~~Securities~~ 1933 Act, and under the applicable state securities laws, (i) the Certificate Registrar shall require an Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the Depositor that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the ~~Securities~~ 1933 Act, applicable state securities laws and other relevant laws, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Trustee, and (ii) the Certificate Registrar shall require the transferee to execute a certification acceptable to and in form and substance satisfactory to the Certificate Registrar setting forth the facts surrounding such transfer. (c) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which consent may be withheld in the sole discretion of the Depositor; , provided, however, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of the Transfer will be, a Certificateholder. Each Certificate shall bear a legend to the following effect unless determined otherwise by the Administrator (as certified to the Certificate Registrar in an Officer's Certificate) consistent with applicable law: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN A DENOMINATION OF AT LEAST $1,000,000, ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C D TO THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D E TO THE TRUST AGREEMENT, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, AND THE CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a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s a condition to the registration of any Transfer of a Certificate, the prospective transferee of such a Certificate shall represent to the Owner Trustee and the Certificate Registrar the following: (i) It has neither acquired nor will it Transfer any Certificate it purchases (or any interest therein) or cause any such Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of ~~Section~~ section 7704(b)(1) of the Code, including, without limitation, an over-~~the-~~the- counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. (ii) It either (A) is not, and will not become, a partnership, Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes, or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 80% or more (or such other percentage as the Depositor may establish prior to the time of such proposed Transfer) of the value of such interests to be attributable to such transferee's ownership of Certificates. (iii) It understands that no subsequent Transfer of the Certificates is permitted unless (A) such Transfer is of a Certificate with a denomination of at least $1,000,000 and (B) the Depositor consents in writing (which consent may be withheld for any reason or for no reason) to the proposed Transfer; provided, however, that no such consent shall be required where the proposed transferee is, and at the time of the Transfer will be, a Holder of a Certificate. (iv) It understands that the opinion of tax counsel that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs (i), (ii) and (iii) above. (v) If it is acquiring any Certificates as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the acknowledgments, representations and agreements contained herein on behalf of each such account. (vi) It is not (A) an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (B) a plan described in Section 4975(e)(1) of the Code, (C) a governmental plan, as defined in Section 3(32) of ERISA, subject to any Federal, state or local law which is, to a material extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the Code, (D) an entity whose underlying assets include plan assets by reason of a plan's investment in the entity (within the meaning of Department of Labor Regulation 29 C.F.R. ss. ~~2510.3-~~2510.3- 101) or (E) a person investing "plan assets" of any such plan (excluding, for purposes of this clause (E), any entity registered under the Investment Company Act of 1940, as amended). (vii) It is a Person who is either (A) (1) a citizen or resident of the United States, (2) a corporation, partnership or other entity organized in or under the laws of the United States or any political subdivision thereof or (3) a Person not described in (1) or (2) whose ownership of the Certificates is effectively connected with such Person's conduct of a trade or business within the United States (within the meaning of the Code) and who provides the Depositor and the Owner Trustee an IRS Form ~~W-8ECI~~ 4224 (and such other certifications, representations or opinions of counsel as may be requested by the Depositor or the Owner Trustee) or (B) an estate or trust the income of which is includible in gross income for United States Federal income tax purposes, regardless of source. (viii) It understands that any purported Transfer of any Certificate (or any interest therein) in contravention of any of the restrictions and conditions (including any violation of the representation in paragraph (ii) above by an investor who continues to hold such Certificates occurring any time after the Transfer in which it acquired such Certificates) in this Section 3.4 shall be a Void Transfer, and the purported transferee in a Void Transfer shall not be recognized by the Trust or any other Person as a Certificateholder for any purpose. (ix) It agrees that if it determines to Transfer any of the Certificates it will cause its proposed transferee to provide to the Trust and the Certificate Registrar a letter substantially in the form of Exhibit D E or E F hereof, as applicable, or such other written statement as the Depositor shall prescribe. (d) By acceptance of any Certificate, the Certificateholder thereof specifically agrees with and represents to the Depositor, the Certificate Registrar and the Trust that no Transfer of such Certificate shall be made unless the registration requirements of the Securities Act and any applicable state securities laws are complied with, or such Transfer is exempt from the registration requirements under the Securities Act because the Transfer satisfies one of the following: (i) such Transfer is in compliance with Rule 144A under the Securities Act ("Rule 144A"), to a transferee who the transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer and to whom notice is given that such transfer is being made in reliance upon Rule 144A under the Securities Act and (x) the transferor executes and delivers to the Trust and the Certificate Registrar a Rule 144A transferor certificate substantially in the form attached as Exhibit C D and (y) the transferee executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit D;E. (ii) after the appropriate holding period, such Transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the Trust or the Certificate Registrar, delivers an Opinion of Counsel in form and substance satisfactory to the Trust and the Depositor; orand (iii) such Transfer is to an institutional accredited investor as defined in rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act in a transaction exempt from the registration requirements of the Securities Act, such Transfer is in accordance with any applicable securities laws of any state of the United States or any other jurisdiction, and such investor executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit E.F. (e) The Trust shall make available to the prospective transferor and transferee information requested to satisfy the requirements of paragraph (d)(4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information shall include any or all of the following items requested by the prospective transferee: (i) each statement delivered to Certificateholders pursuant to Section ~~4.9~~ 4.11 of the Sale and Servicing Agreement on each Payment Date preceding such request; and (ii) such other information as is reasonably available to the Owner Trustee in order to comply with requests for information pursuant to Rule 144A under the Securities Act. None of the Depositor, the Certificate Registrar or the Trust is under an obligation to register any Certificate under the Securities Act or any other securities law. (f) Upon surrender for registration of Transfer of any Certificate at the office or agency maintained pursuant to Section 3.8 and upon compliance with any provisions of this Agreement relating to such Transfer, the Owner Trustee shall execute, authenticate and deliver (or shall cause Wilmington Trust Company, as its authenticating agent, to authenticate and deliver), in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate amount dated the date of authentication by the Owner Trustee or any authenticating agent. Subject to Sections 3.4(b) and 3.4(c), at the option of a Certificateholder, 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 3.8. Every Certificate presented or surrendered for registration of Transfer or exchange shall be accompanied by a written instrument of transfer and accompanied by IRS Form ~~W-8ECI~~ 4224 or W-9 in form satisfactory to the Owner Trustee and the Certificate Registrar, duly executed by the Certificateholder or his 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 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 Certificates. (g) The provisions of this Section 3.4 and of this Agreement generally are intended to prevent the Trust from being characterized as a "publicly traded partnership" within the meaning of Section 7704 of the Code, in reliance on ~~Treasury Regulation ss~~Treas. ~~1.7704~~Reg. xx.xx. 1. 7704-1(e) and (h), and the Depositor shall take such intent into account in determining whether or not to consent to any proposed Transfer of any Certificate. The preceding provisions of this Section 3.4 notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any Transfer or exchange of Certificates for a period of 15 fifteen (15) days preceding the due date for any payment with respect to the Certificates. Notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities ~~Act~~Act of 1933, as amended, the ~~Exchange Act~~Securities Act of 1934, as amended applicable state securities law or the Investment Company ~~Act of 1940, as amended~~Act; ~~provided,~~ provided however, that if a certification is specifically required to be delivered to the Owner Trustee by a purchaser or transferee of a Certificate, the Owner Trustee shall be under a duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and to register transfers only upon receipt of documents and certifications specified herein and shall promptly notify the party delivering the same if such certification does not so conform.

Appears in 1 contract

Samples: Trust Agreement (Mmca Auto Receivables Inc)

Registration of Certificates; Transfer and Exchange of Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.8, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of Transfers and exchanges of Certificates as herein provided. Wilmington Trust Company shall be the initial Certificate Registrar. No Transfer of a Certificate shall be recognized except upon registration of such Transfer in the Certificate Register. (b) No Certificateholder shall Transfer any Certificate initially held by it unless such transfer is made pursuant to an effective registration statement or otherwise in accordance with the requirements under the Securities Act and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If a transfer is to be made in reliance upon an exemption from the Securities Act, and under the applicable state securities laws, (i) the Certificate Registrar shall require an Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the Depositor that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the Securities Act, applicable state securities laws and other relevant laws, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Trustee, and (ii) the Certificate Registrar shall require the transferee to execute a certification acceptable to and in form and substance satisfactory to the Certificate Registrar setting forth the facts surrounding such transfer. (c) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which consent may be withheld in the sole discretion of the Depositor; provided, however, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of the Transfer will be, a Certificateholder. Each Certificate shall bear a legend to the following effect unless determined otherwise by the Administrator (as certified to the Certificate Registrar in an Officer's Certificate) consistent with applicable law: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN A DENOMINATION OF AT LEAST $1,000,000, ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C TO THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D TO THE TRUST AGREEMENT, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, AND THE CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a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s a condition to the registration of any Transfer of a Certificate, the prospective transferee of such a Certificate shall represent to the Owner Trustee and the Certificate Registrar the following: (i) It has neither acquired nor will it Transfer any Certificate it purchases (or any interest therein) or cause any such Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of ~~Section~~ section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. (ii) It either (A) is not, and will not become, a partnership, Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes, or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 80% or more (or such other percentage as the Depositor may establish prior to the time of such proposed Transfer) of the value of such interests to be attributable to such transferee's ownership of Certificates. (iii) It understands that no subsequent Transfer of the Certificates is permitted unless (A) such Transfer is of a Certificate with a denomination of at least $1,000,000 and (B) the Depositor consents in writing (which consent may be withheld for any reason or for no reason) to the proposed Transfer; provided, however, that no such consent shall be required where the proposed transferee is, and at the time of the Transfer will be, a Holder of a Certificate. (iv) It understands that the opinion of tax counsel that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs (i), (ii) and (iii) above. (v) If it is acquiring any Certificates as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the acknowledgments, representations and agreements contained herein on behalf of each such account. (vi) It is not (A) an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (B) a plan described in Section 4975(e)(1) of the Code, (C) a governmental plan, as defined in Section 3(32) of ERISA, subject to any Federal, state or local law which is, to a material extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the Code, (D) an entity whose underlying assets include plan assets by reason of a plan's investment in the entity (within the meaning of Department of Labor Regulation 29 C.F.R. ss. 2510.3-101) or (E) a person investing "plan assets" of any such plan (excluding, for purposes of this clause (E), any entity registered under the Investment Company Act of 1940, as amended). (vii) It is a Person who is either (A) (1) a citizen or resident of the United States, (2) a corporation, partnership or other entity organized in or under the laws of the United States or any political subdivision thereof or (3) a Person not described in (1) or (2) whose ownership of the Certificates is effectively connected with such Person's conduct of a trade or business within the United States (within the meaning of the Code) and who provides the Depositor and the Owner Trustee an IRS Form W-8ECI (and such other certifications, representations or opinions of counsel as may be requested by the Depositor or the Owner Trustee) or (B) an estate or trust the income of which is includible in gross income for United States Federal income tax purposes, regardless of source. (viii) It understands that any purported Transfer of any Certificate (or any interest therein) in contravention of any of the restrictions and conditions (including any violation of the representation in paragraph (ii) above by an investor who continues to hold such Certificates occurring any time after the Transfer in which it acquired such Certificates) in this Section 3.4 shall be a Void Transfer, and the purported transferee in a Void Transfer shall not be recognized by the Trust or any other Person as a Certificateholder for any purpose. (ix) It agrees that if it determines to Transfer any of the Certificates it will cause its proposed transferee to provide to the Trust and the Certificate Registrar a letter substantially in the form of Exhibit D or E hereof, as applicable, or such other written statement as the Depositor shall prescribe. (d) By acceptance of any Certificate, the Certificateholder thereof specifically agrees with and represents to the Depositor, the Certificate Registrar and the Trust that no Transfer of such Certificate shall be made unless the registration requirements of the Securities Act and any applicable state securities laws are complied with, or such Transfer is exempt from the registration requirements under the Securities Act because the Transfer satisfies one of the following: (i) such Transfer is in compliance with Rule 144A under the Securities Act ("Rule 144A"), to a transferee who the transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer and to whom notice is given that such transfer is being made in reliance upon Rule 144A under the Securities Act and (x) the transferor executes and delivers to the Trust and the Certificate Registrar a Rule 144A transferor certificate substantially in the form attached as Exhibit C and (y) the transferee executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit D; (ii) after the appropriate holding period, such Transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the Trust or the Certificate Registrar, delivers an Opinion of Counsel in form and substance satisfactory to the Trust and the Depositor; or (iii) such Transfer is to an institutional accredited investor as defined in rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act in a transaction exempt from the registration requirements of the Securities Act, such Transfer is in accordance with any applicable securities laws of any state of the United States or any other jurisdiction, and such investor executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit E. (e) The Trust shall make available to the prospective transferor and transferee information requested to satisfy the requirements of paragraph (d)(4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information shall include any or all of the following items requested by the prospective transferee: (i) each statement delivered to Certificateholders pursuant to Section 4.9 of the Sale and Servicing Agreement on each Payment Date preceding such request; and (ii) such other information as is reasonably available to the Owner Trustee in order to comply with requests for information pursuant to Rule 144A under the Securities Act. None of the Depositor, the Certificate Registrar or the Trust is under an obligation to register any Certificate under the Securities Act or any other securities law. (f) Upon surrender for registration of Transfer of any Certificate at the office or agency maintained pursuant to Section 3.8 and upon compliance with any provisions of this Agreement relating to such Transfer, the Owner Trustee shall execute, authenticate and deliver (or shall cause Wilmington Trust Company, as its authenticating agent, to authenticate and deliver), in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate amount dated the date of authentication by the Owner Trustee or any authenticating agent. Subject to Sections 3.4(b) and 3.4(c), at the option of a Certificateholder, 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 3.8. Every Certificate presented or surrendered for registration of Transfer or exchange shall be accompanied by a written instrument of transfer and accompanied by IRS Form W-8ECI in form satisfactory to the Owner Trustee and the Certificate Registrar, duly executed by the Certificateholder or his 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 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 Certificates. (g) The provisions of this Section 3.4 and of this Agreement generally are intended to prevent the Trust from being characterized as a "publicly traded partnership" within the meaning of Section 7704 of the Code, in reliance on ~~Treasury Regulation ss~~Treas. ~~1.7704~~Reg. ss.ss. 1. 7704-1(e) and (h), and the Depositor shall take such ~~intent into~~ intxxx xnto account in determining whether or not to consent to any proposed Transfer of any Certificate. The preceding provisions of this Section 3.4 notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any Transfer or exchange of Certificates for a period of 15 fifteen (15) days preceding the due date for any payment with respect to the Certificates. Notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities Act, the Exchange Act, applicable state securities law or the Investment Company Act of 1940, as amended; provided, however, that if a certification is specifically required to be delivered to the Owner Trustee by a purchaser or transferee of a Certificate, the Owner Trustee shall be under a duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and to register transfers only upon receipt of documents and certifications specified herein and shall promptly notify the party delivering the same if such certification does not so conform.

Appears in 1 contract

Samples: Trust Agreement (Mmca Auto Owner Trust 2001 2)

Registration of Certificates; Transfer and Exchange of Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.8, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of Transfers and exchanges of Certificates as herein provided. Wilmington Trust Company shall be the initial Certificate Registrar. No Transfer of a Certificate shall be recognized except upon registration of such Transfer in the Certificate Register. (b) No Certificateholder shall Transfer any Certificate initially held by it unless such transfer is made pursuant to an effective registration statement or otherwise in accordance with the requirements under the Securities Act and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If a transfer is to be made in reliance upon an exemption from the Securities Act, and under the applicable state securities laws, (i) the Certificate Registrar shall require an Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the Depositor that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the Securities Act, applicable state securities laws and other relevant laws, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Trustee, and (ii) the Certificate Registrar shall require the transferee to execute a certification acceptable to and in form and substance satisfactory to the Certificate Registrar setting forth the facts surrounding such transfer. (c) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which consent may be withheld in the sole discretion of the Depositor; provided, however, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of the Transfer will be, a Certificateholder. Each Certificate shall bear a legend to the following effect unless determined otherwise by the Administrator (as certified to the Certificate Registrar in an Officer's Certificate) consistent with applicable law: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN A DENOMINATION OF AT LEAST $1,000,000, ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C TO THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D TO THE TRUST AGREEMENT, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, AND THE CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a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s a condition to the registration of any Transfer of a Certificate, the prospective transferee of such a Certificate shall represent to the Owner Trustee and the Certificate Registrar the following: (i) It has neither acquired nor will it Transfer any Certificate it purchases (or any interest therein) or cause any such Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of ~~Section~~ section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. (ii) It either (A) is not, and will not become, a partnership, Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes, or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 80% or more (or such other percentage as the Depositor may establish prior to the time of such proposed Transfer) of the value of such interests to be attributable to such transferee's ownership of Certificates. (iii) It understands that no subsequent Transfer of the Certificates is permitted unless (A) such Transfer is of a Certificate with a denomination of at least $1,000,000 and (B) the Depositor consents in writing (which consent may be withheld for any reason or for no reason) to the proposed Transfer; provided, however, that no such consent shall be required where the proposed transferee is, and at the time of the Transfer will be, a Holder of a Certificate. (iv) It understands that the opinion of tax counsel that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs (i), (ii) and (iii) above. (v) If it is acquiring any Certificates as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the acknowledgments, representations and agreements contained herein on behalf of each such account. (vi) It is not (A) an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (B) a plan described in Section 4975(e)(1) of the Code, (C) a governmental plan, as defined in Section 3(32) of ERISA, subject to any Federal, state or local law which is, to a material extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the Code, (D) an entity whose underlying assets include plan assets by reason of a plan's investment in the entity (within the meaning of Department of Labor Regulation 29 ~~C.F.R. ss~~X.X.X.xx. 2510.3-101) or (E) a person investing "plan assets" of any such plan (excluding, for purposes of this clause (E), any entity registered under the Investment Company Act of 1940, as amended). (vii) It is a Person who is either (A) (1) a citizen or resident of the United States, (2) a corporation, partnership or other entity organized in or under the laws of the United States or any political subdivision thereof or (3) a Person not described in (1) or (2) whose ownership of the Certificates is effectively connected with such Person's conduct of a trade or business within the United States (within the meaning of the Code) and who provides the Depositor and the Owner Trustee an IRS Form W-8ECI (and such other certifications, representations or opinions of counsel as may be requested by the Depositor or the Owner Trustee) or (B) an estate or trust the income of which is includible in gross income for United States Federal income tax purposes, regardless of source. (viii) It understands that any purported Transfer of any Certificate (or any interest therein) in contravention of any of the restrictions and conditions (including any violation of the representation in paragraph (ii) above by an investor who continues to hold such Certificates occurring any time after the Transfer in which it acquired such Certificates) in this Section 3.4 shall be a Void Transfer, and the purported transferee in a Void Transfer shall not be recognized by the Trust or any other Person as a Certificateholder for any purpose. (ix) It agrees that if it determines to Transfer any of the Certificates it will cause its proposed transferee to provide to the Trust and the Certificate Registrar a letter substantially in the form of Exhibit D or E hereof, as applicable, or such other written statement as the Depositor shall prescribe. (d) By acceptance of any Certificate, the Certificateholder thereof specifically agrees with and represents to the Depositor, the Certificate Registrar and the Trust that no Transfer of such Certificate shall be made unless the registration requirements of the Securities Act and any applicable state securities laws are complied with, or such Transfer is exempt from the registration requirements under the Securities Act because the Transfer satisfies one of the following: (i) such Transfer is in compliance with Rule 144A under the Securities Act ("Rule 144A"), to a transferee who the transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer and to whom notice is given that such transfer is being made in reliance upon Rule 144A under the Securities Act and (x) the transferor executes and delivers to the Trust and the Certificate Registrar a Rule 144A transferor certificate substantially in the form attached as Exhibit C and (y) the transferee executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit D; (ii) after the appropriate holding period, such Transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the Trust or the Certificate Registrar, delivers an Opinion of Counsel in form and substance satisfactory to the Trust and the Depositor; or (iii) such Transfer is to an institutional accredited investor as defined in rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act in a transaction exempt from the registration requirements of the Securities Act, such Transfer is in accordance with any applicable securities laws of any state of the United States or any other jurisdiction, and such investor executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit E. (e) The Trust shall make available to the prospective transferor and transferee information requested to satisfy the requirements of paragraph (d)(4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information shall include any or all of the following items requested by the prospective transferee: (i) each statement delivered to Certificateholders pursuant to Section 4.9 of the Sale and Servicing Agreement on each Payment Date preceding such request; and (ii) such other information as is reasonably available to the Owner Trustee in order to comply with requests for information pursuant to Rule 144A under the Securities Act. None of the Depositor, the Certificate Registrar or the Trust is under an obligation to register any Certificate under the Securities Act or any other securities law. (f) Upon surrender for registration of Transfer of any Certificate at the office or agency maintained pursuant to Section 3.8 and upon compliance with any provisions of this Agreement relating to such Transfer, the Owner Trustee shall execute, authenticate and deliver (or shall cause Wilmington Trust Company, as its authenticating agent, to authenticate and deliver), in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate amount dated the date of authentication by the Owner Trustee or any authenticating agent. Subject to Sections 3.4(b) and 3.4(c), at the option of a Certificateholder, 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 3.8. Every Certificate presented or surrendered for registration of Transfer or exchange shall be accompanied by a written instrument of transfer and accompanied by IRS Form W-8ECI in form satisfactory to the Owner Trustee and the Certificate Registrar, duly executed by the Certificateholder or his 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 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 Certificates. (g) The provisions of this Section 3.4 and of this Agreement generally are intended to prevent the Trust from being characterized as a "publicly traded partnership" within the meaning of Section 7704 of the Code, in reliance on ~~Treasury Regulation ss~~Treas. ~~1.7704~~Reg. xx.xx. 1. 7704-1(e) and (h), and the Depositor shall take such intent into account in determining whether or not to consent to any proposed Transfer of any Certificate. The preceding provisions of this Section 3.4 notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any Transfer or exchange of Certificates for a period of 15 fifteen (15) days preceding the due date for any payment with respect to the Certificates. Notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities Act, the Exchange Act, applicable state securities law or the Investment Company Act of 1940, as amended; provided, however, that if a certification is specifically required to be delivered to the Owner Trustee by a purchaser or transferee of a Certificate, the Owner Trustee shall be under a duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and to register transfers only upon receipt of documents and certifications specified herein and shall promptly notify the party delivering the same if such certification does not so conform.

Appears in 1 contract

Samples: Trust Agreement (Mmca Auto Owner Trust 2001-3)

Registration of Certificates; Transfer and Exchange of Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.8, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of Transfers and exchanges of Certificates as herein provided. Wilmington Trust Company shall be the initial Certificate Registrar. No Transfer of a Certificate shall be recognized except upon registration of such Transfer in the Certificate Register. (b) No Certificateholder shall Transfer any Certificate initially held by it unless such transfer is made pursuant to an effective registration statement or otherwise in accordance with the requirements under the Securities Act of 1933, as amended (the "1933 Act"), and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If a transfer is to be made in reliance upon an exemption from the ~~Securities~~ 1933 Act, and under the applicable state securities laws, (i) the Certificate Registrar shall require an Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the Depositor that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the ~~Securities~~ 1933 Act, applicable state securities laws and other relevant laws, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Trustee, and (ii) the Certificate Registrar shall require the transferee to execute a certification acceptable to and in form and substance satisfactory to the Certificate Registrar setting forth the facts surrounding such transfer. (c) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which consent may be withheld in the sole discretion of the Depositor; , provided, however, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of the Transfer will be, a Certificateholder. Each Certificate shall bear a legend to the following effect unless determined otherwise by the Administrator (as certified to the Certificate Registrar in an Officer's Certificate) consistent with applicable law: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN A DENOMINATION OF AT LEAST $1,000,000, ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C TO THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D TO THE TRUST AGREEMENT, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, AND THE CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a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s a condition to the registration of any Transfer of a Certificate, the prospective transferee of such a Certificate shall represent to the Owner Trustee and the Certificate Registrar the following: (i) It has neither acquired nor will it Transfer any Certificate it purchases (or any interest therein) or cause any such Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of ~~Section~~ section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. (ii) It either (A) is not, and will not become, a partnership, Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes, or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 80% or more (or such other percentage as the Depositor may establish prior to the time of such proposed Transfer) of the value of such interests to be attributable to such transferee's ownership of Certificates. (iii) It understands that no subsequent Transfer of the Certificates is permitted unless (A) such Transfer is of a Certificate with a denomination of at least $1,000,000 and (B) the Depositor consents in writing (which consent may be withheld for any reason or for no reason) to the proposed Transfer; provided, however, that no such consent shall be required where the proposed transferee is, and at the time of the Transfer will be, a Holder of a Certificate. (iv) It understands that the opinion of tax counsel that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs (i), (ii) and (iii) above. (v) If it is acquiring any Certificates as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the acknowledgments, representations and agreements contained herein on behalf of each such account. (vi) It is not (A) an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (B) a plan described in Section 4975(e)(1) of the Code, (C) a governmental plan, as defined in Section 3(32) of ERISA, subject to any Federal, state or local law which is, to a material extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the Code, (D) an entity whose underlying assets include plan assets by reason of a plan's investment in the entity (within the meaning of Department of Labor Regulation 29 C.F.R. ~~ss.~~ section 2510.3-101) or (E) a person investing "plan assets" of any such plan (excluding, for purposes of this clause (E), any entity registered under the Investment Company Act of 1940, as amended). (vii) It is a Person who is either (A) (1) a citizen or resident of the United States, (2) a corporation, partnership or other entity organized in or under the laws of the United States or any political subdivision thereof or (3) a Person not described in (1) or (2) whose ownership of the Certificates is effectively connected with such Person's conduct of a trade or business within the United States (within the meaning of the Code) and who provides the Depositor and the Owner Trustee an IRS Form ~~W-8ECI~~ 4224 (and such other certifications, representations or opinions of counsel as may be requested by the Depositor or the Owner Trustee) or (B) an estate or trust the income of which is includible in gross income for United States Federal income tax purposes, regardless of source. (viii) It understands that any purported Transfer of any Certificate (or any interest therein) in contravention of any of the restrictions and conditions (including any violation of the representation in paragraph (ii) above by an investor who continues to hold such Certificates occurring any time after the Transfer in which it acquired such Certificates) in this Section 3.4 shall be a Void Transfer, and the purported transferee in a Void Transfer shall not be recognized by the Trust or any other Person as a Certificateholder for any purpose. (ix) It agrees that if it determines to Transfer any of the Certificates it will cause its proposed transferee to provide to the Trust and the Certificate Registrar a letter substantially in the form of Exhibit D or E hereof, as applicable, or such other written statement as the Depositor shall prescribe. (d) By acceptance of any Certificate, the Certificateholder thereof specifically agrees with and represents to the Depositor, the Certificate Registrar and the Trust that no Transfer of such Certificate shall be made unless the registration requirements of the Securities Act and any applicable state securities laws are complied with, or such Transfer is exempt from the registration requirements under the Securities Act because the Transfer satisfies one of the following: (i) such Transfer is in compliance with Rule 144A under the Securities Act ("Rule 144A"), to a transferee who the transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer and to whom notice is given that such transfer is being made in reliance upon Rule 144A under the Securities Act and (x) the transferor executes and delivers to the Trust and the Certificate Registrar a Rule 144A transferor certificate substantially in the form attached as Exhibit C and (y) the transferee executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit D; (ii) after the appropriate holding period, such Transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the Trust or the Certificate Registrar, delivers an Opinion of Counsel in form and substance satisfactory to the Trust and the Depositor; or (iii) such Transfer is to an institutional accredited investor as defined in rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act in a transaction exempt from the registration requirements of the Securities Act, such Transfer is in accordance with any applicable securities laws of any state of the United States or any other jurisdiction, and such investor executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit E. (e) The Trust shall make available to the prospective transferor and transferee information requested to satisfy the requirements of paragraph (d)(4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information shall include any or all of the following items requested by the prospective transferee: (i) each statement delivered to Certificateholders pursuant to Section ~~4.9~~ 4.11 of the Sale and Servicing Agreement on each Payment Date preceding such request; and (ii) such other information as is reasonably available to the Owner Trustee in order to comply with requests for information pursuant to Rule 144A under the Securities Act. None of the Depositor, the Certificate Registrar or the Trust is under an obligation to register any Certificate under the Securities Act or any other securities law. (f) Upon surrender for registration of Transfer of any Certificate at the office or agency maintained pursuant to Section 3.8 and upon compliance with any provisions of this Agreement relating to such Transfer, the Owner Trustee shall execute, authenticate and deliver (or shall cause Wilmington Trust Company, as its authenticating agent, to authenticate and deliver), in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate amount dated the date of authentication by the Owner Trustee or any authenticating agent. Subject to Sections 3.4(b) and 3.4(c), at the option of a Certificateholder, 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 3.8. Every Certificate presented or surrendered for registration of Transfer or exchange shall be accompanied by a written instrument of transfer and accompanied by IRS Form ~~W-8ECI~~ 4224 or W-9 in form satisfactory to the Owner Trustee and the Certificate Registrar, duly executed by the Certificateholder or his 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 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 Certificates. (g) The provisions of this Section 3.4 and of this Agreement generally are intended to prevent the Trust from being characterized as a "publicly traded partnership" within the meaning of Section 7704 of the Code, in reliance on ~~Treasury Regulation ss~~Treas. Reg. sections 1.7704-1(e) and (h), and the Depositor shall take such intent into account in determining whether or not to consent to any proposed Transfer of any Certificate. The preceding provisions of this Section 3.4 notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any Transfer or exchange of Certificates for a period of 15 fifteen (15) days preceding the due date for any payment with respect to the Certificates. Notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities Act, the Exchange Act, applicable state securities law or the Investment Company Act of 1940, as amended; provided, however, that if a certification is specifically required to be delivered to the Owner Trustee by a purchaser or transferee of a Certificate, the Owner Trustee shall be under a duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and to register transfers only upon receipt of documents and certifications specified herein and shall promptly notify the party delivering the same if such certification does not so conform.

Appears in 1 contract

Samples: Trust Agreement (Mmca Auto Receivables Trust)

Registration of Certificates; Transfer and Exchange of Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.8, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of Transfers and exchanges of Certificates as herein provided. Wilmington Trust Company shall be the initial Certificate Registrar. No Transfer of a Certificate shall be recognized except upon registration of such Transfer in the Certificate Register. (b) No Certificateholder shall Transfer any Certificate initially held by it unless such transfer is made pursuant to an effective registration statement or otherwise in accordance with the requirements under the Securities Act and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If a transfer is to be made in reliance upon an exemption from the Securities Act, and under the applicable state securities laws, (i) the Certificate Registrar shall require an Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the Depositor that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the Securities Act, applicable state securities laws and other relevant laws, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Trustee, and (ii) the Certificate Registrar shall require the transferee to execute a certification acceptable to and in form and substance satisfactory to the Certificate Registrar setting forth the facts surrounding such transfer. (c) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which consent may be withheld in the sole discretion of the Depositor; provided, however, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of the Transfer will be, a Certificateholder. Each Certificate shall bear a legend to the following effect unless determined otherwise by the Administrator (as certified to the Certificate Registrar in an Officer's Certificate) consistent with applicable law: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN A DENOMINATION OF AT LEAST $1,000,000, ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C TO THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D TO THE TRUST AGREEMENT, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, AND THE CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a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s a condition to the registration of any Transfer of a Certificate, the prospective transferee of such a Certificate shall represent to the Owner Trustee and the Certificate Registrar the following: (i) It has neither acquired nor will it Transfer any Certificate it purchases (or any interest therein) or cause any such Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of ~~Section~~ section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. (ii) It either (A) is not, and will not become, a partnership, Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes, or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 80% or more (or such other percentage as the Depositor may establish prior to the time of such proposed Transfer) of the value of such interests to be attributable to such transferee's ownership of Certificates. (iii) It understands that no subsequent Transfer of the Certificates is permitted unless (A) such Transfer is of a Certificate with a denomination of at least $1,000,000 and (B) the Depositor consents in writing (which consent may be withheld for any reason or for no reason) to the proposed Transfer; provided, however, that no such consent shall be required where the proposed transferee is, and at the time of the Transfer will be, a Holder of a Certificate. (iv) It understands that the opinion of tax counsel that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs (i), (ii) and (iii) above. (v) If it is acquiring any Certificates as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the acknowledgments, representations and agreements contained herein on behalf of each such account. (vi) It is not (A) an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (B) a plan described in Section 4975(e)(1) of the Code, (C) a governmental plan, as defined in Section 3(32) of ERISA, subject to any Federal, state or local law which is, to a material extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the Code, (D) an entity whose underlying assets include plan assets by reason of a plan's investment in the entity (within the meaning of Department of Labor Regulation 29 C.F.R. ss. 2510.3-101) or (E) a person investing "plan assets" of any such plan (excluding, for purposes of this clause (E), any entity registered under the Investment Company Act of 1940, as amended). (vii) It is a Person who is either (A) (1) a citizen or resident of the United States, (2) a corporation, partnership or other entity organized in or under the laws of the United States or any political subdivision thereof or (3) a Person not described in (1) or (2) whose ownership of the Certificates is effectively connected with such Person's conduct of a trade or business within the United States (within the meaning of the Code) and who provides the Depositor and the Owner Trustee an IRS Form ~~W-8ECI~~ 4224 (and such other certifications, representations or opinions of counsel as may be requested by the Depositor or the Owner Trustee) or (B) an estate or trust the income of which is includible in gross income for United States Federal income tax purposes, regardless of source. . (~~viii) It~~ viiiIt understands that any purported Transfer of any Certificate (or any interest therein) in contravention of any of the restrictions and conditions (including any violation of the representation in paragraph (ii) above by an investor who continues to hold such Certificates occurring any time after the Transfer in which it acquired such Certificates) in this Section 3.4 shall be a Void Transfer, and the purported transferee in a Void Transfer shall not be recognized by the Trust or any other Person as a Certificateholder for any purpose. (ix) It agrees that if it determines to Transfer any of the Certificates it will cause its proposed transferee to provide to the Trust and the Certificate Registrar a letter substantially in the form of Exhibit D or E hereof, as applicable, or such other written statement as the Depositor shall prescribe. (d) By acceptance of any Certificate, the Certificateholder thereof specifically agrees with and represents to the Depositor, the Certificate Registrar and the Trust that no Transfer of such Certificate shall be made unless the registration requirements of the Securities Act and any applicable state securities laws are complied with, or such Transfer is exempt from the registration requirements under the Securities Act because the Transfer satisfies one of the following: (i) such Transfer is in compliance with Rule 144A under the Securities Act ("Rule 144A"), to a transferee who the transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer and to whom notice is given that such transfer is being made in reliance upon Rule 144A and (x) the transferor executes and delivers to the Trust and the Certificate Registrar a Rule 144A transferor certificate substantially in the form attached as Exhibit C and (y) the transferee executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit D; (ii) after the appropriate holding period, such Transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the Trust or the Certificate Registrar, delivers an Opinion of Counsel in form and substance satisfactory to the Trust and the Depositor; or (iii) such Transfer is to an institutional accredited investor as defined in rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act in a transaction exempt from the registration requirements of the Securities Act, such Transfer is in accordance with any applicable securities laws of any state of the United States or any other jurisdiction, and such investor executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit E. (e) The Trust shall make available to the prospective transferor and transferee information requested to satisfy the requirements of paragraph (d)(4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information shall include any or all of the following items requested by the prospective transferee: (i) each statement delivered to Certificateholders pursuant to Section 4.9 of the Sale and Servicing Agreement on each Payment Date preceding such request; and (ii) such other information as is reasonably available to the Owner Trustee in order to comply with requests for information pursuant to Rule 144A under the Securities Act. None of the Depositor, the Certificate Registrar or the Trust is under an obligation to register any Certificate under the Securities Act or any other securities law. (f) Upon surrender for registration of Transfer of any Certificate at the office or agency maintained pursuant to Section 3.8 and upon compliance with any provisions of this Agreement relating to such Transfer, the Owner Trustee shall execute, authenticate and deliver (or shall cause Wilmington Trust Company, as its authenticating agent, to authenticate and deliver), in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate amount dated the date of authentication by the Owner Trustee or any authenticating agent. Subject to Sections 3.4(b) and 3.4(c), at the option of a Certificateholder, 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 3.8. Every Certificate presented or surrendered for registration of Transfer or exchange shall be accompanied by a written instrument of transfer and accompanied by IRS Form W-8ECI in form satisfactory to the Owner Trustee and the Certificate Registrar, duly executed by the Certificateholder or his 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 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 Certificates. (g) The provisions of this Section 3.4 and of this Agreement generally are intended to prevent the Trust from being characterized as a "publicly traded partnership" within the meaning of Section 7704 of the Code, in reliance on Treasury Regulation ss. 1.7704-1(e) and (h), and the Depositor shall take such intent into account in determining whether or not to consent to any proposed Transfer of any Certificate. The preceding provisions of this Section 3.4 notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any Transfer or exchange of Certificates for a period of 15 days preceding the due date for any payment with respect to the Certificates. Notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities Act, the Exchange Act, applicable state securities law or the Investment Company Act of 1940, as amended; provided, however, that if a certification is specifically required to be delivered to the Owner Trustee by a purchaser or transferee of a Certificate, the Owner Trustee shall be under a duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and to register transfers only upon receipt of documents and certifications specified herein and shall promptly notify the party delivering the same if such certification does not so conform.

Appears in 1 contract

Samples: Trust Agreement (Mmca Auto Receivables Trust)

Registration of Certificates; Transfer and Exchange of Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section ~~3.8~~3.9, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of Transfers and exchanges of Certificates as herein provided. ~~Wilmington Trust Company~~ Wachovia Bank of Delaware, National Association shall be the initial Certificate Registrar. No Transfer of a Certificate shall be recognized except upon registration of such Transfer in the Certificate Register. (b) No Certificateholder shall Transfer any Certificate initially held by it unless such transfer is made pursuant to an effective registration statement or otherwise in accordance with the requirements under the Securities Act and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If a transfer is to be made in reliance upon an exemption from the Securities Act, and under the applicable state securities laws, (i) the Certificate Registrar shall require an Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the Depositor that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the Securities Act, applicable state securities laws and other relevant laws, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Trustee, and (ii) the Certificate Registrar shall require the transferee to execute a certification acceptable to and in form and substance satisfactory to the Certificate Registrar setting forth the facts surrounding such transfer. (c) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which consent may be withheld in the sole discretion of the Depositor; provided, however, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of the Transfer will be, a Certificateholder. Each Class D Certificate shall bear a legend to the following effect unless determined otherwise by the Administrator (as certified to the ~~Certificate Registrar~~ Owner Trustee in an Officer's Certificate) and the Owner Trustee consistent with applicable law: "THIS CERTIFICATE HAS NOT BEEN ~~AND WILL NOT BE~~ REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN ~~A DENOMINATION OF AT LEAST $1,000,000, ONLY IN~~ COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (I) (A) (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE ~~144A~~ l44A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C D TO THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D B TO THE TRUST AGREEMENT, WITH SUCH CHANGES THEREIN AS MAY BE APPROVED BY THE OWNER TRUSTEE AND DEPOSITOR, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, THE INITIAL PURCHASER AND THE CERTIFICATE REGISTRAR OF ~~SUCH EVIDENCE~~ AN OPINION OF COUNSEL ACCEPTABLE TO THE ~~TRUST~~ OWNER TRUSTEE AND THE DEPOSITOR THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT E C TO THE TRUST AGREEMENT OR (B) THE RECEIPT BY THE ~~TRUST~~ TRUST, THE INITIAL PURCHASER AND THE CERTIFICATE REGISTRAR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE ~~TRUST~~ OWNER TRUSTEE AND THE DEPOSITOR THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE ~~LAWS~~LAWS AND (B) IN THE CASE OF A TRANSFER PURSUANT TO CLAUSES (A)(1), (2) OR (3), THE RECEIPT BY THE OWNER TRUSTEE AND THE DEPOSITOR OF THE STATE TAX OPINION REQUIRED BY SECTION 3.3(a) OF THE TRUST AGREEMENT, OR (4II) TO THE DEPOSITOR OR ITS AFFILIATES, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND SECURITIES AND BLUE SKY LAWS OF THE STATES OF THE UNITED STATES. IN ADDITION, EXCEPT IN THE CASE OF TRANSFERS TO EXISTING CERTIFICATEHOLDERS, THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY WITH THE EXPRESS WRITTEN CONSENT OF THE DEPOSITOR (WHICH CONSENT MAY BE WITHHELD FOR ANY REASON OR FOR NO REASON)." As a condition to the registration of any Transfer of a Certificate, the prospective transferee of such a Certificate shall be required to represent in writing to the Owner Trustee, the Certificate Registrar and the Initial Purchaser the following, unless determined otherwise by the Administrator (as certified to the Owner Trustee ~~and the Certificate Registrar the following:~~in an Officer's Certificate): (i) It has neither acquired nor will it Transfer any Certificate it purchases (or any interest therein) or cause any such Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. (ii) It either (A) is not, and will not become, a partnership, Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes, or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 80% or more (or such other percentage as the Depositor may establish prior to the time of such proposed Transfer) of the value of such interests to be attributable to such transferee's ownership of Certificates. (iii) It understands that no subsequent Transfer of the Certificates is permitted unless it causes its proposed transferee to provide to the Trust, the Certificate Registrar and the Initial Purchaser a letter substantially in the form of Exhibit B or Exhibit C hereof (with such changes therein as may be approved by the Depositor), as applicable, or such other written statement as the Depositor shall prescribe. (ii) It is either: (A) such Transfer is of a Certificate with a denomination of at least $1,000,000 and (B) the Depositor consents in writing (which consent may be withheld for any reason or for no reason) to the proposed Transfer; provided, however, that no such consent shall be required where the proposed transferee isnot, and ~~at the time of the Transfer will be, a Holder of a Certificate.~~ each account (ivif any) It understands that the opinion of tax counsel that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs (i), (ii) and (iii) above. (v) If for which it is ~~acquiring any~~ purchasing the Certificates as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the acknowledgments, representations and agreements contained herein on behalf of each such account. (vi) It is not (A1) an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (B2) a plan described in Section 4975(e)(1) of the Code that is subject to Section 4975 of the Code, (C3) a governmental plan, as defined in Section 3(32) of ERISA, subject to any ~~Federal~~federal, ~~state~~ State or local law which is, to a material extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the Code, (D4) an entity whose underlying assets include plan assets by reason of a ~~plan's~~ plans investment in the entity (within the meaning of Department of Labor Regulation 29 ~~C.F.R. ss. 2510.3~~C.F.R.ss.2510.3-~~101~~101 or otherwise under ERISA) or (E5) a person investing "plan assets" of any such plan (~~excluding~~including without limitation, for purposes of this clause (E5), an insurance company general account, but excluding any entity registered under the Investment Company Act of 1940, as amended); or (B) an insurance company acting on behalf of a general account and (1) on the date of purchase less than 25% (or such lower percentage as may be determined by the Depositor) of the assets of such general account (as reasonably determined by it) constitute "plan assets" for purposes of Title I of ERISA and Section 4975 of the Code, (2) the purchase and holding of such Certificates are eligible for exemptive relief under Sections (I) and (III) of Prohibited Transaction Class Exemption 95-60, and (3) the purchaser agrees that if, after the purchaser's initial acquisition of the Certificates, at any time during any calendar quarter 25% (or such lower percentage as may be determined by the Depositor) or more of the assets of such general account (as reasonably determined by it no less frequently than each calendar quarter) constitute "plan assets" for purposes of Title I of ERISA or Section 4975 of the Code and no exemption or exception from the prohibited transaction rules applies to the continued holding of the Certificates under Section 401(c) of ERISA and the final regulations thereunder or under an exemption or regulation issued by the United States Department of Labor under ERISA, it will dispose of all Certificates then held in its general account by the end of the next following calendar quarter. (~~vii~~iii) It is a ~~Person~~ person who is ~~either~~ (A~~) (1~~) a citizen or resident of the United States, (2B) a ~~corporation,~~ corporation or partnership ~~or other entity~~ organized in or under the laws of the United States or any political subdivision ~~thereof~~ thereof, (c) an estate the income of which is includible in gross income for United States tax purposes, regardless of its source, (D) a trust if a U.S. court is able to exercise primary supervision over the administration of such trust and one or more persons described in clause (A), (B), (C) or (3E) of this paragraph (iii) has the authority to control all substantial decisions of the trust or (E) a ~~Person~~ person not described in clauses (1A) or through (2D) of this paragraph (iii) whose ownership of the Certificates is effectively connected with such ~~Person's~~ persons conduct of a trade or business within the United States (within the meaning of the Code) and who provides the ~~Depositor~~ Trust and the ~~Owner Trustee~~ Depositor with an IRS Form ~~W-8ECI~~ 8-ECI (and such other certifications, ~~representations~~ representations, or opinions of counsel as may be requested by the ~~Depositor~~ Trust or the ~~Owner Trustee) or (B) an estate or trust the income of which is includible in gross income for United States Federal income tax purposes, regardless of source~~Depositor). (~~viii~~iv) It understands that any purported Transfer of any Certificate (or any interest therein) in contravention of any of the restrictions and conditions (including any violation of the representation in paragraph (ii) above by an investor who continues to hold such Certificates occurring any time after the Transfer in which it acquired such Certificates) contained in this Section ~~3.4 shall~~ will be a Void Transfer, and the purported transferee in a Void Transfer ~~shall~~ will not be recognized by the Trust or any other ~~Person~~ person as a Certificateholder for any purpose. (ix) It agrees that if it determines to Transfer any of the Certificates it will cause its proposed transferee to provide to the Trust and the Certificate Registrar a letter substantially in the form of Exhibit D or E hereof, as applicable, or such other written statement as the Depositor shall prescribe. (dc) By acceptance of any Certificate, the Certificateholder thereof specifically agrees with and represents to the Depositor, the ~~Certificate Registrar~~ Trust and the ~~Trust~~ Certificate Registrar, that no Transfer of such Certificate shall be made unless the registration requirements of the Securities Act and any applicable ~~state~~ State securities laws are complied with, or such Transfer is exempt from the registration requirements under the Securities Act because the Transfer satisfies one of the following: (i) such Transfer is in compliance with Rule 144A under the Securities Act ("Rule 144A"), to a transferee who the transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer and to whom notice is given that such ~~transfer~~ Transfer is being made in reliance upon Rule 144A under the Securities Act and (x) the transferor executes and delivers to the Trust and the Certificate ~~Registrar~~ Registrar, a Rule 144A transferor certificate substantially in the form attached as Exhibit C D and (y) the transferee executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit DB; (ii) after the appropriate holding period, such Transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the ~~Trust~~ Trust, the Certificate Registrar or the ~~Certificate Registrar~~Initial Purchaser, delivers an Opinion of Counsel in form and substance satisfactory to the Trust and the ~~Depositor~~Initial Purchaser; or (iii) such Transfer is to an institutional accredited investor as defined in rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act in a transaction exempt from the registration requirements of the Securities Act, such Transfer is in accordance with any applicable securities laws of any ~~state~~ State of the United States or any other jurisdiction, and such investor executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit E.C. (ed) The ~~Trust~~ Depositor shall make available to the prospective transferor and transferee of a Certificate information requested to satisfy the requirements of paragraph (~~d)(4~~d) (4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information shall include any or all of the following items requested by the prospective transferee: (i) the private placement memorandum, if any, relating to the Certificates, and any amendments or supplements thereto; (ii) each statement delivered to Certificateholders pursuant to Section ~~4.9 of the Sale and Servicing Agreement~~ 5.2(b) on each Payment Date preceding such request; and (iiiii) such other information as is reasonably available to the Owner Trustee in order to comply with requests for information pursuant to Rule 144A under the Securities Act. None of the Depositor, the Certificate Registrar or the ~~Trust~~ Owner Trustee is under an obligation to register any Certificate under the Securities Act or any other securities law. (fe) Upon surrender for registration of Transfer of any Certificate at the office or agency maintained pursuant to Section ~~3.8~~ 3.9 and upon compliance with any provisions of this Agreement relating to such Transfer, the Owner Trustee shall execute, authenticate and ~~deliver (or shall cause Wilmington Trust Company, as its authenticating agent, to authenticate and~~ deliver), in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like Class and aggregate amount dated the date of authentication by the Owner Trustee or any authenticating agent. ~~Subject to Sections 3.4(b) and 3.4(c), at~~ At the option of a Certificateholder, Certificates may be exchanged for other Certificates of authorized denominations of a like Class and aggregate amount upon surrender of the Certificates to be exchanged at the office or agency maintained pursuant to Section ~~3.8~~3.9. Every Certificate presented or surrendered for registration of Transfer or exchange shall be accompanied by a written instrument of transfer ~~and accompanied by IRS Form W-8ECI~~ in form satisfactory to the Owner Trustee and the Certificate Registrar, duly executed by the Certificateholder or his attorney ~~duly authorized~~ in writing, with such signature guaranteed by a member firm of the New York Stock Exchange or a commercial bank or trust company. 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 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 Certificates. (g) The provisions of this Section 3.4 and of this Agreement generally are intended to prevent the Trust from being characterized as a "publicly traded partnership" within the meaning of Section 7704 of the Code, in reliance on Treasury Regulation ss. 1.7704-1(e) and (h), and the Depositor shall take such intent into account in determining whether or not to consent to any proposed Transfer of any Certificate. The preceding provisions of this Section ~~3.4~~ 3.5 notwithstanding, the Owner Trustee shall not make and the Certificate Registrar ~~shall~~ need not register any Transfer or exchange of Certificates for a period of 15 fifteen (15) days preceding ~~the due date~~ any Payment Date for any payment with respect to the Certificates. Notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities Act, the Exchange Act, applicable state securities law or the Investment Company Act of 1940, as amended; provided, however, that if a certification is specifically required to be delivered to the Owner Trustee by a purchaser or transferee of a Certificate, the Owner Trustee shall be under a duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and to register transfers only upon receipt of documents and certifications specified herein and shall promptly notify the party delivering the same if such certification does not so conform.

Appears in 1 contract

Samples: Trust Agreement (Ford Credit Auto Receivables Two LLC)

Registration of Certificates; Transfer and Exchange of Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.8, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of Transfers and exchanges of Certificates as herein provided. Wilmington Trust Company shall be the initial Certificate Registrar. No Transfer of a Certificate shall be recognized except upon registration of such Transfer in the Certificate Register. (b) No Certificateholder shall Transfer any Certificate initially held by it unless such transfer is made pursuant to an effective registration statement or otherwise in accordance with the requirements under the Securities Act and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If a transfer is to be made in reliance upon an exemption from the Securities Act, and under the applicable state securities laws, (i) the Certificate Registrar shall require an Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the Depositor that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the Securities Act, applicable state securities laws and other relevant laws, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Trustee, and (ii) the Certificate Registrar shall require the transferee to execute a certification acceptable to and in form and substance satisfactory to the Certificate Registrar setting forth the facts surrounding such transfer. (c) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which consent may be withheld in the sole discretion of the Depositor; provided, however, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of the Transfer will be, a Certificateholder. Each Certificate shall bear a legend to the following effect unless determined otherwise by the Administrator (as certified to the Certificate Registrar in an Officer's Certificate) consistent with applicable law: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN A DENOMINATION OF AT LEAST $1,000,000, ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C TO THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D TO THE TRUST AGREEMENT, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, AND THE CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a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s a condition to the registration of any Transfer of a Certificate, the prospective transferee of such a Certificate shall represent to the Owner Trustee and the Certificate Registrar the following: (i) It has neither acquired nor will it Transfer any Certificate it purchases (or any interest therein) or cause any such Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. (ii) It either (A) is not, and will not become, a partnership, Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes, or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 80% or more (or such other percentage as the Depositor may establish prior to the time of such proposed Transfer) of the value of such interests to be attributable to such transferee's ownership of Certificates. (iii) It understands that no subsequent Transfer of the Certificates is permitted unless (A) such Transfer is of a Certificate with a denomination of at least $1,000,000 and (B) the Depositor consents in writing (which consent may be withheld for any reason or for no reason) to the proposed Transfer; provided, however, that no such consent shall be required where the proposed transferee is, and at the time of the Transfer will be, a Holder of a Certificate. (iv) It understands that the opinion of tax counsel that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs (i), (ii) and (iii) above. (v) If it is acquiring any Certificates as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the acknowledgments, representations and agreements contained herein on behalf of each such account. (vi) It is not (A) an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (B) a plan described in Section 4975(e)(1) of the Code, (C) a governmental plan, as defined in Section 3(32) of ERISA, subject to any Federal, state or local law which is, to a material extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the Code, (D) an entity whose underlying assets include plan assets by reason of a plan's investment in the entity (within the meaning of Department of Labor Regulation 29 ~~C.F.R. ss~~C.F.R.ss. 2510.3-101) or (E) a person investing "plan assets" ~~of any such~~ xx xxx xuch plan (excluding, for purposes of this clause (E), any entity registered under the Investment Company Act of 1940, as amended). (vii) It is a Person who is either (A) (1) a citizen or resident of the United States, (2) a corporation, partnership or other entity organized in or under the laws of the United States or any political subdivision thereof or (3) a Person not described in (1) or (2) whose ownership of the Certificates is effectively connected with such Person's conduct of a trade or business within the United States (within the meaning of the Code) and who provides the Depositor and the Owner Trustee an IRS Form W-8ECI (and such other certifications, representations or opinions of counsel as may be requested by the Depositor or the Owner Trustee) or (B) an estate or trust the income of which is includible in gross income for United States Federal income tax purposes, regardless of source. (viii) It understands that any purported Transfer of any Certificate (or any interest therein) in contravention of any of the restrictions and conditions (including any violation of the representation in paragraph (ii) above by an investor who continues to hold such Certificates occurring any time after the Transfer in which it acquired such Certificates) in this Section 3.4 shall be a Void Transfer, and the purported transferee in a Void Transfer shall not be recognized by the Trust or any other Person as a Certificateholder for any purpose. (ix) It agrees that if it determines to Transfer any of the Certificates it will cause its proposed transferee to provide to the Trust and the Certificate Registrar a letter substantially in the form of Exhibit D or E hereof, as applicable, or such other written statement as the Depositor shall prescribe. (d) By acceptance of any Certificate, the Certificateholder thereof specifically agrees with and represents to the Depositor, the Certificate Registrar and the Trust that no Transfer of such Certificate shall be made unless the registration requirements of the Securities Act and any applicable state securities laws are complied with, or such Transfer is exempt from the registration requirements under the Securities Act because the Transfer satisfies one of the following: (i) such Transfer is in compliance with Rule 144A under the Securities Act ("Rule 144A"), to a transferee who the transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer and to whom notice is given that such transfer is being made in reliance upon Rule 144A and (x) the transferor executes and delivers to the Trust and the Certificate Registrar a Rule 144A transferor certificate substantially in the form attached as Exhibit C and (y) the transferee executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit D; (ii) after the appropriate holding period, such Transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the Trust or the Certificate Registrar, delivers an Opinion of Counsel in form and substance satisfactory to the Trust and the Depositor; or (iii) such Transfer is to an institutional accredited investor as defined in rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act in a transaction exempt from the registration requirements of the Securities Act, such Transfer is in accordance with any applicable securities laws of any state of the United States or any other jurisdiction, and such investor executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit E. (e) The Trust shall make available to the prospective transferor and transferee information requested to satisfy the requirements of paragraph (d)(4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information shall include any or all of the following items requested by the prospective transferee: (i) each statement delivered to Certificateholders pursuant to Section 4.9 of the Sale and Servicing Agreement on each Payment Date preceding such request; and (ii) such other information as is reasonably available to the Owner Trustee in order to comply with requests for information pursuant to Rule 144A under the Securities Act. None of the Depositor, the Certificate Registrar or the Trust is under an obligation to register any Certificate under the Securities Act or any other securities law. (f) Upon surrender for registration of Transfer of any Certificate at the office or agency maintained pursuant to Section 3.8 and upon compliance with any provisions of this Agreement relating to such Transfer, the Owner Trustee shall execute, authenticate and deliver (or shall cause Wilmington Trust Company, as its authenticating agent, to authenticate and deliver), in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate amount dated the date of authentication by the Owner Trustee or any authenticating agent. Subject to Sections 3.4(b) and 3.4(c), at the option of a Certificateholder, 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 3.8. Every Certificate presented or surrendered for registration of Transfer or exchange shall be accompanied by a written instrument of transfer and accompanied by IRS Form W-8ECI in form satisfactory to the Owner Trustee and the Certificate Registrar, duly executed by the Certificateholder or his 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 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 Certificates. (g) The provisions of this Section 3.4 and of this Agreement generally are intended to prevent the Trust from being characterized as a "publicly traded partnership" within the meaning of Section 7704 of the Code, in reliance on Treasury Regulation ss. 1.7704-1(e) and (h), and the Depositor shall take such intent into account in determining whether or not to consent to any proposed Transfer of any Certificate. The preceding provisions of this Section 3.4 notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any Transfer or exchange of Certificates for a period of 15 days preceding the due date for any payment with respect to the Certificates. Notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities Act, the Exchange Act, applicable state securities law or the Investment Company Act of 1940, as amended; provided, however, that if a certification is specifically required to be delivered to the Owner Trustee by a purchaser or transferee of a Certificate, the Owner Trustee shall be under a duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and to register transfers only upon receipt of documents and certifications specified herein and shall promptly notify the party delivering the same if such certification does not so conform.

Appears in 1 contract

Samples: Trust Agreement (Mmca Auto Owner Trust 2002-5)

Registration of Certificates; Transfer and Exchange of Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.8, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of Transfers and exchanges of Certificates as herein provided. Wilmington Trust Company shall be the initial Certificate Registrar. No Transfer of a Certificate shall be recognized except upon registration of such Transfer in the Certificate Register. (b) No Certificateholder shall Transfer any Certificate initially held by it unless such transfer is made pursuant to an effective registration statement or otherwise in accordance with the requirements under the Securities Act and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If a transfer is to be made in reliance upon an exemption from the Securities Act, and under the applicable state securities laws, (i) the Certificate Registrar shall require an Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the Depositor that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the Securities Act, applicable state securities laws and other relevant laws, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Trustee, and (ii) the Certificate Registrar shall require the transferee to execute a certification acceptable to and in form and substance satisfactory to the Certificate Registrar setting forth the facts surrounding such transfer. (c) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which consent may be withheld in the sole discretion of the Depositor; provided, however, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of the Transfer will be, a Certificateholder. Each Certificate shall bear a legend to the following effect unless determined otherwise by the Administrator (as certified to the Certificate Registrar in an Officer's Certificate) consistent with applicable law: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN A DENOMINATION OF AT LEAST $1,000,000, ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C TO THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D TO THE TRUST AGREEMENT, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, AND THE CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a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s a condition to the registration of any Transfer of a Certificate, the prospective transferee of such a Certificate shall represent to the Owner Trustee and the Certificate Registrar the following: (i) It has neither acquired nor will it Transfer any Certificate it purchases (or any interest therein) or cause any such Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. (ii) It either (A) is not, and will not become, a partnership, Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes, or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 80% or more (or such other percentage as the Depositor may establish prior to the time of such proposed Transfer) of the value of such interests to be attributable to such transferee's ownership of Certificates. (iii) It understands that no subsequent Transfer of the Certificates is permitted unless (A) such Transfer is of a Certificate with a denomination of at least $1,000,000 and (B) the Depositor consents in writing (which consent may be withheld for any reason or for no reason) to the proposed Transfer; provided, however, that no such consent shall be required where the proposed transferee is, and at the time of the Transfer will be, a Holder of a Certificate. (iv) It understands that the opinion of tax counsel that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs (i), (ii) and (iii) above. (v) If it is acquiring any Certificates as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the acknowledgments, representations and agreements contained herein on behalf of each such account. (vi) It is not (A) an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (B) a plan described in Section 4975(e)(1) of the Code, (C) a governmental plan, as defined in Section 3(32) of ERISA, subject to any Federal, state or local law which is, to a material extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the Code, (D) an entity whose underlying assets include plan assets by reason of a plan's investment in the entity (within the meaning of Department of Labor Regulation 29 ~~C.F.R. ss~~C.F.R.ss. 2510.3-101) or (E) a person investing "plan ~~assets~~axxxxx" of xf any such plan (excluding, for purposes of this clause (E), any entity registered under the Investment Company Act of 1940, as amended). (vii) It is a Person who is either (A) (1) a citizen or resident of the United States, (2) a corporation, partnership or other entity organized in or under the laws of the United States or any political subdivision thereof or (3) a Person not described in (1) or (2) whose ownership of the Certificates is effectively connected with such Person's conduct of a trade or business within the United States (within the meaning of the Code) and who provides the Depositor and the Owner Trustee an IRS Form W-8ECI (and such other certifications, representations or opinions of counsel as may be requested by the Depositor or the Owner Trustee) or (B) an estate or trust the income of which is includible in gross income for United States Federal income tax purposes, regardless of source. (viii) It understands that any purported Transfer of any Certificate (or any interest therein) in contravention of any of the restrictions and conditions (including any violation of the representation in paragraph (ii) above by an investor who continues to hold such Certificates occurring any time after the Transfer in which it acquired such Certificates) in this Section 3.4 shall be a Void Transfer, and the purported transferee in a Void Transfer shall not be recognized by the Trust or any other Person as a Certificateholder for any purpose. (ix) It agrees that if it determines to Transfer any of the Certificates it will cause its proposed transferee to provide to the Trust and the Certificate Registrar a letter substantially in the form of Exhibit D or E hereof, as applicable, or such other written statement as the Depositor shall prescribe. (d) By acceptance of any Certificate, the Certificateholder thereof specifically agrees with and represents to the Depositor, the Certificate Registrar and the Trust that no Transfer of such Certificate shall be made unless the registration requirements of the Securities Act and any applicable state securities laws are complied with, or such Transfer is exempt from the registration requirements under the Securities Act because the Transfer satisfies one of the following: (i) such Transfer is in compliance with Rule 144A under the Securities Act ("Rule 144A"), to a transferee who the transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer and to whom notice is given that such transfer is being made in reliance upon Rule 144A under the Securities Act and (x) the transferor executes and delivers to the Trust and the Certificate Registrar a Rule 144A transferor certificate substantially in the form attached as Exhibit C and (y) the transferee executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit D; (ii) after the appropriate holding period, such Transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the Trust or the Certificate Registrar, delivers an Opinion of Counsel in form and substance satisfactory to the Trust and the Depositor; or (iii) such Transfer is to an institutional accredited investor as defined in rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act in a transaction exempt from the registration requirements of the Securities Act, such Transfer is in accordance with any applicable securities laws of any state of the United States or any other jurisdiction, and such investor executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit E. (e) The Trust shall make available to the prospective transferor and transferee information requested to satisfy the requirements of paragraph (d)(4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information shall include any or all of the following items requested by the prospective transferee: (i) each statement delivered to Certificateholders pursuant to Section 4.9 of the Sale and Servicing Agreement on each Payment Date preceding such request; and (ii) such other information as is reasonably available to the Owner Trustee in order to comply with requests for information pursuant to Rule 144A under the Securities Act. None of the Depositor, the Certificate Registrar or the Trust is under an obligation to register any Certificate under the Securities Act or any other securities law. (f) Upon surrender for registration of Transfer of any Certificate at the office or agency maintained pursuant to Section 3.8 and upon compliance with any provisions of this Agreement relating to such Transfer, the Owner Trustee shall execute, authenticate and deliver (or shall cause Wilmington Trust Company, as its authenticating agent, to authenticate and deliver), in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate amount dated the date of authentication by the Owner Trustee or any authenticating agent. Subject to Sections 3.4(b) and 3.4(c), at the option of a Certificateholder, 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 3.8. Every Certificate presented or surrendered for registration of Transfer or exchange shall be accompanied by a written instrument of transfer and accompanied by IRS Form W-8ECI in form satisfactory to the Owner Trustee and the Certificate Registrar, duly executed by the Certificateholder or his 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 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 Certificates. (g) The provisions of this Section 3.4 and of this Agreement generally are intended to prevent the Trust from being characterized as a "publicly traded partnership" within the meaning of Section 7704 of the Code, in reliance on ~~Treasury Regulation~~ Treas. Reg. ss. 1.7704-1(e) and (h), and the Depositor shall take such intent into account in determining whether or not to consent to any proposed Transfer of any Certificate. The preceding provisions of this Section 3.4 notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any Transfer or exchange of Certificates for a period of 15 days preceding the due date for any payment with respect to the Certificates. Notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities Act, the Exchange Act, applicable state securities law or the Investment Company Act of 1940, as amended; provided, however, that if a certification is specifically required to be delivered to the Owner Trustee by a purchaser or transferee of a Certificate, the Owner Trustee shall be under a duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and to register transfers only upon receipt of documents and certifications specified herein and shall promptly notify the party delivering the same if such certification does not so conform.

Appears in 1 contract

Samples: Trust Agreement (Mmca Auto Owner Trust 2001-4)

Registration of Certificates; Transfer and Exchange of Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.8, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of Transfers and exchanges of Certificates as herein provided. Wilmington Trust Company shall be the initial Certificate Registrar. No Transfer of a Certificate shall be recognized except upon registration of such Transfer in the Certificate Register. (b) No Certificateholder shall Transfer any Certificate initially held by it unless such transfer is made pursuant to an effective registration statement or otherwise in accordance with the requirements under the Securities Act and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If a transfer is to be made in reliance upon an exemption from the Securities Act, and under the applicable state securities laws, (i) the Certificate Registrar shall require an Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the Depositor that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the Securities Act, applicable state securities laws and other relevant laws, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Trustee, and (ii) the Certificate Registrar shall require the transferee to execute a certification acceptable to and in form and substance satisfactory to the Certificate Registrar setting forth the facts surrounding such transfer. (c) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which consent may be withheld in the sole discretion of the Depositor; provided, however, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of the Transfer will be, a Certificateholder. Each Certificate shall bear a legend to the following effect unless determined otherwise by the Administrator (as certified to the Certificate Registrar in an Officer's Certificate) consistent with applicable law: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN A DENOMINATION OF AT LEAST $1,000,000, ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C TO THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D TO THE TRUST AGREEMENT, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, AND THE CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a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s a condition to the registration of any Transfer of a Certificate, the prospective transferee of such a Certificate shall represent to the Owner Trustee and the Certificate Registrar the following: (i) It has neither acquired nor will it Transfer any Certificate it purchases (or any interest therein) or cause any such Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. (ii) It either (A) is not, and will not become, a partnership, Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes, or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 80% or more (or such other percentage as the Depositor may establish prior to the time of such proposed Transfer) of the value of such interests to be attributable to such transferee's ownership of Certificates. (iii) It understands that no subsequent Transfer of the Certificates is permitted unless (A) such Transfer is of a Certificate with a denomination of at least $1,000,000 and (B) the Depositor consents in writing (which consent may be withheld for any reason or for no reason) to the proposed Transfer; provided, however, that no such consent shall be required where the proposed transferee is, and at the time of the Transfer will be, a Holder of a Certificate. (iv) It understands that the opinion of tax counsel that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs (i), (ii) and (iii) above. (v) If it is acquiring any Certificates as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the acknowledgments, representations and agreements contained herein on behalf of each such account. (vi) It is not (A) an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (B) a plan described in Section 4975(e)(1) of the Code, (C) a governmental plan, as defined in Section 3(32) of ERISA, subject to any Federal, state or local law which is, to a material extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the Code, (D) an entity whose underlying assets include plan assets by reason of a plan's investment in the entity (within the meaning of Department of Labor Regulation 29 ~~C.F.R. ss~~C.F.R.ss. 2510.3-101) or (E) a person investing "plan ~~assets~~assxxx" of xx any such plan (excluding, for purposes of this clause (E), any entity registered under the Investment Company Act of 1940, as amended). (vii) It is a Person who is either (A) (1) a citizen or resident of the United States, (2) a corporation, partnership or other entity organized in or under the laws of the United States or any political subdivision thereof or (3) a Person not described in (1) or (2) whose ownership of the Certificates is effectively connected with such Person's conduct of a trade or business within the United States (within the meaning of the Code) and who provides the Depositor and the Owner Trustee an IRS Form W-8ECI (and such other certifications, representations or opinions of counsel as may be requested by the Depositor or the Owner Trustee) or (B) an estate or trust the income of which is includible in gross income for United States Federal income tax purposes, regardless of source. (viii) It understands that any purported Transfer of any Certificate (or any interest therein) in contravention of any of the restrictions and conditions (including any violation of the representation in paragraph (ii) above by an investor who continues to hold such Certificates occurring any time after the Transfer in which it acquired such Certificates) in this Section 3.4 shall be a Void Transfer, and the purported transferee in a Void Transfer shall not be recognized by the Trust or any other Person as a Certificateholder for any purpose. (ix) It agrees that if it determines to Transfer any of the Certificates it will cause its proposed transferee to provide to the Trust and the Certificate Registrar a letter substantially in the form of Exhibit D or E hereof, as applicable, or such other written statement as the Depositor shall prescribe. (d) By acceptance of any Certificate, the Certificateholder thereof specifically agrees with and represents to the Depositor, the Certificate Registrar and the Trust that no Transfer of such Certificate shall be made unless the registration requirements of the Securities Act and any applicable state securities laws are complied with, or such Transfer is exempt from the registration requirements under the Securities Act because the Transfer satisfies one of the following: (i) such Transfer is in compliance with Rule 144A under the Securities Act ("Rule 144A"), to a transferee who the transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer and to whom notice is given that such transfer is being made in reliance upon Rule 144A and (x) the transferor executes and delivers to the Trust and the Certificate Registrar a Rule 144A transferor certificate substantially in the form attached as Exhibit C and (y) the transferee executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit D; (ii) after the appropriate holding period, such Transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the Trust or the Certificate Registrar, delivers an Opinion of Counsel in form and substance satisfactory to the Trust and the Depositor; or (iii) such Transfer is to an institutional accredited investor as defined in rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act in a transaction exempt from the registration requirements of the Securities Act, such Transfer is in accordance with any applicable securities laws of any state of the United States or any other jurisdiction, and such investor executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit E. (e) The Trust shall make available to the prospective transferor and transferee information requested to satisfy the requirements of paragraph (d)(4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information shall include any or all of the following items requested by the prospective transferee: (i) each statement delivered to Certificateholders pursuant to Section 4.9 of the Sale and Servicing Agreement on each Payment Date preceding such request; and (ii) such other information as is reasonably available to the Owner Trustee in order to comply with requests for information pursuant to Rule 144A under the Securities Act. None of the Depositor, the Certificate Registrar or the Trust is under an obligation to register any Certificate under the Securities Act or any other securities law. (f) Upon surrender for registration of Transfer of any Certificate at the office or agency maintained pursuant to Section 3.8 and upon compliance with any provisions of this Agreement relating to such Transfer, the Owner Trustee shall execute, authenticate and deliver (or shall cause Wilmington Trust Company, as its authenticating agent, to authenticate and deliver), in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate amount dated the date of authentication by the Owner Trustee or any authenticating agent. Subject to Sections 3.4(b) and 3.4(c), at the option of a Certificateholder, 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 3.8. Every Certificate presented or surrendered for registration of Transfer or exchange shall be accompanied by a written instrument of transfer and accompanied by IRS Form W-8ECI in form satisfactory to the Owner Trustee and the Certificate Registrar, duly executed by the Certificateholder or his 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 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 Certificates. (g) The provisions of this Section 3.4 and of this Agreement generally are intended to prevent the Trust from being characterized as a "publicly traded partnership" within the meaning of Section 7704 of the Code, in reliance on Treasury Regulation ss. 1.7704-1(e) and (h), and the Depositor shall take such intent into account in determining whether or not to consent to any proposed Transfer of any Certificate. The preceding provisions of this Section 3.4 notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any Transfer or exchange of Certificates for a period of 15 days preceding the due date for any payment with respect to the Certificates. Notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities Act, the Exchange Act, applicable state securities law or the Investment Company Act of 1940, as amended; provided, however, that if a certification is specifically required to be delivered to the Owner Trustee by a purchaser or transferee of a Certificate, the Owner Trustee shall be under a duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and to register transfers only upon receipt of documents and certifications specified herein and shall promptly notify the party delivering the same if such certification does not so conform.

Appears in 1 contract

Samples: Trust Agreement (Mmca Auto Receivables Trust)

Registration of Certificates; Transfer and Exchange of Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.8, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of Transfers and exchanges of Certificates as herein provided. Wilmington Trust Company shall be the initial Certificate Registrar. No Transfer of a Certificate shall be recognized except upon registration of such Transfer in the Certificate Register. (b) No Certificateholder shall Transfer any Certificate initially held by it unless such transfer is made pursuant to an effective registration statement or otherwise in accordance with the requirements under the Securities Act and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If a transfer is to be made in reliance upon an exemption from the Securities Act, and under the applicable state securities laws, (i) the Certificate Registrar shall require an Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the Depositor that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the Securities Act, applicable state securities laws and other relevant laws, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Trustee, and (ii) the Certificate Registrar shall require the transferee to execute a certification acceptable to and in form and substance satisfactory to the Certificate Registrar setting forth the facts surrounding such transfer. (c) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which consent may be withheld in the sole discretion of the Depositor; , provided, however, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of the Transfer will be, a Certificateholder. Each Certificate shall bear a legend to the following effect unless determined otherwise by the Administrator (as certified to the Certificate Registrar in an Officer's Certificate) consistent with applicable law: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN A DENOMINATION OF AT LEAST $1,000,000, ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C TO THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D TO THE TRUST AGREEMENT, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, AND THE CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a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s a condition to the registration of any Transfer of a Certificate, the prospective transferee of such a Certificate shall represent to the Owner Trustee and the Certificate Registrar the following: (i) It has neither acquired nor will it Transfer any Certificate it purchases (or any interest therein) or cause any such Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of ~~Section~~ section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. (ii) It either (A) is not, and will not become, a partnership, Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes, or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 80% or more (or such other percentage as the Depositor may establish prior to the time of such proposed Transfer) of the value of such interests to be attributable to such transferee's ownership of Certificates. (iii) It understands that no subsequent Transfer of the Certificates is permitted unless (A) such Transfer is of a Certificate with a denomination of at least $1,000,000 and (B) the Depositor consents in writing (which consent may be withheld for any reason or for no reason) to the proposed Transfer; provided, however, that no such consent shall be required where the proposed transferee is, and at the time of the Transfer will be, a Holder of a Certificate. (iv) It understands that the opinion of tax counsel that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs (i), (ii) and (iii) above. (v) If it is acquiring any Certificates as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the acknowledgments, representations and agreements contained herein on behalf of each such account. (vi) It is not (A) an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (B) a plan described in Section 4975(e)(1) of the Code, (C) a governmental plan, as defined in Section 3(32) of ERISA, subject to any Federal, state or local law which is, to a material extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the Code, (D) an entity whose underlying assets include plan assets by reason of a plan's investment in the entity (within the meaning of Department of Labor Regulation 29 C.F.R. ss. 2510.3-101) or (E) a person investing "plan assets" of any such plan (excluding, for purposes of this clause (E), any entity registered under the Investment Company Act of 1940, as amended). (vii) It is a Person who is either (A) (1) a citizen or resident of the United States, (2) a corporation, partnership or other entity organized in or under the laws of the United States or any political subdivision thereof or (3) a Person not described in (1) or (2) whose ownership of the Certificates is effectively connected with such Person's conduct of a trade or business within the United States (within the meaning of the Code) and who provides the Depositor and the Owner Trustee an IRS Form ~~W-8ECI~~ 4224 (and such other certifications, representations or opinions of counsel as may be requested by the Depositor or the Owner Trustee) or (B) an estate or trust the income of which is includible in gross income for United States Federal income tax purposes, regardless of source. (viii) It understands that any purported Transfer of any Certificate (or any interest therein) in contravention of any of the restrictions and conditions (including any violation of the representation in paragraph (ii) above by an investor who continues to hold such Certificates occurring any time after the Transfer in which it acquired such Certificates) in this Section 3.4 shall be a Void Transfer, and the purported transferee in a Void Transfer shall not be recognized by the Trust or any other Person as a Certificateholder for any purpose. (ix) It agrees that if it determines to Transfer any of the Certificates it will cause its proposed transferee to provide to the Trust and the Certificate Registrar a letter substantially in the form of Exhibit D or E hereof, as applicable, or such other written statement as the Depositor shall prescribe. (d) By acceptance of any Certificate, the Certificateholder thereof specifically agrees with and represents to the Depositor, the Certificate Registrar and the Trust that no Transfer of such Certificate shall be made unless the registration requirements of the Securities Act and any applicable state securities laws are complied with, or such Transfer is exempt from the registration requirements under the Securities Act because the Transfer satisfies one of the following: (i) such Transfer is in compliance with Rule 144A under the Securities Act ("Rule 144A"), to a transferee who the transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer and to whom notice is given that such transfer is being made in reliance upon Rule 144A under the Securities Act and (x) the transferor executes and delivers to the Trust and the Certificate Registrar a Rule 144A transferor certificate substantially in the form attached as Exhibit C and (y) the transferee executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit D; (ii) after the appropriate holding period, such Transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the Trust or the Certificate Registrar, delivers an Opinion of Counsel in form and substance satisfactory to the Trust and the Depositor; or (iii) such Transfer is to an institutional accredited investor as defined in rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act in a transaction exempt from the registration requirements of the Securities Act, such Transfer is in accordance with any applicable securities laws of any state of the United States or any other jurisdiction, and such investor executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit E. (e) The Trust shall make available to the prospective transferor and transferee information requested to satisfy the requirements of paragraph (d)(4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information shall include any or all of the following items requested by the prospective transferee: (i) each statement delivered to Certificateholders pursuant to Section ~~4.9~~ 4.11 of the Sale and Servicing Agreement on each Payment Date preceding such request; and (ii) such other information as is reasonably available to the Owner Trustee in order to comply with requests for information pursuant to Rule 144A under the Securities Act. None of the Depositor, the Certificate Registrar or the Trust is under an obligation to register any Certificate under the Securities Act or any other securities law. (f) Upon surrender for registration of Transfer of any Certificate at the office or agency maintained pursuant to Section 3.8 and upon compliance with any provisions of this Agreement relating to such Transfer, the Owner Trustee shall execute, authenticate and deliver (or shall cause Wilmington Trust Company, as its authenticating agent, to authenticate and deliver), in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate amount dated the date of authentication by the Owner Trustee or any authenticating agent. Subject to Sections 3.4(b) and 3.4(c), at the option of a Certificateholder, 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 3.8. Every Certificate presented or surrendered for registration of Transfer or exchange shall be accompanied by a written instrument of transfer and accompanied by IRS Form ~~W-8ECI~~ 4224 or W-9 in form satisfactory to the Owner Trustee and the Certificate Registrar, duly executed by the Certificateholder or his 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 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 Certificates. (g) The provisions of this Section 3.4 and of this Agreement generally are intended to prevent the Trust from being characterized as a "publicly traded partnership" within the meaning of Section 7704 of the Code, in reliance on ~~Treasury Regulation ss~~Treas. ~~1.7704~~Reg. sx.xx. 1. 7704-1(e) and (h), and the Depositor shall take such intent into account in determining whether or not to consent to any proposed Transfer of any Certificate. The preceding provisions of this Section 3.4 notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any Transfer or exchange of Certificates for a period of 15 fifteen (15) days preceding the due date for any payment with respect to the Certificates. Notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities Act, the Exchange Act, applicable state securities law or the Investment Company Act of 1940, as amended; provided, however, that if a certification is specifically required to be delivered to the Owner Trustee by a purchaser or transferee of a Certificate, the Owner Trustee shall be under a duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and to register transfers only upon receipt of documents and certifications specified herein and shall promptly notify the party delivering the same if such certification does not so conform.

Appears in 1 contract

Samples: Trust Agreement (Mmca Auto Receivables Trust)

Registration of Certificates; Transfer and Exchange of Certificates. (a) The ~~Certificate Registrar~~ Owner Trustee shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.8, a ~~Certificate Register~~ register in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of ~~Transfers~~ transfers and exchanges of Certificates as herein provided~~. Wilmington Trust Company shall~~ . (b) The Certificates have not been and will not be registered under the ~~initial Certificate Registrar~~Securities Act and will not be listed on any exchange. No ~~Transfer~~ transfer of a Certificate shall be ~~recognized except upon registration of such Transfer in the Certificate Register. (b) No Certificateholder shall Transfer any Certificate initially held by it~~ made unless such transfer is made pursuant to an effective registration statement under the Securities Act and any applicable state securities laws or ~~otherwise in accordance with~~ is exempt from the registration requirements under the Securities Act and ~~effective registration or qualification under applicable~~ such state securities laws~~, or is made in a transaction which does not require such registration or qualification~~. If In the event that a transfer is to be made in reliance upon an exemption from the Securities ~~Act,~~ Act and ~~under the applicable~~ state securities laws, ~~(i) the Certificate Registrar shall require an Opinion of Counsel reasonably satisfactory~~ in order to the Certificate Registrar and the Depositor that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the Securities Act, applicable state securities laws and other relevant laws, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Trustee, and (ii) the Certificate Registrar shall require the transferee to execute a certification acceptable to and in form and substance satisfactory to the Certificate Registrar setting forth the facts surrounding such transfer. (c) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which consent may be withheld in the sole discretion of the Depositor; provided, however, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of the Transfer will be, a Certificateholder. Each Certificate shall bear a legend to the following effect unless determined otherwise by the Administrator (as certified to the Certificate Registrar in an Officer's Certificate) consistent ensure compliance with applicable law: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN A DENOMINATION OF AT LEAST $1,000,000, ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C TO THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D TO THE TRUST AGREEMENT, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, AND THE CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a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s a condition to the registration of any Transfer of a Certificate, the prospective transferee of such a Certificate shall represent to the Owner Trustee and the Certificate Registrar the following: (i) It has neither acquired nor will it Transfer any Certificate it purchases (or any interest therein) or cause any such Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. (ii) It either (A) is not, and will not become, a partnership, Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes, or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 80% or more (or such other percentage as the Depositor may establish prior to the time of such proposed Transfer) of the value of such interests to be attributable to such transferee's ownership of Certificates. (iii) It understands that no subsequent Transfer of the Certificates is permitted unless (A) such Transfer is of a Certificate with a denomination of at least $1,000,000 and (B) the Depositor consents in writing (which consent may be withheld for any reason or for no reason) to the proposed Transfer; provided, however, that no such consent shall be required where the proposed transferee is, and at the time of the Transfer will be, a Holder of a Certificate. (iv) It understands that the opinion of tax counsel that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs (i), (ii) and (iii) above. (v) If it is acquiring any Certificates as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the acknowledgments, representations and agreements contained herein on behalf of each such account. (vi) It is not (A) an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (B) a plan described in Section 4975(e)(1) of the Code, (C) a governmental plan, as defined in Section 3(32) of ERISA, subject to any Federal, state or local law which is, to a material extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the Code, (D) an entity whose underlying assets include plan assets by reason of a plan's investment in the entity (within the meaning of Department of Labor Regulation 29 C.F.R. ss. 2510.3-101) or (E) a person investing "plan assets" of any such plan (excluding, for purposes of this clause (E), any entity registered under the Investment Company Act of 1940, as amended). (vii) It is a Person who is either (A) (1) a citizen or resident of the United States, (2) a corporation, partnership or other entity organized in or under the laws of the United States or any political subdivision thereof or (3) a Person not described in (1) or (2) whose ownership of the Certificates is effectively connected with such Person's conduct of a trade or business within the United States (within the meaning of the Code) and who provides the Depositor and the Owner Trustee an IRS Form W-8ECI (and such other certifications, representations or opinions of counsel as may be requested by the Depositor or the Owner Trustee) or (B) an estate or trust the income of which is includible in gross income for United States Federal income tax purposes, regardless of source. (viii) It understands that any purported Transfer of any Certificate (or any interest therein) in contravention of any of the restrictions and conditions (including any violation of the representation in paragraph (ii) above by an investor who continues to hold such Certificates occurring any time after the Transfer in which it acquired such Certificates) in this Section 3.4 shall be a Void Transfer, and the purported transferee in a Void Transfer shall not be recognized by the Trust or any other Person as a Certificateholder for any purpose. (ix) It agrees that if it determines to Transfer any of the Certificates it will cause its proposed transferee to provide to the Trust and the Certificate Registrar a letter substantially in the form of Exhibit D or E hereof, as applicable, or such other written statement as the Depositor shall prescribe. (d) By acceptance of any Certificate, the Certificateholder thereof specifically agrees with and represents to the Depositor, the Certificate Registrar and the Trust that no Transfer of such Certificate shall be made unless the registration requirements of the Securities Act and such laws, the Certificateholder desiring to effect such transfer and such Certificateholder’s prospective transferee shall each certify to the Owner Trustee, the Indenture Trustee and the Depositor (if the Depositor is not the Certificateholder) in writing the facts surrounding the transfer in substantially the forms set forth in Exhibit C (the “Transferor Certificate”) and either Exhibit D (the “Investment Letter”) or Exhibit E (the “Rule 144A Letter”). The Depositor shall provide to any ~~applicable state securities laws are complied with~~Certificateholder of a Certificate and any prospective transferee designated by any such Certificateholder, ~~or such Transfer is exempt~~ information regarding the Certificates and, based solely on information received from the Servicer, the Receivables and, to the extent reasonably obtainable by the Depositor, 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 ~~requirements~~ thereof under the Securities Act ~~because~~ pursuant to the ~~Transfer satisfies one~~ registration exemption provided by Rule 144A. Each holder of a Certificate desiring to effect such a transfer shall, and does hereby agree to, indemnify the ~~following: (i) such Transfer~~ Trust, the Owner Trustee, and the Depositor against any liability that may result if the transfer is not so exempt or is not made in ~~compliance~~ accordance with ~~Rule 144A under~~ federal and state securities laws. The Owner Trustee shall cause each Certificate to contain a legend in the ~~Securities Act ("Rule 144A"), to a transferee who~~ form set forth on the ~~transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account~~ form of Certificate attached hereto as Exhibit A. The Certificates may not be acquired by or for the account of a ~~Qualified Institutional Buyer~~ Benefit Plan. By accepting and ~~to whom notice is given that such transfer is being made in reliance upon Rule 144A and (x) the transferor executes and delivers to the Trust and the Certificate Registrar~~ holding a Rule 144A transferor certificate substantially in the form attached as Exhibit C and (y) the transferee executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit D; (ii) after the appropriate holding period, such Transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the Trust or the Certificate Registrar, delivers an Opinion of Counsel in form and substance satisfactory to the Trust and the Depositor; or (iii) such Transfer is to an institutional accredited investor as defined in rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act in a transaction exempt from the registration requirements of the Securities Act, such Transfer is in accordance with any applicable securities laws of any state of the United States or any other jurisdiction, and such investor executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit E. (e) The Trust shall make available to the prospective transferor and transferee information requested to satisfy the requirements of paragraph (d)(4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information shall include any or all of the following items requested by the prospective transferee: (i) each statement delivered to Certificateholders pursuant to Section 4.9 of the Sale and Servicing Agreement on each Payment Date preceding such request; and (ii) such other information as is reasonably available to the Owner Trustee in order to comply with requests for information pursuant to Rule 144A under the Securities Act. None of the DepositorCertificate, the ~~Certificate Registrar or the Trust~~ holder thereof shall be deemed to have represented and warranted that it is ~~under an obligation to register any Certificate under the Securities Act or any other securities law~~not a Benefit Plan. (fc) Upon surrender for registration of ~~Transfer~~ transfer of any Certificate at the office or agency maintained pursuant to Section 3.8 and upon compliance with any provisions of this Agreement relating to such ~~Transfer~~transfer, the Owner Trustee shall execute, authenticate and ~~deliver (or shall cause Wilmington Trust Company, as its authenticating agent, to authenticate and~~ deliver), in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations ~~of a like~~ and aggregate ~~amount~~ interest dated the date of authentication by the Owner Trustee or any authenticating agent. ~~Subject to Sections 3.4(b) and 3.4(c), at~~ At the option of a Certificateholder, Certificates may be exchanged for other Certificates of authorized denominations ~~of a like~~ and aggregate ~~amount~~ interest upon surrender of the Certificates to be exchanged at the office or agency maintained pursuant to Section 3.8. Every Certificate presented or surrendered for registration of ~~Transfer~~ transfer or exchange shall be accompanied by a written instrument of transfer ~~and accompanied by IRS Form W-8ECI~~ in form satisfactory to the Owner ~~Trustee and the Certificate Registrar~~Trustee, duly executed by the related Certificateholder or ~~his~~ such Certificateholder’s attorney duly authorized in writing. Each Certificate surrendered for registration of ~~Transfer~~ transfer or exchange shall be cancelled and subsequently disposed of by the ~~Certificate Registrar~~ Owner Trustee in accordance with its customary practice. No service charge shall be made for any registration of ~~Transfer~~ transfer or exchange of 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~~ transfer or exchange of Certificates. (g) The provisions of this Section 3.4 and of this Agreement generally are intended to prevent the Trust from being characterized as a "publicly traded partnership" within the meaning of Section 7704 of the Code, in reliance on Treasury Regulation ss. 1.7704-1(e) and (h), and the Depositor shall take such intent into account in determining whether or not to consent to any proposed Transfer of any Certificate. The preceding provisions of this Section 3.4 notwithstanding, the Owner Trustee shall not make ~~and the Certificate Registrar shall not register~~ any ~~Transfer~~ transfer or exchange of Certificates for a period of 15 fifteen (15) days preceding ~~the due date~~ any Payment Date for any payment with respect to the Certificates. Notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities Act, the Exchange Act, applicable state securities law or the Investment Company Act of 1940, as amended; provided, however, that if a certification is specifically required to be delivered to the Owner Trustee by a purchaser or transferee of a Certificate, the Owner Trustee shall be under a duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and to register transfers only upon receipt of documents and certifications specified herein and shall promptly notify the party delivering the same if such certification does not so conform.

Appears in 1 contract

Samples: Trust Agreement (Usaa Acceptance LLC)

Registration of Certificates; Transfer and Exchange of Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.8, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of Transfers and exchanges of Certificates as herein provided. Wilmington Trust Company shall be the initial Certificate Registrar. No Transfer of a Certificate shall be recognized except upon registration of such Transfer in the Certificate Register. (b) No Certificateholder shall Transfer any Certificate initially held by it unless such transfer is made pursuant to an effective registration statement or otherwise in accordance with the requirements under the Securities Act and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If a transfer is to be made in reliance upon an exemption from the Securities Act, and under the applicable state securities laws, (i) the Certificate Registrar shall require an Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the Depositor that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the Securities Act, applicable state securities laws and other relevant laws, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Trustee, and (ii) the Certificate Registrar shall require the transferee to execute a certification acceptable to and in form and substance satisfactory to the Certificate Registrar setting forth the facts surrounding such transfer. (c) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which consent may be withheld in the sole discretion of the Depositor; provided, however, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of the Transfer will be, a Certificateholder. Each Certificate shall bear a legend to the following effect unless determined otherwise by the Administrator (as certified to the Certificate Registrar in an Officer's Certificate) consistent with applicable law: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN A DENOMINATION OF AT LEAST $1,000,000, ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C TO THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D TO THE TRUST AGREEMENT, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, AND THE CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a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s a condition to the registration of any Transfer of a Certificate, the prospective transferee of such a Certificate shall represent to the Owner Trustee and the Certificate Registrar the following: (i) It has neither acquired nor will it Transfer any Certificate it purchases (or any interest therein) or cause any such Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of ~~Section~~ section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. (ii) It either (A) is not, and will not become, a partnership, Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes, or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 80% or more (or such other percentage as the Depositor may establish prior to the time of such proposed Transfer) of the value of such interests to be attributable to such transferee's ownership of Certificates. (iii) It understands that no subsequent Transfer of the Certificates is permitted unless (A) such Transfer is of a Certificate with a denomination of at least $1,000,000 and (B) the Depositor consents in writing (which consent may be withheld for any reason or for no reason) to the proposed Transfer; provided, however, that no such consent shall be required where the proposed transferee is, and at the time of the Transfer will be, a Holder of a Certificate. (iv) It understands that the opinion of tax counsel that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs (i), (ii) and (iii) above. (v) If it is acquiring any Certificates as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the acknowledgments, representations and agreements contained herein on behalf of each such account. (vi) It is not (A) an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (B) a plan described in Section 4975(e)(1) of the Code, (C) a governmental plan, as defined in Section 3(32) of ERISA, subject to any Federal, state or local law which is, to a material extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the Code, (D) an entity whose underlying assets include plan assets by reason of a plan's investment in the entity (within the meaning of Department of Labor Regulation 29 C.F.R. ss. 2510.3-101) or (E) a person investing "plan assets" of any such plan (excluding, for purposes of this clause (E), any entity registered under the Investment Company Act of 1940, as amended). (vii) It is a Person who is either (A) (1) a citizen or resident of the United States, (2) a corporation, partnership or other entity organized in or under the laws of the United States or any political subdivision thereof or (3) a Person not described in (1) or (2) whose ownership of the Certificates is effectively connected with such Person's conduct of a trade or business within the United States (within the meaning of the Code) and who provides the Depositor and the Owner Trustee an IRS Form W-8ECI (and such other certifications, representations or opinions of counsel as may be requested by the Depositor or the Owner Trustee) or (B) an estate or trust the income of which is includible in gross income for United States Federal income tax purposes, regardless of source. (viii) It understands that any purported Transfer of any Certificate (or any interest therein) in contravention of any of the restrictions and conditions (including any violation of the representation in paragraph (ii) above by an investor who continues to hold such Certificates occurring any time after the Transfer in which it acquired such Certificates) in this Section 3.4 shall be a Void Transfer, and the purported transferee in a Void Transfer shall not be recognized by the Trust or any other Person as a Certificateholder for any purpose. (ix) It agrees that if it determines to Transfer any of the Certificates it will cause its proposed transferee to provide to the Trust and the Certificate Registrar a letter substantially in the form of Exhibit D or E hereof, as applicable, or such other written statement as the Depositor shall prescribe. (d) By acceptance of any Certificate, the Certificateholder thereof specifically agrees with and represents to the Depositor, the Certificate Registrar and the Trust that no Transfer of such Certificate shall be made unless the registration requirements of the Securities Act and any applicable state securities laws are complied with, or such Transfer is exempt from the registration requirements under the Securities Act because the Transfer satisfies one of the following: (i) such Transfer is in compliance with Rule 144A under the Securities Act ("Rule 144A"), to a transferee who the transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer and to whom notice is given that such transfer is being made in reliance upon Rule 144A under the Securities Act and (x) the transferor executes and delivers to the Trust and the Certificate Registrar a Rule 144A transferor certificate substantially in the form attached as Exhibit C and (y) the transferee executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit D; (ii) after the appropriate holding period, such Transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the Trust or the Certificate Registrar, delivers an Opinion of Counsel in form and substance satisfactory to the Trust and the Depositor; or (iii) such Transfer is to an institutional accredited investor as defined in rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act in a transaction exempt from the registration requirements of the Securities Act, such Transfer is in accordance with any applicable securities laws of any state of the United States or any other jurisdiction, and such investor executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit E. (e) The Trust shall make available to the prospective transferor and transferee information requested to satisfy the requirements of paragraph (d)(4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information shall include any or all of the following items requested by the prospective transferee: (i) each statement delivered to Certificateholders pursuant to Section 4.9 of the Sale and Servicing Agreement on each Payment Date preceding such request; and (ii) such other information as is reasonably available to the Owner Trustee in order to comply with requests for information pursuant to Rule 144A under the Securities Act. None of the Depositor, the Certificate Registrar or the Trust is under an obligation to register any Certificate under the Securities Act or any other securities law. (f) Upon surrender for registration of Transfer of any Certificate at the office or agency maintained pursuant to Section 3.8 and upon compliance with any provisions of this Agreement relating to such Transfer, the Owner Trustee shall execute, authenticate and deliver (or shall cause Wilmington Trust Company, as its authenticating agent, to authenticate and deliver), in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate amount dated the date of authentication by the Owner Trustee or any authenticating agent. Subject to Sections 3.4(b) and 3.4(c), at the option of a Certificateholder, 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 3.8. Every Certificate presented or surrendered for registration of Transfer or exchange shall be accompanied by a written instrument of transfer and accompanied by IRS Form W-8ECI in form satisfactory to the Owner Trustee and the Certificate Registrar, duly executed by the Certificateholder or his 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 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 Certificates. (g) The provisions of this Section 3.4 and of this Agreement generally are intended to prevent the Trust from being characterized as a "publicly traded partnership" within the meaning of Section 7704 of the Code, in reliance on ~~Treasury Regulation ss~~Treas. ~~1.7704~~Reg. sx.xx. 1. 7704-1(e) and (h), and the Depositor shall take such intent into account in determining whether or not to consent to any proposed Transfer of any Certificate. The preceding provisions of this Section 3.4 notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any Transfer or exchange of Certificates for a period of 15 fifteen (15) days preceding the due date for any payment with respect to the Certificates. Notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities Act, the Exchange Act, applicable state securities law or the Investment Company Act of 1940, as amended; provided, however, that if a certification is specifically required to be delivered to the Owner Trustee by a purchaser or transferee of a Certificate, the Owner Trustee shall be under a duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and to register transfers only upon receipt of documents and certifications specified herein and shall promptly notify the party delivering the same if such certification does not so conform.

Appears in 1 contract

Samples: Trust Agreement (Mmca Auto Owner Trust 2001 2)

Registration of Certificates; Transfer and Exchange of Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.8, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of Transfers and exchanges of Certificates as herein provided. Wilmington Trust Company shall be the initial Certificate Registrar. No Transfer of a Certificate shall be recognized except upon registration of such Transfer in the Certificate Register. (b) No Certificateholder shall Transfer any Certificate initially held by it unless such transfer is made pursuant to an effective registration statement or otherwise in accordance with the requirements under the Securities Act and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If a transfer is to be made in reliance upon an exemption from the Securities Act, and under the applicable state securities laws, (i) the Certificate Registrar shall require an Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the Depositor that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the Securities Act, applicable state securities laws and other relevant laws, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Trustee, and (ii) the Certificate Registrar shall require the transferee to execute a certification acceptable to and in form and substance satisfactory to the Certificate Registrar setting forth the facts surrounding such transfer. (c) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which consent may be withheld in the sole discretion of the Depositor; provided, however, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of the Transfer will be, a Certificateholder. Each Certificate shall bear a legend to the following effect unless determined otherwise by the Administrator (as certified to the Certificate Registrar in an Officer's Certificate) consistent with applicable law: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN A DENOMINATION OF AT LEAST $1,000,000, ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C TO THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D TO THE TRUST AGREEMENT, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, AND THE CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a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s a condition to the registration of any Transfer of a Certificate, the prospective transferee of such a Certificate shall represent to the Owner Trustee and the Certificate Registrar the following: (i) It has neither acquired nor will it Transfer any Certificate it purchases (or any interest therein) or cause any such Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. (ii) It either (A) is not, and will not become, a partnership, Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes, or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 80% or more (or such other percentage as the Depositor may establish prior to the time of such proposed Transfer) of the value of such interests to be attributable to such transferee's ownership of Certificates. (iii) It understands that no subsequent Transfer of the Certificates is permitted unless (A) such Transfer is of a Certificate with a denomination of at least $1,000,000 and (B) the Depositor consents in writing (which consent may be withheld for any reason or for no reason) to the proposed Transfer; provided, however, that no such consent shall be required where the proposed transferee is, and at the time of the Transfer will be, a Holder of a Certificate. (iv) It understands that the opinion of tax counsel that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs (i), (ii) and (iii) above. (v) If it is acquiring any Certificates as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the acknowledgments, representations and agreements contained herein on behalf of each such account. (vi) It is not (A) an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (B) a plan described in Section 4975(e)(1) of the Code, (C) a governmental plan, as defined in Section 3(32) of ERISA, subject to any Federal, state or local law which is, to a material extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the Code, (D) an entity whose underlying assets include plan assets by reason of a plan's investment in the entity (within the meaning of Department of Labor Regulation 29 ~~C.F.R. ss~~C.F.R.ss. 2510.3-101) or (E) a person investing "plan assets" of ~~any~~ anx such plan (excluding, for purposes of this clause (E), any entity registered under the Investment Company Act of 1940, as amended). (vii) It is a Person who is either (A) (1) a citizen or resident of the United States, (2) a corporation, partnership or other entity organized in or under the laws of the United States or any political subdivision thereof or (3) a Person not described in (1) or (2) whose ownership of the Certificates is effectively connected with such Person's conduct of a trade or business within the United States (within the meaning of the Code) and who provides the Depositor and the Owner Trustee an IRS Form W-8ECI (and such other certifications, representations or opinions of counsel as may be requested by the Depositor or the Owner Trustee) or (B) an estate or trust the income of which is includible in gross income for United States Federal income tax purposes, regardless of source. (viii) It understands that any purported Transfer of any Certificate (or any interest therein) in contravention of any of the restrictions and conditions (including any violation of the representation in paragraph (ii) above by an investor who continues to hold such Certificates occurring any time after the Transfer in which it acquired such Certificates) in this Section 3.4 shall be a Void Transfer, and the purported transferee in a Void Transfer shall not be recognized by the Trust or any other Person as a Certificateholder for any purpose. (ix) It agrees that if it determines to Transfer any of the Certificates it will cause its proposed transferee to provide to the Trust and the Certificate Registrar a letter substantially in the form of Exhibit D or E hereof, as applicable, or such other written statement as the Depositor shall prescribe. (d) By acceptance of any Certificate, the Certificateholder thereof specifically agrees with and represents to the Depositor, the Certificate Registrar and the Trust that no Transfer of such Certificate shall be made unless the registration requirements of the Securities Act and any applicable state securities laws are complied with, or such Transfer is exempt from the registration requirements under the Securities Act because the Transfer satisfies one of the following: (i) such Transfer is in compliance with Rule 144A under the Securities Act ("Rule 144A"), to a --------- transferee who the transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer and to whom notice is given that such transfer is being made in reliance upon Rule 144A under the Securities Act and (x) the transferor executes and delivers to the Trust and the Certificate Registrar a Rule 144A transferor certificate substantially in the form attached as Exhibit C and (y) the transferee executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit D; (ii) after the appropriate holding period, such Transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the Trust or the Certificate Registrar, delivers an Opinion of Counsel in form and substance satisfactory to the Trust and the Depositor; or (iii) such Transfer is to an institutional accredited investor as defined in rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act in a transaction exempt from the registration requirements of the Securities Act, such Transfer is in accordance with any applicable securities laws of any state of the United States or any other jurisdiction, and such investor executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit E. (e) The Trust shall make available to the prospective transferor and transferee information requested to satisfy the requirements of paragraph (d)(4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information shall include any or all of the following items requested by the prospective transferee: (i) each statement delivered to Certificateholders pursuant to Section 4.9 of the Sale and Servicing Agreement on each Payment Date preceding such request; and (ii) such other information as is reasonably available to the Owner Trustee in order to comply with requests for information pursuant to Rule 144A under the Securities Act. None of the Depositor, the Certificate Registrar or the Trust is under an obligation to register any Certificate under the Securities Act or any other securities law. (f) Upon surrender for registration of Transfer of any Certificate at the office or agency maintained pursuant to Section 3.8 and upon compliance with any provisions of this Agreement relating to such Transfer, the Owner Trustee shall execute, authenticate and deliver (or shall cause Wilmington Trust Company, as its authenticating agent, to authenticate and deliver), in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate amount dated the date of authentication by the Owner Trustee or any authenticating agent. Subject to Sections 3.4(b) and 3.4(c), at the option of a Certificateholder, 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 3.8. Every Certificate presented or surrendered for registration of Transfer or exchange shall be accompanied by a written instrument of transfer and accompanied by IRS Form W-8ECI in form satisfactory to the Owner Trustee and the Certificate Registrar, duly executed by the Certificateholder or his 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 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 Certificates. (g) The provisions of this Section 3.4 and of this Agreement generally are intended to prevent the Trust from being characterized as a "publicly traded partnership" within the meaning of Section 7704 of the Code, in reliance on ~~Treasury Regulation~~ Treas. Reg. ss. 1.7704-1(e) and (h), and the Depositor shall take such intent into account in determining whether or not to consent to any proposed Transfer of any Certificate. The preceding provisions of this Section 3.4 notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any Transfer or exchange of Certificates for a period of 15 days preceding the due date for any payment with respect to the Certificates. Notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities Act, the Exchange Act, applicable state securities law or the Investment Company Act of 1940, as amended; provided, however, that if a certification is specifically required to be delivered to the Owner Trustee by a purchaser or transferee of a Certificate, the Owner Trustee shall be under a duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and to register transfers only upon receipt of documents and certifications specified herein and shall promptly notify the party delivering the same if such certification does not so conform.

Appears in 1 contract

Samples: Trust Agreement (Mmca Auto Owner Trust 2001-4)

Registration of Certificates; Transfer and Exchange of Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.8, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of Transfers and exchanges of Certificates as herein provided. Wilmington Trust Company shall be the initial Certificate Registrar. No Transfer of a Certificate shall be recognized except upon registration of such Transfer in the Certificate Register. (b) No Certificateholder shall Transfer any Certificate initially held by it unless such transfer is made pursuant to an effective registration statement or otherwise in accordance with the requirements under the Securities Act and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If a transfer is to be made in reliance upon an exemption from the Securities Act, and under the applicable state securities laws, (i) the Certificate Registrar shall require an Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the Depositor that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the Securities Act, applicable state securities laws and other relevant laws, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Trustee, and (ii) the Certificate Registrar shall require the transferee to execute a certification acceptable to and in form and substance satisfactory to the Certificate Registrar setting forth the facts surrounding such transfer. (c) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which consent may be withheld in the sole discretion of the Depositor; , provided, however, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of the Transfer will be, a Certificateholder. Each Certificate shall bear a legend to the following effect unless determined otherwise by the Administrator (as certified to the Certificate Registrar in an Officer's Certificate) consistent with applicable law: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN A DENOMINATION OF AT LEAST $1,000,000, ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C TO THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D TO THE TRUST AGREEMENT, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, AND THE CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a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s a condition to the registration of any Transfer of a Certificate, the prospective transferee of such a Certificate shall represent to the Owner Trustee and the Certificate Registrar the following: (i) It has neither acquired nor will it Transfer any Certificate it purchases (or any interest therein) or cause any such Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of ~~Section~~ section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. (ii) It either (A) is not, and will not become, a partnership, Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes, or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 80% or more (or such other percentage as the Depositor may establish prior to the time of such proposed Transfer) of the value of such interests to be attributable to such transferee's ownership of Certificates. (iii) It understands that no subsequent Transfer of the Certificates is permitted unless (A) such Transfer is of a Certificate with a denomination of at least $1,000,000 and (B) the Depositor consents in writing (which consent may be withheld for any reason or for no reason) to the proposed Transfer; provided, however, that no such consent shall be required where the proposed transferee is, and at the time of the Transfer will be, a Holder of a Certificate. (iv) It understands that the opinion of tax counsel that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs (i), (ii) and (iii) above. (v) If it is acquiring any Certificates as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the acknowledgments, representations and agreements contained herein on behalf of each such account. (vi) It is not (A) an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (B) a plan described in Section 4975(e)(1) of the Code, (C) a governmental plan, as defined in Section 3(32) of ERISA, subject to any Federal, state or local law which is, to a material extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the Code, (D) an entity whose underlying assets include plan assets by reason of a plan's investment in the entity (within the meaning of Department of Labor Regulation 29 C.F.R. ss. 2510.3-101) or (E) a person investing "plan assets" of any such plan (excluding, for purposes of this clause (E), any entity registered under the Investment Company Act of 1940, as amended). (vii) It is a Person who is either (A) (1) a citizen or resident of the United States, (2) a corporation, partnership or other entity organized in or under the laws of the United States or any political subdivision thereof or (3) a Person not described in (1) or (2) whose ownership of the Certificates is effectively connected with such Person's conduct of a trade or business within the United States (within the meaning of the Code) and who provides the Depositor and the Owner Trustee an IRS Form ~~W-8ECI~~ 4224 (and such other certifications, representations or opinions of counsel as may be requested by the Depositor or the Owner Trustee) or (B) an estate or trust the income of which is includible in gross income for United States Federal income tax purposes, regardless of source. (viii) It understands that any purported Transfer of any Certificate (or any interest therein) in contravention of any of the restrictions and conditions (including any violation of the representation in paragraph (ii) above by an investor who continues to hold such Certificates occurring any time after the Transfer in which it acquired such Certificates) in this Section 3.4 shall be a Void Transfer, and the purported transferee in a Void Transfer shall not be recognized by the Trust or any other Person as a Certificateholder for any purpose. (ix) It agrees that if it determines to Transfer any of the Certificates it will cause its proposed transferee to provide to the Trust and the Certificate Registrar a letter substantially in the form of Exhibit D or E hereof, as applicable, or such other written statement as the Depositor shall prescribe. (d) By acceptance of any Certificate, the Certificateholder thereof specifically agrees with and represents to the Depositor, the Certificate Registrar and the Trust that no Transfer of such Certificate shall be made unless the registration requirements of the Securities Act and any applicable state securities laws are complied with, or such Transfer is exempt from the registration requirements under the Securities Act because the Transfer satisfies one of the following: (i) such Transfer is in compliance with Rule 144A under the Securities Act ("Rule 144A"), to a transferee who the transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer and to whom notice is given that such transfer is being made in reliance upon Rule 144A under the Securities Act and (x) the transferor executes and delivers to the Trust and the Certificate Registrar a Rule 144A transferor certificate substantially in the form attached as Exhibit C and (y) the transferee executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit D; (ii) after the appropriate holding period, such Transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the Trust or the Certificate Registrar, delivers an Opinion of Counsel in form and substance satisfactory to the Trust and the Depositor; or (iii) such Transfer is to an institutional accredited investor as defined in rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act in a transaction exempt from the registration requirements of the Securities Act, such Transfer is in accordance with any applicable securities laws of any state of the United States or any other jurisdiction, and such investor executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit E. (e) The Trust shall make available to the prospective transferor and transferee information requested to satisfy the requirements of paragraph (d)(4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information shall include any or all of the following items requested by the prospective transferee: (i) each statement delivered to Certificateholders pursuant to Section ~~4.9~~ 4.11 of the Sale and Servicing Agreement on each Payment Date preceding such request; and (ii) such other information as is reasonably available to the Owner Trustee in order to comply with requests for information pursuant to Rule 144A under the Securities Act. None of the Depositor, the Certificate Registrar or the Trust is under an obligation to register any Certificate under the Securities Act or any other securities law. (f) Upon surrender for registration of Transfer of any Certificate at the office or agency maintained pursuant to Section 3.8 and upon compliance with any provisions of this Agreement relating to such Transfer, the Owner Trustee shall execute, authenticate and deliver (or shall cause Wilmington Trust Company, as its authenticating agent, to authenticate and deliver), in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate amount dated the date of authentication by the Owner Trustee or any authenticating agent. Subject to Sections 3.4(b) and 3.4(c), at the option of a Certificateholder, 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 3.8. Every Certificate presented or surrendered for registration of Transfer or exchange shall be accompanied by a written instrument of transfer and accompanied by IRS Form ~~W-8ECI~~ 4224 or W-9 in form satisfactory to the Owner Trustee and the Certificate Registrar, duly executed by the Certificateholder or his 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 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 Certificates. (g) The provisions of this Section 3.4 and of this Agreement generally are intended to prevent the Trust from being characterized as a "publicly traded partnership" within the meaning of Section 7704 of the Code, in reliance on ~~Treasury Regulation ss~~Treas. ~~1.7704~~Reg. xx.xx. 1. 7704-1(e) and (h), and the Depositor shall take such intent into account in determining whether or not to consent to any proposed Transfer of any Certificate. The preceding provisions of this Section 3.4 notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any Transfer or exchange of Certificates for a period of 15 fifteen (15) days preceding the due date for any payment with respect to the Certificates. Notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities Act, the Exchange Act, applicable state securities law or the Investment Company Act of 1940, as amended; provided, however, that if a certification is specifically required to be delivered to the Owner Trustee by a purchaser or transferee of a Certificate, the Owner Trustee shall be under a duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and to register transfers only upon receipt of documents and certifications specified herein and shall promptly notify the party delivering the same if such certification does not so conform.

Appears in 1 contract

Samples: Trust Agreement (Mmca Auto Owner Trust 2000-2)

Registration of Certificates; Transfer and Exchange of Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.8, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of Transfers and exchanges of Certificates as herein provided. Wilmington Trust Company shall be the initial Certificate Registrar. No Transfer of a Certificate shall be recognized except upon registration of such Transfer in the Certificate Register. (b) No Certificateholder shall Transfer any Certificate initially held by it unless such transfer is made pursuant to an effective registration statement or otherwise in accordance with the requirements under the Securities Act and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If a transfer is to be made in reliance upon an exemption from the Securities Act, and under the applicable state securities laws, (i) the Certificate Registrar shall require an Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the Depositor that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the Securities Act, applicable state securities laws and other relevant laws, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Trustee, and (ii) the Certificate Registrar shall require the transferee to execute a certification acceptable to and in form and substance satisfactory to the Certificate Registrar setting forth the facts surrounding such transfer. (c) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which consent may be withheld in the sole discretion of the Depositor; provided, however, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of the Transfer will be, a Certificateholder. Each Certificate shall bear a legend to the following effect unless determined otherwise by the Administrator (as certified to the Certificate Registrar in an Officer's Certificate) consistent with applicable law: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN A DENOMINATION OF AT LEAST $1,000,000, ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C TO THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D TO THE TRUST AGREEMENT, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, AND THE CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a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s a condition to the registration of any Transfer of a Certificate, the prospective transferee of such a Certificate shall represent to the Owner Trustee and the Certificate Registrar the following: (i) It has neither acquired nor will it Transfer any Certificate it purchases (or any interest therein) or cause any such Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of ~~Section~~ section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. (ii) It either (A) is not, and will not become, a partnership, Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes, or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 80% or more (or such other percentage as the Depositor may establish prior to the time of such proposed Transfer) of the value of such interests to be attributable to such transferee's ownership of Certificates. (iii) It understands that no subsequent Transfer of the Certificates is permitted unless (A) such Transfer is of a Certificate with a denomination of at least $1,000,000 and (B) the Depositor consents in writing (which consent may be withheld for any reason or for no reason) to the proposed Transfer; provided, however, that no such consent shall be required where the proposed transferee is, and at the time of the Transfer will be, a Holder of a Certificate. (iv) It understands that the opinion of tax counsel that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs (i), (ii) and (iii) above. (v) If it is acquiring any Certificates as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the acknowledgments, representations and agreements contained herein on behalf of each such account. (vi) It is not (A) an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (B) a plan described in Section 4975(e)(1) of the Code, (C) a governmental plan, as defined in Section 3(32) of ERISA, subject to any Federal, state or local law which is, to a material extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the Code, (D) an entity whose underlying assets include plan assets by reason of a plan's investment in the entity (within the meaning of Department of Labor Regulation 29 C.F.R. ss. 2510.3-101) or (E) a person investing "plan assets" of any such plan (excluding, for purposes of this clause (E), any entity registered under the Investment Company Act of 1940, as amended). (vii) It is a Person who is either (A) (1) a citizen or resident of the United States, (2) a corporation, partnership or other entity organized in or under the laws of the United States or any political subdivision thereof or (3) a Person not described in (1) or (2) whose ownership of the Certificates is effectively connected with such Person's conduct of a trade or business within the United States (within the meaning of the Code) and who provides the Depositor and the Owner Trustee an IRS Form W-8ECI (and such other certifications, representations or opinions of counsel as may be requested by the Depositor or the Owner Trustee) or (B) an estate or trust the income of which is includible in gross income for United States Federal income tax purposes, regardless of source. (viii) It understands that any purported Transfer of any Certificate (or any interest therein) in contravention of any of the restrictions and conditions (including any violation of the representation in paragraph (ii) above by an investor who continues to hold such Certificates occurring any time after the Transfer in which it acquired such Certificates) in this Section 3.4 shall be a Void Transfer, and the purported transferee in a Void Transfer shall not be recognized by the Trust or any other Person as a Certificateholder for any purpose. (ix) It agrees that if it determines to Transfer any of the Certificates it will cause its proposed transferee to provide to the Trust and the Certificate Registrar a letter substantially in the form of Exhibit D or E hereof, as applicable, or such other written statement as the Depositor shall prescribe. (d) By acceptance of any Certificate, the Certificateholder thereof specifically agrees with and represents to the Depositor, the Certificate Registrar and the Trust that no Transfer of such Certificate shall be made unless the registration requirements of the Securities Act and any applicable state securities laws are complied with, or such Transfer is exempt from the registration requirements under the Securities Act because the Transfer satisfies one of the following: (i) such Transfer is in compliance with Rule 144A under the Securities Act ("Rule 144A"), to a transferee who the transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer and to whom notice is given that such transfer is being made in reliance upon Rule 144A under the Securities Act and (x) the transferor executes and delivers to the Trust and the Certificate Registrar a Rule 144A transferor certificate substantially in the form attached as Exhibit C and (y) the transferee executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit D; (ii) after the appropriate holding period, such Transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the Trust or the Certificate Registrar, delivers an Opinion of Counsel in form and substance satisfactory to the Trust and the Depositor; or (iii) such Transfer is to an institutional accredited investor as defined in rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act in a transaction exempt from the registration requirements of the Securities Act, such Transfer is in accordance with any applicable securities laws of any state of the United States or any other jurisdiction, and such investor executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit E. (e) The Trust shall make available to the prospective transferor and transferee information requested to satisfy the requirements of paragraph (d)(4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information shall include any or all of the following items requested by the prospective transferee: (i) each statement delivered to Certificateholders pursuant to Section 4.9 of the Sale and Servicing Agreement on each Payment Date preceding such request; and (ii) such other information as is reasonably available to the Owner Trustee in order to comply with requests for information pursuant to Rule 144A under the Securities Act. None of the Depositor, the Certificate Registrar or the Trust is under an obligation to register any Certificate under the Securities Act or any other securities law. (f) Upon surrender for registration of Transfer of any Certificate at the office or agency maintained pursuant to Section 3.8 and upon compliance with any provisions of this Agreement relating to such Transfer, the Owner Trustee shall execute, authenticate and deliver (or shall cause Wilmington Trust Company, as its authenticating agent, to authenticate and deliver), in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate amount dated the date of authentication by the Owner Trustee or any authenticating agent. Subject to Sections 3.4(b) and 3.4(c), at the option of a Certificateholder, 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 3.8. Every Certificate presented or surrendered for registration of Transfer or exchange shall be accompanied by a written instrument of transfer and accompanied by IRS Form ~~W-8ECI~~ W-8 ECI in form satisfactory to the Owner Trustee and the Certificate Registrar, duly executed by the Certificateholder or his 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 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 Certificates. (g) The provisions of this Section 3.4 and of this Agreement generally are intended to prevent the Trust from being characterized as a "publicly traded partnership" within the meaning of Section 7704 of the Code, in reliance on ~~Treasury Regulation ss~~Treas. ~~1.7704~~Reg. ss.ss. 1. 7704-1(e) and (h), and the Depositor shall take such ~~intent into~~ intxxx xnto account in determining whether or not to consent to any proposed Transfer of any Certificate. The preceding provisions of this Section 3.4 notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any Transfer or exchange of Certificates for a period of 15 fifteen (15) days preceding the due date for any payment with respect to the Certificates. Notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities Act, the Exchange Act, applicable state securities law or the Investment Company Act of 1940, as amended; provided, however, that if a certification is specifically required to be delivered to the Owner Trustee by a purchaser or transferee of a Certificate, the Owner Trustee shall be under a duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and to register transfers only upon receipt of documents and certifications specified herein and shall promptly notify the party delivering the same if such certification does not so conform.

Appears in 1 contract

Samples: Trust Agreement (Mmca Auto Owner Trust 2001-1)

Registration of Certificates; Transfer and Exchange of Certificates. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.8, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of Transfers and exchanges of Certificates as herein provided. ~~Wilmington Trust Company~~ The Chase Manhattan Bank shall be the initial Certificate Registrar. No Transfer of a Certificate shall be recognized except upon registration of such Transfer in the Certificate Register. (b) No Certificateholder shall Transfer any Certificate initially held by it unless such transfer is made pursuant to an effective registration statement or otherwise in accordance with the requirements under the Securities Act and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If a transfer is to be made in reliance upon an exemption from the Securities Act, and under the applicable state securities laws, (i) the Certificate Registrar shall require an Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the Depositor that such transfer may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from the Securities Act, applicable state securities laws and other relevant laws, which Opinion of Counsel shall not be an expense of the Certificate Registrar, the Depositor or the Trustee, and (ii) the Certificate Registrar shall require the transferee to execute a certification acceptable to and in form and substance satisfactory to the Certificate Registrar setting forth the facts surrounding such transfer. (c) No Transfer of any Certificate shall be permitted, recognized or recorded unless the Depositor has consented in writing to such Transfer, which consent may be withheld in the sole discretion of the Depositor; provided, however, that no such consent of the Depositor shall be required where the proposed transferee is, and at the time of the Transfer will be, a Certificateholder. Each Certificate shall bear a legend to the following effect unless determined otherwise by the Administrator (as certified to the Certificate Registrar in an Officer's Certificate) consistent with applicable law: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN A DENOMINATION OF AT LEAST $1,000,000, ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, SUBJECT TO (A) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT C TO THE TRUST AGREEMENT AND (B) THE RECEIPT BY THE TRUST AND THE CERTIFICATE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT D TO THE TRUST AGREEMENT, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE TRUST, AND THE CERTIFICATE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE TRUST THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE TRUST AGREEMENT AND THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a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s a condition to the registration of any Transfer of a Certificate, the prospective transferee of such a Certificate shall represent to the Owner Trustee and the Certificate Registrar the following: (i) It has neither acquired nor will it Transfer any Certificate it purchases (or any interest therein) or cause any such Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. (ii) It either (A) is not, and will not become, a partnership, Subchapter S corporation, or grantor trust for U.S. Federal income tax purposes, or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 80% or more (or such other percentage as the Depositor may establish prior to the time of such proposed Transfer) of the value of such interests to be attributable to such transferee's ownership of Certificates. (iii) It understands that no subsequent Transfer of the Certificates is permitted unless (A) such Transfer is of a Certificate with a denomination of at least $1,000,000 and (B) the Depositor consents in writing (which consent may be withheld for any reason or for no reason) to the proposed Transfer; provided, however, that no such consent shall be required where the proposed transferee is, and at the time of the Transfer will be, a Holder of a Certificate. (iv) It understands that the opinion of tax counsel that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs (i), (ii) and (iii) above. (v) If it is acquiring any Certificates as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and it has full power to make the acknowledgments, representations and agreements contained herein on behalf of each such account. (vi) It is not (A) an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (B) a plan described in Section 4975(e)(1) of the Code, (C) a governmental plan, as defined in Section 3(32) of ERISA, subject to any Federal, state or local law which is, to a material extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the Code, (D) an entity whose underlying assets include plan assets by reason of a plan's investment in the entity (within the meaning of Department of Labor Regulation 29 C.F.R. ss. 2510.3-101) or (E) a person investing "plan assets" of any such plan (excluding, for purposes of this clause (E), any entity registered under the Investment Company Act of 1940, as amended). (vii) It is a Person who is either (A) (1) a citizen or resident of the United States, (2) a corporation, partnership or other entity organized in or under the laws of the United States or any political subdivision thereof or (3) a Person not described in (1) or (2) whose ownership of the Certificates is effectively connected with such Person's conduct of a trade or business within the United States (within the meaning of the Code) and who provides the Depositor and the Owner Trustee an IRS Form W-8ECI (and such other certifications, representations or opinions of counsel as may be requested by the Depositor or the Owner Trustee) or (B) an estate or trust the income of which is includible in gross income for United States Federal income tax purposes, regardless of source. (viii) It understands that any purported Transfer of any Certificate (or any interest therein) in contravention of any of the restrictions and conditions (including any violation of the representation in paragraph (ii) above by an investor who continues to hold such Certificates occurring any time after the Transfer in which it acquired such Certificates) in this Section 3.4 shall be a Void Transfer, and the purported transferee in a Void Transfer shall not be recognized by the Trust or any other Person as a Certificateholder for any purpose. (ix) It agrees that if it determines to Transfer any of the Certificates it will cause its proposed transferee to provide to the Trust and the Certificate Registrar a letter substantially in the form of Exhibit D or E hereof, as applicable, or such other written statement as the Depositor shall prescribe. (d) By acceptance of any Certificate, the Certificateholder thereof specifically agrees with and represents to the Depositor, the Certificate Registrar and the Trust that no Transfer of such Certificate shall be made unless the registration requirements of the Securities Act and any applicable state securities laws are complied with, or such Transfer is exempt from the registration requirements under the Securities Act because the Transfer satisfies one of the following: (i) such Transfer is in compliance with Rule 144A under the Securities Act ("Rule 144A"), to a transferee who the transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer and to whom notice is given that such transfer is being made in reliance upon Rule 144A and (x) the transferor executes and delivers to the Trust and the Certificate Registrar a Rule 144A transferor certificate substantially in the form attached as Exhibit C and (y) the transferee executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit D; (ii) after the appropriate holding period, such Transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the Trust or the Certificate Registrar, delivers an Opinion of Counsel in form and substance satisfactory to the Trust and the Depositor; or (iii) such Transfer is to an institutional accredited investor as defined in rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act in a transaction exempt from the registration requirements of the Securities Act, such Transfer is in accordance with any applicable securities laws of any state of the United States or any other jurisdiction, and such investor executes and delivers to the Trust and the Certificate Registrar an investment letter substantially in the form attached as Exhibit E. (e) The Trust shall make available to the prospective transferor and transferee information requested to satisfy the requirements of paragraph (d)(4) of Rule 144A (the "Rule 144A Information"). The Rule 144A Information shall include any or all of the following items requested by the prospective transferee: (i) each statement delivered to Certificateholders pursuant to Section 4.9 of the Sale and Servicing Agreement on each Payment Date preceding such request; and (ii) such other information as is reasonably available to the Owner Trustee in order to comply with requests for information pursuant to Rule 144A under the Securities Act. None of the Depositor, the Certificate Registrar or the Trust is under an obligation to register any Certificate under the Securities Act or any other securities law. (f) Upon surrender for registration of Transfer of any Certificate at the office or agency maintained pursuant to Section 3.8 and upon compliance with any provisions of this Agreement relating to such Transfer, the Owner Trustee shall execute, authenticate and deliver (or shall cause Wilmington Trust Company, as its authenticating agent, to authenticate and deliver), in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate amount dated the date of authentication by the Owner Trustee or any authenticating agent. Subject to Sections 3.4(b) and 3.4(c), at the option of a Certificateholder, 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 3.8. Every Certificate presented or surrendered for registration of Transfer or exchange shall be accompanied by a written instrument of transfer and accompanied by IRS Form W-8ECI in form satisfactory to the Owner Trustee and the Certificate Registrar, duly executed by the Certificateholder or his 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 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 Certificates. (g) The provisions of this Section 3.4 and of this Agreement generally are intended to prevent the Trust from being characterized as a "publicly traded partnership" within the meaning of Section 7704 of the Code, in reliance on Treasury Regulation ss. 1.7704-1(e) and (h), and the Depositor shall take such intent into account in determining whether or not to consent to any proposed Transfer of any Certificate. The preceding provisions of this Section 3.4 notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any Transfer or exchange of Certificates for a period of 15 days preceding the due date for any payment with respect to the Certificates. Notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities Act, the Exchange Act, applicable state securities law or the Investment Company Act of 1940, as amended; provided, however, that if a certification is specifically required to be delivered to the Owner Trustee by a purchaser or transferee of a Certificate, the Owner Trustee shall be under a duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and to register transfers only upon receipt of documents and certifications specified herein and shall promptly notify the party delivering the same if such certification does not so conform.in

Appears in 1 contract

Samples: Trust Agreement (Daimler Benz Vehicle Receivables Corp)

Common use of Registration of Certificates; Transfer and Exchange of Certificates Clause in Contracts