Registration of Transfer and Exchange of Certificates. The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No transfer, sale, pledge or other disposition of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B or Class R Certificate is to be made (i) the Depositor may direct the Trustee to require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the transfer of any Class B or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default. (i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions: (A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee. (B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax. (C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected. (D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4. (E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder." (ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited. (iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (American Home Mortgage Assets LLC), Pooling and Servicing Agreement (American Home Mortgage Securities LLC), Pooling and Servicing Agreement (American Home Mortgage Securities LLC)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B R, Class RX, Class C or a Class R P Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "“Act"”), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B R, Class RX, Class C or Class R P Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Company or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor Company or any affiliate thereof, to a non-affiliate of the Depositor Company and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor Company and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor Company or the Master Servicer; provided, however, that such representation letters will not be required in connection with any transfer of any such Certificate by the Company to an affiliate of the Company and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Company of the status of such transferee as an affiliate of the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Notwithstanding the requirements of Section 5.02(b), transfers of Class R, Class RX, Class C or Class P Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of a Certificate provides the Trustee and the Company with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the, the Trustee, the Company or the Master Servicer, and which investment letter states that, among other things, such transferee is a “qualified institutional buyer” as defined under Rule 144A, provided that, in the case of any Book-Entry Certificate, such transferee shall be deemed to have made such representations and warranties contained in such investment letter. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws The Trustee shall require a written an Opinion of Counsel Counsel, on which the Trustee, the Company and the Master Servicer may rely, from a prospective transferee prior to the transfer of any Class B or Class R ERISA Restricted Certificate to any employee benefit plan or other retirement arrangement, including an individual retirement accounts and account or Xxxxx plansplan, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA") ”), or Section 4975 of the Code (any of the foregoing, a "“Plan"”), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "“plan assets" ” of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "“plan assets"”). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition transfer is permissible under applicable law, will not violate the constitute or result in a prohibited transaction provisions of under Section 406 of ERISA and or Section 4975 of the Code. Neither , and will not subject the DepositorTrustee, the Master Servicer nor or the Company to any obligation in addition to those undertaken in this Agreement. None of the Company, the Master Servicer or the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In A purchaser of an ERISA Restricted Certificate shall be deemed to represent to the case Trustee, the Master Servicer and the Company that it is not a Plan or using assets of a Plan if it does not provide such an Opinion of Counsel. For so long as the Interest Rate Swap Agreement is in existence, each beneficial owner of an Class III-A-1-1 Certificate or any transfer interest therein, shall be deemed to have represented, by virtue of its acquisition or holding of the foregoing Certificates Class III-A-1-1 Certificate, or interest therein, that either (i) it is not a Plan or (ii) (A) it is an accredited investor within the meaning of the Prohibited Transaction Exemption 2002-41 and (B) the acquisition and holding of such Certificate and the separate right to receive payments from the Interest Rate Swap Agreement are eligible for the exemptive relief available under Prohibited Transaction Class Exemption 91-38, 96-23, 90-1, 84-14 or 95-60. Each beneficial owner of a Class A (other than a Class I-A-1, Class II-A-1-1, Class II-A-1-2, Class III-A-1-1 (subsequent to the termination of the Interest Rate Swap Agreement) and Class III-A-1-2 Certificate), Class M or any interest therein shall be deemed to have represented, by virtue of its acquisition or holding of that Certificate or interest therein, that either (i) it is not a Plan or a trustee or other Person acting on behalf of a Plan or using “plan assets” of a Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute “plan assets”) or (ii) (1) it is an insurance company, in lieu (2) the source of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by to acquire or hold the Certificate or interest therein is an “insurance company general account,” as such transferee to purchase such Certificates will be funds term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Certificate, or any interest therein, is acquired or held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of this section 5.02(c), the restriction on next preceding permitted beneficial owner will be treated as the beneficial owner of that Certificate, retroactive to the date of transfer set forth to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of a Certificate, or interest therein, was effected in violation of this paragraph section shall not constitute indemnify to the extent permitted by law and hold harmless the Company, the Sponsor, the Master Servicer, any servicer, any Underwriter and the Trustee from and against any and all liabilities, claims, costs or expenses incurred by such parties as a default result of such acquisition or an Event of Defaultholding.
(d) [Reserved]
(i) Each Person who has or who acquires any Ownership Interest in a Class R Residual Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Residual Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Residual Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer Transfer of any Ownership Interest in a Class R Residual Certificate, the Trustee shall require delivery to it, and shall not register the transfer Transfer of any Class R Residual Certificate until its receipt of (I) an affidavit and agreement (a "“Transfer Affidavit and Agreement" ” in the form attached hereto as Exhibit G-3G-5) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Residual Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Residual Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- “pass-through interest holder" ” within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Residual Certificate, if it is "“a pass-through interest holder"”, or is holding an Ownership Interest in a Class R Residual Certificate on behalf of a "“pass-through interest holder."”
(ii) The Trustee will register the Transfer of any Class R Residual Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3G-5, a certificate of the holder Holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Residual Certificates other than to Non-United States Persons and Disqualified Organizations Permitted Transferees are prohibited.
(iii) (aA) if If any Disqualified Organization Person other than a Permitted Transferee shall become a holder Holder of a Class R Residual Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Residual Certificate. If a Non-United States Person shall become a holder Holder of a Class R Residual Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Residual Certificate. If a transfer of a Residual Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.860G-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as Holder thereof retroactive to the date of registration of such transfer of such Residual Certificate. The prior Holder shall be entitled to recover from any purported Holder of a Residual Certificate that was in fact not a Permitted Transferee under this Section 5.05(b) at the time it became a Holder all payments made on such Residual Certificate. Each Holder of a Residual Certificate, by acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this clause (b) and to any amendment of this Agreement deemed necessary (whether as a result of new legislation or otherwise) by counsel of the Company to ensure that the Residual Certificates are not transferred to any Person who is not a Permitted Transferee and that any transfer of such Residual Certificates will not cause the imposition of a tax upon the Trust or cause any such REMIC to fail to qualify as a REMIC. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Residual Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder Holder thereof or for taking any other action with respect to such holder Holder under the provisions of this Agreement.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (American Home Mortgage Assets Trust 2006-3), Pooling and Servicing Agreement (American Home Mortgage Assets Trust 2006-3), Pooling and Servicing Agreement (American Home Mortgage Assets Trust 2006-3)
Registration of Transfer and Exchange of Certificates. The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, (A) (See Section 5.02(a) of the Trustee shall provide for Standard Terms.)
(B) (See Section 5.02(b) of the registration Standard Terms.)
(C) (See Section 5.02(c) of Certificates and of transfers and exchanges of Certificates as herein provided. the Standard Terms.)
(D) No transfer, sale, pledge or other disposition of a Class B or SB Certificate that is a Class R Definitive Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act")amended, and any applicable state securities laws or is made in accordance with said Act and laws. In Except with respect to (i) the transfer of a Class SB Certificate by the Company to an Affiliate of the Company or the transfer of a Class SB Certificate from the Company or an Affiliate of the Company to an owner trust or other entity established by the Company (including to the Trustee, as a NIM Trustee), or (ii) a transfer of a Class SB Certificate from the NIM Trustee to the Company or an Affiliate of the Company, in the event that a transfer of a Class B or Class R SB Certificate is to be made made, either (iI)(A) the Depositor may direct the Trustee to shall require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Company that such transfer shall may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Company or the Master ServicerServicer (except that, if such transfer is made by the Company or the Master Servicer or any Affiliate thereof, the Company or the Master Servicer shall provide such Opinion of Counsel at their own expense); provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor Company or any affiliate thereof, Affiliate thereof to a non-affiliate the Company or an Affiliate of the Depositor Company and (iiB) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 heretoH to the Standard Terms, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 heretoI to the Standard Terms, each acceptable to and in form and substance satisfactory to the Depositor Company and the Trustee certifying to the Depositor Company and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor Company or the Master Servicer; provided, however, that such representation letters will not be required in connection with any transfer of any such Certificate by the Company or any Affiliate thereof to the Company or an Affiliate of the Company, and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Company, of the status of such transferee as an Affiliate of the Company or (II) the prospective transferee of such a Certificate shall be required to provide the Trustee, the Company and the Master Servicer with an investment letter substantially in the form of Exhibit J attached to the Standard Terms (or such other form as the Company in its sole discretion deems acceptable), which investment letter shall not be an expense of the Trustee, the Company or the Master Servicer, and which investment letter states that, among other things, such transferee (A) is a "qualified institutional buyer" as defined under Rule 144A, acting for its own account or the accounts of other "qualified institutional buyers" as defined under Rule 144A and (B) is aware that the proposed transferor intends to rely on the exemption from registration requirements under the Securities Act of 1933, as amended, provided by Rule 144A. With respect to any transfer of an interest in a Global Offered Certificate from a Holder of an interest in a Global Offered Certificate, the requirements of (I)(A) and (B) above shall not apply and any transferee of a Rule 144A Global Offered Certificate will be deemed to have represented and warranted as to the matters set forth in Exhibit J attached to the Standard Terms and any transferee of a Temporary Regulation S Global Offered Certificate or Permanent Regulation S Global Offered Certificate will be deemed to have represented and warranted as to the matters set forth in Exhibit Twelve of this Series Supplement. Any The Holder of any such Certificateholder Certificate desiring to effect any such transfer transfer, sale, pledge or other disposition shall, and does hereby agree to, indemnify the Trustee, the Depositor and Company, the Master Servicer and the Certificate Registrar against any liability that may result if the transfer transfer, sale, pledge or other disposition is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to .
(E) (i) In the transfer case of any Class B SB Certificate that is a Definitive Certificate or Class R Certificate presented for registration in the name of any Person, either (I) (A) the Trustee shall require an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee, the Company and the Master Servicer to the effect that the purchase or holding of such Class SB Certificate or Class R Certificate is permissible under applicable law, will not constitute or result in any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") ), or Section 4975 of the Code (or comparable provisions of any subsequent enactments), and will not subject the Trustee, the Company or the Master Servicer to any obligation or liability (including obligations or liabilities under ERISA or Section 4975 of the foregoingCode) in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Trustee, the Company or the Master Servicer or (B) the prospective Transferee shall be required to provide the Trustee, the Company and the Master Servicer with a certification to the effect set forth in paragraph fifteen of Exhibit G-1, which the Trustee may rely upon without further inquiry or investigation, or such other certifications as the Trustee may deem desirable or necessary in order to establish that such Transferee or the Person in whose name such registration is requested is not an employee benefit plan or other plan subject to the prohibited transaction provisions of ERISA or Section 4975 of the Code, or any Person (including an investment manager, a "Plan"), to named fiduciary or a trustee or other Person acting on behalf of any Plan, or to any other person such plan) who is using "plan assets" of any Plan such plan to effect such acquisition (including each, a "Plan Investor") or (II) in the case of any insurance company using funds in its general or separate accounts Global Offered Certificate, the Transferee will be deemed to represent that may constitute "plan assets")it is not a Plan Investor. Such Opinion of Counsel must establish Notwithstanding anything to the satisfaction contrary contained herein, the Trustee and the Supplemental Interest Trust Trustee shall not permit the transfer of a beneficial interest in a Class SB Certificate or Global Offered Certificate unless the Depositor transferee executes and delivers to the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the DepositorSupplemental Interest Trust Trustee, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of as applicable, any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, 10.06(c) prior to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreementtransfer.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (RALI Series 2007-Qh2 Trust), Pooling and Servicing Agreement (RALI Series 2007-Qh7 Trust), Pooling and Servicing Agreement (RALI Series 2007-Qh3 Trust)
Registration of Transfer and Exchange of Certificates. The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No transfer, sale, pledge or other disposition of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B or Class R Certificate is to be made (i) the Depositor may direct the Trustee to require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the transfer of any Class B or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx Keogh plans, that is subject to Section 406 Sectxxx 006 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (MortgageIT Securities Corp.), Pooling and Servicing Agreement (MortgageIT Securities Corp.), Pooling and Servicing Agreement (MortgageIT Securities Corp.)
Registration of Transfer and Exchange of Certificates. The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No transfer, sale, pledge or other disposition of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B or Class R Certificate is to be made (i) the Depositor may direct the Trustee to require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the transfer of any Class B or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx Keogh plans, that is subject to Section 406 of the Employee Retirement Income Retiremenx Xxxome Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (American Home Mortgage Assets LLC), Pooling and Servicing Agreement (American Home Mortgage Assets LLC), Pooling and Servicing Agreement (BNP Paribas Mortgage Securities LLC)
Registration of Transfer and Exchange of Certificates. The (a) (See Section 5.02(a) of the Standard Terms)
(b) Upon surrender for registration of transfer of any Certificate at any office or agency of the Trustee shall maintain a Certificate Register maintained for such purpose pursuant to Section 8.12 and, in whichthe case of any Class M, subject to such reasonable regulations as it may prescribeClass B, Class P or Class R Certificate, upon satisfaction of the conditions set forth below, the Trustee shall provide for execute and the registration Certificate Registrar shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates of a like Class (or Subclass) and aggregate Percentage Interest.
(c) (See Section 5.02(c) of transfers and exchanges of Certificates as herein provided. the Standard Terms)
(d) No transfer, sale, pledge or other disposition of a Class B Certificate or a Class R P Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act")amended, and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B Certificate or Class R P Certificate is to be made either (ii)(A) the Depositor may direct the Trustee to shall require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Company that such transfer shall may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Company or the Master ServicerServicer (except that, if such transfer is made by the Company or the Master Servicer or any Affiliate thereof, the Company or the Master Servicer shall provide such Opinion of Counsel at their own expense); provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor Company or any affiliate thereof, Affiliate thereof to a non-affiliate the Company or an Affiliate of the Depositor Company and (iiB) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 H hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 I hereto, each acceptable to and in form and substance satisfactory to the Depositor Company and the Trustee certifying to the Depositor Company and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor Company or the Master Servicer. Any ; provided, however, that such Certificateholder representation letters will not be required in connection with any transfer of any such Certificate by the Company or any Affiliate thereof to the Company or an Affiliate of the Company, and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Company, of the status of such transferee as an Affiliate of the Company or (ii) the prospective transferee of such a Certificate shall be required to provide the Trustee, the Company and the Master Servicer with an investment letter substantially in the form of Exhibit J attached hereto (or such other form as the Company in its sole discretion deems acceptable), which investment letter shall not be an expense of the Trustee, the Company or the Master Servicer, and which investment letter states that, among other things, such transferee (A) is a "qualified institutional buyer" as defined under Rule 144A, acting for its own account or the accounts of other "qualified institutional buyers" as defined under Rule 144A, and (B) is aware that the proposed transferor intends to rely on the exemption from registration requirements under the Securities Act of 1933, as amended, provided by Rule 144A. The Holder of any such Certificate desiring to effect any such transfer transfer, sale, pledge or other disposition shall, and does hereby agree to, indemnify the Trustee, the Depositor and Company, the Master Servicer and the Certificate Registrar against any liability that may result if the transfer transfer, sale, pledge or other disposition is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to .
(e) (i) In the transfer case of any Class B B, Class P or Class R Certificate presented for registration in the name of any Person, either (A) the Trustee shall require an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee, the Company and the Master Servicer to the effect that the purchase or holding of such Class B, Class P or Class R Certificate is permissible under applicable law, will not constitute or result in any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") ), or Section 4975 of the Code (or comparable provisions of any subsequent enactments), and will not subject the Trustee, the Company or the Master Servicer to any obligation or liability (including obligations or liabilities under ERISA or Section 4975 of the foregoingCode) in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Trustee, the Company or the Master Servicer or (B) the prospective Transferee shall be required to provide the Trustee, the Company and the Master Servicer with a certification to the effect set forth in paragraph six of Exhibit H (with respect to any Class B Certificate or Class P Certificate) or paragraph fifteen of Exhibit G-1 (with respect to any Class R Certificate), which the Trustee may rely upon without further inquiry or investigation, or such other certifications as the Trustee may deem desirable or necessary in order to establish that such Transferee or the Person in whose name such registration is requested either (a) is not an employee benefit plan or other plan subject to the prohibited transaction provisions of ERISA or Section 4975 of the Code, or any Person (including an investment manager, a "Plan"), to named fiduciary or a trustee or other Person acting on behalf of any Plan, or to any other person such plan) who is using "plan assets" of any Plan such plan to effect such acquisition (including any insurance company using funds each, a "Plan Investor") or (b) in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of Class B Certificate or Class P Certificate, the foregoing Certificates to following conditions are satisfied: (i) such Transferee is an insurance company, in lieu (ii) the source of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase or hold such Certificates will be funds held by it in its Certificate (or interest therein) is an "insurance company general account which it reasonably believes do not constitute "plan assetsaccount" of any Plan (as defined above). The permission in U.S. Department of any transfer in violation of Labor Prohibited Transaction Class Exemption ("PTCE") 95-60, and (iii) the restriction on transfer conditions set forth in Sections I and III of PTCE 95-60 have been satisfied (each entity that satisfies this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificateb), the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of taxComplying Insurance Company").
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Residential Accredit Loans Inc), Pooling and Servicing Agreement (RALI Series 2005-Qo1 Trust), Pooling and Servicing Agreement (RALI Series 2005-Q03 Trust)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B P Certificate, Class C Certificate or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B P Certificate, Class C Certificate or Class R Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Company or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor Company or any affiliate thereof, to a non-affiliate of the Depositor Company and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor Company and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor Company or the Master Servicer; provided, however, that such representation letters will not be required in connection with any transfer of any such Certificate by the Company to an affiliate of the Company and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Company of the status of such transferee as an affiliate of the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Notwithstanding the requirements of Section 5.02(b), transfers of Class P Certificates, Class C Certificates and Class R Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of a Certificate provides the Trustee and the Company with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the Trustee, the Company or the Master Servicer, and which investment letter states that, among other things, such transferee is a "qualified institutional buyer" as defined under Rule 144A. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof; provided, however, that no Transfer of any of the Class P Certificates, Class C Certificates or Class R Certificates may be made pursuant to this Section 5.02(c) by the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written an Opinion of Counsel from a prospective transferee prior to the transfer of any Class B P Certificate, Class C Certificate or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition transfer is permissible under applicable law, will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code, will not cause the assets of the Trust Fund to constitute "plan assets" within the meaning of 29 C.F.R. ss. 2510.3-101, and will not subject the Trustee, the Master Servicer or the Company to any obligation in addition to those undertaken in this Agreement. Neither the DepositorCompany, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan .
(as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.d) [Reserved]
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer Transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer Transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3G-5) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4G- 4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- pass-through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3G-5, a certificate of the holder Holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates other than to Non-United States Persons and Disqualified Organizations Permitted Transferees are prohibited.
(iii) (aA) if If any Disqualified Organization Person other than a Permitted Transferee shall become a holder Holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder Holder of a Class R Certificate, then the last preceding United States Person Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-31.860G-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer transfer of such Class R Certificate. The prior Holder shall be entitled to recover from any purported Holder of a Class R Certificate that was in fact not a Permitted Transferee under this Section 5.05(b) at the time it became a Holder all payments made on such Class R Certificate. Each Holder of a Class R Certificate, by acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this clause (b) and to any amendment of this Agreement deemed necessary (whether as a result of new legislation or otherwise) by counsel of the Company to ensure that the Class R Certificates are not transferred to any Person who is not a Permitted Transferee and that any transfer of such Class R Certificates will not cause the imposition of a tax upon the Trust or cause any such REMIC to fail to qualify as a REMIC. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder Holder thereof or for taking any other action with respect to such holder Holder under the provisions of this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp Mortgage Pass THR Cert Ser 2002-3), Pooling and Servicing Agreement (Impac Secured Assets Corp Mortgage Pass THR Cert Ser 2002-3)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain cause to be kept at the office of its designated agent in the City of New York, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. .
(b) No transfer, sale, pledge or other disposition transfer of a Class B Residual Certificate or a Class R Certificate any interest therein shall be made unless such transfer, sale, pledge or other disposition is exempt from and the registration requirements of the Securities Act of 1933, as amended (the "Act"), and Trustee shall not register any applicable state securities laws or is made in accordance with said Act and laws. In the event that a proposed transfer of a Class B or Class R Residual Certificate is to be made unless it receives (i) a representation substantially to the Depositor effect that the proposed transferee is not a Plan, is not acquiring a Residual Certificate on behalf of or with the assets of a Plan (including assets that may direct the Trustee to require a written Opinion be held in an insurance company's separate or general accounts where assets in such accounts may be deemed "plan assets" for purposes of Counsel acceptable to and ERISA), or (ii) an opinion of counsel in form and substance satisfactory to the Trustee and the Depositor that such transfer the purchase or holding of a Residual Certificate by or on behalf of a Plan will not constitute a prohibited transaction and will not result in the assets of the Trust being deemed to be "plan assets" and subject to the fiduciary responsibility provisions of ERISA or the prohibited transaction provisions of ERISA and the Code or any federal, state or local law that impose similar requirements or subject the Trustee or the Depositor to any obligation in addition to those undertaken in this Agreement. Such representation as described above shall be deemed to have been made pursuant to an exemptionthe Trustee by the transferee's acceptance of a Residual Certificate.
(c) The Class T Certificate may not be transferred to any Person other than a successor Trustee hereunder. By accepting the Class T Certificate, describing each Holder thereof shall be deemed to have agreed to this restriction on transfer. In addition, the applicable exemption Class T Certificate shall bear a legend setting forth the foregoing restriction on transfer.
(d) The Certificates and related documentation (including the forms of Transferee's Certificate) may be amended or supplemented from time to time by the Depositor, without the consent but upon notice to the Trustee and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense Holders of the TrusteeCertificates, to modify the Depositor restrictions on and procedures for resale and other Transfers of the Certificates to reflect any change in applicable law or regulation (or the Master Servicerinterpretation thereof) or in practices relating to the resale or other Transfer of restricted securities generally, provided that such Opinion or to reflect the circumstances of Counsel will not be required in connection with the initial transfer of any such a Certificate by the Depositor or any affiliate thereofhaving become a Registered Certificate, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to if the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be have received an expense of the Trustee, the Depositor or the Master Servicer. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the transfer of any Class B or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default amendment or an Event of Defaultsupplement is necessary or appropriate.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Residual Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer Transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Residual Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Residual Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer Transfer of any Ownership Interest in a Class R Residual Certificate, the Trustee shall require delivery to it, and shall not register the transfer Transfer of any Class R Residual Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 4.02(e) and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate Transferor Affidavit to the Trustee in the form attached hereto as Exhibit G-4stating that it has no actual knowledge that such other Person is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Residual Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- pass-through interest holder" within the meaning of Temporary temporary Treasury Regulations regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Residual Certificate, if it is "a pass-through interest holder"is, or is holding an Ownership Interest in a Class R Residual Certificate on behalf of of, a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Residual Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers In addition, no Transfer of a Residual Certificate shall be made unless the Class R Certificates Trustee shall have received a representation letter from the Transferee of such Certificate to Non-United States Persons and Disqualified Organizations are prohibitedthe effect that such Transferee is a Permitted Transferee.
(iiiA) (a) if If any Disqualified Organization purported Transferee shall become a holder Holder of a Class R CertificateResidual Certificate in violation of the provisions of this Section 4.02(e), then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Residual Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Residual Certificate that is in fact not permitted by this Section 5.02 4.02(e) or for making any payments due on such Certificate to the holder Holder thereof or for taking any other action with respect to such holder Holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the restrictions in this Section 4.02(e) and to the extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Trustee shall have the right, without notice to the Holder or any prior Holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Trustee on such terms as the Trustee may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Trustee. Such purchaser may be the Trustee itself or any affiliate of the Trustee. The proceeds of such sale, net of the commissions (which may include commissions payable to the Trustee or its affiliates), expenses and taxes due, if any, will be remitted by the Trustee to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be determined in the sole discretion of the Trustee, and the Trustee shall not be liable to any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 4.02(e) set forth prior to this subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the party seeking to modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the modification, addition to or elimination of such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or elimination of such provisions will not cause the REMIC created hereunder to cease to qualify as a REMIC and will not cause the REMIC created hereunder to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is (x) not a Permitted Transferee or (y) a Person other than the prospective transferee to be subject to a REMIC-tax caused by the Transfer of a Residual Certificate to a Person that is not a Permitted Transferee.
(f) The restrictions on Transfers of Residual Certificates set forth in Section 4.02(e) hereof shall cease to apply to Transfers occurring after delivery to the Trustee of an Opinion of Counsel, which Opinion of Counsel shall not be an expense of the Depositor or the Trustee, to the effect that the elimination of such restrictions will not cause the Trust Fund to fail to qualify as a REMIC at any time that the related Certificates are outstanding.
(g) Subject to the foregoing, upon surrender for registration of Transfer of any Certificate at the Corporate Trust Office, the Trustee shall execute, countersign and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations and of the same Class and aggregate Percentage Interest.
(h) At the option of the Certificateholders, Certificates may be exchanged for other Certificates of authorized denominations and of the same Class and aggregate Percentage Interest upon surrender of the Certificates to be exchanged at the office maintained pursuant to Section 4.05. Whenever any Certificates are so surrendered for exchange, the Trustee shall execute, countersign and deliver the Certificates that the Certificateholder making the exchange is entitled to receive. Each Certificate presented or surrendered for registration of Transfer or exchange shall (if so required by the Trustee) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing.
(i) No service charge shall be made for any registration of Transfer or exchange of Certificates of any Class, but the Trustee 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.
(j) All Certificates surrendered for registration of Transfer and exchange shall be cancelled and disposed of by the Trustee in accordance with its standard procedures without liability on its part.
(k) Upon written request, the Trustee will provide to the Depositor a list of names and addresses of all Certificateholders as they appear in the Certificate Register. The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Agreement or under applicable law with respect to any transfer of any interest in any Certificate (including any transfers between or among Certificate Owners or beneficial owners of interests in any book-entry or global certificates) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of this Agreement, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Appears in 2 contracts
Samples: Trust Agreement (Greenwich Capital Acceptance Inc), Trust Agreement (Greenwich Capital Acceptance Inc)
Registration of Transfer and Exchange of Certificates. The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No transfer, sale, pledge or other disposition of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B or Class R Certificate is to be made (i) the Depositor may direct the Trustee to require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the transfer of any Class B or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx Keogh plans, that is subject to Section Sexxxxx 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (MortgageIT Securities Corp.), Pooling and Servicing Agreement (Peoples Choice Home Loan Securities Corp)
Registration of Transfer and Exchange of Certificates. The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No transfer, sale, pledge or other disposition of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B or Class R Certificate is to be made (i) the Depositor may direct the Trustee to require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the transfer of any Class B or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx Kxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I1) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II11) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Ab Mortgage Securities Corp), Pooling and Servicing Agreement (Opteum Mortgage Acceptance CORP)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B P, Class C or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "“Act"”), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B P, Class C or Class R Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer; provided, however, that such representation letters will not be required in connection with any transfer of any such Certificate by the Depositor to an affiliate of the Depositor and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the transfer of any Class B or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Impac Secured Assets Trust 2007-3), Pooling and Servicing Agreement (Impac Secured Assets Trust 2007-3)
Registration of Transfer and Exchange of Certificates. The (a) (See Section 5.02(a) of the Standard Terms)
(b) Upon surrender for registration of transfer of any Certificate at any office or agency of the Trustee shall maintain a Certificate Register maintained for such purpose pursuant to Section 8.12 and, in whichthe case of any Class M, subject to such reasonable regulations as it may prescribeClass B or Class R Certificate, upon satisfaction of the conditions set forth below, the Trustee shall provide for execute and the registration Certificate Registrar shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates of a like Class (or Subclass) and aggregate Percentage Interest.
(c) (See Section 5.02(c) of transfers and exchanges of Certificates as herein provided. the Standard Terms)
(d) No transfer, sale, pledge or other disposition of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act")amended, and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B or Class R Certificate is to be made either (ii)(A) the Depositor may direct the Trustee to shall require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Company that such transfer shall may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Company or the Master ServicerServicer (except that, if such transfer is made by the Company or the Master Servicer or any Affiliate thereof, the Company or the Master Servicer shall provide such Opinion of Counsel at their own expense); provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor Company or any affiliate thereof, Affiliate thereof to a non-affiliate the Company or an Affiliate of the Depositor Company and (iiB) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 H hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 I hereto, each acceptable to and in form and substance satisfactory to the Depositor Company and the Trustee certifying to the Depositor Company and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor Company or the Master Servicer. Any ; provided, however, that such Certificateholder representation letters will not be required in connection with any transfer of any such Certificate by the Company or any Affiliate thereof to the Company or an Affiliate of the Company, and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Company, of the status of such transferee as an Affiliate of the Company or (ii) the prospective transferee of such a Certificate shall be required to provide the Trustee, the Company and the Master Servicer with an investment letter substantially in the form of Exhibit J attached hereto (or such other form as the Company in its sole discretion deems acceptable), which investment letter shall not be an expense of the Trustee, the Company or the Master Servicer, and which investment letter states that, among other things, such transferee (A) is a "qualified institutional buyer" as defined under Rule 144A, acting for its own account or the accounts of other "qualified institutional buyers" as defined under Rule 144A, and (B) is aware that the proposed transferor intends to rely on the exemption from registration requirements under the Securities Act of 1933, as amended, provided by Rule 144A. The Holder of any such Certificate desiring to effect any such transfer transfer, sale, pledge or other disposition shall, and does hereby agree to, indemnify the Trustee, the Depositor and Company, the Master Servicer and the Certificate Registrar against any liability that may result if the transfer transfer, sale, pledge or other disposition is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to .
(e) (i) In the transfer case of any Class B or Class R Certificate presented for registration in the name of any Person, either (A) the Trustee shall require an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee, the Company and the Master Servicer to the effect that the purchase or holding of such Class B or Class R Certificate is permissible under applicable law, will not constitute or result in any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") ), or Section 4975 of the Code (or comparable provisions of any subsequent enactments), and will not subject the Trustee, the Company or the Master Servicer to any obligation or liability (including obligations or liabilities under ERISA or Section 4975 of the foregoingCode) in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Trustee, the Company or the Master Servicer or (B) the prospective Transferee shall be required to provide the Trustee, the Company and the Master Servicer with a certification to the effect set forth in paragraph six of Exhibit H (with respect to any Class B Certificate) or paragraph fifteen of Exhibit G-1 (with respect to any Class R Certificate), which the Trustee may rely upon without further inquiry or investigation, or such other certifications as the Trustee may deem desirable or necessary in order to establish that such Transferee or the Person in whose name such registration is requested either (a) is not an employee benefit plan or other plan subject to the prohibited transaction provisions of ERISA or Section 4975 of the Code, or any Person (including an investment manager, a "Plan"), to named fiduciary or a trustee or other Person acting on behalf of any Plan, or to any other person such plan) who is using "plan assets" of any Plan such plan to effect such acquisition (including any insurance company using funds each, a "Plan Investor") or (b) in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of Class B Certificate, the foregoing Certificates to following conditions are satisfied: (i) such Transferee is an insurance company, in lieu (ii) the source of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase or hold such Certificates will be funds held by it in its Certificate (or interest therein) is an "insurance company general account which it reasonably believes do not constitute "plan assetsaccount" of any Plan (as defined above). The permission in U.S. Department of any transfer in violation of Labor Prohibited Transaction Class Exemption ("PTCE") 95-60, and (iii) the restriction on transfer conditions set forth in Sections I and III of PTCE 95-60 have been satisfied (each entity that satisfies this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificateb), the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of taxComplying Insurance Company").
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 2 contracts
Samples: Series Supplement to Pooling and Servicing Agreement (RALI Series 2005-Qo4 Trust), Pooling and Servicing Agreement (RALI Series 2005-Qo4 Trust)
Registration of Transfer and Exchange of Certificates. (a) The Trustee Securities Administrator shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee Securities Administrator shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B R, Class RX, Class C or a Class R P Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "“Act"”), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B R, Class RX, Class C or Class R P Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to Securities Administrator shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Securities Administrator that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Securities Administrator, the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee Securities Administrator shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee Securities Administrator shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee Securities Administrator certifying to the Depositor and the Trustee Securities Administrator the facts surrounding such transfer, which representation letters shall not be an expense of the Securities Administrator, the Trustee, the Depositor or the Master Servicer; provided, however, that such representation letters will not be required in connection with any transfer of any such Certificate by the Depositor to an affiliate of the Depositor and the Securities Administrator shall be entitled to conclusively rely upon a representation (which, upon the request of the Securities Administrator, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Securities Administrator, the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Notwithstanding the requirements of Section 5.02(b), transfers of Class R, Class RX, Class C or Class P Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of a Certificate provides the Securities Administrator and the Depositor with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the Securities Administrator, the Trustee, the Depositor or the Master Servicer, and which investment letter states that, among other things, such transferee is a “qualified institutional buyer” as defined under Rule 144A, provided that, in the case of any Book-Entry Certificate, such transferee shall be deemed to have made such representations and warranties contained in such investment letter. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Securities Administrator, the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws The Trustee Securities Administrator shall require a written an Opinion of Counsel Counsel, on which the Securities Administrator, the Trustee, the Depositor and the Master Servicer may rely, from a prospective transferee prior to the transfer of any ERISA Restricted Certificate, Class B C, Class P or Class R Certificate RX Certificates to any employee benefit plan or other retirement arrangement, including an individual retirement accounts and Xxxxx plansaccount or Keoxx xxan, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA") ”), or Section 4975 of the Code (any of the foregoing, a "“Plan"”), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "“plan assets" ” of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "“plan assets"”). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar Securities Administrator that such disposition transfer is permissible under applicable law, will not violate the constitute or result in a prohibited transaction provisions of under Section 406 of ERISA and or Section 4975 of the Code, and will not subject the Securities Administrator, the Trustee, the Master Servicer or the Depositor to any obligation in addition to those undertaken in this Agreement. Neither None of the Depositor, the Master Servicer nor Servicer, the Securities Administrator or the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In A purchaser of an ERISA Restricted Certificate, Class C, Class P or Class RX Certificates shall be deemed to represent to the Securities Administrator, the Trustee, the Master Servicer and the Depositor that it is not a Plan or using assets of a Plan if it does not provide such an Opinion of Counsel. For so long as the Supplemental Interest Trust which holds the Cap Contract is in existence, each beneficial owner of an Class A-1 Certificate or any interest therein, shall be deemed to have represented, by virtue of its acquisition or holding of the Class A-1 Certificate, or interest therein, that either (i) it is not a Plan or (ii) (A) it is an accredited investor within the meaning of the Prohibited Transaction Exemption 2002-41 and (B) the acquisition and holding of such Certificate and the separate right to receive payments from the Cap Contract are eligible for the exemptive relief available under Prohibited Transaction Class Exemption 91-38, 96-23, 90-1, 84-14 or 95-60. Each beneficial owner of a Class A Certificate (except in the case of the Class A-1 Certificates) or Class M Certificate or any transfer interest therein shall be deemed to have represented, by virtue of the foregoing Certificates its acquisition or holding of that Certificate or interest therein, that either (i) it is not a Plan or a trustee or other Person acting on behalf of a Plan or using “plan assets” of a Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute “plan assets”) or (ii) (1) it is an insurance company, in lieu (2) the source of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by to acquire or hold the Certificate or interest therein is an “insurance company general account,” as such transferee to purchase such Certificates will be funds term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Certificate, or any interest therein, is acquired or held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of this section 5.02(c), the restriction on next preceding permitted beneficial owner will be treated as the beneficial owner of that Certificate, retroactive to the date of transfer set forth to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of a Certificate, or interest therein, was effected in violation of this paragraph section shall not constitute indemnify to the extent permitted by law and hold harmless the Depositor, the Sponsor, the Master Servicer, any servicer, any Underwriter and the Trustee from and against any and all liabilities, claims, costs or expenses incurred by such parties as a default result of such acquisition or an Event of Defaultholding.
(d) [Reserved]
(i) Each Person who has or who acquires any Ownership Interest in a Class R Residual Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee Securities Administrator or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Residual Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Residual Certificate shall be a Permitted Transferee and shall promptly notify the Trustee Securities Administrator of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer Transfer of any Ownership Interest in a Class R Residual Certificate, the Trustee Securities Administrator shall require delivery to it, and shall not register the transfer Transfer of any Class R Residual Certificate until its receipt of (I) an affidavit and agreement (a "“Transfer Affidavit and Agreement" ” in the form attached hereto as Exhibit G-3G-5) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee Securities Administrator representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Residual Certificate, in form and substance satisfactory to the Master Servicer and the Trustee Securities Administrator representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee Securities Administrator assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee Securities Administrator in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Residual Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee Securities Administrator written notice that it is a "pass- “pass-through interest holder" ” within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Residual Certificate, if it is "“a pass-through interest holder"”, or is holding an Ownership Interest in a Class R Residual Certificate on behalf of a "“pass-through interest holder."”
(ii) The Trustee Securities Administrator will register the Transfer of any Class R Residual Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3G-5, a certificate of the holder Holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee Securities Administrator as a condition to such registration. Transfers of the Class R Residual Certificates other than to Non-United States Persons and Disqualified Organizations Permitted Transferees are prohibited.
(iii) (aA) if If any Disqualified Organization Person other than a Permitted Transferee shall become a holder Holder of a Class R Residual Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Residual Certificate. If a Non-United States Person shall become a holder Holder of a Class R Residual Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Residual Certificate. If a transfer of a Residual Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.860G-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as Holder thereof retroactive to the date of registration of such transfer of such Residual Certificate. The Trustee prior Holder shall be entitled to recover from any purported Holder of a Residual Certificate that was in fact not a Permitted Transferee under this Section 5.05(b) at the time it became a Holder all payments made on such Residual Certificate. Each Holder of a Residual Certificate, by acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this clause (b) and to any amendment of this Agreement deemed necessary (whether as a result of new legislation or otherwise) by counsel of the Depositor to ensure that the Residual Certificates are not transferred to any Person who is not a Permitted Transferee and that any transfer of such Residual Certificates will not cause the imposition of a tax upon the Issuing Entity or cause any such REMIC to fail to qualify as a REMIC. The Securities Administrator shall be under no liability to any Person for any registration of Transfer of a Class R Residual Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder Holder thereof or for taking any other action with respect to such holder Holder under the provisions of this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (American Home Mortgage Assets Trust 2006-5), Pooling and Servicing Agreement (American Home Mortgage Assets Trust 2006-5)
Registration of Transfer and Exchange of Certificates. The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, (A) (See Section 5.02(a) of the Trustee shall provide for Standard Terms.)
(B) (See Section 5.02(b) of the registration Standard Terms.)
(C) (See Section 5.02(c) of Certificates and of transfers and exchanges of Certificates as herein provided. the Standard Terms.)
(D) No transfer, sale, pledge or other disposition of a Class B Certificate or Class SB Certificate that is a Class R Definitive Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act")amended, and any applicable state securities laws or is made in accordance with said Act and laws. In Except with respect to (i) the transfer of a Class B Certificate or Class SB Certificate by the Company to an Affiliate of the Company or the transfer of a Class B Certificate or Class SB Certificate from the Company or an Affiliate of the Company to an owner trust or other entity established by the Company (including to the Trustee, as a NIM Trustee), or (ii) a transfer of a Class B Certificate or Class SB Certificate from the NIM Trustee to the Company or an Affiliate of the Company, in the event that a transfer of a Class B Certificate or Class R SB Certificate is to be made made, either (iI)(A) the Depositor may direct the Trustee to shall require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Company that such transfer shall may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Company or the Master ServicerServicer (except that, if such transfer is made by the Company or the Master Servicer or any Affiliate thereof, the Company or the Master Servicer shall provide such Opinion of Counsel at their own expense); provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor Company or any affiliate thereof, Affiliate thereof to a non-affiliate the Company or an Affiliate of the Depositor Company and (iiB) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 heretoH to the Standard Terms, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 heretoI to the Standard Terms, each acceptable to and in form and substance satisfactory to the Depositor Company and the Trustee certifying to the Depositor Company and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor Company or the Master Servicer; provided, however, that such representation letters will not be required in connection with any transfer of any such Certificate by the Company or any Affiliate thereof to the Company or an Affiliate of the Company, and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Company, of the status of such transferee as an Affiliate of the Company or (II) the prospective transferee of such a Certificate shall be required to provide the Trustee, the Company and the Master Servicer with an investment letter substantially in the form of Exhibit J attached to the Standard Terms (or such other form as the Company in its sole discretion deems acceptable), which investment letter shall not be an expense of the Trustee, the Company or the Master Servicer, and which investment letter states that, among other things, such transferee (A) is a "qualified institutional buyer" as defined under Rule 144A, acting for its own account or the accounts of other "qualified institutional buyers" as defined under Rule 144A and (B) is aware that the proposed transferor intends to rely on the exemption from registration requirements under the Securities Act of 1933, as amended, provided by Rule 144A. With respect to any transfer of an interest in a Global Offered Certificate from a Holder of an interest in a Global Offered Certificate, the requirements of (I)(A) and (B) above shall not apply and any transferee of a Rule 144A Global Offered Certificate will be deemed to have represented and warranted as to the matters set forth in Exhibit J attached to the Standard Terms and any transferee of a Temporary Regulation S Global Offered Certificate or Permanent Regulation S Global Offered Certificate will be deemed to have represented and warranted as to the matters set forth in Exhibit Twelve of this Series Supplement. Any The Holder of any such Certificateholder Certificate desiring to effect any such transfer transfer, sale, pledge or other disposition shall, and does hereby agree to, indemnify the Trustee, the Depositor and Company, the Master Servicer and the Certificate Registrar against any liability that may result if the transfer transfer, sale, pledge or other disposition is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to .
(E) (i) In the transfer case of any Class B Certificate or Class SB Certificate that is a Definitive Certificate or Class R Certificate presented for registration in the name of any Person, either (I) (A) the Trustee shall require an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee, the Company and the Master Servicer to the effect that the purchase or holding of such Class B, Class SB or Class R Certificate is permissible under applicable law, will not constitute or result in any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") ), or Section 4975 of the Code (or comparable provisions of any subsequent enactments), and will not subject the Trustee, the Company or the Master Servicer to any obligation or liability (including obligations or liabilities under ERISA or Section 4975 of the foregoingCode) in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Trustee, the Company or the Master Servicer or (B) the prospective Transferee shall be required to provide the Trustee, the Company and the Master Servicer with a certification to the effect set forth in paragraph fifteen of Exhibit G-1, which the Trustee may rely upon without further inquiry or investigation, or such other certifications as the Trustee may deem desirable or necessary in order to establish that such Transferee or the Person in whose name such registration is requested is not an employee benefit plan or other plan subject to the prohibited transaction provisions of ERISA or Section 4975 of the Code, or any Person (including an investment manager, a "Plan"), to named fiduciary or a trustee or other Person acting on behalf of any Plan, or to any other person such plan) who is using "plan assets" of any Plan such plan to effect such acquisition (including each, a "Plan Investor") or (II) in the case of any insurance company using funds in its general or separate accounts Global Offered Certificate, the Transferee will be deemed to represent that may constitute "plan assets")it is not a Plan Investor. Such Opinion of Counsel must establish Notwithstanding anything to the satisfaction contrary contained herein, the Trustee and the Supplemental Interest Trust Trustee shall not permit the transfer of a beneficial interest in a Class B, Class SB or Global Offered Certificate unless the Depositor transferee executes and delivers to the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the DepositorSupplemental Interest Trust Trustee, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of as applicable, any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, 10.06(c) prior to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreementtransfer.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (RALI Series 2007-Qh4 Trust), Pooling and Servicing Agreement (RALI Series 2007-Qh6 Trust)
Registration of Transfer and Exchange of Certificates. (a) The Trustee Securities Administrator shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee Securities Administrator shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B P, Class C or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B P, Class C or Class R Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to Securities Administrator shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Securities Administrator that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Securities Administrator, the Trustee, the Depositor Company or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor Company or any affiliate thereof, to a non-affiliate of the Depositor Company and (ii) the Trustee Securities Administrator shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee Securities Administrator shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee Securities Administrator certifying to the Depositor Company and the Trustee Securities Administrator the facts surrounding such transfer, which representation letters shall not be an expense of the Securities Administrator, the Trustee, the Depositor Company or the Master Servicer; provided, however, that such representation letters will not be required in connection with any transfer of any such Certificate by the Company to an affiliate of the Company and the Securities Administrator shall be entitled to conclusively rely upon a representation (which, upon the request of the Securities Administrator, shall be a written representation) from the Company of the status of such transferee as an affiliate of the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Securities Administrator, the Trustee, the Depositor Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Notwithstanding the requirements of Section 5.02(b), transfers of Class P, Class C and Class R Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of a Certificate provides the Securities Administrator and the Company with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the Securities Administrator, the Trustee, the Company or the Master Servicer, and which investment letter states that, among other things, such transferee is a "qualified institutional buyer" as defined under Rule 144A. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof; provided, however, that no Transfer of any of the Class P Certificates, Class C Certificates or Class R Certificates may be made pursuant to this Section 5.02(c) by the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Securities Administrator, the Trustee, the Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee Securities Administrator shall require a written an Opinion of Counsel Counsel, on which the Securities Administrator, the Trustee, Company, Master Servicer or the NIMS Insurer may rely, from a prospective transferee prior to the transfer of any Class B P, Class C or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx Kxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar Securities Administrator that such disposition transfer is permissible under applicable law, will not violate the constitute or result in a prohibited transaction provisions of under Section 406 of ERISA and Section 4975 of the Code. Neither , and will not subject the DepositorSecurities Administrator, the Trustee, the Master Servicer nor Servicer, the Company or the NIMS Insurer to any obligation in addition to those undertaken in this Agreement. None of the Company, the Master Servicer, Securities Administrator, the Trustee or the NIMS Insurer will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case Each beneficial owner of a Class M Certificate or any transfer interest therein shall be deemed to have represented, by virtue of the foregoing Certificates to an insurance companyits acquisition or holding of that certificate or interest therein, in lieu that either (i) it is not a Plan or a trustee or other Person acting on behalf of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute Plan or using "plan assets" of a Plan to effect such acquisition (including any Plan insurance company using funds in its general separate accounts that may constitute "plan assets", (ii) it has acquired and is holding such certificate in reliance on Prohibited Transaction Exemption 2002-41 as defined aboveamended from time to time (the "Exemption"). The permission of any transfer in violation , and that it understands that there are certain conditions to the availability of the restriction on transfer set forth Exemption, including that the certificate must be rated, at the time of purchase, not lower than "BBB-"(or its equivalent) by S&P, Fitch Ratings or Mxxxx'x, and the certificate is so rated or (iii) (1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in this paragraph shall not constitute a default or an Event Prohibited Transaction Class Exemption ("PTCE") 95-60, and (3) the conditions in Sections I and III of DefaultPTCE 95-60 have been satisfied.
(d) [Reserved]
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee Securities Administrator of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer Transfer of any Ownership Interest in a Class R Certificate, the Trustee Securities Administrator shall require delivery to it, and shall not register the transfer Transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3G-5) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee Securities Administrator representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee Securities Administrator representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee Securities Administrator assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee Securities Administrator in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee Securities Administrator written notice that it is a "pass- pass-through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee Securities Administrator will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3G-5, a certificate of the holder Holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee Securities Administrator as a condition to such registration. Transfers of the Class R Certificates other than to Non-United States Persons and Disqualified Organizations Permitted Transferees are prohibited.
(iii) (aA) if If any Disqualified Organization Person other than a Permitted Transferee shall become a holder Holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder Holder of a Class R Certificate, then the last preceding United States Person Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-31.860G-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer transfer of such Class R Certificate. The Trustee prior Holder shall be entitled to recover from any purported Holder of a Class R Certificate that was in fact not a Permitted Transferee under this Section 5.05(b) at the time it became a Holder all payments made on such Class R Certificate. Each Holder of a Class R Certificate, by acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this clause (b) and to any amendment of this Agreement deemed necessary (whether as a result of new legislation or otherwise) by counsel of the Company to ensure that the Class R Certificates are not transferred to any Person who is not a Permitted Transferee and that any transfer of such Class R Certificates will not cause the imposition of a tax upon the Trust or cause any such REMIC to fail to qualify as a REMIC. The Securities Administrator shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder Holder thereof or for taking any other action with respect to such holder Holder under the provisions of this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Homestar Mortgage Accep Corp Asst Back Certs Ser 2004-2.), Pooling and Servicing Agreement (Homestar Mortgage Accep Corp Asst Back Certs Ser 2004-2.)
Registration of Transfer and Exchange of Certificates. The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, (a) (See Section 5.02(a) of the Trustee shall provide for Standard Terms)
(b) (See Section 5.02(b) of the registration Standard Terms)
(c) (See Section 5.02(c) of Certificates and of transfers and exchanges of Certificates as herein provided. the Standard Terms)
(d) No transfer, sale, pledge or other disposition of a Class B Certificate or a Class R P Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act")amended, and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B or Class R P Certificate, other than the transfer of an interest in a Class P Certificate that is held by a Transferor and to be made held by a Transferee as an interest in a Rule 144A Global Offered Certificate, either (ii)(A) the Depositor may direct the Trustee to shall require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Company that such transfer shall may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Company or the Master ServicerServicer (except that, if such transfer is made by the Company or the Master Servicer or any Affiliate thereof, the Company or the Master Servicer shall provide such Opinion of Counsel at their own expense); provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor Company or any affiliate thereof, Affiliate thereof to a non-affiliate the Company or an Affiliate of the Depositor and Company, (iiB) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 heretoH to the Standard Terms (other than paragraph 6(b) thereto with respect to a transfer of a Class P Certificate), and (C) the Trustee shall require the transferor Transferor to execute a representation letter, substantially in the form of Exhibit G-2 heretoI to the Standard Terms, each acceptable to and in form and substance satisfactory to the Depositor Company and the Trustee certifying to the Depositor Company and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor Company or the Master Servicer. Any ; provided, however, that such Certificateholder representation letters will not be required in connection with any transfer of any such Certificate by the Company or any Affiliate thereof to the Company or an Affiliate of the Company, and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Company, of the status of such transferee as an Affiliate of the Company or (ii) the prospective transferee of such a Certificate shall be required to provide the Trustee, the Company and the Master Servicer with an investment letter substantially in the form of Exhibit J to the Standard Terms (other than paragraph 3(b) thereto with respect to a transfer of a Class P Certificate) (or such other form as the Company in its sole discretion deems acceptable), which investment letter shall not be an expense of the Trustee, the Company or the Master Servicer, and which investment letter states that, among other things, such transferee (A) is a "qualified institutional buyer" as defined under Rule 144A, acting for its own account or the accounts of other "qualified institutional buyers" as defined under Rule 144A, and (B) is aware that the proposed transferor intends to rely on the exemption from registration requirements under the Securities Act of 1933, as amended, provided by Rule 144A. The Holder of any such Class B Certificate or Class P Certificate desiring to effect any such transfer transfer, sale, pledge or other disposition shall, and does hereby agree to, to indemnify the Trustee, the Depositor and Company, the Master Servicer and the Certificate Registrar against any liability that may result if the transfer transfer, sale, pledge or other disposition is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee If any transfer of a Class P Certificate held by a Transferor and to be held by a Transferee as an interest in a Rule 144A Global Offered Certificate is to be made without registration under the 1933 Act, the Transferor shall require a written Opinion be deemed to have made each of Counsel from a prospective transferee prior the certifications set forth in Exhibit I and Exhibit J to the Standard Terms as of the transfer date and the Transferee shall be deemed to have made each of the certifications set forth in Exhibit J to the Standard Terms (other than as set forth in paragraph 3(b) with respect to the Class P Certificates) as of the transfer date as if such Class P Certificate were in physical form.
(e) (i) In the case of any Class B B, Class P or Class R Certificate presented for registration in the name of any Person, either (A) the Trustee shall require an Opinion of Counsel addressed to the Trustee, the Company and the Master Servicer, acceptable to and in form and substance satisfactory to the Trustee to the effect that the purchase or holding of such Class B, Class P or Class R Certificate is permissible under applicable law, will not constitute or result in any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") ), or Section 4975 of the Code (or comparable provisions of any subsequent enactments), and will not subject the Trustee, the Company or the Master Servicer to any obligation or liability (including obligations or liabilities under ERISA or Section 4975 of the foregoingCode) in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Trustee, the Company or the Master Servicer or (B) the prospective Transferee shall be required to provide the Trustee, the Company and the Master Servicer with a certification to the effect set forth in paragraph 6 of Exhibit H to the Standard Terms (with respect to any Class B Certificate), paragraph 6(b) of Exhibit H to the Standard Terms (with respect to any Class P Certificate), or Exhibit G-1 (with respect to any Class R Certificate), which the Trustee may rely upon without further inquiry or investigation, or such other certifications as the Trustee may deem desirable or necessary in order to establish that such Transferee or the Person in whose name such registration is requested either (a) is not an employee benefit plan or other plan subject to the prohibited transaction provisions of ERISA or Section 4975 of the Code, or any Person (including an investment manager, a "Plan"), to named fiduciary or a trustee or other Person acting on behalf of any Plan, or to any other person such plan) who is using "plan assets" of any Plan such plan to effect such acquisition (including each, a "Plan Investor") or (b) in the case of any Class B Certificate, the following conditions are satisfied: (i) such Transferee is an insurance company, (ii) the source of funds used to purchase or hold such Certificate (or interest therein) is an "insurance company using funds general account" (as defined in its general or separate accounts U.S. Department of Labor Prohibited Transaction Class Exemption ("PTCE") 95-60, and (iii) the conditions of PTCE 95-60 have been satisfied (each entity that may constitute satisfies this clause (b), a "plan assetsComplying Insurance Company"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates Class P Certificate to be held by a Transferee as an insurance company, interest in lieu of such Opinion of Counsela Rule 144A Global Offered Certificate, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate Transferee shall be deemed by the acceptance virtue of its purchase or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to have made each of the holder thereof or for taking any other action with respect certifications set forth in paragraph 6(a) of Exhibit H to the Standard Terms as of the transfer date, as if such holder under the provisions of this AgreementClass P Certificate were in physical form.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (RALI Series 2007-Qs8 Trust), Series Supplement to Pooling and Servicing Agreement (RALI Series 2007-Qs5 Trust)
Registration of Transfer and Exchange of Certificates. a. The Trustee shall maintain keep at the office or agency to be maintained in accordance with Section 12.02 a "Certificate Register Register" in which, subject to such reasonable regulations as it may prescribe, which the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No transferThe Trustee initially appoints itself to be the "Certificate Registrar" and transfer agent for the purpose of registering Certificates and transfers and exchanges of Certificates as provided herein. The Trustee will give prompt written notice to Certificateholders and the Servicer of any change in the Certificate Registrar.
(1) Subject to clauses (2) and (3) below, sale, pledge or other disposition no transfer of a Class B B-2 Certificate, Class B-3I Certificate, Class C Subsidiary Certificate or a Class R C Master Certificate shall be made by the Originator or any other Person unless such transfer, sale, pledge or other disposition transfer is exempt from the registration requirements of the Securities Act of 1933Act, as amended (the "Act")amended, and any applicable state securities laws or is made in accordance with said the Act and laws. In the event that a any such transfer of a Class B or Class R Certificate is to be made made, (iA) the Depositor Originator may direct the Trustee to require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Originator that such transfer shall may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said the Act and laws or is being made pursuant to said the Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Trustee or the Master ServicerOriginator, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (iiB) the Trustee shall require the transferee to execute a representation letter, an investment letter substantially in the form of Exhibit G-1 M attached hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters investment letter shall not be an expense of the Trustee, the Depositor Trustee or the Master ServicerOriginator. Any such Class B-2 Certificateholder, Class B-3I Certificateholder, Class C Subsidiary Certificateholder or Class C Master Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor Originator and the Master Servicer Certificate Registrar against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the .
(2) No transfer of any a Class M-1 Certificate, a Class M-2 Certificate, a Class B Certificate, a Class B-3I Certificate, a Class C Subsidiary Certificate or a Class R C Master Certificate or any interest therein shall be made to any employee benefit plan plan, trust or other retirement arrangement, including individual retirement accounts and Xxxxx plans, account that is subject to ERISA, or that is described in Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"4975(e)(1) or Section 4975 of the Code (any of the foregoingeach, a "Plan"), to unless the prospective transferee of a trustee Certificate or other Person acting on behalf interest therein provides the Servicer and the Trustee with a certification of any Planfacts and, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in at its general or separate accounts that may constitute "plan assets"). Such own expense, an Opinion of Counsel must which establish to the satisfaction of the Depositor Servicer and the Trustee or the Certificate Registrar that such disposition transfer will not violate the prohibited transaction provisions result in a violation of Section 406 of ERISA and or Section 4975 of the Code or cause the Servicer, the Originator or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. Neither .
(3) Notwithstanding anything to the Depositorcontrary contained herein, (A) neither the Class C Subsidiary Certificate nor the Class C Master Certificate, nor any interest therein, shall be transferred, sold or otherwise disposed of to a "disqualified organization," within the meaning of Section 860E(e)(5) of the Code (a "Disqualified Organization"), including, but not limited to, (i) the United States, a state or political subdivision thereof, a foreign government, an international organization or an agency or instrumentality of any of the foregoing, (ii) an organization (other than a cooperative described in Section 521 of the Code) which is exempt from the taxes imposed by Chapter 1 of the Code and not subject to the tax imposed on unrelated business income by Section 511 of the Code, or (iii) a cooperative described in Section 1381(a)(2)(C) of the Code, and (B) prior to any registration of any transfer, sale or other disposition of the Class C Subsidiary Certificate or Class C Master Certificate, the Master Servicer nor proposed transferee shall deliver to the Trustee, under penalties of perjury, an affidavit that such transferee is not a Disqualified Organization, with respect to which the Trustee will be shall have no actual knowledge that such affidavit is false, and the transferor and the proposed transferee shall each deliver for the Trustee an affidavit with respect to any other information reasonably required by the Trustee pursuant to obtain such Opinion the REMIC Provisions, including, without limitation, information regarding the transfer of Counsel on behalf noneconomic residual interests and transfers of any prospective transferee. In residual interest to or by a foreign person; provided, however, that, upon the case delivery to the Trustee of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Trustee and rendered by Independent counsel, to the effect that the beneficial ownership of the Class C Subsidiary Certificate or the Class C Master Servicer Certificate, as the case may be, by any Disqualified Organization will not result in the imposition of federal income tax upon the Subsidiary REMIC or the Master REMIC or any Certificateholder or any other person or otherwise adversely affect the status of the Subsidiary REMIC or the Master REMIC as a REMIC, the foregoing prohibition on transfers, sales and other dispositions, as well as the Trustee representing foregoing requirement to deliver a certificate prior to any registration thereof, shall, with respect to such Disqualified Organization, terminate. Notwithstanding any transfer, sale or other disposition of the Class C Subsidiary Certificate or Class C Master Certificate, or any interest therein, to a Disqualified Organization or the registration thereof in the Certificate Register, such transfer, sale or other disposition and warrantingany registration thereof, among other thingsunless accompanied by the Opinion of Counsel described in the preceding sentence, that it is a Permitted Transfereeshall be deemed to be void and of no legal force or effect whatsoever and such Disqualified Organization shall be deemed to not be the Class C Subsidiary or Class C Master Certificateholder, that it is as the case may be, for any purpose hereunder, including, but not acquiring its Ownership Interest limited to, the receipt of distributions on the Class C Subsidiary Certificate or Class C Master Certificate, and shall be deemed to have no interest whatsoever in the Class R C Subsidiary Certificate that is the subject of the proposed Transfer as a nomineeor Class C Master Certificate. Each Class C Subsidiary or Class C Master Certificateholder, trustee or agent by his acceptance thereof, shall be deemed for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor all purposes to remain a Permitted Transferee, and that it has reviewed have consented to the provisions of this Section 5.02 and agrees 9.02(b)(3).
(4) Any transfer, sale or other disposition not in compliance with the provisions of this Section 9.02(b) shall be deemed to be bound by themvoid and of no legal force or effect whatsoever and such transferee shall be deemed to not be the Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions on such Certificate, and shall be deemed to have no interest whatsoever in such Certificate.
(II5) The Trustee shall give notice to Standard & Poor's, Fitch and Xxxxx'x promptly following any transfer, sale or other disposition of a certificateClass B- 3I, in Class C Subsidiary or Class C Master Certificate.
c. At the form attached hereto as Exhibit G-4option of a Certificateholder, from Certificates may be exchanged for other Certificates of authorized denominations of a like aggregate original denomination, upon surrender of such Certificates to be exchanged at such office. Whenever any Certificates are so surrendered for exchange, the Holder wishing Trustee shall execute and deliver the Certificates which the Certificateholder making the exchange is entitled to receive. Every Certificate presented or surrendered for transfer the Class R Certificateor exchange shall be duly endorsed by, or shall be accompanied by a written instrument of transfer in form and substance satisfactory to the Master Servicer Trustee and the Trustee representing and warrantingCertificate Registrar duly executed by the holder thereof or his or her attorney duly authorized in writing.
d. Except as provided in paragraph (e) below, among other things, that no purpose the Book-Entry Certificates shall at all times remain registered in the name of the proposed Transfer is Depository or its nominee and at all times: (i) registration of the Class A, Class M-1, Class M-2 and Class B Certificates may not be transferred by the Trustee except to impede another Depository; (ii) the assessment Depository shall maintain book-entry records with respect to the Certificate Owners and with respect to ownership and transfers of such Class A, Class M-1, Class M-2 and Class B Certificates; (iii) ownership and transfers of registration of the Class A, Class M-1, Class M-2 and Class B Certificates on the books of the Depository shall be governed by applicable rules established by the Depository; (iv) the Depository may collect its usual and customary fees, charges and expenses from its Depository Participants; (v) the Trustee shall deal with the Depository, Depository Participants and indirect participating firms as representatives of the Certificate Owners of the Class A, Class M and Class B Certificates for purposes of exercising the rights of Holders under this Agreement, and requests and directions for and votes of such representatives shall not be deemed to be inconsistent if they are made with respect to different Certificate Owners; and (vi) the Trustee may rely and shall be fully protected in relying upon information furnished by the Depository with respect to its Depository Participants and furnished by the Depository Participants with respect to indirect participating firms and persons shown on the books of such indirect participating firms as direct or collection indirect Certificate Owners. All transfers by Certificate Owners of taxBook-Entry Certificates shall be made in accordance with the procedures established by the Depository Participant or brokerage firm representing such Certificate Owner. Each Depository Participant shall only transfer Book-Entry Certificates of Certificate Owners it represents or of brokerage firms for which it acts as agent in accordance with the Depository's normal procedures.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree e. If (x) the Seller or the Depository advises the Trustee in writing that the Depository is no longer willing or able properly to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer discharge its Ownership Interest in a Class R Certificate responsibilities as Depository and (y) not the Trustee or the Originator is unable to transfer locate a qualified successor or (z) the Originator at its Ownership Interest unless sole option advises the Trustee in writing that it provides a certificate elects to terminate the book-entry system through the Depository, the Trustee shall notify all Certificate Owners, through the Depository, of the occurrence of any such event and of the availability of definitive, fully registered Class A Certificates, Class M Certificates and Class B Certificates (the "Definitive Certificates") to Certificate Owners requesting the same. Upon surrender to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R A Certificates, Class M-1 Certificates, Class M-2 Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization Class B Certificates by the Depository, accompanied by registration instructions from the Depository for registration, the Trustee shall become a holder of a Class R Certificate, then issue the last preceding Permitted Transferee Definitive Certificates. Neither the Originator nor the Trustee shall be restoredliable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of Definitive Certificates all references herein to obligations imposed upon or to be performed by the Depository shall be deemed to be imposed upon and performed by the Trustee, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action applicable with respect to such holder under Definitive Certificates and the provisions Trustee shall recognize the Holders of the Definitive Certificates as Certificateholders hereunder.
f. On or prior to the Closing Date, there shall be delivered to the Depository one Class A-1 Certificate, one Class A-2 Certificate, one Class A-3 Certificate, one Class A-4 Certificate, one Class A-5 Certificate, two Class A-6 Certificates, one Class M-1 Certificate, one Class M-2 Certificate, one Class B- 1 Certificate and one Class B-2 Certificate, each in registered form registered in the name of the Depository's nominee, Cede & Co., the total face amount of which represents 100% of the related Original Principal Balance, respectively. If, however, the aggregate principal amount of a Class of Class A Certificates, Class M Certificates or Class B Certificates exceeds $200,000,000, one such Class A Certificate, Class M Certificate and/or Class B Certificate will be issued with respect to each $200,000,000 of principal amount and an additional Certificate of such Class or Classes will be issued with respect to any remaining principal amount. Each such Class A, Class M and Class B Certificate registered in the name of the Depository's nominee shall bear the following legend: "Unless this AgreementCertificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC") to Issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein."
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Conseco Finance Securitizations Corp), Pooling and Servicing Agreement (Conseco Finance Securitizations Corp)
Registration of Transfer and Exchange of Certificates. The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No transfer, sale, pledge or other disposition of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B or Class R Certificate is to be made (i) the Depositor may direct the Trustee to require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the transfer of any Class B or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx Keogh plans, that is subject to Section 406 of the Employee Retirement Income Xxxxme Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-31.860G-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Quick Loan Funding Mortgage Acceptance CORP), Pooling and Servicing Agreement (MILA Mortgage Acceptance, Inc.)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B P Certificate, Class C Certificate or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B P Certificate, Class C Certificate or Class R Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer; PROVIDED, HOWEVER, that such representation letters will not be required in connection with any transfer of any such Certificate by the Depositor to an affiliate of the Depositor and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Notwithstanding the requirements of Section 5.02(b), transfers of Class P Certificates, Class C Certificates and Class R Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of a Certificate provides the Trustee and the Depositor with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the Trustee, the Depositor or the Master Servicer, and which investment letter states that, among other things, such transferee is a "qualified institutional buyer" as defined under Rule 144A. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof; PROVIDED, HOWEVER, that no Transfer of any of the Class P Certificates, Class C Certificates or Class R Certificates may be made pursuant to this Section 5.02(c) by the Depositor. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written an Opinion of Counsel Counsel, on which the Trustee, Depositor and Master Servicer may rely, from a prospective transferee prior to the transfer of any Class B P Certificate, Class C Certificate or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx Keogh plans, that is subject to Section 406 of the Employee Retirement Income Security Act Securitx Xxx of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition transfer is permissible under applicable law, will not violate the constitute or result in a prohibited transaction provisions of under Section 406 of ERISA and Section 4975 of the Code, and will not subject the Trustee, the Master Servicer or the Depositor to any obligation in addition to those undertaken in this Agreement. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In Prior to the case of any transfer termination of the foregoing Certificates Supplemental Interest Trust, each beneficial owner of an Offered Certificate or any interest therein, shall be deemed to have represented, by virtue of its acquisition or holding of the Offered Certificate, or interest therein, that either (i) it is not a Plan or (ii) (A) it is an insurance company, in lieu accredited investor within the meaning of the Exemption and (B) the acquisition and holding of such Opinion Certificate and the separate right to receive payments from the Supplemental Interest Trust are eligible for the exemptive relief available under one of CounselProhibited Transaction Class Exemption ("PTCE") 84-14, the Trustee shall require 91-38, 95-60, 90-1 or 96-23. Each beneficial owner of a certification in the form of Exhibit G-5 hereto substantially Subordinate Certificate or any interest therein which is acquired subsequent to the effect termination of the Supplemental Interest Trust shall be deemed to have represented, by virtue of its acquisition or holding of that all funds used by such transferee to purchase such Certificates will be funds held by certificate or interest therein, that either (i) it in its general account which it reasonably believes do is not constitute a Plan or a trustee or other Person acting on behalf of a Plan or using "plan assets" of a Plan to effect such acquisition (including any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change insurance company using funds in its status as a Permitted Transferee.
general or separate accounts that may constitute "plan assets"), (Bii) In connection with any proposed transfer of any Ownership Interest it has acquired and is holding such certificate in a Class R Certificate, reliance on Prohibited Transaction Exemption 2002-41 (the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted TransfereeExemption"), and that it has reviewed understands that there are certain conditions to the provisions availability of this Section 5.02 and agrees to the Exemption, including that the certificate must be bound rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by themS&P, Fitch Ratings, Inc. or Moody's, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer certificate is to impede the assessment so rated or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a1) if any Disqualified Organization shall become a holder it is an insuranxx xxxxany, (2) the source of a funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in Prohibited Transaction Class R CertificateExemption ("PTCE") 95-60, then and (3) the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights conditions in Sections I and obligations as holder thereof retroactive to the date III of registration of such Transfer of such Class R Certificate. If a NonPTCE 95-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement60 have been satisfied.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp), Pooling and Servicing Agreement (Impac Secured Assets Corp)
Registration of Transfer and Exchange of Certificates. The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No transfer, sale, pledge or other disposition of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "“Act"”), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B or Class R Certificate is to be made (i) the Depositor may direct the Trustee to require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the transfer of any Class B or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”) or Section 4975 of the Code (any of the foregoing, a "“Plan"”), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "“plan assets" ” of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "“plan assets"”). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "“plan assets" ” of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "“Transfer Affidavit and Agreement" ” in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "“pass- through interest holder" ” within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "“a pass-through interest holder"”, or is holding an Ownership Interest in a Class R Certificate on behalf of a "“pass-through interest holder."”
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Shellpoint Mortgage Acceptance LLC), Pooling and Servicing Agreement (BNP Paribas Mortgage Securities LLC)
Registration of Transfer and Exchange of Certificates. The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, (a) (See Section 5.02(a) of the Trustee shall provide for Standard Terms)
(b) (See Section 5.02(b) of the registration Standard Terms)
(c) (See Section 5.02(c) of Certificates and of transfers and exchanges of Certificates as herein provided. the Standard Terms)
(d) No transfer, sale, pledge or other disposition of a Class B B, Class SB or a Class R P Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act")amended, and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B B, Class SB or Class R P Certificate, other than the transfer of an interest in a Class B, Class SB or Class P Certificate that is held by a Transferor and to be made held by a Transferee as an interest in a Rule 144A Global Offered Certificate, either (ii)(A) the Depositor may direct the Trustee to shall require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Company that such transfer shall may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Company or the Master ServicerServicer (except that, if such transfer is made by the Company or the Master Servicer or any Affiliate thereof, the Company or the Master Servicer shall provide such Opinion of Counsel at their own expense); provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor Company or any affiliate thereof, Affiliate thereof to a non-affiliate the Company or an Affiliate of the Depositor Company and (iiB) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit H to the Standard Terms (with respect to any Class B Certificate or Class SB Certificate) or Exhibit G-1 heretoto the Standard Terms (with respect to any Class P Certificate), and the Trustee shall require the transferor Transferor to execute a representation letter, substantially in the form of Exhibit G-2 heretoI to the Standard Terms, each acceptable to and in form and substance satisfactory to the Depositor Company and the Trustee certifying to the Depositor Company and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor Company or the Master Servicer. Any ; provided, however, that such Certificateholder representation letters will not be required in connection with any transfer of any such Certificate by the Company or any Affiliate thereof to the Company or an Affiliate of the Company, and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Company, of the status of such transferee as an Affiliate of the Company or (ii) the prospective transferee of such a Certificate shall be required to provide the Trustee, the Company and the Master Servicer with an investment letter substantially in the form of Exhibit J to the Standard Terms (or such other form as the Company in its sole discretion deems acceptable), which investment letter shall not be an expense of the Trustee, the Company or the Master Servicer, and which investment letter states that, among other things, such transferee (A) is a "qualified institutional buyer" as defined under Rule 144A, acting for its own account or the accounts of other "qualified institutional buyers" as defined under Rule 144A, and (B) is aware that the proposed transferor intends to rely on the exemption from registration requirements under the Securities Act of 1933, as amended, provided by Rule 144A. The Holder of any such Class B, Class SB or Class P Certificate desiring to effect any such transfer transfer, sale, pledge or other disposition shall, and does hereby agree to, indemnify the Trustee, the Depositor and Company, the Master Servicer and the Certificate Registrar against any liability that may result if the transfer transfer, sale, pledge or other disposition is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the transfer of If any Class B or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R B, Class SB or Class P Certificate held by a Transferor and to be held by a Transferee as an interest in a Rule 144A Global Offered Certificate is disregarded pursuant to made without registration under the 1933 Act, the Transferor shall be deemed to have made each of the certifications set forth in Exhibit I to the provisions Standard Terms as of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted transfer date and the Transferee shall be restored, deemed to have made each of the certifications set forth in Exhibit J to the extent permitted by lawStandard Terms as of the transfer date, to all rights and obligations in each case as holder thereof retroactive to the date of registration of such Transfer of if such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a B, Class R SB or Class P Certificate that is were in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreementphysical form.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (RALI Series 2006-Qo10 Trust), Series Supplement to Pooling and Servicing Agreement (RALI Series 2006-Qo10 Trust)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates Certif icates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B or Class R Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Company or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor Company or any affiliate thereof, to a non-affiliate of the Depositor Company and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor Company and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor Company or the Master Servicer; provided however that such representation letters will not be required in connection with any transfer of any such Certificate by the Company to an affiliate of the Company and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Company of the status of such transferee as an affiliate of the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Notwithstanding the requirements of Section 5.02(b), transfers of Class B Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of a Certificate provides the Trustee and the Company with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the Trustee, the Company or the Master Servicer, and which investment letter states that, among other things, such transferee is a "qualified institutional buyer" as defined under Rule 144A. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof; provided, however, that no Transfer of any of the Class B Certificates may be made pursuant to this Section 5.02(c) by the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(d) The Trustee shall require a written an Opinion of Counsel from a prospective transferee prior to the transfer of any Residual Certificate, Class M Certificate or Class B or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx Keogh plans, that is subject to Section 406 Sectiox 000 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition transfer is permissible under applicable law, will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code, will not cause the assets of the Trust Fund to constitute "plan assets" within the meaning of 29 C.F.R. ss.2510.3-101, and will not subject the Trustee, the Master Servicer or the Company to any obligation in addition to those undertaken in this Agreement. Neither the DepositorCompany, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance companyClass B Certificates, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto G-6 (or in a form substantially similar to such Exhibit G-6 as shall be agreed upon by the Trustee), in the case of the transfer of any of the foregoing Class B Certificates to a person capable of providing such certification, substantially to the effect that all the purchase of such Certificate is permissible under applicable law, will not constitute or result in any non-exempt prohibited transaction under ERISA or Section 4975 of the Code, will not subject the Company, the Trustee or the Master Servicer to any obligation or liability (including obligations or liabilities under ERISA or Section 4975 of the Code) in addition to those undertaken in this Agreement and the following conditions are satisfied: (i) the transferee is an insurance company and the source of funds used by such transferee to purchase such Certificates will be funds is an "insurance company general account" (as such term is defined in Prohibited Transaction Class Exemption ("PTCE") 95-60), (ii) the conditions set forth in Sections I and III of PTCE 95-60 have been satisfied and (iii) there is no Plan with respect to which the amount of such general account's reserves and liabilities for contracts held by it or on behalf of such Plan and all other Plans maintained by the same employer (or any "affiliate" thereof, as defined in its PTCE 95-60) or by the same employee organization exceeds 10% of the total of all reserves and liabilities of such general account which it reasonably believes do (as determined under PTCE 95-60) as of the date of the acquisition of such Certificates; provided however that such certification will not constitute "plan assets" be required in connection with any transfer of any Plan such Class B Certificate by the Company to an affiliate of the Company and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Company of the status of such transferee as defined above)an affiliate of the Company. The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default. In the case of the Class M Certificates, in lieu of the Opinion of Counsel described above, any person purchasing a Class M Certificate shall be deemed to have represented that either: (i) such person is not a Plan subject to ERISA or the Code (or comparable provisions of any subsequent enactments) and is not acting, directly or indirectly, on behalf of any such Plan or acquiring such 90 Certificate with Plan Assets; or (ii) the purchase of such Certificate is permissible under applicable law, will not constitute or result in any non-exempt prohibited transaction under ERISA or Section 4975 of the Code, will not subject the Company, the Trustee or the Master Servicer to any obligation or liability (including obligations or liabilities under ERISA or Section 4975 of the Code) in addition to those undertaken in this Agreement and the following conditions are satisfied: (i) the transferee is an insurance company and the source of funds used to purchase such Certificates is an "insurance company general account" (as such term is defined in Prohibited Transaction Class Exemption ("PTCE") 95-60), (ii) the conditions set forth in Sections I and III of PTCE 95-60 have been satisfied and (iii) there is no Plan with respect to which the amount of such general account's reserves and liabilities for contracts held by or on behalf of such Plan and all other Plans maintained by the same employer (or any "affiliate" thereof, as defined in PTCE 95-60) or by the same employee organization exceeds 10% of the total of all reserves and liabilities of such general account (as determined under PTCE 95-60) as of the date of the acquisition of such Certificates.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Residual Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Residual Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Residual Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer Transfer of any Ownership Interest in a Class R Residual Certificate, the Trustee shall require delivery to it, and shall not register the transfer Transfer of any Class R Residual Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3G-5) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Residual Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned 91 to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Residual Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- pass-through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Residual Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Residual Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Residual Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3G-5, a certificate of the holder Holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Residual Certificates other than to Non-United States Persons and Disqualified Organizations Permitted Transferees are prohibited.
(iii) (aA) if If any Disqualified Organization Person other than a Permitted Transferee shall become a holder Holder of a Class R Residual Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Residual Certificate. If a Non-United States Person shall become a holder Holder of a Class R Residual Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Residual Certificate. If a transfer of a Residual Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.860G-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as Holder thereof retroactive to the date of registration of such transfer of such Residual Certificate. The prior Holder shall be entitled to recover from any purported Holder of a Residual Certificate that was in fact not a Permitted Transferee under this Section 5.05(b) at the time it became a Holder all payments made on such Residual Certificate. Each Holder of a Residual Certificate, by acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this clause (b) and to any amendment of this Agreement deemed necessary (whether as a result of new legislation or otherwise) by counsel of the Company to ensure that the Residual Certificates are not transferred to any Person who is not a Permitted Transferee and that any transfer of such Residual Certificates will not cause the imposition of a tax upon the Trust or cause any such REMIC to fail to qualify as a REMIC. The Trustee shall be under no liability to any Person for any 92 registration of Transfer of a Class R Residual Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp), Pooling and Servicing Agreement (Impac Secured Assets Corp)
Registration of Transfer and Exchange of Certificates. (a) The Delaware Trustee shall maintain keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee Registrar shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided.
(b) The Certificates have not been and will not be registered under the Securities Act and will not be listed on any exchange. No transfer, sale, pledge or other disposition transfer of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition transfer is exempt from the made pursuant to an effective registration requirements of statement under the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said exempt from the registration requirements under the Securities Act and such state securities laws. In the event that a transfer of a Class B or Class R Certificate is to be made in reliance upon an exemption from the Securities Act and state securities laws, in order to assure compliance with the Securities Act and such laws, the Certificateholder desiring to effect such transfer and such Certificateholder's prospective transferee shall each certify to the Trust, the Delaware Trustee, the Administrator and the transferring Certificateholder in writing the facts surrounding the transfer in substantially the forms set forth in Exhibit D (ithe Transferor Letter) and Exhibit E (the Depositor may direct Investment Letter) or Exhibit F (the Trustee "Rule 144A Letter"), as applicable. Except in the case of a transfer as to require which the proposed transferee has provided a written Rule 144A Letter with respect to a Rule 144A transaction, there shall also be delivered to the Trust an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor effect that such transfer shall may be made pursuant to an exemption, describing exemption from the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and lawsSecurities Act, which Opinion of Counsel shall not be an expense of the TrusteeTrust, the Depositor Delaware Trustee (unless it is the transferee from whom such opinion is to be obtained) or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute Administrator. Each Certificateholder of a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer. Any such Certificateholder Certificate desiring to effect such a transfer shall, and does hereby agree to, indemnify the TrusteeTrust, the Depositor Delaware Trustee and the Master Servicer Administrator against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state securities laws. The Trustee .
(c) No transfer, sale, pledge or other disposition of the Certificate shall require a written Opinion of Counsel from a prospective transferee be made unless prior to such transfer, sale, pledge or other disposition, the transfer Trust shall have received either (i) a representation letter from the transferee of any Class B or Class R Certificate such Certificate, acceptable to any and in form and substance satisfactory to the Trust, to the effect that such a transferee is not an employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of ERISA or Section 4975 of the Employee Retirement Income Security Act Code, or a person acting on behalf of 1974, as amended any such plan or ("ERISA"ii) in the case of any Certificate presented for registration in the name of an employee benefit plan subject to ERISA or Section 4975 of the Code (or comparable provisions of any of the foregoing, a "Plan"subsequent enactments), to or a trustee of any such plan or any other Person person acting on behalf of any Plansuch plan, an Opinion of Counsel satisfactory to the Trust, the Delaware Trustee and the Administrator to the effect that the purchase or holding of such Certificate will not result in the Trust or the Trust Estate being deemed to any other person who is using be "plan assets" of any Plan and subject to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 the Code and will not subject the Trust, Delaware Trustee, the Administrator or the transferring Certificateholder to any obligation in addition to those undertaken in this Trust Agreement. Notwithstanding anything else to the contrary herein, in the event any purported transfer of any Certificate is made without delivery of the Coderepresentation letter referred to above, such representation shall be deemed to have been made by the transferee by its acceptance of such Certificate. Neither In addition, any purported transfer of a Certificate to or on behalf of an employee benefit plan subject to ERISA or to the DepositorCode without the delivery to the Trust, the Master Servicer nor Delaware Trustee, and the Trustee will be required to obtain such Administrator of an Opinion of Counsel on behalf as described above shall be void and of any prospective transfereeno effect. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Any certificate or Opinion of CounselCounsel furnished pursuant to this Section 3.04 may be relied on conclusively by the Trust, Delaware Trustee, the Trustee Administrator and the transferring Certificateholder in determining whether the provisions hereof have been complied with.
(d) No transfer shall require a certification in the form be effective if immediately after such transfer there would be more than one hundred Beneficial Owners of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above)Certificates. The permission of any Any purported transfer in violation of the restriction on provisions of this Section 3.04(d) shall be VOID AB INITIO and the Delaware Trustee shall have no liability in connection with a transfer set forth in violation of the provisions of this Section 3.04(d).
(e) The foregoing provisions shall not prevent the assignment by a Certificateholder of all or any part of its right to receive distributions in respect of its interest in its Certificate, but such assignment shall effect no change in ownership of the Trust.
(f) The preparation and delivery of the certificate and opinions referred to in this paragraph Section 3.04 shall not constitute be an expense of the Trust, the Delaware Trustee or the Administrator.
(g) Upon surrender for registration of transfer of any Certificate at the office or agency maintained pursuant to Section 3.08, the Delaware Trustee shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations stating the aggregate amount and Percentage Interest so transferred dated the date of authentication by the Delaware Trustee. At the option of a default Certificateholder, Certificates may be exchanged for other Certificates of authorized Percentage Interests and denominations of a like aggregate amount upon surrender of the Certificates to be exchanged at the office or an Event agency maintained pursuant to Section 3.08.
(h) Every Certificate presented or surrendered for registration of Defaulttransfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Trust and duly executed by the Certificateholder or such Certificateholder's attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Trust in accordance with its customary practice.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate No service charge shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of made for any mandatory sale under clause (iii)(B) below and to execute all instruments registration of transfer and or exchange of Certificates, but the Trust or the Delaware Trustee may require payment of a sum sufficient to do all other things necessary cover any tax or governmental charge that may be imposed in connection with any such sale. The rights transfer or exchange of each Person acquiring Certificates.
(j) Notwithstanding any Ownership Interest other provision herein or elsewhere, the Trust, the Delaware Trustee and the Administrator (i) shall not have any obligation to determine whether any transfer or exchange of a Certificate is permitted under or in a Class R Certificate are expressly subject accordance with this Trust Agreement; (ii) shall not have any personal liability to any person in connection with any transfer or exchange or proposed or purported transfer or exchange (and/or registration thereof) that is not permitted under or in accordance with this Trust Agreement; (iii) shall be entitled to rely (and shall be fully justified and protected in so relying) on the Register as to the following provisions:identity of the Certificateholders and as to the Certificates and the Percentage Interests and denominations thereof evidenced thereby.
(Ak) Each Person holding Notwithstanding anything contained herein to the contrary, the Delaware Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or acquiring any Ownership Interest in exemptions from the Securities Act of 1933, as amended, the Securities Act of 1934, as amended, applicable state securities law or the Investment Company Act; provided, however, that if a Class R Certificate certificate is specifically required to be delivered to the Delaware Trustee by a purchaser or transferee of a Certificate, the Delaware Trustee shall be under a Permitted Transferee duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transfereeparty delivering the same if such certificate does not so conform.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 2 contracts
Samples: Trust Agreement (Nelnet Student Loan Funding LLC), Trust Agreement (Nelnet Student Loan Funding LLC)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B or a Class R Private Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B or Class R Private Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to shall require a written an Opinion of Counsel addressed to the Seller, the Servicer and the Trustee acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Seller or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Private Certificate by the Depositor Seller or any affiliate thereof, to a non-affiliate of the Depositor Seller and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 F-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 F-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor Seller and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor Seller or the Master Servicer; provided however that such representation letters will not be required in connection with any transfer of any such Private Certificate by the Seller to an affiliate of the Seller and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Seller of the status of such transferee as an affiliate of the Seller. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor Seller and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion .
(c) Notwithstanding the requirements of Counsel from a Section 5.02(b), transfers of Private Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee prior of a Private Certificate provides the Trustee and the Seller with an investment letter substantially in the form of Exhibit F-3 attached hereto, which investment letter shall not be an expense of the Trustee, the Seller or the Servicer, and which investment letter states that, among other things, such transferee is a "qualified institutional buyer" as defined under Rule 144A. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof; provided, however, that no transfer of any Class B of the Private Certificates may be made pursuant to this Section 5.02(c) by the Seller. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Seller and the Servicer against any liability that may result if the transfer is not so exempt or Class R is not made in accordance with such applicable federal and state laws.
(d) Subject to the provisions of subsection (ii), no Senior Support Lockout Certificate, Subordinate Certificate to any or Residual Certificate may be acquired directly or indirectly by, or on behalf of, an employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that arrangement which is subject to Title I of ERISA and/or Section 4975 of the Code, unless the proposed transferee provides an opinion of counsel to the Trustee (upon which the Trustee is authorized to rely) to the effect that the proposed transfer and/or holding of such Certificate and the servicing, management and operation of the Trust: (A) will not result in a prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") ERISA or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee which is not covered under an individual or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the class prohibited transaction provisions exemption including but not limited to Department of Labor Prohibited Transaction Exemption ("PTE") 84-14 (Class Exemption for Plan Asset Transactions Determined by Independent Qualified Professional Asset Managers); PTE 91-38 (Class Exemption for Certain Transactions Involving Bank Collective Investment Funds); PTE 90-1 (Class Exemption for Certain Transactions Involving Insurance Company Pooled Separate Accounts); PTE 95-60 (Class Exemption for Certain Transactions Involving Insurance Company General Accounts); PTE 96-23 (Class Exemption for Plan Asset Transactions Determined by In-House Asset Managers); and Section 406 401(c) of ERISA and the regulations to be promulgated thereunder (relating to insurance company general accounts) and (B) will not give rise to any additional fiduciary duties under ERISA on the part of either the Seller, the Servicer or the Trustee.
(i) In lieu of such opinion of counsel, any Person acquiring an interest in a Senior Support Lockout Certificate or a Subordinate Certificate may represent to the Trustee (or, in the case of a Person acquiring an interest in a Book-Entry Certificate which is a Senior Support Lockout Certificate or a Subordinate Certificate, shall be deemed to have represented to the Trustee) that it is either: (A) not acquiring an interest in such Certificate directly or indirectly by, or on behalf of, an employee benefit plan or other retirement arrangement which is subject to Title I of ERISA and/or Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require or (B) providing a representation or certification in the form of Exhibit G-5 F-6 attached hereto substantially to the Trustee to the effect that all funds used by the transfer and/or holding of an interest in such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation Certificate and the servicing, management and/or operation of the restriction Trust and its assets: (I) will not result in any prohibited transaction which is not covered under an individual or class prohibited transaction exemption, including, but not limited to, XXX 00-00, XXX 00-00, XXX 00-0, XXX 95-60, PTE 96-23 or Section 401(c) of ERISA and the regulations to be promulgated thereunder and (II) will not give rise to any additional fiduciary duties on transfer set forth in this paragraph shall not constitute a default the part of either the Seller, the Servicer or an Event of Defaultthe Trustee.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Residual Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Residual Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Residual Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer Transfer of any Ownership Interest in a Class R Residual Certificate, the Trustee shall require delivery to it, and shall not register the transfer Transfer of any Class R Residual Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3F-5) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4F-4, from the Holder wishing to transfer the Class R Residual Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4F-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Residual Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- pass-through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Residual Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Residual Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Residual Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3F-5, a certificate of the holder Holder requesting such transfer in the form attached hereto as Exhibit G-4 F-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Residual Certificates other than to Non-United States Persons and Disqualified Organizations Permitted Transferees are prohibited.
(iii) (aA) if If any Disqualified Organization Person other than a Permitted Transferee shall become a holder Holder of a Class R Residual Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Residual Certificate. If a transfer of a Class R Residual Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-31.860G-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Residual Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Residual Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gmac Mortgage Loan Trust 1999-J2)
Registration of Transfer and Exchange of Certificates. (a) The Delaware Trustee shall maintain keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee Registrar shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided.
(b) The Certificates have not been and will not be registered under the Securities Act and will not be listed on any exchange. No transfer, sale, pledge or other disposition transfer of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition transfer is exempt from the made pursuant to an effective registration requirements of statement under the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said exempt from the registration requirements under the Securities Act and such state securities laws. In the event that a transfer of a Class B or Class R Certificate is to be made in reliance upon an exemption from the Securities Act and state securities laws, in order to assure compliance with the Securities Act and such laws, the Certificateholder desiring to effect such transfer and such Certificateholder’s prospective transferee shall each certify to the Trust, the Delaware Trustee, the Administrator and the transferring Certificateholder in writing the facts surrounding the transfer in substantially the forms set forth in Exhibit D (ithe “Transferor Letter”) and Exhibit E (the Depositor may direct “Investment Letter”) or Exhibit F (the Trustee “Rule 144A Letter”), as applicable. Except in the case of a transfer as to require which the proposed transferee has provided a written Rule 144A Letter with respect to a Rule 144A transaction, there shall also be delivered to the Trust an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor effect that such transfer shall may be made pursuant to an exemption, describing exemption from the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and lawsSecurities Act, which Opinion of Counsel shall not be an expense of the TrusteeTrust, the Depositor Delaware Trustee (unless it is the transferee from whom such opinion is to be obtained) or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute Administrator. Each Certificateholder of a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer. Any such Certificateholder Certificate desiring to effect such a transfer shall, and does hereby agree to, indemnify the TrusteeTrust, the Depositor Delaware Trustee and the Master Servicer Administrator against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state securities laws. The Trustee .
(c) No transfer, sale, pledge or other disposition of the Certificates shall require a written Opinion of Counsel from a prospective transferee be made unless prior to such transfer, sale, pledge or other disposition, the transfer Trust shall have received either (i) a representation letter from the transferee of any Class B or Class R Certificate such Certificate, acceptable to any and in form and substance satisfactory to the Trust, to the effect that such a transferee is not an employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of ERISA or Section 4975 of the Employee Retirement Income Security Act Code, or a person acting on behalf of 1974, as amended any such plan or ("ERISA"ii) in the case of any Certificate presented for registration in the name of an employee benefit plan subject to ERISA or Section 4975 of the Code (or comparable provisions of any of the foregoing, a "Plan"subsequent enactments), to or a trustee of any such plan or any other Person person acting on behalf of any Plansuch plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such an Opinion of Counsel must establish satisfactory to the satisfaction of Trust, the Depositor Delaware Trustee and the Trustee Administrator to the effect that the purchase or holding of such Certificate will not result in the Trust or the Certificate Registrar that such disposition will not violate Trust Estate being deemed to be “plan assets” and subject to the prohibited transaction provisions of Section 406 of ERISA and Section 4975 the Code and will not subject the Trust, Delaware Trustee, the Administrator or the transferring Certificateholder to any obligation in addition to those undertaken in this Trust Agreement. Notwithstanding anything else to the contrary herein, in the event any purported transfer of any Certificate is made without delivery of the Coderepresentation letter referred to above, such representation shall be deemed to have been made by the transferee by its acceptance of such Certificate. Neither In addition, any purported transfer of a Certificate to or on behalf of an employee benefit plan subject to ERISA or to the DepositorCode without the delivery to the Trust, the Master Servicer nor Delaware Trustee, and the Trustee will be required to obtain such Administrator of an Opinion of Counsel on behalf as described above shall be void and of any prospective transfereeno effect. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Any certificate or Opinion of CounselCounsel furnished pursuant to this Section 3.04 may be relied on conclusively by the Trust, Delaware Trustee, the Trustee Administrator and the transferring Certificateholder in determining whether the provisions hereof have been complied with.
(d) No transfer shall require a certification in the form be effective if immediately after such transfer there would be more than one hundred Beneficial Owners of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above)Certificates. The permission of any Any purported transfer in violation of the restriction on provisions of this Section 3.04(d) shall be void ab initio and the Delaware Trustee shall have no liability in connection with a transfer set forth in violation of the provisions of this Section 3.04(d).
(e) The foregoing provisions shall not prevent the assignment by a Certificateholder of all or any part of its right to receive distributions in respect of its interest in its Certificate, but such assignment shall effect no change in ownership of the Trust.
(f) The preparation and delivery of the certificate and opinions referred to in this paragraph Section 3.04 shall not constitute be an expense of the Trust, the Delaware Trustee or the Administrator.
(g) Upon surrender for registration of transfer of any Certificate at the office or agency maintained pursuant to Section 3.08, the Delaware Trustee shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations stating the aggregate amount and Percentage Interest so transferred dated the date of authentication by the Delaware Trustee. At the option of a default Certificateholder, Certificates may be exchanged for other Certificates of authorized Percentage Interests and denominations of a like aggregate amount upon surrender of the Certificates to be exchanged at the office or an Event agency maintained pursuant to Section 3.08.
(h) Every Certificate presented or surrendered for registration of Defaulttransfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Trust and duly executed by the Certificateholder or such Certificateholder’s attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Trust in accordance with its customary practice.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate No service charge shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of made for any mandatory sale under clause (iii)(B) below and to execute all instruments registration of transfer and or exchange of Certificates, but the Trust or the Delaware Trustee may require payment of a sum sufficient to do all other things necessary cover any tax or governmental charge that may be imposed in connection with any such sale. The rights transfer or exchange of each Person acquiring Certificates.
(j) Notwithstanding any Ownership Interest other provision herein or elsewhere, the Trust, the Delaware Trustee and the Administrator (i) shall not have any obligation to determine whether any transfer or exchange of a Certificate is permitted under or in a Class R Certificate are expressly subject accordance with this Trust Agreement; (ii) shall not have any personal liability to any person in connection with any transfer or exchange or proposed or purported transfer or exchange (and/or registration thereof) that is not permitted under or in accordance with this Trust Agreement; (iii) shall be entitled to rely (and shall be fully justified and protected in so relying) on the Register as to the following provisions:identity of the Certificateholders and as to the Certificates and the Percentage Interests and denominations thereof evidenced thereby.
(Ak) Each Person holding Notwithstanding anything contained herein to the contrary, the Delaware Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or acquiring any Ownership Interest in exemptions from the Securities Act of 1933, as amended, the Securities Act of 1934, as amended, applicable state securities law or the Investment Company Act; provided, however, that if a Class R Certificate certificate is specifically required to be delivered to the Delaware Trustee by a purchaser or transferee of a Certificate, the Delaware Trustee shall be under a Permitted Transferee duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transfereeparty delivering the same if such certificate does not so conform.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 1 contract
Samples: Trust Agreement (Gmac Elf LLC)
Registration of Transfer and Exchange of Certificates. and the Class R Certificate. ---------------------------
(a) The Trustee shall maintain keep at the office or agency to be maintained in accordance with Section 12.03 a "Certificate Register Register" in which, subject to such reasonable regulations as it may prescribe, which the Trustee shall provide for the registration of Certificates and the Class R Certificate and of transfers and exchanges of Certificates and the Class R Certificate as herein provided. No transferThe Trustee initially appoints itself to be the "Certificate Registrar" and transfer agent for the purpose of registering Certificates and the Class R Certificate and transfers and exchanges of Certificates and the Class R Certificate as provided herein. The Trustee will give prompt written notice to Certificateholders, salethe Class R Certificateholder, pledge or other disposition the Backup Servicer and the Servicer of a Class B or a any change in the Certificate Registrar.
(i) Subject to clauses (ii) and (iii) below, no transfer of Class R Certificate shall be made by the Seller or any other Person unless such transfer, sale, pledge or other disposition transfer is exempt from the registration requirements of the Securities Act of 1933, as amended 1933 (the "Act"), as amended, and any applicable state securities laws or is made in accordance with said the Act and laws. In the event that a any such transfer of a Class B or Class R Certificate is to be made made,
(iA) the Depositor Originator may direct the Trustee to require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Originator that such transfer shall may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said the Act and laws or is being made pursuant to said the Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Trustee or the Master ServicerOriginator, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and and
(iiB) the Trustee shall require the transferee to execute a representation letter, an investment letter substantially in the form of Exhibit G-1 K attached hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters investment letter shall not be an expense of the Trustee, the Depositor Trustee or the Master ServicerOriginator. Any such The Class R Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor Originator and the Master Servicer Certificate Registrar against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the .
(ii) No transfer of any a Class B B-3I, Class B-2, Class P or Class R Certificate or any interest therein shall be made to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to ERISA, or that is described in Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"4975(e)(1) or Section 4975 of the Code or to any person or entity purchasing on behalf of, or with assets of, such an employee benefit plan (any of the foregoingeach, a "Plan"), unless the Plan delivers to a trustee the Originator and the Trustee, an Opinion of Counsel in form satisfactory to the Originator and the Trustee that the purchase and holding of such Class B-3I Certificate, Class B-2, Class P or other Person acting on behalf Class R Certificate by such Plan will not result in the assets of any Plan, or the Trust being deemed to any other person who is using be "plan assets" of any Plan and subject to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and the Code and will not subject the Trustee, the Originator, the Seller, the Backup Servicer or the Servicer to any obligation or liability in addition to those undertaken in this Agreement. Unless such opinion is delivered and in the case of Definitive Certificates, each person acquiring such a Certificate or Class R Certificate will be deemed to represent to the Trustee, the Originator, the Seller, the Backup Servicer and the Servicer either
(A) that such person is neither a Plan, nor acting on behalf of a Plan, subject to ERISA or to Section 4975 of the Code. Neither , or
(B) that the Depositorpurchase and holding of the Class B-3I Certificate, Class B-2, Class P or Class R Certificate by such Plan will not result in the assets of the Trust being deemed to be Plan assets and subject to the prohibited transaction provisions of ERISA and the Code and will not subject the Trustee, the Master Originator or the Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates obligation or liability in addition to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth those undertaken in this paragraph shall not constitute a default or an Event of DefaultAgreement.
(iiii) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject Notwithstanding anything to the following provisions:contrary contained herein,
(A) Each Person holding no Class B-3I, Class B-2, Class P or acquiring any Ownership Interest in a Class R Certificate Certificate, nor any interest therein, shall be transferred, sold or otherwise disposed of to a Permitted Transferee and shall promptly notify "disqualified organization," within the Trustee meaning of Section 860E(e)(5) of the Code (a "Disqualified Organization"), including, but not limited to,
(1) the United States, a State or political subdivision thereof, a foreign government, an international organization or an agency or instrumentality of any change or impending change of the foregoing,
(2) an organization (other than a cooperative described in its status as Section 521 of the Code) which is exempt from the taxes imposed by Chapter 1 of the Code and not subject to the tax imposed on unrelated business income by Section 511 of the Code, or
(3) a Permitted Transferee.cooperative described in Section 1381(a)(2)(C) of the Code, and
(B) In connection with prior to any proposed transfer registration of any Ownership Interest in transfer, sale or other disposition of a Class B-3I or Class R Certificate, the proposed transferee shall deliver to the Trustee, under penalties of perjury, an affidavit that such transferee is not a Disqualified Organization, with respect to which the Trustee shall require delivery to ithave no actual knowledge that such affidavit is false, and the transferor and the proposed transferee shall not register each deliver to the Trustee an affidavit with respect to any other information reasonably required by the Trustee pursuant to the REMIC Provisions, including, without limitation, information regarding the transfer of non-economic residual interests and transfers of any Class R Certificate until its receipt residual interest to or by a foreign person; provided, however, that, upon the delivery to the Trustee of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed TransfereeOpinion of Counsel, in form and substance satisfactory to the Master Servicer Trustee and rendered by Independent counsel, to the Trustee representing and warranting, among other things, effect that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the beneficial ownership of the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee B-3I or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it as applicable, by any Disqualified Organization will endeavor not result in the imposition of federal income tax upon the Trust or any Class B-3I Certificateholder or Class R Certificateholder or any other person or otherwise adversely affect the status of the Trust as a REMIC, the foregoing prohibition on transfers, sales and other dispositions, as well as the foregoing requirement to remain deliver a Permitted Transfereecertificate prior to any registration thereof, shall, with respect to such Disqualified Organization, terminate. Notwithstanding any transfer, sale or other disposition of a Class B-3I or Class R Certificate, or any interest therein, to a Disqualified Organization or the registration thereof in the Certificate Register, such transfer, sale or other disposition and any registration thereof, unless accompanied by the Opinion of Counsel described in the preceding sentence, shall be deemed to be void and of no legal force or effect whatsoever and such Disqualified Organization shall be deemed not to be a Class B-3I or Class R Certificateholder, as applicable, for any purpose hereunder, including, but not limited to, the receipt of 115 distributions on such Class B-3I or Class R Certificate, and that it has reviewed shall be deemed to have no interest whatsoever in such Class B-3I or Class R Certificate. Each Class B-3I or Class R Certificateholder, by his acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and agrees 9.02(b)(3).
(iv) Any transfer, sale or other disposition not in compliance with the provisions of this Section 9.02(b) shall be deemed to be bound by themvoid and of no legal force or effect whatsoever and such transferee shall be deemed not to be the Class B-3I Certificateholder or Class R Certificateholder, and (II) a certificateas applicable, in for any purpose hereunder, including, but not limited to, the form attached hereto as Exhibit G-4, from receipt of distributions on the Holder wishing to transfer the Class B-3I Certificate or Class R Certificate, and shall be deemed to have no interest whatsoever in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment Class B-3I Certificate or collection of taxClass R Certificate.
(Cv) Notwithstanding The Trustee shall give notice to the delivery Rating Agencies promptly following any transfer, sale or other disposition of a Transfer Affidavit Class B-3I or Class R Certificate.
(c) At the option of a Certificateholder (other than the Class P Certificateholder) or a Class R Certificateholder, Certificates (other than the Class P Certificate) and Agreement by the Class R Certificate may be exchanged for other Certificates or Class R Certificate of authorized denominations of a proposed Transferee under clause (B) abovelike aggregate original denomination, if a Responsible Officer upon surrender of such Certificates or the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee be exchanged at the Corporate Trust Office. Whenever any Certificates or the Class R Certificate are so surrendered for exchange, the Trustee shall execute and deliver the Certificates or Class R Certificate which the Certificateholder or Class R Certificateholder making the exchange is entitled to receive. Every Certificate or Class R Certificate presented or surrendered for transfer or exchange shall be effectedduly endorsed by, or shall be accompanied by a written instrument of transfer in form satisfactory to the Trustee and the Certificate Registrar duly executed by, the holder thereof or his or her attorney duly authorized in writing.
(Dd) Each Person holding Except as provided in paragraph (e) below, the Book-Entry Certificates shall at all times remain registered in the name of the Depository or acquiring any Ownership Interest in a Class R Certificate shall agree its nominee and at all times:
(xi) to require a Transfer Affidavit and Agreement from any other Person to whom registration of such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) Certificates may not to transfer its Ownership Interest unless it provides a certificate to be transferred by the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees except to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."another Depository;
(ii) The Trustee will register the Transfer of any Class R Depository shall maintain book-entry records with respect to the Certificate only if it shall have received the Transfer Affidavit Owners and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 with respect to ownership and all transfers of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.Certificates;
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights ownership and obligations as holder thereof retroactive to the date transfers of registration of such Transfer Certificates on the books of the Depository shall be governed by applicable rules established by the Depository; 116
(iv) the Depository may collect its usual and customary fees, charges and expenses from its Depository Participants;
(v) the Trustee shall deal with the Depository, Depository Participants and indirect participating firms as representatives of the Certificate Owners of such Class R Certificate. If a Non-United States Person shall become a holder Certificates for purposes of a Class R Certificateexercising the rights of Holders under this Agreement, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration requests and directions for and votes of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant representatives shall not be deemed to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action inconsistent if they are made with respect to different Certificate Owners; and
(vi) the Trustee may rely and shall be fully protected in relying upon information furnished by the Depository with respect to its Depository Participants and furnished by the Depository Participants with respect to indirect participating firms and persons shown on the books of such holder under indirect participating firms as direct or indirect Certificate Owners. All transfers by Certificate Owners of Book-Entry Certificates shall be made in accordance with the provisions procedures established by the Depository Participant or brokerage firm representing such Certificate Owner. Each Depository Participant shall only transfer Book-Entry Certificates of this AgreementCertificate Owners it represents or of brokerage firms for which it acts as agent in accordance with the Depository's normal procedures.
(e) If (x)
(i) the Seller or the Depository advises the Trustee in writing that the Depository is no longer willing or able properly to discharge its responsibilities as Depository, and
(ii) the Trustee or the Originator is unable to locate a qualified successor, or
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Conseco Finance Securitizations Corp)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B P Certificate, Class C Certificate or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B P Certificate, Class C Certificate or Class R Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Company or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor Company or any affiliate thereof, to a non-affiliate of the Depositor Company and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor Company and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor Company or the Master Servicer; provided, however, that such representation letters will not be required in connection with any transfer of any such Certificate by the Company to an affiliate of the Company and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Company of the status of such transferee as an affiliate of the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Notwithstanding the requirements of Section 5.02(b), transfers of Class P Certificates, Class C Certificates and Class R Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of a Certificate provides the Trustee and the Company with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the Trustee, the Company or the Master Servicer, and which investment letter states that, among other things, such transferee is a "qualified institutional buyer" as defined under Rule 144A. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof; provided, however, that no Transfer of any of the Class P Certificates, Class C Certificates or Class R Certificates may be made pursuant to this Section 5.02(c) by the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written an Opinion of Counsel from a prospective transferee prior to the transfer of any Class B P Certificate, Class C Certificate or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition transfer is permissible under applicable law, will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code, will not cause the assets of the Trust Fund to constitute "plan assets" within the meaning of 29 C.F.R. ss. 2510.3-101, and will not subject the Trustee, the Master Servicer or the Company to any obligation in addition to those undertaken in this Agreement. Neither the DepositorCompany, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan .
(as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.d) [Reserved]
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer Transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer Transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3G-5) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- pass-through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3G-5, a certificate of the holder Holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates other than to Non-United States Persons and Disqualified Organizations Permitted Transferees are prohibited.
(iiiA) (a) if If any Disqualified Organization Person other than a Permitted Transferee shall become a holder Holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder Holder of a Class R Certificate, then the last preceding United States Person Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-31.860G-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer transfer of such Class R Certificate. The prior Holder shall be entitled to recover from any purported Holder of a Class R Certificate that was in fact not a Permitted Transferee under this Section 5.05(b) at the time it became a Holder all payments made on such Class R Certificate. Each Holder of a Class R Certificate, by acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this clause (b) and to any amendment of this Agreement deemed necessary (whether as a result of new legislation or otherwise) by counsel of the Company to ensure that the Class R Certificates are not transferred to any Person who is not a Permitted Transferee and that any transfer of such Class R Certificates will not cause the imposition of a tax upon the Trust or cause any such REMIC to fail to qualify as a REMIC. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a Class R Certificate in violation of the restrictions in this Section 5.02 and to the extent that the retroactive restoration of the rights of the Holder of such Class R Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Trustee shall have the right, without notice to the holder or any prior holder of such Class R Certificate, to sell such Class R Certificate to a purchaser selected by the Trustee on such terms as the Trustee may choose. Such purported Transferee shall promptly endorse and deliver each Class R Certificate in accordance with the instructions of the Trustee. Such purchaser may be the Trustee itself. The proceeds of such sale, net of the commissions (which may include commissions payable to the Trustee), expenses and taxes due, if any, will be remitted by the Trustee to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be determined in the sole discretion of the Trustee, and the Trustee shall not be liable to any Person having an Ownership Interest in a Class R Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions, all information necessary to compute any tax imposed (A) as a result of the transfer of an ownership interest in a Class R Certificate to any Person who is a Disqualified Organization, including the information regarding "excess inclusions" of such Class R Certificates required to be provided to the Internal Revenue Service and certain Persons as described in Treasury Regulations Sections 1.860D-1(b)(5) and 1.860E- 2(a)(5), and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Class R Certificate having as among its record holders at any time any Person who is a Disqualified Organization. The Trustee may charge and shall be entitled to reasonable compensation for providing such information as may be required from those Persons which may have had a tax imposed upon them as specified in clauses (A) and (B) of this paragraph for providing such information.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B P Certificate, Class C Certificate or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B P Certificate, Class C Certificate or Class R Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Company or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor Company or any affiliate thereof, to a non-affiliate of the Depositor Company and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor Company and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor Company or the Master Servicer; provided however that such representation letters will not be required in connection with any transfer of any such Certificate by the Company to an affiliate of the Company and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Company of the status of such transferee as an affiliate of the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Notwithstanding the requirements of Section 5.02(b), transfers of Class P Certificates, Class C Certificates and Class R Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of a Certificate provides the Trustee and the Company with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the Trustee, the Company or the Master Servicer, and which investment letter states that, among other things, such transferee is a "qualified institutional buyer" as defined under Rule 144A. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof; provided, however, that no Transfer of any of the Class P Certificates, Class C Certificates or Class R Certificates may be made pursuant to this Section 5.02(c) by the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written an Opinion of Counsel from a prospective transferee prior to the transfer of any Class B P Certificate, Class C Certificate or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor Company, the Trustee and the Trustee or the Certificate Registrar Master Servicer that such disposition transfer is permissible under applicable law, will not violate the constitute or result in a non-exempt prohibited transaction provisions of Section 406 of under ERISA and or Section 4975 of the Code, and will not subject the Trustee, the Master Servicer or the Company to any obligation in addition to those undertaken in this Agreement. Neither the DepositorCompany, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp)
Registration of Transfer and Exchange of Certificates. (a) The Trustee Certificate Registrar shall maintain keep or cause to be kept, at the office or agency maintained pursuant to Section 7.7, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No transferThe Trustee shall be the initial Certificate Registrar. In the event that, salesubsequent to the Cut-off Date, pledge the Trustee notifies the Servicer that it is unable to act as Certificate Registrar, the Servicer shall appoint another bank or other disposition trust company, agreeing to act in accordance with the provisions of a this Agreement applicable to it, and otherwise acceptable to the Trustee, to act as successor Certificate Registrar under this Agreement. The Certificates have not been registered under the Securities Act or any state securities law. The Certificate Registrar shall not register the transfer of any Class A Certificate or Class B or a Class R Certificate shall be made unless such transfer, sale, pledge resale or transfer is pursuant to an effective registration statement under the Securities Act or is to the Seller or unless it shall have received (i) a representation letter substantially in the form of Exhibit B to the Confidential Offering Circular or (ii) such other disposition representations (or an Opinion of Counsel) satisfactory to the Seller or CS First Boston Corporation to the effect that such resale or transfer is made (A) in a transaction exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws laws, or (B) to a person who the transferor of the Certificate reasonably believes is a qualified institutional buyer (within the meaning of Rule 144A under the Securities Act) that is aware that such resale or other transfer is being made in accordance with said Act and laws. In reliance upon Rule 144A. Until the event that a transfer earlier of a Class B or Class R Certificate is to be made (i) such time as the Depositor may direct the Trustee to require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer Certificates shall be made registered pursuant to an exemption, describing a registration statement filed under the applicable exemption and the basis therefor, from said Securities Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee date three years from the later of the date of the original authentication and delivery of the Certificates and the date any Certificate was acquired from the Seller or any affiliate of the Seller, the Certificates shall require bear a legend as follows: THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE IN RELIANCE UPON EXEMPTIONS PROVIDED BY THE SECURITIES ACT AND SUCH STATE SECURITIES LAWS. NO RESALE OR OTHER TRANSFER OF THIS CERTIFICATE MAY BE MADE UNLESS SUCH RESALE OR TRANSFER (A) IS MADE IN ACCORDANCE WITH SECTION 7.3 OF THE POOLING AND SERVICING AGREEMENT AND (B) IS MADE (i) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (ii) IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, (iii) TO THE SELLER OR (iv) TO A PERSON WHO THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT THAT IS AWARE THAT THE RESALE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A AND (C) UPON THE SATISFACTION OF CERTAIN OTHER REQUIREMENTS SPECIFIED IN THE AGREEMENT. NEITHER THE SELLER, THE SERVICER NOR THE TRUSTEE IS OBLIGATED TO REGISTER THE CERTIFICATES UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS. The Certificate Registrar shall not register the transferee to execute initial transfer of the Class A Certificates unless it shall have received a representation letter, substantially Purchaser Representation Letter in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory A to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the transfer of any Class B or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the CodeConfidential Offering Circular. Neither the DepositorSeller, the Master Servicer nor the Trustee will be required is obligated to obtain such Opinion of Counsel on behalf register the Certificates of any prospective transferee. In Class under the case of Securities Act or to take any other action not otherwise required under the Agreement to permit the transfer of Certificates without registration. Notwithstanding anything to the foregoing Certificates to an insurance company, in lieu of such Opinion of Counselcontrary herein, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and Registrar shall not register the transfer of any Class R A Certificate unless it shall have received (i) a representation letter substantially in the form of Exhibit B to the Confidential Offering Circular or (ii) any Class B Certificate unless it shall have received a representation letter relating to Class B Certificates which is substantially in the form of Exhibit B to the Confidential Offering Circular.
(a) Upon surrender for registration of transfer of any Certificate at the Corporate Trust Office, the Trustee shall, subject to Section 7.3(a), execute, 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 Trustee. At the option of a Holder, Certificates may be exchanged for other Certificates of authorized denominations of a like aggregate amount upon surrender of the Certificates to be exchanged at the Corporate Trust Office.
(b) Every Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Trustee and the Certificate Registrar duly executed by the holder 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 Trustee.
(c) No service charge shall be made for any registration of transfer or exchange of Certificates, but the Trustee 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.
(d) The Certificates and this Agreement may be amended or supplemented from time to time without the consent of any of the Certificateholders to modify restrictions on and procedures for resale and other transfers of the Certificates of any Class to reflect any change in applicable law or regulations (or the interpretation thereof) or practices relating to the resale or transfer of restricted securities generally.
(e) No Certificate shall be registered or transferred to AmeriCredit or any Affiliate thereof other than ARC without the prior consent of the Security Insurer. Notice of any such transfer shall be given to each Rating Agency.
(f) The Class B Certificates shall initially be retained by ARC. No sale, assignment, pledge, encumbrance or transfer of any interest in any Class B Certificate shall be made or permitted without the prior written consent of the Certificate Insurer and prior notice to the Rating Agencies until its receipt the Class A Certificate Balance is reduced to zero, all payments in respect of interest on the Class A Certificates have been made in full and the Final Termination Date (as defined in the Spread Account Agreement) with respect to the Series 1995-B Certificates (as defined in the Series 1995-B Supplement) shall have occurred. The Class B Certificates shall be subject to the same restrictions on transfer that the Class A Certificates are subject to in Section 7.3 hereof. For purposes of the restrictions on transfer of Class B Certificates, ARC shall be treated as the initial purchaser. No transfer of a Class B Certificate or any interest therein shall be made unless prior to such transfer the Holder of such Class B Certificates delivers to ARC, the Certificate Insurer and the Trustee either a ruling of the Internal Revenue Service or an Opinion of Counsel, which shall be independent outside counsel, satisfactory to the Certificate Insurer, the Trustee and the Rating Agencies in either case, to the effect that the proposed transfer (x) will not result in the arrangement contemplated by this Agreement being treated as an association taxable as a corporation under either (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" the Code, as from time to time in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee force or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose tax laws of the proposed Transfer is to impede the assessment or collection State of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate Texas and (y) will not to transfer its Ownership Interest unless it provides a certificate to have any adverse effect on the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate Federal income taxation of the holder requesting such transfer in Trust or the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibitedCertificateholders.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 1 contract
Registration of Transfer and Exchange of Certificates. (a) The Delaware Trustee shall maintain keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08 hereof, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee Registrar shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided.
(b) The Certificates have not been and will not be registered under the Securities Act and will not be listed on any exchange. No transfer, sale, pledge or other disposition transfer of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition transfer is exempt from the made pursuant to an effective registration requirements of statement under the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said exempt from the registration requirements under the Securities Act and such state securities laws. In the event that a transfer of a Class B or Class R Certificate is to be made in reliance upon an exemption from the Securities Act and state securities laws, in order to assure compliance with the Securities Act and such laws, the Certificateholder desiring to effect such transfer and such Certificateholder’s prospective transferee shall each certify to the Trust, the Delaware Trustee, the Administrator and the transferring Certificateholder in writing the facts surrounding the transfer in substantially the forms set forth in Exhibit D (ithe “Transferor Letter”) and Exhibit E (the Depositor may direct “Investment Letter”) or Exhibit F (the Trustee “Rule 144A Letter”) hereto, as applicable. Except in the case of a transfer as to require which the proposed transferee has provided a written Rule 144A Letter with respect to a Rule 144A transaction, there shall also be delivered to the Trust an Opinion of Counsel acceptable (unless such transfer is made to and in form and substance satisfactory an affiliate of the transferor) to the Trustee and the Depositor effect that such transfer shall may be made pursuant to an exemption, describing exemption from the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and lawsSecurities Act, which Opinion of Counsel shall not be an expense of the TrusteeTrust, the Depositor Delaware Trustee (unless it is the transferee from whom such opinion is to be obtained) or the Master Servicer, provided that such Opinion Administrator. Each Certificateholder of Counsel will not be required in connection with the initial transfer of any such a Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer. Any such Certificateholder desiring to effect such a transfer shall, and does hereby agree to, indemnify the TrusteeTrust, the Depositor Delaware Trustee and the Master Servicer Administrator against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state securities laws. The Trustee .
(c) No transfer, sale, pledge or other disposition of the Certificate shall require a written Opinion of Counsel from a prospective transferee be made unless prior to such transfer, sale, pledge or other disposition, the transfer Trust shall have received either (i) a representation letter from the transferee of any Class B or Class R Certificate such Certificate, acceptable to any and in form and substance satisfactory to the Trust, to the effect that such a transferee is not an employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of ERISA or Section 4975 of the Employee Retirement Income Security Act Internal Revenue Code of 19741986, as amended ("ERISA"the “Code”), or a person acting on behalf of any such plan or (ii) in the case of any Certificate presented for registration in the name of an employee benefit plan subject to ERISA or Section 4975 of the Code (or comparable provisions of any of the foregoing, a "Plan"subsequent enactments), to or a trustee of any such plan or any other Person person acting on behalf of any Plansuch plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such an Opinion of Counsel must establish satisfactory to the satisfaction of Trust, the Depositor Delaware Trustee and the Trustee Administrator to the effect that the purchase or holding of such Certificate will not result in the Trust or the Certificate Registrar that such disposition will not violate Trust Estate being deemed to be “plan assets” and subject to the prohibited transaction provisions of Section 406 of ERISA and Section 4975 the Code and will not subject the Trust, the Delaware Trustee, the Administrator or the transferring Certificateholder to any obligation in addition to those undertaken in this Trust Agreement. Notwithstanding anything else to the contrary herein, in the event any purported transfer of any Certificate is made without delivery of the Coderepresentation letter referred to above, such representation shall be deemed to have been made by the transferee by its acceptance of such Certificate. Neither In addition, any purported transfer of a Certificate to or on behalf of an employee benefit plan subject to ERISA or to the DepositorCode without the delivery to the Trust, the Master Servicer nor Delaware Trustee, and the Trustee will be required to obtain such Administrator of an Opinion of Counsel on behalf as described above shall be void and of any prospective transfereeno effect. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Any certificate or Opinion of CounselCounsel furnished pursuant to this Section may be relied on conclusively by the Trust, the Trustee Delaware Trustee, the Administrator and the transferring Certificateholder in determining whether the provisions hereof have been complied with.
(d) No transfer shall require a certification in the form be effective if immediately after such transfer there would be more than one hundred Beneficial Owners of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above)Certificates. The permission of any Any purported transfer in violation of the restriction on provisions of this subsection (d) shall be VOID AB INITIO and the Delaware Trustee shall have no liability in connection with a transfer set forth in violation of the provisions of this subsection (d).
(e) The foregoing provisions shall not prevent the assignment by a Certificateholder of all or any part of its right to receive distributions in respect of its interest in its Certificate, but such assignment shall effect no change in ownership of the Trust.
(f) The preparation and delivery of the certificate and opinions referred to in this paragraph Section shall not constitute be an expense of the Trust, the Delaware Trustee or the Administrator.
(g) Upon surrender for registration of transfer of any Certificate at the office or agency maintained pursuant to Section 3.08 hereof, the Delaware Trustee shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations stating the aggregate amount and Percentage Interest so transferred dated the date of authentication by the Delaware Trustee. At the option of a default Certificateholder, Certificates may be exchanged for other Certificates of authorized Percentage Interests and denominations of a like aggregate amount upon surrender of the Certificates to be exchanged at the office or an Event agency maintained pursuant to Section 3.08 hereof.
(h) Every Certificate presented or surrendered for registration of Defaulttransfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Trust and duly executed by the Certificateholder or such Certificateholder’s attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Trust in accordance with its customary practice.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate No service charge shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of made for any mandatory sale under clause (iii)(B) below and to execute all instruments registration of transfer and or exchange of Certificates, but the Trust or the Delaware Trustee may require payment of a sum sufficient to do all other things necessary cover any tax or governmental charge that may be imposed in connection with any such sale. The rights transfer or exchange of each Person acquiring Certificates.
(j) Notwithstanding any Ownership Interest other provision herein or elsewhere, the Trust, the Delaware Trustee and the Administrator (i) shall not have any obligation to determine whether any transfer or exchange of a Certificate is permitted under or in a Class R Certificate are expressly subject accordance with this Trust Agreement; (ii) shall not have any personal liability to any person in connection with any transfer or exchange or proposed or purported transfer or exchange (and/or registration thereof) that is not permitted under or in accordance with this Trust Agreement; and (iii) shall be entitled to rely (and shall be fully justified and protected in so relying) on the Register as to the following provisions:identity of the Certificateholders and as to the Certificates and the Percentage Interests and denominations thereof evidenced thereby.
(Ak) Each Person holding Notwithstanding anything contained herein to the contrary, the Delaware Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or acquiring any Ownership Interest in exemptions from the Securities Act of 1933, as amended, the Securities Act of 1934, as amended, applicable state securities law or the Investment Company Act; provided, however, that if a Class R Certificate certificate is specifically required to be delivered to the Delaware Trustee by a purchaser or transferee of a Certificate, the Delaware Trustee shall be under a Permitted Transferee duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transfereeparty delivering the same if such certificate does not so conform.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 1 contract
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain keep at the office or agency to be maintained by it in accordance with Section 12.03 a "Certificate Register Register" in which, subject to such reasonable regulations as it may prescribe, which the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee initially appoints itself to be the "Certificate Registrar" and transfer agent for the purpose of registering Certificates and transfers and exchanges of Certificates as provided herein. The Trustee will give prompt written notice to Certificateholders and the Servicer of any change in the Certificate Registrar.
(1) No transfer, sale, pledge or other disposition transfer of a Class B or a Class R Certificate shall be made by the Trust Depositor or any other Person unless such transfer, sale, pledge or other disposition transfer is exempt from the registration requirements of the Securities Act of 1933, as amended 1933 (the "ActACT"), as amended, and any applicable state securities laws or is made in accordance with said the Act and laws. In Except in the case of a transfer permitted by clause (2) below, in the event that a any such transfer of a Class B or Class R Certificate is to be made made, (iA) the Depositor Trustee may direct the Trustee to require a written Opinion opinion of Counsel counsel acceptable to to, and in form and substance satisfactory to to, the Trustee and the Depositor that such transfer shall may be made pursuant to to, an exemption, describing the applicable exemption and the basis therefor, from said the Act and any applicable state securities laws or is being made pursuant to said the Act and any applicable state securities laws, which Opinion opinion of Counsel counsel shall not be an expense of the Trustee, the Depositor Trustee or the Master ServicerTrust Depositor, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (iiB) the Trustee shall require the transferee to execute a representation letter, an investment letter substantially in the form of Exhibit G-1 EXHIBIT H-1 attached hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters investment letter shall not be an expense of the TrusteeTrustee or the Trust Depositor. Except as provided in clause (2) below, any transfer, sale or other disposition not in compliance with the provisions of this Section 9.02(b)(1) shall be deemed to be void and of no legal force or effect whatsoever and such transferee shall be deemed to not be the Certificateholder for any purpose hereunder, including, but not limited to, the Depositor or receipt of distributions on the Master ServicerCertificate, and shall be deemed to have no interest whatsoever in the Certificate. Any such The Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor Trust Depositor, and the Master Servicer Certificate Registrar against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee .
(2) Except in the case of a transfer permitted by clause (1) above, no transfer of a Certificate shall require a written Opinion of Counsel from a be made by any Person other than the Trust Depositor unless the prospective transferee prior to of a Certificate provides the transfer Trustee and the Trust Depositor with an investment letter substantially in the form of any Class B or Class R Certificate to any employee benefit plan or other retirement arrangementEXHIBIT H-2 attached hereto, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 which investment letter shall not be an expense of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Trust Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account and which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warrantinginvestment letter states that, among other things, that it such transferee (A) is a Permitted Transferee"qualified institutional buyer" as defined under Rule 144A of the Act, acting for its own account or the accounts of other "qualified institutional buyers" as defined under Rule 144A, and (B) is aware that it is not acquiring its Ownership Interest the proposed transferor intends to rely on the exemption from registration requirements under the Act provided by Rule 144A. Except in the Class R Certificate that is the subject case of the proposed Transfer as a nomineetransfer permitted by clause (1) above, trustee any transfer, sale or agent for any Person who is other disposition not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed compliance with the provisions of this Section 5.02 and agrees 9.02(b)(2) shall be deemed to be bound by themvoid and of no legal force or effect whatsoever and such transferee shall be deemed to not be the Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions on the Certificate, and (II) a certificate, shall be deemed to have no interest whatsoever in the form attached hereto as Exhibit G-4Certificate. Any Certificateholder desiring to effect such transfer does hereby agree to indemnify the Trustee, from the Holder wishing Trust Depositor and the Certificate Registrar against any liability that may result if the transfer is not made in accordance with Rule 144A.
(c) At the option of a Certificateholder, Certificates may be exchanged for other Certificates of authorized denominations of a like aggregate original denomination, upon surrender of the Certificates to be exchanged at the office of the Trustee referred to in Subsection
(a) above. Whenever any Certificates are so surrendered for exchange, the Trustee shall execute and deliver the Certificates which the Certificateholder making the exchange is entitled to receive. Every Certificate presented or surrendered for transfer the Class R Certificateor exchange shall be duly endorsed by, or shall be accompanied by a written instrument of transfer in form and substance satisfactory to the Master Servicer Trustee and the Trustee representing and warrantingCertificate Registrar duly executed by, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking his or her attorney duly authorized in writing.
(d) The Trust Depositor and the Trustee, on behalf of the Trust, shall provide to any Certificateholder or any Person designated by such Certificateholder such financial or other action information as such Certificateholder may reasonably determine is required to permit such Certificateholder to comply with respect to such holder under the provisions requirements of this AgreementRule 144A of the Act in connection with the resale of the Certificates.
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Registration of Transfer and Exchange of Certificates. The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No transfer, sale, pledge or other disposition of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B or Class R Certificate is to be made (i) the Depositor may direct the Trustee to require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the transfer of any Class B or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx Keogh plans, that is subject to Section 406 of the Employee Retirement Income Retiremenx Xxxome Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I1) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II11) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
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Samples: Pooling and Servicing Agreement (Homestar Mortgage Acceptance Corp)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B P, Class C or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "“Act"”), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B P, Class C or Class R Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer; provided, however, that such representation letters will not be required in connection with any transfer of any such Certificate by the Depositor to an affiliate of the Depositor and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. No transfer of any Class C Certificate shall be made unless the transferee of such Class C Certificate provides to the Trustee the appropriate tax certification form (i.e., IRS Form W-9 or IRS Form W-8BEN, W-8IMY, or W-8ECI, as applicable (or any successor form thereto)), as a condition to such transfer and agrees to update such forms (i) upon expiration of any such form, (ii) as required under then applicable U.S. Treasury regulations and (iii) promptly upon learning that any IRS Form W-9 or IRS Form W-8BEN, W-8IMY, or W-8ECI, as applicable (or any successor form thereto), has become obsolete or incorrect. Upon receipt of any such tax certification form from a transferee of any Class C Certificate, the Trustee shall provide a copy of such tax certification form to the Supplemental Interest Trust Trustee. The Supplemental Interest Trust Trustee shall provide a copy of any such tax certification form to the Swap Provider.
(c) Notwithstanding the requirements of Section 5.02(b), transfers of Class P, Class C and Class R Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of a Certificate provides the Trustee and the Depositor with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the Trustee, the Depositor or the Master Servicer, and which investment letter states that, among other things, such transferee is a “qualified institutional buyer” as defined under Rule 144A. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof; provided, however, that no Transfer of any of the Class P, Class C and Class R Certificates may be made pursuant to this Section 5.02(c) by the Depositor. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written an Opinion of Counsel Counsel, on which the Trustee, Depositor and Master Servicer may rely, from a prospective transferee prior to the transfer of any Class B or P, Class C and Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”) or Section 4975 of the Code (any of the foregoing, a "“Plan"”), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "“plan assets" ” of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "“plan assets"”). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition transfer is permissible under applicable law, will not violate the constitute or result in a prohibited transaction provisions of under Section 406 of ERISA and Section 4975 of the Code, and will not subject the Trustee, the Master Servicer or the Depositor to any obligation in addition to those undertaken in this Agreement. Neither the Depositor, the Master Servicer nor the Trustee Trustee, will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In Prior to the case of any transfer termination of the foregoing Certificates Supplemental Interest Trust, each beneficial owner of an Offered Certificate or any interest therein, shall be deemed to have represented, by virtue of its acquisition or holding of the Offered Certificate, or interest therein, that either (i) it is not a Plan or (ii) (A) it is an accredited investor within the meaning of Prohibited Transaction Exemption 2002-41 (the “Exemption”) and (B) the acquisition and holding of such Certificate and the separate right to receive payments from the Supplemental Interest Trust are eligible for the exemptive relief available under one of Prohibited Transaction Class Exemption (“PTCE”) 84-14, 91-38, 95-60, 90-1 or 96-23. Each beneficial owner of a Subordinate Certificate or any interest therein which is acquired subsequent to the termination of the Supplemental Interest Trust shall be deemed to have represented, by virtue of its acquisition or holding of that Certificate or interest therein, that either (i) it is not a Plan or a trustee or other Person acting on behalf of a Plan or using “plan assets” of a Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute “plan assets”), (ii) it has acquired and is holding such Certificate in reliance on the Exemption, and that it understands that there are certain conditions to the availability of the Exemption, including that the Certificate must be rated, at the time of purchase, not lower than “BBB-” (or its equivalent) by Standard & Poor’s, Fitch Ratings, Inc. or Xxxxx’x, and the Certificate is so rated or (iii) (1) it is an insurance company, in lieu (2) the source of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by to acquire or hold the Certificate or interest therein is an “insurance company general account,” as such transferee to purchase such Certificates will be funds held by it term is defined in its general account which it reasonably believes do not constitute "plan assets" PTCE 95-60, and (3) the conditions in Sections I and III of any Plan PTCE 95-60 have been satisfied.
(as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.d) [Reserved]
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer Transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer Transfer of any Class R Certificate until its receipt receipt, of (I) an affidavit and agreement (a "“Transfer Affidavit and Agreement" ” in the form attached hereto as Exhibit G-3G-5) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of taxtax and that it has no knowledge that the proposed transferee is not a Permitted Transferee.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- “pass-through interest holder" ” within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "“a pass-through interest holder"”, or is holding an Ownership Interest in a Class R Certificate on behalf of a "“pass-through interest holder."”
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3G-5, a certificate of the holder Holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates other than to Non-United States Persons and Disqualified Organizations Permitted Transferees are prohibited.
(iii) (aA) if If any Disqualified Organization Person other than a Permitted Transferee shall become a holder Holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-31.860G-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer transfer of such Class R Certificate. The prior Holder shall be entitled to recover from any purported Holder of a Class R Certificate that was in fact not a Permitted Transferee under this Section 5.02(e) at the time it became a Holder all payments made on such Class R Certificate. Each Holder of a Class R Certificate, by acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02(e) and to any amendment of this Agreement deemed necessary (whether as a result of new legislation or otherwise) by counsel of the Depositor to ensure that the Class R Certificates are not transferred to any Person who is not a Permitted Transferee and that any transfer of such Class R Certificates will not cause the imposition of a tax upon the Trust or cause any such REMIC to fail to qualify as a REMIC. Neither the Trustee nor the Trustee shall be under no any liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder Holder thereof or for taking any other action with respect to such holder Holder under the provisions of this Agreement.
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Registration of Transfer and Exchange of Certificates. The Trustee Certificate Registrar shall maintain keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Owner Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. Wells Fargo xxxxl be the initial Certificate Registrar. The Certificates have not been and will not be registered under the Securities Act and will not be listed on any exchange. No transfer, sale, pledge or other disposition transfer of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition transfer is exempt from the made pursuant to an effective registration requirements of statement under the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with exempt from the registration requirements under said Act and such state securities laws. In the event that a transfer of a Class B or Class R Certificate is to be made (i) in reliance upon an exemption from the Securities Act and state securities laws, in order to assure compliance with the Securities Act and such laws, the Holder desiring to effect such transfer and such Holder's prospective transferee shall each certify to the Owner Trustee or the Certificate Registrar and the Depositor may direct in writing the facts surrounding the transfer in substantially the forms set forth in Exhibit B and Exhibit C (the "Investment Letter"). Except in the case of a transfer as to which the proposed transferee has provided an Investment Letter with respect to a Rule 144A transaction, there shall also be delivered to the Owner Trustee to require a written or the Certificate Registrar and the Depositor an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall may be made pursuant to an exemption, describing exemption from the applicable exemption and the basis therefor, from said Securities Act and laws or is being made pursuant to said Act and state securities laws, which Opinion of Counsel shall not be an expense of the Issuer, the Owner Trustee, the Certificate Registrar or the Indenture Trustee (unless it is the transferee from whom such opinion is to be obtained) or of the Depositor or the Master ServicerSeller; provided, provided that such Opinion of Counsel will in respect of the applicable state securities laws may be a memorandum of law rather than an opinion if such counsel is not licensed in the applicable jurisdiction. Upon request, the Owner Trustee shall provide to any Holder of a Certificate and any prospective transferee designated by any such Holder information regarding the Certificates and the Receivables and such other information which is in the possession of the Owner Trustee or which can be required obtained by the Owner Trustee without undue burden or expense in connection with order to satisfy the initial condition to eligibility set forth in Rule 144A(d)(4) for transfer of any such Certificate by without registration thereof under the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory Securities Act pursuant to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense registration exemption provided by Rule 144A. Each Holder of the Trustee, the Depositor or the Master Servicer. Any such Certificateholder a Certificate desiring to effect such a transfer shall, and does hereby agree to, indemnify the Issuer, the Owner Trustee, the Depositor Indenture Trustee, the Certificate Registrar and the Master Servicer Depositor against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state securities laws. The Trustee All transfers of Certificates shall require a written Opinion of Counsel from a prospective transferee prior be subject to the transfer restrictions described in Section 11.13 of any Class B or Class R this Agreement. Furthermore, no transfer of a Certificate shall be made to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of Person unless the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Owner Trustee or the Certificate Registrar and the Depositor have received a certificate in the form of paragraphs 3 and 4 to the Investment Letter attached hereto as Exhibit C from such Person to the effect that such disposition will Person is not violate a Benefit Plan and that such person is not a partnership, grantor trust, or S Corporation (as defined in the prohibited transaction provisions Code) in which, after giving effect to the proposed transfer, 50% or more of the value of each beneficial ownership interest of such entity is attributable to the Certificates and/or the Notes and that such Certificates have not been transferred through an "established securities market" within the meaning of Section 406 of ERISA and Section 4975 7704(b) of the Code. Neither Upon surrender for registration of transfer of any Certificate at the Depositoroffice or agency maintained pursuant to Section 3.08, the Master Servicer nor Owner Trustee shall execute, authenticate and deliver (or shall cause Wells Fargo xx xts authenticating agent to authenticate and deliver), in the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer name of the foregoing 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. 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 an insurance company, be exchanged at the office or agency maintained pursuant to Section 3.08. Every Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially satisfactory to the effect that all funds used Owner Trustee and the Certificate Registrar duly executed by the related Certificateholder or such transferee to purchase such Certificates will be funds held by it Certificateholder's attorney duly authorized in its general account which it reasonably believes do not constitute "plan assets" writing. Each Certificate surrendered for registration of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate exchange shall be deemed cancelled and subsequently disposed of by the acceptance Owner Trustee in accordance with its customary practice. No service charge shall be made for any registration of transfer or acquisition exchange of such Ownership Interest to have agreed to be bound by Certificates, but the following provisions and to have irrevocably authorized the Owner Trustee or its designee under clause (iii)(A) below the Certificate Registrar may require payment of a sum sufficient to deliver payments to a Person other than such Person and to negotiate the terms of cover any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary tax or governmental charge that may be imposed in connection with any such saletransfer or exchange of Certificates. The rights preceding provisions of each Person acquiring this Section notwithstanding, the Owner Trustee shall not make, and the Certificate Registrar shall not register transfers or exchanges of, Certificates for a period of fifteen (15) days preceding the due date for any Ownership Interest in a Class R Certificate are expressly subject payment with respect to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificates. Notwithstanding anything contained herein to the contrary, neither the Certificate Registrar nor the Owner Trustee shall be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities Act, the Securities Act of 1934, as amended, applicable state securities law or the Investment Company Act of 1940, as amended; provided, however, that if a Permitted Transferee certificate or opinion is specifically required to be delivered to the Owner Trustee or the Certificate Registrar 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 shall promptly notify the Trustee of any change party delivering the same if such certificate or impending change in its status as a Permitted Transfereeopinion does not so conform.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
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Registration of Transfer and Exchange of Certificates. (a) The Delaware Trustee shall maintain keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08 hereof, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee Registrar shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided.
(b) The Certificates have not been and will not be registered under the Securities Act and will not be listed on any exchange. No transfer, sale, pledge or other disposition transfer of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition transfer is exempt from the made pursuant to an effective registration requirements of statement under the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said exempt from the registration requirements under the Securities Act and such state securities laws. In the event that a transfer of a Class B or Class R Certificate is to be made in reliance upon an exemption from the Securities Act and state securities laws, unless such transfer is made to an affiliate of the transferor, in order to assure compliance with the Securities Act and such laws, the Certificateholder desiring to effect such transfer and such Certificateholder’s prospective transferee shall each certify to the Trust, the Delaware Trustee, the Administrator and the transferring Certificateholder in writing the facts surrounding the transfer in substantially the forms set forth in Exhibit D (ithe “Transferor Letter”) and Exhibit E (the Depositor may direct “Investment Letter”) or Exhibit F (the Trustee “Rule 144A Letter”) hereto, as applicable. Except in the case of a transfer as to require which the proposed transferee has provided a written Rule 144A Letter with respect to a Rule 144A transaction, there shall also be delivered to the Trust an Opinion of Counsel acceptable (unless such transfer is made to and in form and substance satisfactory an affiliate of the transferor) to the Trustee and the Depositor effect that such transfer shall may be made pursuant to an exemption, describing exemption from the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and lawsSecurities Act, which Opinion of Counsel shall not be an expense of the TrusteeTrust, the Depositor Delaware Trustee (unless it is the transferee from whom such opinion is to be obtained) or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master ServicerAdministrator. Any such Each Certificateholder desiring to effect such a transfer shall, and does hereby agree to, indemnify the TrusteeTrust, the Depositor Delaware Trustee and the Master Servicer Administrator against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state securities laws. The Trustee .
(c) No transfer, sale, pledge or other disposition of the Certificate shall require a written Opinion of Counsel from a prospective transferee be made unless prior to such transfer, sale, pledge or other disposition, the transfer Trust shall have received either (i) a representation letter from the transferee of any Class B or Class R Certificate such Certificate, acceptable to any and in form and substance satisfactory to the Trust, to the effect that such a transferee is not an employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of ERISA or Section 4975 of the Employee Retirement Income Security Act Code, or a person acting on behalf of 1974, as amended any such plan or ("ERISA"ii) in the case of any Certificate presented for registration in the name of an employee benefit plan subject to ERISA or Section 4975 of the Code (or comparable provisions of any of the foregoing, a "Plan"subsequent enactments), to or a trustee of any such plan or any other Person person acting on behalf of any Plansuch plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such an Opinion of Counsel must establish satisfactory to the satisfaction of Trust, the Depositor Delaware Trustee and the Trustee Administrator to the effect that the purchase or holding of such Certificate will not result in the Trust or the Certificate Registrar that such disposition will not violate Trust Estate being deemed to be “plan assets” and subject to the prohibited transaction provisions of Section 406 of ERISA and Section 4975 the Code and will not subject the Trust, the Delaware Trustee, the Administrator or the transferring Certificateholder to any obligation in addition to those undertaken in this Trust Agreement. Notwithstanding anything else to the contrary herein, in the event any purported transfer of any Certificate is made without delivery of the Coderepresentation letter referred to above, such representation shall be deemed to have been made by the transferee by its acceptance of such Certificate. Neither In addition, any purported transfer of a Certificate to or on behalf of an employee benefit plan subject to ERISA or to the DepositorCode without the delivery to the Trust, the Master Servicer nor Delaware Trustee, and the Trustee will be required to obtain such Administrator of an Opinion of Counsel on behalf as described above shall be void and of any prospective transfereeno effect. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Any certificate or Opinion of CounselCounsel furnished pursuant to this Section may be relied on conclusively by the Trust, the Trustee Delaware Trustee, the Administrator and the transferring Certificateholder in determining whether the provisions hereof have been complied with.
(d) No transfer shall require a certification in the form be effective if immediately after such transfer there would be more than one hundred Beneficial Owners of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above)Certificates. The permission of any Any purported transfer in violation of the restriction on provisions of this subsection (d) shall be void ab initio and the Delaware Trustee shall have no liability in connection with a transfer set forth in violation of the provisions of this subsection (d).
(e) The foregoing provisions shall not prevent the assignment by a Certificateholder of all or any part of its right to receive distributions in respect of its interest in its Certificate, but such assignment shall effect no change in ownership of the Trust.
(f) The preparation and delivery of the certificate and opinions referred to in this paragraph Section shall not constitute be an expense of the Trust, the Delaware Trustee or the Administrator.
(g) Upon surrender for registration of transfer of any Certificate at the office or agency maintained pursuant to Section 3.08 hereof, the Delaware Trustee shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations stating the aggregate amount and Percentage Interest so transferred dated the date of authentication by the Delaware Trustee. At the option of a default Certificateholder, Certificates may be exchanged for other Certificates of authorized Percentage Interests and denominations of a like aggregate amount upon surrender of the Certificates to be exchanged at the office or an Event agency maintained pursuant to Section 3.08 hereof.
(h) Every Certificate presented or surrendered for registration of Defaulttransfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Trust and duly executed by the Certificateholder or such Certificateholder’s attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Delaware Trustee in accordance with its customary practice.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate No service charge shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of made for any mandatory sale under clause (iii)(B) below and to execute all instruments registration of transfer and or exchange of Certificates, but the Trust or the Delaware Trustee may require payment of a sum sufficient to do all other things necessary cover any tax or governmental charge that may be imposed in connection with any such sale. The rights transfer or exchange of each Person acquiring Certificates.
(j) Notwithstanding any Ownership Interest other provision herein or elsewhere, the Trust, the Delaware Trustee and the Administrator (i) shall not have any obligation to determine whether any transfer or exchange of a Certificate is permitted under or in a Class R Certificate are expressly subject accordance with this Trust Agreement; (ii) shall not have any personal liability to any person in connection with any transfer or exchange or proposed or purported transfer or exchange (and/or registration thereof) that is not permitted under or in accordance with this Trust Agreement; and (iii) shall be entitled to rely (and shall be fully justified and protected in so relying) on the Register as to the following provisions:identity of the Certificateholders and as to the Certificates and the Percentage Interests and denominations thereof evidenced thereby.
(Ak) Each Person holding Notwithstanding anything contained herein to the contrary, the Delaware Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or acquiring any Ownership Interest in exemptions from the Securities Act, the Securities Exchange Act of 1934, as amended, applicable state securities law or the Investment Company Act of 1940, as amended; provided, however, that if a Class R Certificate certificate is specifically required to be delivered to the Delaware Trustee by a purchaser or transferee of a Certificate, the Delaware Trustee shall be under a Permitted Transferee duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transfereeparty delivering the same if such certificate does not so conform.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 1 contract
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B R-I or a Class R Certificate R-II shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B R-I or Class R R-II Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer; provided however that such representation letters will not be required in connection with any transfer of any such Certificate by the Depositor to an affiliate of the Depositor and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Transfers of Class R-I or Class R-II Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of a Certificate provides the Trustee and the Depositor with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the Trustee, the Depositor or the Master Servicer, and which investment letter states that, among other things, such transferee is a "qualified institutional buyer" as defined under Rule 144A. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof; provided, however, that no Transfer of any of the Class R-I or Class R-II Certificates may be made pursuant to this Section 5.02(c) by the Depositor. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(d) The Trustee shall require a written an Opinion of Counsel from a prospective transferee prior to the transfer of any Class B A-3, Class R-I or Class R R-II Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx Kxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto G-6 (or in a form substantially similar to such Exhibit G-6 as shall be mutually agreed upon by the Depositor and the Trustee) substantially to the effect that all the source of the funds used by such transferee to purchase such Certificates will be funds is an "insurance company general account" (as such term is defined in the Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60") issued by the United States Department of Labor) and that there is no Plan with respect to which the amount of such general account's reserves and liabilities for contracts held by it in its general account which it reasonably believes do not constitute or on behalf of such Plan and all other Plans maintained by the same employer (or any "plan assetsaffiliate" of any Plan thereof (as defined abovein PTCE 95-60), or by the same employee organization, exceed 10% of the total of all reserves and liabilities of such general account (as determined under PTCE 95-60) as of the date of acquisition of such Certificates; provided however that such certification will not be required in connection with any transfer of any such Certificate by the Depositor to an affiliate of the Depositor and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R R-I or Class R-II Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.clause
Appears in 1 contract
Samples: Pooling and Servicing Agreement (DLJ Mortgage Acceptance Corp Mort Pass THR Cert Ser 1995 5)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B P Certificate, Class C Certificate or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B P Certificate, Class C Certificate or Class R Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Company or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor Company or any affiliate thereof, to a non-affiliate of the Depositor Company and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor Company and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor Company or the Master Servicer; provided however that such representation letters will not be required in connection with any transfer of any such Certificate by the Company to an affiliate of the Company and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Company of the status of such transferee as an affiliate of the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Notwithstanding the requirements of Section 5.02(b), transfers of Class P Certificates, Class C Certificates and Class R Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of a Certificate provides the Trustee and the Company with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the Trustee, the Company or the Master Servicer, and which investment letter states that, among other things, such transferee is a "qualified institutional buyer" as defined under Rule 144A. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof; provided, however, that no Transfer of any of the Class P Certificates, Class C Certificates or Class R Certificates may be made pursuant to this Section 5.02(c) by the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written an Opinion of Counsel from a prospective transferee prior to the transfer of any Class B P Certificate, Class C Certificate or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx Keogh plans, that is subject to Section 406 Sectiox 000 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition transfer is permissible under applicable law, will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code, will not cause the assets of the Trust Fund to constitute "plan assets" within the meaning of 29 C.F.R. ss.2510.3-101, and will not subject the Trustee, the Master Servicer or the Company to any obligation in addition to those undertaken in this Agreement. Neither the DepositorCompany, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp)
Registration of Transfer and Exchange of Certificates. (a) The Delaware Trustee shall maintain keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08 hereof, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee Registrar shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided.
(b) The Certificates have not been and will not be registered under the Securities Act and will not be listed on any exchange. No transfer, sale, pledge or other disposition transfer of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition transfer is exempt from the made pursuant to an effective registration requirements of statement under the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said exempt from the registration requirements under the Securities Act and such state securities laws. In the event that a transfer of a Class B or Class R Certificate is to be made in reliance upon an exemption from the Securities Act and state securities laws, in order to assure compliance with the Securities Act and such laws, the Certificateholder desiring to effect such transfer and such Certificateholder's prospective transferee shall each certify to the Trust, the Delaware Trustee, the Administrator and the transferring Certificateholder in writing the facts surrounding the transfer in substantially the forms set forth in Exhibit D (ithe "Transferor Letter") and Exhibit E (the Depositor may direct "Investment Letter") or Exhibit F (the Trustee "Rule 144A Letter") hereto, as applicable. Except in the case of a transfer as to require which the proposed transferee has provided a written Rule 144A Letter with respect to a Rule 144A transaction, there shall also be delivered to the Trust an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor effect that such transfer shall may be made pursuant to an exemption, describing exemption from the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and lawsSecurities Act, which Opinion of Counsel shall not be an expense of the TrusteeTrust, the Depositor Delaware Trustee (unless it is the transferee from whom such opinion is to be obtained) or the Master Servicer, provided that such Opinion Administrator. Each Certificateholder of Counsel will not be required in connection with the initial transfer of any such a Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer. Any such Certificateholder desiring to effect such a transfer shall, and does hereby agree to, indemnify the TrusteeTrust, the Depositor Delaware Trustee and the Master Servicer Administrator against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state securities laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the transfer of any Class B or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 1 contract
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain keep at the office or agency to be maintained in accordance with Section 12.02 a "Certificate Register Register" in which, subject to such reasonable regulations as it may prescribe, which the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No transferThe Trustee initially appoints itself to be the "Certificate Registrar" and transfer agent for the purpose of registering Certificates and transfers and exchanges of Certificates as provided herein. The Trustee will give prompt written notice to Certificateholders, salethe Backup Servicer and the Servicer of any change in the Certificate Registrar.
(b) The provisions of this Subsection (b) also apply with respect to any transfers of Certificates.
(1) Subject to clauses (2) and (3) below, pledge or other disposition no transfer of a Class B B-2 Certificate, Class B-3I Certificate or a Class R C Certificate shall be made by the Originator or any other Person unless such transfer, sale, pledge or other disposition transfer is exempt from the registration requirements of the Securities Act of 1933Act, as amended (the "Act")amended, and any applicable state securities laws or is made in accordance with said the Act and laws. In the event that a any such transfer of a Class B or Class R Certificate is to be made made, (ia) the Depositor Originator may direct the Trustee to require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Originator that such transfer shall may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said the Act and laws or is being made pursuant to said the Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Trustee or the Master ServicerOriginator, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (iib) the Trustee shall require the transferee to execute a representation letter, an investment letter substantially in the form of Exhibit G-1 L attached hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters investment letter shall not be an expense of the Trustee, the Depositor Trustee or the Master ServicerOriginator. Any such Class B-2 Certificateholder, Class B-3I Certificateholder or Class C Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor Originator and the Master Servicer Certificate Registrar against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the .
(2) No transfer of a Class B-2 Certificate, a Class B-3I Certificate or a Class C Certificate or any Class B or Class R Certificate interest therein, shall be made to any employee benefit plan plan, trust or other retirement arrangement, including individual retirement accounts and Xxxxx plans, account that is subject to ERISA, or that is described in Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"4975(e)(1) or Section 4975 of the Code (any of the foregoingeach, a "Plan"), or to a trustee or other Person acting any person investing on behalf of any Plan, or to any other person who is using with "plan assets" or a plan unless the prospective transferee of any Plan to effect such acquisition (including any insurance company using funds in a Certificate or interest therein provides the Servicer and the Trustee with a certification of facts and, at its general or separate accounts that may constitute "plan assets"). Such own expense, an Opinion of Counsel must which establish to the satisfaction of the Depositor Servicer and the Trustee or the Certificate Registrar that such disposition transfer will not violate the prohibited transaction provisions result in a violation of Section 406 of ERISA and or Section 4975 of the Code or cause the Servicer, the Originator or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. Neither .
(3) Notwithstanding anything to the Depositor, contrary contained herein,
(A) neither the Master Servicer Class C Subsidiary Certificate nor the Trustee will Class C Master Certificate, nor any interest therein, shall be required transferred, sold or otherwise disposed of to obtain such Opinion a "disqualified organization," within the meaning of Counsel on behalf of any prospective transferee. In the case of any transfer Section 860E(e)(5) of the foregoing Certificates to an insurance companyCode (a "Disqualified Organization"), in lieu of such Opinion of Counselincluding, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do but not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.limited to,
(i) Each Person who has the United States, a state or who acquires political subdivision thereof, a foreign government, an international organization or an agency or instrumentality of any Ownership Interest in a Class R Certificate shall be deemed by of the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause foregoing,
(iii)(Aii) below to deliver payments to a Person an organization (other than such Person a cooperative described in Section 521 of the Code) which is exempt from the taxes imposed by Chapter 1 of the Code and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly not subject to the following provisions:tax imposed on unrelated business income by Section 511 of the Code, or
(Aiii) Each Person holding or acquiring any Ownership Interest a cooperative described in a Class R Certificate shall be a Permitted Transferee and shall promptly notify Section 1381(a)(2)(C) of the Trustee of any change or impending change in its status as a Permitted Transferee.Code, and
(B) In connection with prior to any proposed transfer registration of any Ownership Interest in a transfer, sale or other disposition of the Class R C Subsidiary Certificate or Class C Master Certificate, the proposed transferee shall deliver to the Trustee, under penalties of perjury, an affidavit that such transferee is not a Disqualified Organization, with respect to which the Trustee shall require delivery to ithave no actual knowledge that such affidavit is false, and the transferor and the proposed transferee shall not register each deliver for the Trustee an affidavit with respect to any other information reasonably required by the Trustee pursuant to the REMIC Provisions, including, without limitation, information regarding the transfer of noneconomic residual interests and transfers of any Class R Certificate until its receipt residual interest to or by a foreign person; provided, however, that, upon the delivery to the Trustee of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed TransfereeOpinion of Counsel, in form and substance satisfactory to the Trustee and rendered by Independent counsel, to the effect that the beneficial ownership of the Class C Certificate by any Disqualified Organization will not result in the imposition of federal income tax upon the Subsidiary REMIC or Master Servicer REMIC or any Certificateholder or any other person or otherwise adversely affect the status of the Subsidiary REMIC or Master REMIC as a REMIC, the foregoing prohibition on transfers, sales and other dispositions, as well as the Trustee representing foregoing requirement to deliver a certificate prior to any registration thereof, shall, with respect to such Disqualified Organization, terminate. Notwithstanding any transfer, sale or other disposition of the Class C Certificate, or any interest therein, to a Disqualified Organization or the registration thereof in the Certificate Register, such transfer, sale or other disposition and warrantingany registration thereof, among other thingsunless accompanied by the Opinion of Counsel described in the preceding sentence, that it is a Permitted Transfereeshall be deemed to be void and of no legal force or effect whatsoever and such Disqualified Organization shall be deemed to not be the Class C Certificateholder for any purpose hereunder, that it is including, but not acquiring its Ownership Interest limited to, the receipt of distributions on the Class C Certificate, and shall be deemed to have no interest whatsoever in the Class R Certificate that is the subject of the proposed Transfer as a nomineeC Certificate. Each Class C Certificateholder, trustee or agent by his acceptance thereof, shall be deemed for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor all purposes to remain a Permitted Transferee, and that it has reviewed have consented to the provisions of this Section 5.02 and agrees 9.02(b)(3).
(4) Any transfer, sale or other disposition not in compliance with the provisions of this Section 9.02(b) shall be deemed to be bound by themvoid and of no legal force or effect whatsoever and such transferee shall be deemed to not be the Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions on such Certificate, and shall be deemed to have no interest whatsoever in such Certificate.
(II5) The Trustee shall give notice to Standard & Poor's and Moody's promptly following any transfer, sale or other disposition of a certificateClass B-3I or Class C Certificate.
(c) At the option of a Certificateholder, in Certificates may be exchanged for other Certificates of authorized denominations of a like aggregate original denomination, upon surrender of such Certificates to be exchanged at such office. Whenever any Certificates are so surrendered for exchange, the form attached hereto as Exhibit G-4Trustee shall execute and deliver the Certificates which the Certificateholder making the exchange is entitled to receive. Every Certificate presented or surrendered for transfer or exchange shall be duly endorsed by, from the Holder wishing to or shall be accompanied by a written instrument of transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer Trustee and the Trustee representing and warranting, among other things, that no purpose of Certificate Registrar duly executed by the proposed Transfer is to impede the assessment holder thereof or collection of taxhis or her attorney duly authorized in writing.
(Cd) Notwithstanding Except as provided in paragraph (e) below, the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer Book-Entry Certificates shall at all times remain registered in the name of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.Depository or its nominee and at all times:
(Di) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) registration of the Book-Entry Certificates may not to transfer its Ownership Interest unless it provides a certificate to be transferred by the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees except to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."another Depository;
(ii) The Trustee will register the Transfer of any Class R Depository shall maintain book-entry records with respect to the Certificate only if it shall have received the Transfer Affidavit Owners and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 with respect to ownership and all transfers of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to NonBook-United States Persons and Disqualified Organizations are prohibited.Entry Certificates;
(iii) (a) if any Disqualified Organization shall become a holder ownership and transfers of a Class R Certificate, then registration of the last preceding Permitted Transferee Book-Entry Certificates on the books of the Depository shall be restoredgoverned by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and expenses from its Depository Participants;
(v) the Trustee shall deal with the Depository, Depository Participants and indirect participating firms as representatives of the Certificate Owners of the Book-Entry Certificates for purposes of exercising the rights of Holders under this Agreement, and requests and directions for and votes of such representatives shall not be deemed to be inconsistent if they are made with respect to different Certificate Owners; and
(vi) the Trustee may rely and shall be fully protected in relying upon information furnished by the Depository with respect to its Depository Participants and furnished by the Depository Participants with respect to indirect participating firms and persons shown on the books of such indirect participating firms as direct or indirect Certificate Owners. All transfers by Certificate Owners of Book-Entry Certificates shall be made in accordance with the procedures established by the Depository Participant or brokerage firm representing such Certificate Owner. Each Depository Participant shall only transfer Book-Entry Certificates of Certificate Owners it represents or of brokerage firms for which it acts as agent in accordance with the Depository's normal procedures.
(e) If
(i) the Seller or the Depository advises the Trustee in writing that the Depository is no longer willing or able properly to discharge its responsibilities as Depository, and
(ii) the Trustee or the Originator is unable to locate a qualified successor OR
(iii) the Originator at its sole option advises the Trustee in writing that it elects to terminate the book-entry system through the Depository, the Trustee shall notify all Certificate Owners, through the Depository, of the occurrence of any such event and of the availability of definitive, fully registered Class A Certificates, Class M Certificates and Class B Certificates (the "Definitive Certificates") to Certificate Owners requesting the same. Upon surrender to the Trustee of the Class A Certificates, Class M-1 Certificates, Class M-2 Certificates and Class B Certificates by the Depository, accompanied by registration instructions from the Depository for registration, the Trustee shall issue the Definitive Certificates. Neither the Originator nor the Trustee shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of Definitive Certificates all references herein to obligations imposed upon or to be performed by the Depository shall be deemed to be imposed upon and performed by the Trustee, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action applicable with respect to such holder under Definitive Certificates and the provisions Trustee shall recognize the Holders of the Definitive Certificates as Certificateholders hereunder.
(f) On or prior to the Closing Date, there shall be delivered to the Depository two Class A Certificates, one Class M-1-A Certificate, one Class M-1-F Certificate, one Class M-2 Certificate, and one Class B-1 Certificate, each in registered form registered in the name of the Depository's nominee, Cede & Co., the total face amount of which represents 100% of the related Original Principal Balance, respectively. At any time after the Closing Date, subject to compliance with the normal procedures of the Trustee and the Depository, the Class B-2 Certificateholders may deliver to the Depository one Class B-2 Certificate, registered in the name of Cede & Co. (or other nominee of the Depository), the total face amount of which represents 100% of the Original Principal Balance of the Class B-2 Certificate. If, however, the aggregate principal amount of a Class of Class A Certificates, Class M Certificates or Class B Certificates exceeds $400,000,000, one such Class A Certificate, Class M Certificate and/or Class B Certificate will be issued with respect to each $400,000,000 of principal amount and an additional Certificate of such Class or Classes will be issued with respect to any remaining principal amount. Each such Class A, Class M and Class B Certificate registered in the name of the Depository's nominee shall bear the following legend: "Unless this AgreementCertificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC") to Issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Conseco Finance Securitizations Corp)
Registration of Transfer and Exchange of Certificates. (a) The Delaware Trustee shall maintain keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08 hereof, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee Registrar shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided.
(b) The Certificates have not been and will not be registered under the Securities Act and will not be listed on any exchange. No transfer, sale, pledge or other disposition transfer of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition transfer is exempt from the made pursuant to an effective registration requirements of statement under the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said exempt from the registration requirements under the Securities Act and such state securities laws. In the event that a transfer of a Class B or Class R Certificate is to be made in reliance upon an exemption from the Securities Act and state securities laws, in order to assure compliance with the Securities Act and such laws, the Certificateholder desiring to effect such transfer and such Certificateholder's prospective transferee shall each certify to the Trust, the Delaware Trustee, the Administrator and the transferring Certificateholder in writing the facts surrounding the transfer in substantially the forms set forth in Exhibit D (ithe Transferor Letter) and Exhibit E (the Depositor may direct Investment Letter) or Exhibit F (the Trustee "Rule 144A Letter") hereto, as applicable. Except in the case of a transfer as to require which the proposed transferee has provided a written Rule 144A Letter with respect to a Rule 144A transaction, there shall also be delivered to the Trust an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor effect that such transfer shall may be made pursuant to an exemption, describing exemption from the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and lawsSecurities Act, which Opinion of Counsel shall not be an expense of the TrusteeTrust, the Depositor Delaware Trustee (unless it is the transferee from whom such opinion is to be obtained) or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute Administrator. Each Certificateholder of a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer. Any such Certificateholder Certificate desiring to effect such a transfer shall, and does hereby agree to, indemnify the TrusteeTrust, the Depositor Delaware Trustee and the Master Servicer Administrator against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state securities laws. The Trustee .
(c) No transfer, sale, pledge or other disposition of the Certificate shall require a written Opinion of Counsel from a prospective transferee be made unless prior to such transfer, sale, pledge or other disposition, the transfer Trust shall have received either (i) a representation letter from the transferee of any Class B or Class R Certificate such Certificate, acceptable to any and in form and substance satisfactory to the Trust, to the effect that such a transferee is not an employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of ERISA or Section 4975 of the Employee Retirement Income Security Act Code, or a person acting on behalf of 1974, as amended any such plan or ("ERISA"ii) in the case of any Certificate presented for registration in the name of an employee benefit plan subject to ERISA or Section 4975 of the Code (or comparable provisions of any of the foregoing, a "Plan"subsequent enactments), to or a trustee of any such plan or any other Person person acting on behalf of any Plansuch plan, an Opinion of Counsel satisfactory to the Trust, the Delaware Trustee and the Administrator to the effect that the purchase or holding of such Certificate will not result in the Trust or the Trust Estate being deemed to any other person who is using be "plan assets" of any Plan and subject to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 the Code and will not subject the Trust, Delaware Trustee, the Administrator or the transferring Certificateholder to any obligation in addition to those undertaken in this Trust Agreement. Notwithstanding anything else to the contrary herein, in the event any purported transfer of any Certificate is made without delivery of the Coderepresentation letter referred to above, such representation shall be deemed to have been made by the transferee by its acceptance of such Certificate. Neither In addition, any purported transfer of a Certificate to or on behalf of an employee benefit plan subject to ERISA or to the DepositorCode without the delivery to the Trust, the Master Servicer nor Delaware Trustee, and the Trustee will be required to obtain such Administrator of an Opinion of Counsel on behalf as described above shall be void and of any prospective transfereeno effect. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Any certificate or Opinion of CounselCounsel furnished pursuant to this Section may be relied on conclusively by the Trust, Delaware Trustee, the Trustee Administrator and the transferring Certificateholder in determining whether the provisions hereof have been complied with.
(d) No transfer shall require a certification in the form be effective if immediately after such transfer there would be more than one hundred Beneficial Owners of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above)Certificates. The permission of any Any purported transfer in violation of the restriction on provisions of this subsection (d) shall be void ab initio and the Delaware Trustee shall have no liability in connection with a transfer set forth in violation of the provisions of this subsection (d).
(e) The foregoing provisions shall not prevent the assignment by a Certificateholder of all or any part of its right to receive distributions in respect of its interest in its Certificate, but such assignment shall effect no change in ownership of the Trust.
(f) The preparation and delivery of the certificate and opinions referred to in this paragraph Section shall not constitute be an expense of the Trust, the Delaware Trustee or the Administrator.
(g) Upon surrender for registration of transfer of any Certificate at the office or agency maintained pursuant to Section 3.08 hereof, the Delaware Trustee shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations stating the aggregate amount and Percentage Interest so transferred dated the date of authentication by the Delaware Trustee. At the option of a default Certificateholder, Certificates may be exchanged for other Certificates of authorized Percentage Interests and denominations of a like aggregate amount upon surrender of the Certificates to be exchanged at the office or an Event agency maintained pursuant to Section 3.08 hereof.
(h) Every Certificate presented or surrendered for registration of Defaulttransfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Trust and duly executed by the Certificateholder or such Certificateholder's attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Trust in accordance with its customary practice.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate No service charge shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of made for any mandatory sale under clause (iii)(B) below and to execute all instruments registration of transfer and or exchange of Certificates, but the Trust or the Delaware Trustee may require payment of a sum sufficient to do all other things necessary cover any tax or governmental charge that may be imposed in connection with any such sale. The rights transfer or exchange of each Person acquiring Certificates.
(j) Notwithstanding any Ownership Interest other provision herein or elsewhere, the Trust, the Delaware Trustee and the Administrator (i) shall not have any obligation to determine whether any transfer or exchange of a Certificate is permitted under or in a Class R Certificate are expressly subject accordance with this Trust Agreement; (ii) shall not have any personal liability to any person in connection with any transfer or exchange or proposed or purported transfer or exchange (and/or registration thereof) that is not permitted under or in accordance with this Trust Agreement; and (iii) shall be entitled to rely (and shall be fully justified and protected in so relying) on the Register as to the following provisions:identity of the Certificateholders and as to the Certificates and the Percentage Interests and denominations thereof evidenced thereby.
(Ak) Each Person holding Notwithstanding anything contained herein to the contrary, the Delaware Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or acquiring any Ownership Interest in exemptions from the Securities Act of 1933, as amended, the Securities Act of 1934, as amended, applicable state securities law or the Investment Company Act; provided, however, that if a Class R Certificate certificate is specifically required to be delivered to the Delaware Trustee by a purchaser or transferee of a Certificate, the Delaware Trustee shall be under a Permitted Transferee duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transfereeparty delivering the same if such certificate does not so conform.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 1 contract
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No 91
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B X Certificate or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B X Certificate or Class R Certificate is to be tbe made under this Section 5.02(b), (i) the Depositor may direct the Trustee to shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Company or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor Company or any affiliate thereof, to a non-affiliate of the Depositor Company and (ii) the Trustee shall require the transferee to tto execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor Company and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor Company or the Master Servicer; provided however that such representation letters will not be required in connection with any transfer of any such Certificate by the Company to an affiliate of the Company and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Company of the status of such transferee as an affiliate of the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Notwithstanding the requirements of Section 5.02(b), transfers of Class X Certificates and Class R Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of a Certificate provides the Trustee and the Company with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the Trustee, the Company or the Master Servicer, and which investment letter states that, among other things, such transferee is a "qualified institutional buyer" as defined under Rule 144A. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof; provided, however, that no Transfer of any of the Class X Certificates or Class R Certificates may be made pursuant to this Section 5.02(c) by the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written an Opinion of Counsel from a prospective transferee prior to the transfer of any Class B X Certificate or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx Kxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") ( or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition transfer is permissible under applicable law, will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code, will not cause the assets of the Trust Fund to constitute "plan assets" within the meaning of 29 C.F.R. ss.251 and will not subject the Trustee, the Master Servicer or the Company to any obligation in addition to those undertaken in this Agreement. Neither the DepositorCompany, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain keep at the office or agency to be maintained in accordance with Section 12.02 a "Certificate Register Register" in which, subject to such reasonable regulations as it may prescribe, which the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No transferThe Trustee initially appoints itself to be the "Certificate Registrar" and transfer agent for the purpose of registering Certificates and transfers and exchanges of Certificates as provided herein. The Trustee will give prompt written notice to Certificateholders and the Servicer of any change in the Certificate Registrar.
(b) The provisions of this Subsection (b) also apply with respect to any transfers of Certificates.
(1) Subject to clauses (2) and (3) below, sale, pledge or other disposition no transfer of a Class B B-2 Certificate, Class B-3I Certificate or a Class R C Certificate shall be made by the Originator or any other Person unless such transfer, sale, pledge or other disposition transfer is exempt from the registration requirements of the Securities Act of 1933Act, as amended (the "Act")amended, and any applicable state securities laws or is made in accordance with said the Act and laws. In the event that a any such transfer of a Class B or Class R Certificate is to be made made, (ia) the Depositor Originator may direct the Trustee to require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Originator that such transfer shall may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said the Act and laws or is being made pursuant to said the Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Trustee or the Master ServicerOriginator, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (iib) the Trustee shall require the transferee to execute a representation letter, an investment letter substantially in the form of Exhibit G-1 L attached hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters investment letter shall not be an expense of the Trustee, the Depositor Trustee or the Master ServicerOriginator. Any such Class B-2 Certificateholder, Class B-3I Certificateholder or Class C Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor Originator and the Master Servicer Certificate Registrar against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the .
(2) No transfer of a Class B-2 Certificate, a Class B-3I Certificate or a Class C Certificate or any Class B or Class R Certificate interest therein, shall be made to any employee benefit plan plan, trust or other retirement arrangement, including individual retirement accounts and Xxxxx plans, account that is subject to ERISA, or that is described in Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"4975(e)(1) or Section 4975 of the Code (any of the foregoingeach, a "Plan"), or to a trustee or other Person acting any person investing on behalf of any Plan, or to any other person who is using with "plan assets" or a plan unless the prospective transferee of any Plan to effect such acquisition (including any insurance company using funds in a Certificate or interest therein provides the Servicer and the Trustee with a certification of facts and, at its general or separate accounts that may constitute "plan assets"). Such own expense, an Opinion of Counsel must which establish to the satisfaction of the Depositor Servicer and the Trustee or the Certificate Registrar that such disposition transfer will not violate the prohibited transaction provisions result in a violation of Section 406 of ERISA and or Section 4975 of the Code or cause the Servicer, the Originator or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. Neither .
(3) Notwithstanding anything to the Depositor, contrary contained herein,
(A) neither the Master Servicer Class C Subsidiary Certificate nor the Trustee will Class C Master Certificate, nor any interest therein, shall be required transferred, sold or otherwise disposed of to obtain such Opinion a "disqualified organization," within the meaning of Counsel on behalf of any prospective transferee. In the case of any transfer Section 860E(e)(5) of the foregoing Certificates to an insurance companyCode (a "Disqualified Organization"), in lieu of such Opinion of Counselincluding, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do but not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.limited to,
(i) Each Person who has the United States, a state or who acquires political subdivision thereof, a foreign government, an international organization or an agency or instrumentality of any Ownership Interest in a Class R Certificate shall be deemed by of the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause foregoing,
(iii)(Aii) below to deliver payments to a Person an organization (other than such Person a cooperative described in Section 521 of the Code) which is exempt from the taxes imposed by Chapter 1 of the Code and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly not subject to the following provisions:tax imposed on unrelated business income by Section 511 of the Code, or
(Aiii) Each Person holding or acquiring any Ownership Interest a cooperative described in a Class R Certificate shall be a Permitted Transferee and shall promptly notify Section 1381(a)(2)(C) of the Trustee of any change or impending change in its status as a Permitted Transferee.Code, and
(B) In connection with prior to any proposed transfer registration of any Ownership Interest in a transfer, sale or other disposition of the Class R C Subsidiary Certificate or Class C Master Certificate, the proposed transferee shall deliver to the Trustee, under penalties of perjury, an affidavit that such transferee is not a Disqualified Organization, with respect to which the Trustee shall require delivery to ithave no actual knowledge that such affidavit is false, and the transferor and the proposed transferee shall not register each deliver for the Trustee an affidavit with respect to any other information reasonably required by the Trustee pursuant to the REMIC Provisions, including, without limitation, information regarding the transfer of noneconomic residual interests and transfers of any Class R Certificate until its receipt residual interest to or by a foreign person; provided, however, that, upon the delivery to the Trustee of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed TransfereeOpinion of Counsel, in form and substance satisfactory to the Trustee and rendered by Independent counsel, to the effect that the beneficial ownership of the Class C Certificate by any Disqualified Organization will not result in the imposition of federal income tax upon the Subsidiary REMIC, Intermediate REMIC or Master Servicer REMIC or any Certificateholder or any other person or otherwise adversely affect the status of the Subsidiary REMIC, Intermediate REMIC or Master REMIC as a REMIC, the foregoing prohibition on transfers, sales and other dispositions, as well as the Trustee representing foregoing requirement to deliver a certificate prior to any registration thereof, shall, with respect to such Disqualified Organization, terminate. Notwithstanding any transfer, sale or other disposition of the Class C Certificate, or any interest therein, to a Disqualified Organization or the registration thereof in the Certificate Register, such transfer, sale or other disposition and warrantingany registration thereof, among other thingsunless accompanied by the Opinion of Counsel described in the preceding sentence, that it is a Permitted Transfereeshall be deemed to be void and of no legal force or effect whatsoever and such Disqualified Organization shall be deemed to not be the Class C Certificateholder for any purpose hereunder, that it is including, but not acquiring its Ownership Interest limited to, the receipt of distributions on the Class C Certificate, and shall be deemed to have no interest whatsoever in the Class R Certificate that is the subject of the proposed Transfer as a nomineeC Certificate. Each Class C Certificateholder, trustee or agent by his acceptance thereof, shall be deemed for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor all purposes to remain a Permitted Transferee, and that it has reviewed have consented to the provisions of this Section 5.02 and agrees 9.02(b)(3).
(4) Any transfer, sale or other disposition not in compliance with the provisions of this Section 9.02(b) shall be deemed to be bound by themvoid and of no legal force or effect whatsoever and such transferee shall be deemed to not be the Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions on such Certificate, and shall be deemed to have no interest whatsoever in such Certificate.
(II5) The Trustee shall give notice to Standard & Poor's, Moody's and Fitch promptly following any transfer, sale or other disposition of a certificateClass B-3I or Class C Certificate.
(c) At the option of a Certificateholder, in Certificates may be exchanged for other Certificates of authorized denominations of a like aggregate original denomination, upon surrender of such Certificates to be exchanged at such office. Whenever any Certificates are so surrendered for exchange, the form attached hereto as Exhibit G-4Trustee shall execute and deliver the Certificates which the Certificateholder making the exchange is entitled to receive. Every Certificate presented or surrendered for transfer or exchange shall be duly endorsed by, from the Holder wishing to or shall be accompanied by a written instrument of transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer Trustee and the Trustee representing and warranting, among other things, that no purpose of Certificate Registrar duly executed by the proposed Transfer is to impede the assessment holder thereof or collection of taxhis or her attorney duly authorized in writing.
(Cd) Notwithstanding Except as provided in paragraph (e) below, the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer Book-Entry Certificates shall at all times remain registered in the name of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.Depository or its nominee and at all times:
(Di) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) registration of the Book-Entry Certificates may not to transfer its Ownership Interest unless it provides a certificate to be transferred by the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees except to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."another Depository;
(ii) The Trustee will register the Transfer of any Class R Depository shall maintain book-entry records with respect to the Certificate only if it shall have received the Transfer Affidavit Owners and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 with respect to ownership and all transfers of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to NonBook-United States Persons and Disqualified Organizations are prohibited.Entry Certificates;
(iii) (a) if any Disqualified Organization shall become a holder ownership and transfers of a Class R Certificate, then registration of the last preceding Permitted Transferee Book-Entry Certificates on the books of the Depository shall be restoredgoverned by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and expenses from its Depository Participants;
(v) the Trustee shall deal with the Depository, Depository Participants and indirect participating firms as representatives of the Certificate Owners of the Book-Entry Certificates for purposes of exercising the rights of Holders under this Agreement, and requests and directions for and votes of such representatives shall not be deemed to be inconsistent if they are made with respect to different Certificate Owners; and
(vi) the Trustee may rely and shall be fully protected in relying upon information furnished by the Depository with respect to its Depository Participants and furnished by the Depository Participants with respect to indirect participating firms and persons shown on the books of such indirect participating firms as direct or indirect Certificate Owners. All transfers by Certificate Owners of Book-Entry Certificates shall be made in accordance with the procedures established by the Depository Participant or brokerage firm representing such Certificate Owner. Each Depository Participant shall only transfer Book-Entry Certificates of Certificate Owners it represents or of brokerage firms for which it acts as agent in accordance with the Depository's normal procedures.
(e) If
(i) the Seller or the Depository advises the Trustee in writing that the Depository is no longer willing or able properly to discharge its responsibilities as Depository, and
(ii) the Trustee or the Originator is unable to locate a qualified successor OR
(iii) the Originator at its sole option advises the Trustee in writing that it elects to terminate the book-entry system through the Depository, the Trustee shall notify all Certificate Owners, through the Depository, of the occurrence of any such event and of the availability of definitive, fully registered Class A Certificates, Class M Certificates and Class B Certificates (the "Definitive Certificates") to Certificate Owners requesting the same. Upon surrender to the Trustee of the Class A Certificates, Class M-1 Certificates, Class M-2 Certificates and Class B Certificates by the Depository, accompanied by registration instructions from the Depository for registration, the Trustee shall issue the Definitive Certificates. Neither the Originator nor the Trustee shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of Definitive Certificates all references herein to obligations imposed upon or to be performed by the Depository shall be deemed to be imposed upon and performed by the Trustee, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action applicable with respect to such holder under Definitive Certificates and the provisions Trustee shall recognize the Holders of the Definitive Certificates as Certificateholders hereunder.
(f) On or prior to the Closing Date, there shall be delivered to the Depository two Class A Certificates, one Class A-IO Certificate, one Class M-1 Certificate, one Class M-2 Certificate, and one Class B-1 Certificate, each in registered form registered in the name of the Depository's nominee, Cede & Co., the total face amount of which represents 100% of the related Original Principal Balance or Original Notional Principal Amount, respectively. At any time after the Closing Date, subject to compliance with the normal procedures of the Trustee and the Depository, the Class B-2 Certificateholders may deliver to the Depository one Class B-2 Certificate, registered in the name of Cede & Co. (or other nominee of the Depository), the total face amount of which represents 100% of the Original Principal Balance of the Class B-2 Certificate. If, however, the aggregate principal amount of a Class of Class A Certificates, Class M Certificates or Class B Certificates exceeds $400,000,000, one such Class A Certificate, Class M Certificate and/or Class B Certificate will be issued with respect to each $400,000,000 of principal amount and an additional Certificate of such Class or Classes will be issued with respect to any remaining principal amount. Each such Class A, Class M and Class B Certificate registered in the name of the Depository's nominee shall bear the following legend: "Unless this AgreementCertificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC") to Issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR 115 OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Conseco Finance Securitizations Corp)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain cause to be kept at the office or agency appointed by the Trustee in accordance with the provisions of Section 8.12 hereof a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Depositor, each Certificateholder, the Trustee and the Certificate Insurer shall have the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable times, and to rely conclusively upon a certificate of the Trustee as to the information set forth in the Certificate Register. The Trustee shall furnish or cause to be furnished to the Depositor, the Trustee and the Certificate Insurer and to any Certificateholder a listing of the names and addresses of the Certificateholders on reasonable request.
(i) The Class X and Class R Certificates have not been registered or qualified under the 1933 Act or any state securities laws or "blue sky" laws. No transfer, sale, pledge or other disposition of a any Class B X or a the Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from made pursuant to an effective registration statement under the 1933 Act and effective registration requirements of the Securities Act of 1933, as amended (the "Act"), and any or qualification under applicable state securities laws or "blue sky" laws, or is made in accordance with said Act and lawsa transaction which does not require such registration or qualification. In the event that a transfer of a Class B or Class R Certificate is to be made (i) in reliance upon an exemption from the Depositor may direct 1933 Act, the Trustee shall not register such transfer unless:
(A) each Class X and Class R Certificateholder desiring to require a written effect such disposition and such Certificateholder's prospective transferee certifies to the Trustee in writing the facts surrounding such disposition, which certification shall be substantially in the form of Exhibit J hereto; or
(B) any Class X or Class R Certificateholder desiring to effect such disposition delivers to the Trustee an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall may be made pursuant to an exemption, describing exemption from the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws1933 Act, which Opinion of Counsel shall not be an expense of the Trustee. None of the Seller, the Depositor Depositor, the Servicer, or the Master Servicer, provided that such Opinion of Counsel will Trustee is obligated under this Agreement to register the Class X or Class R Certificates under the 1933 Act or any other securities law or to take any action not be otherwise required in connection with under this Agreement to permit the initial transfer of any Class X Certificates or Class R Certificates without such Certificate by the Depositor registration or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicerqualification. Any such Class X or Class R Certificateholder desiring to effect such transfer shall, and does hereby agree to, promptly indemnify and reimburse the Trustee, the Seller, the Depositor and the Master Servicer against for costs and expenses incurred in connection with any liability that may result results if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The .
(i) Notwithstanding anything to the contrary herein, the Trustee shall require a written Opinion of Counsel from a prospective transferee prior to not register the acquisition or transfer of any Class B or Class R Certificate unless it shall have received (a) a representation, in form substantially identical to any the one set forth in Exhibit J-1 hereto, to the effect that the acquiror or transferee of such Certificate is not an employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is arrangement subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") ERISA or a plan subject to Section 4975 of the Code (any of the foregoingCode, or a "Plan"), to a trustee or other Person acting on behalf of any Plan, such plan or to any other person who is arrangement or using "plan assets" the assets of any Plan such plan or arrangement to effect such acquisition or transfer or (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to b) if the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to acquiror is an insurance company, a representation that the acquiror is an insurance company that is purchasing such Certificate with funds contained in lieu an "insurance company general account" (as such term is defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the acquisition and holding of such Opinion of Counsel, Certificates are covered under PTCE 95-60. The representations described above shall be deemed to have been made to the Trustee by the acquirer's or transferee's acceptance of a Class R Certificate. In the event that such representation is violated, such attempted transfer or acquisition shall require a certification in the form be void and of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Defaultno effect.
(ic) Each Person who has or who acquires any Ownership Interest in a Notwithstanding anything to the contrary contained herein, except for the transfer on the Closing Date of the Class R Certificate shall be deemed by Certificates to the acceptance or acquisition of such Ownership Interest Seller, prior to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms registration of any mandatory transfer, sale under clause (iii)(B) below and to execute all instruments or other disposition of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee proposed transferee shall require delivery provide to itthe Servicer, the Seller, the Class R Certificateholders and shall the Trustee: (i) an affidavit substantially in the form of Exhibit L hereto to the effect that such transferee is not register the transfer a Disqualified Organization or a non-U.S. Person or an agent (including a broker, nominee or middleman) of any a non-U.S. Person or a Disqualified Organization; and (ii) a certificate which acknowledges that (A) each Class R Certificate until its receipt of (I) an affidavit and agreement (has been designated as a "Transfer Affidavit and Agreement" residual interest in the form attached hereto REMIC created hereby, (B) the transferee will include in its income the entire net income of the REMIC created hereby and that such income may be an "excess inclusion", as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest defined in the Code, that, with certain exceptions, cannot be offset by other losses or benefits from any tax exemption, (C) the transferee expects to have the financial means to satisfy all of its tax obligations including those relating to holding Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by themCertificates, and (IID) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer acquisition of a Class R Certificate is to avoid or impede the assessment or collection of tax.
(C) . Notwithstanding the delivery registration in the Certificate Register of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) aboveany transfer, if a Responsible Officer sale or other disposition of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to a Disqualified Organization or a non-U.S. Person or an agent (including a broker, nominee or middleman) of a Disqualified Organization or a non-U.S. Person, such proposed Transferee registration shall be effected.
(D) Each Person holding deemed to be of no legal force or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit effect whatsoever and Agreement from any other Person to whom such Person attempts shall not be deemed to transfer its Ownership Interest be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer respect of such Class R Certificate. If a Non-United States Person any purported transfer shall become a holder be in violation of a Class R Certificatethe provisions of this Section 5.02(c), then the last preceding United States Person shall be restoredprior Holder of the Class R Certificate purportedly transferred shall, to upon discovery that the extent transfer of the Class R Certificate was not in fact permitted by lawthis Section 5.02(c), be restored to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a the purported transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee Trustee, the Depositor (except in its capacity as transferor of such Certificate), the Seller and the Servicer shall be under have no liability to any Person for any registration of Transfer or transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 5.02(c) or for making any payments due on such Class R Certificate to the holder purported Holder thereof or for taking any other action with respect to such holder purported Holder under the provisions of this AgreementAgreement if the Trustee, the Seller and the Servicer have received the affidavit and certificate referenced above. The prior Holder shall be entitled to recover from any purported Holder of a Class R Certificate that was in fact not a permitted transferee under this Section 5.02(c) at the time it became a Holder, all payments made on the Class R Certificate to such purported Holder. The Holder of a Class R Certificate, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02(c) and to any amendment of this Agreement deemed necessary by counsel to the Seller to ensure that the transfer of a Class R Certificate to a Disqualified Organization or any other Person will not cause the REMIC created hereby to cease to qualify as a REMIC or cause the imposition of a tax upon such REMIC.
(d) Subject to the preceding paragraphs, upon surrender for registration of transfer of any Certificate (duly endorsed, or accompanied by an executed assignment, as specified in the Certificate) at any agency or office appointed by the Trustee for such purpose pursuant to Section 8.12 hereof, the Trustee shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(e) At the option of the Certificateholders, each Certificate may be exchanged for other Certificates of the same Class with authorized denominations and a like aggregate Percentage Interest, upon surrender of such Certificate to be exchanged at any office or agency appointed by the Trustee for such purpose pursuant to Section 8.12 hereof. Whenever any Certificates are so surrendered for exchange the Trustee shall execute, authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive. Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Trustee) be duly endorsed by, or be accompanied by an assignment in the form attached to the Certificate or by a written instrument of transfer in a form reasonably satisfactory to the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing.
(f) No service charge to the Certificateholders shall be made for any transfer or exchange of Certificates, but the Trustee 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) All Certificates surrendered for transfer and exchange shall be canceled and destroyed by the Trustee in accordance with its customary procedures.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Prudential Securities Secured Financing Corp)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates Certif icates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B or Class R Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer; provided however that such representation letters will not be required in connection with any transfer of any such Certificate by the Depositor to an affiliate of the Depositor and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion .
(c) Notwithstanding the requirements of Counsel from a Section 5.02(b), transfers of Class B Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee prior to of a Certificate provides the transfer of any Class B or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts Trustee and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to with an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification investment letter substantially in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will G-3 attached hereto, which investment letter shall not be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation an expense of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R CertificateTrustee, the Trustee shall require delivery to itDepositor or the Master Servicer, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warrantingwhich investment letter states that, among other things, that it such transferee is a Permitted Transferee"qualified institutional buyer" as defined under Rule 144A. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof; provided, however, that it is not acquiring its Ownership Interest in no Transfer of any of the Class R Certificate that is B Certificates may be made pursuant to this Section 5.02(c) by the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor Depositor. Any such Certificateholder desiring to remain a Permitted Transfereeeffect such transfer shall, and that it has reviewed does hereby agree to, indemnify the provisions of this Section 5.02 Trustee, the Depositor and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and against any liability that may result if the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee transfer is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", so exempt or is holding an Ownership Interest not made in a Class R Certificate on behalf of a "pass-through interest holderaccordance with such applicable federal and state laws."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp Mortgage Pass THR Cer Ser 1999-2)
Registration of Transfer and Exchange of Certificates. The Trustee Certificate Registrar shall maintain keep or cause to be kept, at the office or agency maintained pursuant to Section 16.7, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee shall be the initial Certificate Registrar. The Class B Certificates shall initially be retained by the Seller. No transfer, sale, pledge or other disposition transfer of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act")amended, and any applicable state State securities laws are complied with, or such transfer is made in accordance with exempt from the registration requirements under said Act and laws. In the event that a transfer of a Class B or Class R Certificate is to be made (i) in reliance upon an exemption from said Act or laws, the Depositor may direct Class B Certificateholder desiring to effect such transfer and such Certificateholder's prospective transferee must each certify in writing to the Seller and the Trustee to require the facts surrounding such transfer and provide both the Seller and the Trustee with a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee Seller and the Depositor Trustee that such transfer shall may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Seller or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with Trustee. Neither the initial Seller nor the Trustee is under an obligation to register the Class B Certificates under said Act or any other securities law. No transfer of any such a Class B Certificate by shall be made unless the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer. Any such Class B Certificateholder desiring to effect such transfer shallshall have given each rating agency requested by the Seller or an affiliate to rate the Class A Certificates and which then has an outstanding rating thereon, the Seller and the Trustee prior written notice of such proposed transfer, and does hereby agree tosuch rating agencies shall have notified such Class B Certificateholder, indemnify the Seller and the Trustee, in writing, that such proposed transfer will not result in the Depositor and qualification, downgrading or withdrawal of the Master Servicer against any liability that may result if rating then assigned to the Class A Certificates by such rating agencies. In addition to the restrictions on transfer is not so exempt or is not of Class B Certificates set forth in the two immediately preceding paragraphs, no transfer of a Class B Certificate shall be made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee unless prior to such transfer the transfer Holder of any such Class B or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish delivers to the satisfaction of the Depositor Seller and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 either a ruling of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to Internal Revenue Service or an insurance company, in lieu of such Opinion of Counsel, which shall be independent outside counsel, satisfactory to the Trustee shall require a certification and each rating agency requested by the Seller or an affiliate to rate the Class A Certificates and which has an outstanding rating thereon in the form of Exhibit G-5 hereto substantially either case to the effect that the proposed transfer (x) will not result in the arrangement contemplated by this Agreement being treated as an association (or publicly traded partnership) taxable as a corporation under either (I) the Code, as from time to time in force or (II) the tax laws of the State of New York and (y) will not have any adverse effect on the Federal income taxation of the Trust or the Class A Certificateholders. The Class B Certificate shall not be transferred separately from the right to receive all funds used by amounts in the Subordination Spread Account, unless the ruling of the Internal Revenue Service or the Opinion of Counsel referred to in the preceding sentence would permit such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" transfer. Upon surrender for registration of transfer of any Plan (as defined above)Certificate at the Corporate Trust Office, the Trustee shall execute, 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 Trustee. The permission At the option of any a Holder, Certificates may be exchanged for other Certificates of authorized denominations of a like aggregate amount upon surrender of the Certificates to be exchanged at the Corporate Trust Office. Every Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in violation of form satisfactory to the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Trustee and the Certificate shall be deemed Registrar duly executed by the acceptance holder or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably his attorney duly authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments in writing. Each Certificate surrendered for registration of transfer and exchange shall be cancelled and subsequently disposed of by the Trustee. No service charge shall be made for any registration of transfer or exchange of Certificates, but the Trustee may require payment of a sum sufficient to do all other things necessary cover any tax or governmental charge that may be imposed in connection with any such sale. The rights transfer or exchange of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted TransfereeCertificates.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 1 contract
Samples: Standard Terms and Conditions Agreement (Ford Credit Auto Receivables Corp)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B P Certificate, Class C Certificate or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B P Certificate, Class C Certificate or Class R Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Company or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor Company or any affiliate thereof, to a non-affiliate of the Depositor Company and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor Company and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor Company or the Master Servicer; provided however that such representation letters will not be required in connection with any transfer of any such Certificate by the Company to an affiliate of the Company and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Company of the status of such transferee as an affiliate of the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Notwithstanding the requirements of Section 5.02(b), transfers of Class P Certificates, Class C Certificates and Class R Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of a Certificate provides the Trustee and the Company with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the Trustee, the Company or the Master Servicer, and which investment letter states that, among other things, such transferee is a "qualified institutional buyer" as defined under Rule 144A. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof; provided, however, that no Transfer of any of the Class P Certificates, Class C Certificates or Class R Certificates may be made pursuant to this Section 5.02(c) by the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written an Opinion of Counsel from a prospective transferee prior to the transfer of any Class B P Certificate, Class C Certificate or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor Company, the Trustee and the Trustee or the Certificate Registrar Master Servicer that such disposition transfer is permissible under applicable law, will not violate the constitute or result in a non-exempt prohibited transaction provisions of Section 406 of under ERISA and or Section 4975 of the Code, and will not subject the Trustee, the Master Servicer or the Company to any obligation in addition to those undertaken in this Agreement. Neither the DepositorCompany, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan .
(as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Defaultd) [Reserved].
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer Transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer Transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3G-5) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer 100 the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- pass-through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3G-5, a certificate of the holder Holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates other than to Non-United States Persons and Disqualified Organizations Permitted Transferees are prohibited.
(iii) (aA) if If any Disqualified Organization Person other than a Permitted Transferee shall become a holder Holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder Holder of a Class R Certificate, then the last preceding United States Person Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-31.860G-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer transfer of such Class R Certificate. The prior Holder shall be entitled to recover from any purported Holder of a Class R Certificate that was in fact not a Permitted Transferee under this Section 5.05(b) at the time it became a Holder all payments made on such Class R Certificate. Each Holder of a Class R Certificate, by acceptance thereof, shall be deemed for all purposes to have consented to the 101 provisions of this clause (b) and to any amendment of this Agreement deemed necessary (whether as a result of new legislation or otherwise) by counsel of the Company to ensure that the Class R Certificates are not transferred to any Person who is not a Permitted Transferee and that any transfer of such Class R Certificates will not cause the imposition of a tax upon the Trust or cause any such REMIC to fail to qualify as a REMIC. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp)
Registration of Transfer and Exchange of Certificates. (a) The Trustee Certificate Registrar shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee Certificate Register shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein providedprovided in this 81 Agreement. The Trustee is hereby initially appointed Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as provided in this Agreement. In the event that, subsequent to the Closing Date, the Trustee notifies the Depositor that it is unable to act as Certificate Registrar, the Depositor shall appoint another bank or trust company, having an office or agency located in the Borough of Manhattan, The City of New York, agreeing to act in accordance with the provisions of this Agreement applicable to it, and otherwise acceptable to the Trustee, to act as successor Certificate Registrar under this Agreement. No transfer, sale, pledge or other disposition transfer of a Class B or a Class R Certificate shall be made unless (I)(a) such transfer, sale, pledge or other disposition transfer (i) is exempt from the made pursuant to an effective registration requirements of statement under the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or (ii) is made in accordance with said exempt from the registration requirements under the Securities Act and lawssuch state securities laws or (b) the Certificate Registrar is notified by such transferee that, with respect to the Class A Certificates, such Certificate will be registered in the name of the Clearing Agency or its nominee and shall be held by such transferee in book-entry form through the Clearing Agency, and (II) such transfer is to a Person that satisfies the requirements of paragraph (a)(2)(i) or (a)(2)(ii) of Rule 3a-7 as then in effect or any successor rule ("Rule 3a-7") under the Investment Company Act. In the event that a transfer Each prospective purchaser of a Class B Non-Registered Certificate shall deliver a completed and duly executed Transferee's Certificate (in the form of Exhibit F-1 for "qualified institutional buyers" or Class R Exhibit F-2 for "accredited investors"), and each prospective purchaser of a Registered Certificate is to be made (i) shall deliver a completed and duly executed Transferee's Certificate in the Depositor may direct the Trustee to require a written Opinion form of Counsel acceptable to and in form and substance satisfactory Exhibit F-3, to the Trustee and to the Depositor for inspection prior to effecting any requested transfer; except that in the case of a transfer of any Class B Certificate or the Excess Cash Flow Certificate to a Bankruptcy Remote Entity or a business trust as permitted under Section 5.5(d), such transfer Transferee's Certificate shall be made pursuant delivered by the equity owner of, or owner of the beneficial ownership interest in, such Bankruptcy Remote Entity or business trust and, in such case, the Transferee's Certificate that is delivered shall pertain to an exemption, describing the applicable exemption such Person's acquisition of such equity or beneficial ownership interest (and the basis thereforform for the appropriate Transferee's Certificate shall contain such modifications as the Trustee may approve so that it pertains to the acquisition of such equity or beneficial ownership interest, from said Act rather than to acquisition of Certificates) and laws or is being made pursuant to said Act and lawsno such Transferee's Certificate need be delivered, which Opinion of Counsel shall not be an expense in such case, in the name of the Trustee, Bankruptcy Remote Entity or business trust with respect to the Depositor transfer thereto of such Class B Certificate or the Master Servicer, provided that such Opinion Excess Cash Flow Certificate. Each prospective transferor of Counsel will a Non-Registered Certificate not be required held in connection book-entry form (other than with respect to the initial transfer of any such Certificate by Greenwich Capital Markets, Inc. or any affiliate thereof as the initial transferee of the Depositor) shall deliver a completed and duly executed transferor's Certificate in the form of Exhibit F-4 to the Trustee for inspection prior to effecting any requested transfer. The Depositor and the Trustee may rely conclusively upon the information contained in any such Transferee's Certificate and transferor's Certificate in the absence of knowledge to the contrary. In connection with any transfer (other than the transfer of any Certificate that is or has become a Registered Certificate on or before such transfer or any transfer of a Certificate held in book-entry form), the Trustee may (except in the case of (x) the initial transfer of any such Certificate by Greenwich Capital Markets, Inc. or any affiliate thereof, as the initial transferee of the Depositor, (y) a transfer to a non"qualified institutional buyer" who delivers 82 a Transferee's Certificate in the form of Exhibit F-1 or (z) a transfer to an institutional "accredited investor" who delivers a Transferee's Certificate in the form of Exhibit F-2)) require an Opinion of Counsel to the effect that such transfer may be effected without registration under the Securities Act, which Opinion of Counsel, if so required, shall be addressed to the Depositor and the Trustee and shall be secured at the expense of the Holder. The Trustee may rely upon the representation of any Transferee made to the Trustee, and upon such Opinion of Counsel, and shall be fully protected in so doing. Any Certificate Owners shall be deemed to have agreed to these restrictions on transfer. Under no circumstances may an institutional "accredited investor" within Regulation D of the Securities Act take delivery in the form of a beneficial interest in a book-affiliate entry Class A Certificate if such purchaser is not a "qualified institutional buyer" as defined under Rule 144A under the Securities Act.
(b) If an election is made to hold Certificates in book-entry form, the Certificates shall be registered in the name of a nominee designated by the Clearing Agency (and may be aggregated as to denominations with other Certificates held by the Clearing Agency). With respect to Certificates held in book-entry form:
(1) the Certificate Registrar and the Trustee will be entitled to deal with the Clearing Agency for all purposes of this Agreement (including the payment of principal of and interest on the Certificates and the giving of instructions or directions hereunder) as the sole holder of the Certificates, and shall have no obligation to the Certificate Owners;
(2) the rights of Certificate Owners will be exercised only through the Clearing Agency and will be limited to those established by law and agreements between such Certificate Owners and the Clearing Agency and/or the Clearing Agency Participants pursuant to the Depository Agreement;
(3) whenever this Agreement requires or permits actions to be taken based upon instructions or directions of Holders of Certificates evidencing a specified percentage of the Class A Certificate Balance, the Clearing Agency will be deemed to represent such percentage only to the extent that it has received instructions to such effect from Certificate Owners and/or Clearing Agency Participants owning or representing, respectively, such required percentage of the beneficial interest in the Certificates and has delivered such instructions to the Trustee; and
(4) without the consent of the Depositor and the Trustee, no such Certificate may be transferred by the Clearing Agency except to a successor Clearing Agency that agrees to hold such Certificate for the account of the Certificate Owners or except upon the election of the Certificate Owner thereof or a subsequent transferee to hold such Certificate in physical form. 83 Neither the Trustee nor the Certificate Registrar shall have any responsibility to monitor or restrict the transfer of beneficial ownership in any Certificate an interest in which is transferable through the facilities of the Clearing Agency. If (i)(A) the Depositor advises the Trustee in writing that the Clearing Agency is no longer willing or able to properly discharge its responsibilities with respect to the Class A Certificates as described in the Depository Agreement and (B) the Depositor is unable to locate a qualified successor with respect to which (unless an Insurer Default has occurred and is continuing) the Certificate Insurer has provided its prior written consent, (ii) the Depositor at its option advises the Trustee in writing that it elects to terminate the book-entry system through the Clearing Agency, or (iii) after the occurrence of an Event of Default, the Certificate Insurer (or, if an Insurer Default has occurred and is continuing, Certificate Owners representing beneficial interests in Class A Certificates aggregating not less than a majority of the Class A Certificate Balance) advise the Trustee and the Clearing Agency through the Clearing Agency Participants in writing that the continuation of a book-entry system through the Clearing Agency with respect to such class is no longer in the best interests of the related Certificate Owners, then the Trustee shall require notify all such Certificate Owners, through the transferee Clearing Agency, and the Certificate Insurer of the occurrence of any such event and of the availability of definitive Certificates to execute such Certificate Owners requesting the same. Upon surrender to the Trustee of the related Certificates by the Clearing Agency accompanied by registration instructions from the Clearing Agency, the Trustee shall issue definitive Certificates and deliver such definitive Certificates in accordance with the instructions of the Clearing Agency. None of the Depositor, the Certificate Registrar nor the Trustee shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of definitive Certificates, the Trustee shall recognize the Holders of the definitive Certificates as Certificateholders hereunder. The Trustee shall not be liable if the Depositor is unable to locate a representation letter, qualified successor Clearing Agency.
(c) No transfer of a Class B Certificate or the Excess Cash Flow Certificate shall be made to any Person unless the Trustee and the Depositor have received (A) a certificate (substantially in the form of Exhibit G-1 hereto, G) from such transferee to the effect that such transferee (i) is not a Plan or a Person that is using the assets of a Plan to acquire such Certificate or (ii) is an insurance company investing assets of its general account and the exemptive relief provided by Sections I and III of Department of Labor Prohibited Transaction Class Exemption 95-60, 60 Fed. Reg. 35925 (July 12, 1995) (the "Exemption") is available with respect to the transferee's acquisition and holding of any such Certificate; PROVIDED, HOWEVER, that the Trustee shall will not require the transferor to execute a representation letter, substantially such certificate in the form event that, as a result of Exhibit G-2 heretoa change of law or otherwise, each acceptable to and in form and substance counsel satisfactory to the Depositor Trustee, the Servicer and the Trustee certifying Depositor has rendered an opinion to the Depositor effect that the purchase and holding of any such Certificate by a Plan or a Person using the Trustee assets of a Plan will not constitute or result in a prohibited transaction under ERISA or Section 4975 of the facts surrounding such transfer, which representation letters Code. The preparation and delivery of the certificate and opinion referred to above shall not be an expense of the TrusteeTrust, the Depositor or the Master Servicer. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Servicer or the Depositor and but shall be borne by the Master Servicer against transferor. 84
(d) No transfer, pledge or encumbrance of a Class B Certificate or the Excess Cash Flow Certificate shall be made to any liability Person unless such Person is a Rated Entity, a Bankruptcy Remote Entity or a business trust established under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. Section 3801 et seq. that is a Bankruptcy Remote Entity, or, in the case of the Excess Cash Flow Certificate, Greenwich Capital Financial Products, Inc. ("GCFP"); PROVIDED, HOWEVER, that in the event GCFP forecloses on its security interest in the Excess Cash Flow Certificate, the Excess Cash Flow Certificate may result if be registered in the transfer name of a Person that is not so exempt or is a Bankruptcy Remote Entity for a period not made in accordance with such applicable federal and state lawsto exceed two Business Days. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the transfer of any Class B or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case Notice of any transfer of the foregoing Excess Cash Flow Certificates shall be given by the transferor to an insurance companyXxxxx'x. In addition, in lieu no transfer of such Opinion of Counsel, a Class B Certificate or the Trustee Excess Cash Flow Certificate shall require a certification in be made unless the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
related transferor (i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition delivered to each of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below and the Certificate Insurer an Opinion of Counsel addressed to deliver payments to a Person other than such Person and to negotiate the terms each of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, and the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed TransfereeInsurer, in form and substance satisfactory to each of the Master Trustee and the Certificate Insurer, stating that such transfer will not (A) adversely affect the status of the Trust as a grantor trust pursuant to subpart E, part I of the subchapter J of the Code and (B) cause the Excess Cash Flow Sub-account or the Class B Reserve Account to be treated as taxable as a corporation and (ii) has delivered to Xxxxx'x and the Certificate Insurer (A) notice of the identity of the prospective transferee and (B) in the case of a Bankruptcy Remote Entity, an Opinion of Counsel relating to non-consolidation of the assets of such Bankruptcy Remote Entity with the assets of its parent entity. For purposes of the preceding sentence, a transfer shall not include a transfer to a party that is a member of the transferor's "Affiliate Group" as that term is defined in Section 1501 of the Internal Revenue Code. The Class B Certificates and the Excess Cash Flow Certificate shall each at all times be registered in the name of a single holder (which need not be the same entity with respect to the Class B Certificates and the Excess Cash Flow Certificate).
(e) The Certificates, until such time, if at all, as they become Registered Certificates, shall bear legends stating that they have not been registered under the Securities Act and are subject to the restrictions on transfer described in Section 5.5(a). The Class B Certificates and the Excess Cash Flow Certificate shall additionally bear legends stating that they are subject to the restrictions on transfer described in Section 5.5(c). By purchasing a Certificate, each purchaser shall be deemed to have agreed to these restrictions on transfer.
(f) In order to preserve the exemption for resales and transfers provided by Rule 144A under the Securities Act, the Depositor shall provide to any Holder of a Non-Registered Certificate and any prospective purchaser designated by such Holder, upon request of such Holder or such prospective purchaser, such information required by Rule 144A as will enable the resale of such Non-Registered Certificate to be made pursuant to Rule 144A. The Servicer and the Trustee representing shall cooperate with the Depositor in providing the Depositor such information regarding the Non-Registered Certificates, the Receivables and warrantingother matters regarding the Trust as the Depositor shall reasonably request to meet its obligations under the preceding sentence.
(g) Upon surrender for registration of transfer of any Certificate at the Corporate Trust Office, among other thingsthe Trustee shall execute, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, authenticate and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificatedeliver, in the form attached hereto as Exhibit G-4name of the 85 designated transferee or transferees, from one or more new Certificates of the Holder wishing same Class in authorized denominations of a like aggregate principal amount.
(h) At the option of a Certificateholder, such Holder's Certificates may be exchanged for other Certificates of the same Class in authorized denominations of a like aggregate principal amount, upon surrender of the Certificates to be exchanged at any such office or agency. Whenever any Certificates are so surrendered for exchange the Trustee on behalf of the Trust shall execute, authenticate and deliver the Certificates that the Certificateholder making the exchange is entitled to receive. Every Certificate presented or surrendered for registration of transfer the Class R Certificate, or exchange shall be accompanied by a written instrument of transfer in form and substance satisfactory to the Master Servicer Trustee and the Trustee representing and warranting, among other things, that no purpose of Certificate Registrar duly executed by the proposed Transfer is to impede the assessment Holder thereof or collection of taxhis attorney duly authorized in writing.
(Ci) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee No service charge shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person made for any registration of Transfer transfer or exchange of Certificates, but the Trustee may require payment of a Class R Certificate sum sufficient to cover any tax or governmental charge that is may be imposed in fact not permitted connection with any transfer or exchange of Certificates.
(j) All Certificates surrendered for registration of transfer or exchange shall be cancelled and subsequently destroyed by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this AgreementTrustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Long Beach Holdings Corp)
Registration of Transfer and Exchange of Certificates. The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No transfer, sale, pledge or other disposition of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B or Class R Certificate is to be made (i) the Depositor may direct the Trustee to require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the transfer of any Class B or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx Keogh plans, that is subject to Section 406 of the Employee Retirement Income Xxxxme Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I1) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II11) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Opteum Mortgage Acceptance CORP)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates Certif icates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B or Class R Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Company or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor Company or any affiliate thereof, to a non-affiliate of the Depositor Company and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor Company and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor Company or the Master Servicer; provided however that such representation letters will not be required in connection with any transfer of any such Certificate by the Company to an affiliate of the Company and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Company of the status of such transferee as an affiliate of the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Notwithstanding the requirements of Section 5.02(b), transfers of Class B Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of a Certificate provides the Trustee and the Company with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the Trustee, the Company or the Master Servicer, and which investment letter states that, among other things, such transferee is a "qualified institutional buyer" as defined under Rule 144A. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof; provided, however, that no Transfer of any of the Class B Certificates may be made pursuant to this Section 5.02(c) by the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(d) The Trustee shall require a written an Opinion of Counsel from a prospective transferee prior to the transfer of any Residual Certificate or Class B or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the DepositorCompany, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance companyClass B Certificates, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto G-6 (or in a form substantially similar to such Exhibit G-6 as shall be agreed upon by the Trustee), in the case of the transfer of any of the foregoing Class B Certificates to a person capable of providing such certification, substantially to the effect that all funds used by such transferee to purchase such Class B Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above); provided however that such certification will not be required in connection with any transfer of any such Class B Certificate by the Company to an affiliate of the Company and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Company of the status of such transferee as an affiliate of the Company. The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default. Any person purchasing a Class M Certificate shall be deemed to have represented that either: (i) such person is not a Plan subject to ERISA or the Code (or comparable provisions of any subsequent enactments) and is not acting, directly or indirectly, on behalf of any such Plan or acquiring such Certificate with Plan Assets; or (ii) the purchase of such Certificate is permissible under applicable law, will not constitute or result in any non-exempt prohibited transaction under ERISA or Section 4975 of the Code, will not subject the Company, the Trustee or the Master Servicer to any obligation or liability (including obligations or liabilities under ERISA or Section 4975 of the Code) in addition to those undertaken in this Agreement and the exemptive relief granted by the DOL pursuant to Sections I and Sections III of Prohibited Transaction Class Exemption 95-60 is available with respect to the purchase, sale and holding of such Certificate.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Residual Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Residual Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Residual Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer Transfer of any Ownership Interest in a Class R Residual Certificate, the Trustee shall require delivery to it, and shall not register the transfer Transfer of any Class R Residual Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3G-5) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Residual Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Residual Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- pass-through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Residual Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Residual Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Residual Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3G-5, a certificate of the holder Holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Residual Certificates other than to Non-United States Persons and Disqualified Organizations Permitted Transferees are prohibited.
(iii) (aA) if If any Disqualified Organization Person other than a Permitted Transferee shall become a holder Holder of a Class R Residual Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Residual Certificate. If a Non-United States Person shall become a holder Holder of a Class R Residual Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Residual Certificate. If a transfer of a Residual Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.860G-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as Holder thereof retroactive to the date of registration of such transfer of such Residual Certificate. The prior Holder shall be entitled to recover from any purported Holder of a Residual Certificate that was in fact not a Permitted Transferee under this Section 5.05(b) at the time it became a Holder all payments made on such Residual Certificate. Each Holder of a Residual Certificate, by acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this clause (b) and to any amendment of this Agreement deemed necessary (whether as a result of new legislation or otherwise) by counsel of the Company to ensure that the Residual Certificates are not transferred to any Person who is not a Permitted Transferee and that any transfer of such Residual Certificates will not cause the imposition of a tax upon the Trust or cause any such REMIC to fail to qualify as a REMIC. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Residual Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates Certif icates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B or a Class R Subordinate Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B or Class R Subordinate Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer; provided however that such representation letters will not be required in connection with any transfer of any such Certificate by the Depositor to an affiliate of the Depositor and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion .
(c) Notwithstanding the requirements of Counsel from a Section 5.02(b), transfers of Subordinate Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee prior to of a Certificate provides the transfer of any Class B or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts Trustee and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to with an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification investment letter substantially in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will G-3 attached hereto, which investment letter shall not be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation an expense of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R CertificateTrustee, the Trustee shall require delivery to itDepositor or the Master Servicer, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warrantingwhich investment letter states that, among other things, that it such transferee is a Permitted Transferee"qualified institutional buyer" as defined under Rule 144A. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof; provided, however, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject no Transfer of any of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor Subordinate Certificates may be made pursuant to remain a Permitted Transfereethis Section 5.02(c) by the Depositor. Any such Certificateholder desiring to effect such transfer shall, and that it has reviewed does hereby agree to, indemnify the provisions of this Section 5.02 Trustee, the Depositor and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and against any liability that may result if the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee transfer is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", so exempt or is holding an Ownership Interest not made in a Class R Certificate on behalf of a "pass-through interest holderaccordance with such applicable federal and state laws."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp)
Registration of Transfer and Exchange of Certificates. (a) The Trustee Securities Administrator shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee Securities Administrator shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B R, Class C or a Class R P Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "“Act"”), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B R, Class C or Class R P Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to Securities Administrator shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Securities Administrator that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Securities Administrator, the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee Securities Administrator shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee Securities Administrator shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee Securities Administrator certifying to the Depositor and the Trustee Securities Administrator the facts surrounding such transfer, which representation letters shall not be an expense of the Securities Administrator, the Trustee, the Depositor or the Master Servicer; provided, however, that such representation letters will not be required in connection with any transfer of any such Certificate by the Depositor to an affiliate of the Depositor and the Securities Administrator shall be entitled to conclusively rely upon a representation (which, upon the request of the Securities Administrator, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Securities Administrator, the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Notwithstanding the requirements of Section 5.02(b), transfers of Class R, Class C or Class P Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of a Certificate provides the Securities Administrator and the Depositor with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the Securities Administrator, the Trustee, the Depositor or the Master Servicer, and which investment letter states that, among other things, such transferee is a “qualified institutional buyer” as defined under Rule 144A, provided that, in the case of any Book-Entry Certificate, such transferee shall be deemed to have made such representations and warranties contained in such investment letter. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Securities Administrator, the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws The Trustee Securities Administrator shall require a written an Opinion of Counsel Counsel, on which the Securities Administrator, the Trustee, the Depositor and the Master Servicer may rely, from a prospective transferee prior to the transfer of any ERISA Restricted Certificate, Class B C or Class R Certificate P Certificates to any employee benefit plan or other retirement arrangement, including an individual retirement accounts and account or Xxxxx plansplan, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA") ”), or Section 4975 of the Code (any of the foregoing, a "“Plan"”), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "“plan assets" ” of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "“plan assets"” of a Plan). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar Securities Administrator that such disposition transfer is permissible under applicable law, will not violate the constitute or result in a prohibited transaction provisions of under Section 406 of ERISA and or Section 4975 of the Code, and will not subject the Securities Administrator, the Trustee, the Master Servicer or the Depositor to any obligation in addition to those undertaken in this Agreement. Neither None of the Depositor, the Master Servicer nor Servicer, the Securities Administrator or the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case A purchaser of any transfer of the foregoing an ERISA Restricted Certificate, Class C or Class P Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject represent to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R CertificateSecurities Administrator, the Trustee shall require delivery to itTrustee, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, Depositor that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject a Plan or using assets of a Plan if it does not provide such an Opinion of Counsel. For so long as either of the proposed Transfer as Cap Supplemental Interest Trust, which holds the Cap Agreement, or the Swap Supplemental Interest Trust, which holds the Swap Agreement, is in existence, each beneficial owner of a nomineeClass A Certificate, trustee Class M Certificate or agent for any Person who interest therein, shall be deemed to have represented, by virtue of its acquisition or holding of such Certificate or interest therein, that either (i) it is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and Plan or (IIii) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(CA) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" an accredited investor within the meaning of Temporary Treasury Regulations Section 1.67the Prohibited Transaction Exemption 2007-3T(a)(2)(i)(A05 and (B) immediately upon acquiring an Ownership the acquisition and holding of such Certificate and the separate right to receive payments from either the Cap Supplemental Interest Trust or the Swap Supplemental Interest Trust are eligible for the exemptive relief available under either (I) Prohibited Transaction Class Exemption (“PTCE”) 95-60 or (II) except in the case of a Class R A-5 or Class M Certificate, if PTCE 91-38, 96-23, 90-1 or 84-14. Each beneficial owner of a Class A-5 Certificate or Class M Certificate or any interest therein after the termination of the Cap Supplemental Interest Trust and the Swap Supplemental Interest Trust shall be deemed to have represented, by virtue of its acquisition or holding of that Certificate or interest therein, that either (i) it is "not a pass-through interest holder", Plan or is holding an Ownership Interest in a Class R Certificate trustee or other Person acting on behalf of a "pass-through interest holder."
Plan or using “plan assets” of a Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute “plan assets” of a Plan) or (ii) The Trustee will register (1) it is an insurance company, (2) the Transfer source of any Class R funds used to acquire or hold the Certificate only if it shall have received or interest therein is an “insurance company general account,” as such term is defined in Section V(e) of PTCE 95-60, and (3) the Transfer Affidavit conditions in Sections I and Agreement in the form attached hereto as Exhibit G-3, a certificate III of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall PTCE 95-60 have been reasonably required by satisfied. If any Certificate, or any interest therein, is acquired or held in violation of this section 5.02(c), the Trustee next preceding permitted beneficial owner will be treated as a condition the beneficial owner of that Certificate, retroactive to such registrationthe date of transfer to the purported beneficial owner. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder Any purported beneficial owner whose acquisition or holding of a Class R Certificate, then the last preceding Permitted Transferee or interest therein, was effected in violation of this section shall be restored, indemnify to the extent permitted by lawlaw and hold harmless the Depositor, to the Sponsor, the Master Servicer, any servicer, any Underwriter and the Trustee from and against any and all rights and obligations liabilities, claims, costs or expenses incurred by such parties as holder thereof retroactive to the date of registration a result of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 acquisition or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreementholding.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (American Home Mortgage Assets Trust 2007-4)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B P, Class C or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "“Act"”), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B P, Class C or Class R Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer; provided, however, that such representation letters will not be required in connection with any transfer of any such Certificate by the Depositor to an affiliate of the Depositor and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. No transfer of any Class C Certificate shall be made unless the proposed transferee of such Class C Certificate provides to the Trustee the appropriate tax certification form (i.e., IRS Form W-9 or IRS Form X-0XXX, X-0XXX, X-0XXX or W-8ECI, as applicable (or any successor form thereto)), as a condition to such transfer, and such proposed transferee agrees to update such forms (i) upon expiration of any such form, (ii) as required under then applicable U.S. Treasury regulations and (iii) promptly upon learning that any IRS Form W-9 or IRS Form X-0XXX, X-0XXX, X-0XXX or W-8ECI, as applicable (or any successor form thereto), has become obsolete or incorrect. Upon receipt of any such tax certification form from a transferee of any Class C Certificate, the Trustee shall forward a copy of such tax certification form provided to it to the Swap Provider and Cap Counterparties. In addition, if any transfer of Class C Certificates would cause the Supplemental Interest Trust to be beneficially owned by two or more persons for federal income tax purposes, the Trustee shall provide, or cause to be provided, an IRS Form W-9 (or any successor form thereto) to the Swap Provider and Cap Counterparties and update such forms (i) upon expiration of any such form, (ii) as required under then applicable U.S. Treasury regulations and (iii) promptly upon learning that such IRS Form W-9 (or any successor form thereto) has become obsolete or incorrect. Any purported sales or transfers of any Class C Certificate to a transferee which does not comply with the requirements of this paragraph shall be deemed null and void under this Agreement. The Supplemental Interest Trust Trustee and the Trustee shall not be liable for the content or truthfulness of any such tax certification provided to it. The Supplemental Interest Trust Trustee and the Trustee shall only be required to forward any tax certification received by it to the Swap Provider and Cap Counterparties at the last known address provided to it, and shall not be liable for the receipt of such tax certification by the Swap Provider or the Cap Counterparties, nor any failure of the Swap Provider or Cap Counterparties to process such certification or to take any action as required under the respective Swap Agreement or Cap Contract, or under applicable law. The Supplemental Interest Trust Trustee and the Trustee shall have no duty to take action to correct any misstatement or omission in any tax certification provided to it and forwarded to the Swap Provider and Cap Counterparties.
(c) Notwithstanding the requirements of Section 5.02(b), transfers of Class P, Class C and Class R Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of a Certificate provides the Trustee and the Depositor with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the Trustee, the Depositor or the Master Servicer, and which investment letter states that, among other things, such transferee is a “qualified institutional buyer” as defined under Rule 144A. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written an Opinion of Counsel Counsel, on which the Trustee, Depositor and Master Servicer may rely, from a prospective transferee prior to the transfer of any Class B or P, Class C and Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”) or Section 4975 of the Code (any of the foregoing, a "“Plan"”), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "“plan assets" ” of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "“plan assets"”). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition transfer is permissible under applicable law, will not violate the constitute or result in a prohibited transaction provisions of under Section 406 of ERISA and Section 4975 of the Code, and will not subject the Trustee, the Master Servicer or the Depositor to any obligation in addition to those undertaken in this Agreement. Neither the Depositor, the Master Servicer nor the Trustee Trustee, will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In Prior to the case of any transfer termination of the foregoing Certificates Supplemental Interest Trust, each beneficial owner of an Offered Certificate or any interest therein, shall be deemed to have represented, by virtue of its acquisition or holding of the Offered Certificate, or interest therein, that either (i) it is not a Plan or (ii) (A) it is an accredited investor within the meaning of Prohibited Transaction Exemption 2002-41 (the “Exemption”) and (B) the acquisition and holding of such Certificate and the separate right to receive payments from the Supplemental Interest Trust are eligible for the exemptive relief available under one of Prohibited Transaction Class Exemption (“PTCE”) 84-14, 91-38, 95-60, 90-1 or 96-23. Each beneficial owner of a Subordinate Certificate or any interest therein which is acquired subsequent to the termination of the Supplemental Interest Trust shall be deemed to have represented, by virtue of its acquisition or holding of that Certificate or interest therein, that either (i) it is not a Plan or a trustee or other Person acting on behalf of a Plan or using “plan assets” of a Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute “plan assets”), (ii) it has acquired and is holding such Certificate in reliance on the Exemption, and that it understands that there are certain conditions to the availability of the Exemption, including that the Certificate must be rated, at the time of purchase, not lower than “BBB-” (or its equivalent) by Standard & Poor’s, Fitch Ratings, Inc. or Moody’s, and the Certificate is so rated or (iii) (1) it is an insurance company, in lieu (2) the source of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by to acquire or hold the Certificate or interest therein is an “insurance company general account,” as such transferee to purchase such Certificates will be funds held by it term is defined in its general account which it reasonably believes do not constitute "plan assets" PTCE 95-60, and (3) the conditions in Sections I and III of any Plan PTCE 95-60 have been satisfied.
(as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.d) [Reserved]
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer Transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer Transfer of any Class R Certificate until its receipt receipt, of (I) an affidavit and agreement (a "“Transfer Affidavit and Agreement" ” in the form attached hereto as Exhibit G-3G-5) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of taxtax and that it has no knowledge that the proposed transferee is not a Permitted Transferee.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- “pass-through interest holder" ” within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "“a pass-through interest holder"”, or is holding an Ownership Interest in a Class R Certificate on behalf of a "“pass-through interest holder."”
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3G-5, a certificate of the holder Holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates other than to Non-United States Persons and Disqualified Organizations Permitted Transferees are prohibited.
(iii) (aA) if If any Disqualified Organization Person other than a Permitted Transferee shall become a holder Holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-31.860G-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer transfer of such Class R Certificate. The prior Holder shall be entitled to recover from any purported Holder of a Class R Certificate that was in fact not a Permitted Transferee under this Section 5.02(e) at the time it became a Holder all payments made on such Class R Certificate. Each Holder of a Class R Certificate, by acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02(e) and to any amendment of this Agreement deemed necessary (whether as a result of new legislation or otherwise) by counsel of the Depositor to ensure that the Class R Certificates are not transferred to any Person who is not a Permitted Transferee and that any transfer of such Class R Certificates will not cause the imposition of a tax upon the Trust or cause any such REMIC to fail to qualify as a REMIC. Neither the Trustee nor the Trustee shall be under no any liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder Holder thereof or for taking any other action with respect to such holder Holder under the provisions of this Agreement.
Appears in 1 contract
Registration of Transfer and Exchange of Certificates. The Trustee (a) At all times during the term of this Agreement, there shall maintain be maintained at the office of the Certificate Registrar a Certificate Register in which, subject to such reasonable regulations as it the Certificate Registrar may prescribe, the Trustee Certificate Registrar shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby initially appointed (and hereby agrees to act) as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the Trustee, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, PROVIDED that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer and Special Servicer shall have the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfertransfer of any Class X, saleClass G, pledge or other disposition of a Class B or a H, Class R J, Class K, Class L, Class R-I, Class R-II and Class R-III Certificate shall be made unless such transfer, sale, pledge or other disposition that transfer is exempt from made pursuant to an effective registration statement under the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any effective registration or qualification under applicable state securities laws laws, or is made in accordance with said Act and lawsa transaction which does not require such registration or qualification. In the event that If such a transfer of a Class B or Class R Certificate is to be made (i) without registration or qualification and is to be made in connection with the Depositor may direct issuance or transfer of a Definitive Certificate, then the Trustee Certificate Registrar shall require, in order to require assure compliance with such laws, receipt of, if such transfer is purportedly being made in reliance upon Rule 144A under the Act, a written Opinion certificate from the prospective transferee substantially in the form attached as EXHIBIT D hereto. Absent receipt of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such certificate, such transfer shall be made pursuant only by the Initial Purchaser as transferor, or otherwise only after the expiration of two years following the Closing Date. Any transferee from the Initial Purchaser not purchasing in reliance on Rule 144A under the Act shall furnish to an exemption, describing the applicable exemption and Certificate Registrar a certificate in the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense form attached as EXHIBIT E hereto. None of the TrusteeDepositor, the Depositor Trustee or the Master ServicerCertificate Registrar is obligated to register or qualify the Class X, provided that such Opinion of Counsel will Class G, Class H, Class K, Class L, Class R-I, Class R-II and Class R-III Certificates under the Act or any other securities law or to take any action not be otherwise required in connection with under this Agreement to permit the initial transfer of any such Class X, Class F, Class G, Class H, Class J, Class K, Class L, Class R-I, Class R-II and Class R-III Certificate by the Depositor without registration or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicerqualification. Any such Class X, Class G, Class H, Class J, Class K, Class L, Class R-I, Class R-II or Class R-III Certificateholder desiring to effect such a transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor Certificate Registrar and the Master Servicer Depositor against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion .
(c) None of Counsel from a prospective transferee prior to the transfer of any Certificates except for the Class B A1, Class A2, Class A3 or Class R Certificate X Certificates or any interest therein shall be transferred to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Xxxxx plans and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to ERISA, or the Code (each, a "PLAN") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not result in a violation of Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") ERISA or Section 4975 of the Code (any of or cause the foregoingMaster Servicer, a "Plan"), to a trustee the Special Servicer or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee to be deemed a fiduciary of such Plan or result in the Certificate Registrar that such disposition will not violate the prohibited transaction provisions imposition of Section 406 of ERISA and an excise tax under Section 4975 of the Code. Neither In the Depositor, absence of its having received the Master Servicer nor the Trustee will be required to obtain such certification and Opinion of Counsel on behalf contemplated by the preceding sentence, the Certificate Registrar shall require the prospective transferee of any Class G, Class H, Class J, Class R-I, Class R-II or Class R-III Certificate to certify, and each prospective transferee. In the case transferee of any transfer of the foregoing Certificates to an insurance companyClass B, in lieu of such Opinion of CounselClass C, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default Class D, Class E or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R F Certificate shall be deemed to have represented by the acceptance or its acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
Certificate, that it is neither (A) Each a Plan nor (B) a Person holding who is directly or acquiring indirectly purchasing any Ownership Interest in such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Class R Plan.
(d) No transfer of any Residual Certificate shall be made to a Permitted Transferee and shall promptly notify Non-U.S. Person. Notwithstanding anything to the Trustee contrary contained herein, prior to registration of any change transfer, sale or impending change in its status as other disposition of a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Residual Certificate, the Trustee Certificate Registrar shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of have received (Ii) an affidavit and agreement (a "Transfer Affidavit and Agreement" from the proposed transferee substantially in the form attached hereto as Exhibit G-3) from the proposed TransfereeEXHIBIT F-1 hereto, in form and substance satisfactory to the Master Servicer and the Trustee representing and warrantingeffect that, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who (A) such transferee is not a Permitted TransfereeDisqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non-U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by themResidual Certificate remains outstanding, and (IID) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of such proposed transfer, sale or other disposition of the proposed Transfer Residual Certificate is or will be to impede the assessment or collection of any tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (yii) not to transfer its Ownership Interest unless it provides a certificate to from the Trustee transferor substantially in the form attached hereto as Exhibit G-4.
(E) Each Person holding EXHIBIT F-2 hereto, to the effect that, among other things, no purpose of such proposed transfer, sale or acquiring an Ownership Interest other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in a Class R Certificatethe Certificate Register of any transfer, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", sale or is holding an Ownership Interest in a Class R Certificate on behalf other disposition of a "passResidual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-through interest holder."
(ii) The Trustee will register U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the Transfer receipt of distributions in respect of such Residual Certificate. If any Class R purported transfer of a Residual Certificate only if it shall have received the Transfer Affidavit and Agreement be in the form attached hereto as Exhibit G-3, a certificate violation of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all provisions of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificatethis Section 5.02(d), then the last preceding Permitted Transferee shall be restoredprior Holder of the Residual Certificate purportedly transferred shall, to upon discovery that the extent transfer of such Residual Certificate was not in fact permitted by lawthis Section 5.02(d), be restored to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificatepurported transfer. The Trustee shall be under no liability to any Person for any registration of Transfer transfer of a Class R Residual Certificate that is in fact not permitted by this Section 5.02 5.02(d) or for making any payments due on such Residual Certificate to the holder purported Holder thereof or for taking any other action with respect to such holder purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from any purported Holder of a Residual Certificate that was in fact not a permitted transferee under this Section 5.02(d) at the time it became a Holder all payments made on such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a Residual Certificate to a Disqualified Organization or any other Person will not cause any REMIC in the Trust Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the Trust Fund or any REMIC therein.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the office of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Icifc Secured Assets Corp)
Registration of Transfer and Exchange of Certificates. The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates Certif icates and of transfers and exchanges of Certificates as herein provided. No transfer, sale, pledge or other disposition of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B or Class R Certificate is to be made (i) the Depositor may direct the Trustee to require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer. Any such Certificateholder Certificate holder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the transfer of any Class B or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- pass-through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."63
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if If any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-31.860G-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
(b) If any purported Transferee shall become a holder of a Class R Certificate in violation of the restrictions in this Section 5.02 and to the extent that the retroactive restoration of the rights of the holder of such Class R Certificate as described in clause (iii)(a) above shall be invalid, illegal or unenforceable, then the Trustee shall have the right, without notice to the holder or any prior holder of such Class R Certificate, to sell such Class R Certificate to a purchaser selected by the Trustee on such terms as the Trustee may choose. Such purported Transferee shall promptly endorse and deliver each Class R Certificate in accordance with the instructions of the Trustee. Such purchaser may be the Trustee itself. The proceeds of such sale, net of the commissions (which may include commissions payable to the Trustee), expenses and taxes due, if any, will be remitted by the Trustee to such purported Transferee. The terms and conditions of any sale under this clause (iii)(b) shall be determined in the sole discretion of the Trustee, and the Trustee shall not be liable to any Person having an Ownership Interest in a Class R Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions, all information necessary to compute any tax imposed (A) as a result of the transfer of an ownership interest in a Class R Certificate to any Person who is a Disqualified Organization, including the information regarding "excess inclusions" of such Class R Certificates required to be provided to the Internal Revenue Service and certain Persons as described in Treasury Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5), and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Class R Certificate having as among its record holders at any time any Person who is a Disqualified Organization. The Trustee may charge and shall be entitled to reasonable compensation for providing such information as may be required from those Persons which may have had a tax imposed upon them as specified in clauses (A) and (B) of this paragraph for providing such information. Subject to the preceding paragraphs, upon surrender for registration of transfer of any Certificate at the office of the Trustee maintained for such purpose, the Trustee shall execute and the Trustee or the Authenticating Agent shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate initial Certificate Principal Balance. Every Certificate surrendered for transfer shall be accompanied by notification of the account of the designated transferee or transferees for the purpose of receiving distributions pursuant to Section 4.01 by wire transfer, if any such transferee desires and is eligible for distribution by wire transfer. At the option of the Certificateholders, Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate initial Certificate Principal Balance, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee shall execute, authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive. Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Trustee or the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Trustee or the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing. No service charge shall be made to the Certificateholders for any transfer or exchange of Certificates, but the Trustee 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 Certi ficates. All Certificates surrendered for transfer and exchange shall be canceled and retained by the Trustee in accordance with the Trustee's standard procedures.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (WMC Secured Assets Corp)
Registration of Transfer and Exchange of Certificates. a. The Trustee shall maintain keep at the office or agency to be maintained in accordance with Section 12.02 a "Certificate Register Register" in which, subject to such reasonable regulations as it may prescribe, which the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No transferThe Trustee initially appoints itself to be the "Certificate Registrar" and transfer agent for the purpose of registering Certificates and transfers and exchanges of Certificates as provided herein. The Trustee will give prompt written notice to Certificateholders and the Servicer of any change in the Certificate Registrar.
(1) Subject to clauses (2) and (3) below, sale, pledge or other disposition no transfer of a Class B B-3I Certificate, Class C Subsidiary Certificate or a Class R C Master Certificate shall be made by the Originator or any other Person unless such transfer, sale, pledge or other disposition transfer is exempt from the registration requirements of the Securities Act of 1933, as amended 1933 (the "Act"), as amended, and any applicable state securities laws or is made in accordance with said the Act and laws. In the event that a any such transfer of a Class B or Class R Certificate is to be made made, (iA) the Depositor Originator may direct the Trustee to require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Originator that such transfer shall may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said the Act and laws or is being made pursuant to said the Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Trustee or the Master ServicerOriginator, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (iiB) the Trustee shall require the transferee to execute a representation letter, an investment letter substantially in the form of Exhibit G-1 M attached hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters investment letter shall not be an expense of the Trustee, the Depositor Trustee or the Master ServicerOriginator. Any such Class B-3I Certificateholder, Class C Subsidiary Certificateholder or Class C Master Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor Originator and the Master Servicer Certificate Registrar against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the .
(2) No transfer of any a Class M-1 Certificate, a Class M-2 Certificate, a Class B Certificate, a Class B-3I Certificate, a Class C Subsidiary Certificate or a Class R C Master Certificate or any interest therein shall be made to any employee benefit plan plan, trust or other retirement arrangement, including individual retirement accounts and Xxxxx plans, account that is subject to ERISA, or that is described in Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"4975(e)(1) or Section 4975 of the Code (any of the foregoingeach, a "Plan"), to unless the prospective transferee of a trustee Certificate or other Person acting on behalf interest therein provides the Servicer and the Trustee with a certification of any Planfacts and, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in at its general or separate accounts that may constitute "plan assets"). Such own expense, an Opinion of Counsel must which establish to the satisfaction of the Depositor Servicer and the Trustee or the Certificate Registrar that such disposition transfer will not violate the prohibited transaction provisions result in a violation of Section 406 of ERISA and or Section 4975 of the Code or cause the Servicer, the Originator or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. Neither .
(3) Notwithstanding anything to the Depositorcontrary contained herein, (A) neither the Class C Subsidiary Certificate nor the Class C Master Certificate, nor any interest therein, shall be transferred, sold or otherwise disposed of to a "disqualified organization," within the meaning of Section 860E(e)(5) of the Code (a "Disqualified Organization"), including, but not limited to, (i) the United States, a state or political subdivision thereof, a foreign government, an international organization or an agency or instrumentality of any of the foregoing, (ii) an organization (other than a cooperative described in Section 521 of the Code) which is exempt from the taxes imposed by Chapter 1 of the Code and not subject to the tax imposed on unrelated business income by Section 511 of the Code, or (iii) a cooperative described in Section 1381(a)(2)(C) of the Code, and (B) prior to any registration of any transfer, sale or other disposition of the Class C Subsidiary Certificate or Class C Master Certificate, the Master Servicer nor proposed transferee shall deliver to the Trustee, under penalties of perjury, an affidavit that such transferee is not a Disqualified Organization, with respect to which the Trustee will be shall have no actual knowledge that such affidavit is false, and the transferor and the proposed transferee shall each deliver for the Trustee an affidavit with respect to any other information reasonably required by the Trustee pursuant to obtain such Opinion the REMIC Provisions, including, without limitation, information regarding the transfer of Counsel on behalf noneconomic residual interests and transfers of any prospective transferee. In residual interest to or by a foreign person; provided, however, that, upon the case delivery to the Trustee of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Trustee and rendered by Independent counsel, to the effect that the beneficial ownership of the Class C Subsidiary Certificate or the Class C Master Servicer Certificate, as the case may be, by any Disqualified Organization will not result in the imposition of federal income tax upon the Subsidiary REMIC or the Master REMIC or any Certificateholder or any other person or otherwise adversely affect the status of the Subsidiary REMIC or the Master REMIC as a REMIC, the foregoing prohibition on transfers, sales and other dispositions, as well as the Trustee representing foregoing requirement to deliver a certificate prior to any registration thereof, shall, with respect to such Disqualified Organization, terminate. Notwithstanding any transfer, sale or other disposition of the Class C Subsidiary Certificate or Class C Master Certificate, or any interest therein, to a Disqualified Organization or the registration thereof in the Certificate Register, such transfer, sale or other disposition and warrantingany registration thereof, among other thingsunless accompanied by the Opinion of Counsel described in the preceding sentence, that it is a Permitted Transfereeshall be deemed to be void and of no legal force or effect whatsoever and such Disqualified Organization shall be deemed to not be the Class C Subsidiary or Class C Master Certificateholder, that it is as the case may be, for any purpose hereunder, including, but not acquiring its Ownership Interest limited to, the receipt of distributions on the Class C Subsidiary Certificate or Class C Master Certificate, and shall be deemed to have no interest whatsoever in the Class R C Subsidiary Certificate that is the subject of the proposed Transfer as a nomineeor Class C Master Certificate. Each Class C Subsidiary or Class C Master Certificateholder, trustee or agent by his acceptance thereof, shall be deemed for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor all purposes to remain a Permitted Transferee, and that it has reviewed have consented to the provisions of this Section 5.02 and agrees 9.02(b)(3).
(4) Any transfer, sale or other disposition not in compliance with the provisions of this Section 9.02(b) shall be deemed to be bound by themvoid and of no legal force or effect whatsoever and such transferee shall be deemed to not be the Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions on such Certificate, and shall be deemed to have no interest whatsoever in such Certificate.
(II5) The Trustee shall give notice to Standard & Poor's and Fitch promptly following any transfer, sale or other disposition of a certificateClass B-3I, in Class C Subsidiary or Class C Master Certificate.
c. At the form attached hereto as Exhibit G-4option of a Certificateholder, from Certificates may be exchanged for other Certificates of authorized denominations of a like aggregate original denomination, upon surrender of such Certificates to be exchanged at such office. Whenever any Certificates are so surrendered for exchange, the Holder wishing Trustee shall execute and deliver the Certificates which the Certificateholder making the exchange is entitled to receive. Every Certificate presented or surrendered for transfer the Class R Certificateor exchange shall be duly endorsed by, or shall be accompanied by a written instrument of transfer in form and substance satisfactory to the Master Servicer Trustee and the Trustee representing and warrantingCertificate Registrar duly executed by the holder thereof or his or her attorney duly authorized in writing.
d. Except as provided in paragraph (e) below, among other things, that no purpose the Book-Entry Certificates shall at all times remain registered in the name of the proposed Transfer is Depository or its nominee and at all times: (i) registration of the Class A, Class M-1, Class M-2 and Class B-1 Certificates may not be transferred by the Trustee except to impede another Depository; (ii) the assessment Depository shall maintain book-entry records with respect to the Certificate Owners and with respect to ownership and transfers of such Class A, Class M-1, Class M-2 and Class B-1 Certificates; (iii) ownership and transfers of registration of the Class A, Class M-1, Class M-2 and Class B-1 Certificates on the books of the Depository shall be governed by applicable rules established by the Depository; (iv) the Depository may collect its usual and customary fees, charges and expenses from its Depository Participants; (v) the Trustee shall deal with the Depository, Depository Participants and indirect participating firms as representatives of the Certificate Owners of the Class A, Class M and Class B for purposes of exercising the rights of Holders under this Agreement, and requests and directions for and votes of such representatives shall not be deemed to be inconsistent if they are made with respect to different Certificate Owners; and (vi) the Trustee may rely and shall be fully protected in relying upon information furnished by the Depository with respect to its Depository Participants and furnished by the Depository Participants with respect to indirect participating firms and persons shown on the books of such indirect participating firms as direct or collection indirect Certificate Owners. All transfers by Certificate Owners of taxBook-Entry Certificates shall be made in accordance with the procedures established by the Depository Participant or brokerage firm representing such Certificate Owner. Each Depository Participant shall only transfer Book-Entry Certificates of Certificate Owners it represents or of brokerage firms for which it acts as agent in accordance with the Depository's normal procedures.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree e. If (x) the Seller or the Depository advises the Trustee in writing that the Depository is no longer willing or able properly to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer discharge its Ownership Interest in a Class R Certificate responsibilities as Depository and (y) not the Trustee or the Originator is unable to transfer locate a qualified successor or (z) the Originator at its Ownership Interest unless sole option advises the Trustee in writing that it provides a certificate elects to terminate the book-entry system through the Depository, the Trustee shall notify all Certificate Owners, through the Depository, of the occurrence of any such event and of the availability of definitive, fully registered Class A Certificates, Class M Certificates and Class B-1 Certificates (the "Definitive Certificates") to Certificate Owners requesting the same. Upon surrender to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R A Certificates, Class M-1 Certificates, Class M-2 Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization Class B-1 Certificates by the Depository, accompanied by registration instructions from the Depository for registration, the Trustee shall become a holder of a Class R Certificate, then issue the last preceding Permitted Transferee Definitive Certificates. Neither the Originator nor the Trustee shall be restoredliable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of Definitive Certificates all references herein to obligations imposed upon or to be performed by the Depository shall be deemed to be imposed upon and performed by the Trustee, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action applicable with respect to such holder under Definitive Certificates and the provisions Trustee shall recognize the Holders of the Definitive Certificates as Certificateholders hereunder.
f. On or prior to the Closing Date, there shall be delivered to the Depository one Class A-1 Certificate, one Class A-2 Certificate, one Class A-3 Certificate, one Class A-4 Certificate, one Class A-5 Certificate, one Class A-6 Certificate, one Class A-7 Certificate, one Class A-8 Certificate, two Class A-9 Certificates, one Class M-1 Certificate, one Class M-2 Certificate, one Class B-1 Certificate and one Class B-2 Certificate, each in registered form registered in the name of the Depository's nominee, Cede & Co., the total face amount of which represents 100% of the related Original Principal Balance, respectively. If, however, the aggregate principal amount of a Class of Class A Certificates, Class M Certificates or Class B Certificates exceeds $200,000,000, one such Class A Certificate, Class M Certificate and/or Class B Certificate will be issued with respect to each $200,000,000 of principal amount and an additional Certificate of such Class or Classes will be issued with respect to any remaining principal amount. Each such Class A, Class M and Class B Certificate registered in the name of the Depository's nominee shall bear the following legend: "Unless this AgreementCertificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC") to Issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Conseco Finance Securitizations Corp)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B SP Certificate, Class P Certificate, a Class SB Certificate, Class R-I Certificate or a Class R R-II Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B SP Certificate, a Class P Certificate, a Class SB Certificate, Class R-I Certificate or a Class R R-II Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer. Any ; provided however that such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against representation letters will not be required in connection with any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the transfer of any Class B or Class R such Certificate by the Depositor to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction an affiliate of the Depositor and the Trustee or shall be entitled to conclusively rely upon a representation (which, upon the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 request of the Code. Neither the DepositorTrustee, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3written representation) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject Depositor of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all status of such other documents transferee as shall have been reasonably required by the Trustee as a condition to such registration. Transfers an affiliate of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.the
Appears in 1 contract
Samples: Pooling and Servicing Agreement (DLJ Mortgage Acceptance Corp Mort Pass THR Cert Ser 1995 Q7)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B P Certificate, Class C Certificate or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B P Certificate, Class C Certificate or Class R Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Company or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor Company or any affiliate thereof, to a non-affiliate of the Depositor Company and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor Company and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor Company or the Master Servicer; provided however that such representation letters will not be required in connection with any transfer of any such Certificate by the Company to an affiliate of the Company and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Company of the status of such transferee as an affiliate of the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Notwithstanding the requirements of Section 5.02(b), transfers of Class P Certificates, Class C Certificates and Class R Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of a Certificate provides the Trustee and the Company with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the Trustee, the Company or the Master Servicer, and which investment letter states that, among other things, such transferee is a "qualified institutional buyer" as defined under Rule 144A. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof; provided, however, that no Transfer of any of the Class P Certificates, Class C Certificates or Class R Certificates may be made pursuant to this Section 5.02(c) by the Company. Any such Certificateholder desiring to 104 effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written an Opinion of Counsel from a prospective transferee prior to the transfer of any Class B P Certificate, Class C Certificate or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition transfer is permissible under applicable law, will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code, will not cause the assets of the Trust Fund to constitute "plan assets" within the meaning of 29 C.F.R. '2510.3-101, and will not subject the Trustee, the Master Servicer or the Company to any obligation in addition to those undertaken in this Agreement. Neither the DepositorCompany, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan .
(as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.d) [Reserved]
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer Transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer Transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3G-5) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- pass-through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3G-5, a certificate of the holder Holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates other than to Non-United States Persons and Disqualified Organizations Permitted Transferees are prohibited.
(iiiA) (a) if If any Disqualified Organization Person other than a Permitted Transferee shall become a holder Holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder Holder of a Class R Certificate, then the last preceding United States Person Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-31.860G-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer transfer of such Class R Certificate. The prior Holder shall be entitled to recover from any purported Holder of a Class R Certificate that was in fact not a Permitted Transferee under this Section 5.05(b) at the time it became a Holder all payments made on such Class R Certificate. Each Holder of a Class R Certificate, by acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this clause (b) and to any amendment of this Agreement deemed necessary (whether as a result of new legislation or otherwise) by counsel of the Company to ensure that the Class R Certificates are not transferred to any Person who is not a Permitted Transferee and that any transfer of such Class R Certificates will not cause the imposition of a tax upon the Trust or cause any such REMIC to fail to qualify as a REMIC. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a Class R Certificate in violation of the restrictions in this Section 5.02 and to the extent that the retroactive restoration of the rights of the Holder of such Class R Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Trustee shall have the right, without notice to the holder or any prior holder of such Class R Certificate, to sell such Class R Certificate to a purchaser selected by the Trustee on such terms as the Trustee may choose. Such purported Transferee shall promptly endorse and deliver each Class R Certificate in accordance with the instructions of the Trustee. Such purchaser may be the Trustee itself. The proceeds of such sale, net of the commissions (which may include commissions payable to the Trustee), expenses and taxes due, if any, will be remitted by the Trustee to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be determined in the sole discretion of the Trustee, and the Trustee shall not be liable to any Person having an Ownership Interest in a Class R Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions, all information necessary to compute any tax imposed (A) as a result of the transfer of an ownership interest in a Class R Certificate to any Person who is a Disqualified Organization, including the information regarding "excess inclusions" of such Class R Certificates required to be provided to the Internal Revenue Service and certain Persons as described in Treasury Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5), and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Class R Certificate having as among its record holders at any time any Person who is a Disqualified Organization. The Trustee may charge and shall be entitled to reasonable compensation for providing such information as may be required from those Persons which may have had a tax imposed upon them as specified in clauses (A) and (B) of this paragraph for providing such information.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp)
Registration of Transfer and Exchange of Certificates. a. The Trustee shall maintain keep at the office or agency to be maintained in accordance with Section 12.02 a "Certificate Register Register" in which, subject to such reasonable regulations as it may prescribe, which the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No transferThe Trustee initially appoints itself to be the "Certificate Registrar" and transfer agent for the purpose of registering Certificates and transfers and exchanges of Certificates as provided herein. The Trustee will give prompt written notice to Certificateholders and the Servicer of any change in the Certificate Registrar.
(1) Subject to clauses (2) and (3) below, sale, pledge or other disposition no transfer of a Class B B-2 Certificate, Class B-3I Certificate, Class C Subsidiary Certificate or a Class R C Master Certificate shall be made by the Company or any other Person unless such transfer, sale, pledge or other disposition transfer is exempt from the registration requirements of the Securities Act of 1933, as amended 1933 (the "Act"), as amended, and any applicable state securities laws or is made in accordance with said the Act and laws. In the event that a any such transfer of a Class B or Class R Certificate is to be made made, (iA) the Depositor Company may direct the Trustee to require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Company that such transfer shall may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said the Act and laws or is being made pursuant to said the Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Trustee or the Master ServicerCompany, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (iiB) the Trustee shall require the transferee to execute a representation letter, an investment letter substantially in the form of Exhibit G-1 M attached hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters investment letter shall not be an expense of the Trustee, the Depositor Trustee or the Master ServicerCompany. Any such Class B-2 Certificateholder, Class B-3I Certificateholder, Class C Subsidiary Certificateholder or Class C Master Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor Company and the Master Servicer Certificate Registrar against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the .
(2) No transfer of any a Class M-1 Certificate, a Class M-2 Certificate, a Class B Certificate, a Class B-3I Certificate, a Class C Subsidiary Certificate or a Class R C Master Certificate or any interest therein shall be made to any employee benefit plan plan, trust or other retirement arrangement, including individual retirement accounts and Xxxxx plans, account that is subject to ERISA, or that is described in Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"4975(e)(1) or Section 4975 of the Code (any of the foregoingeach, a "Plan"), to unless the prospective transferee of a trustee Certificate or other Person acting on behalf interest therein provides the Servicer and the Trustee with a certification of any Planfacts and, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in at its general or separate accounts that may constitute "plan assets"). Such own expense, an Opinion of Counsel must which establish to the satisfaction of the Depositor Servicer and the Trustee or the Certificate Registrar that such disposition transfer will not violate the prohibited transaction provisions result in a violation of Section 406 of ERISA and or Section 4975 of the Code or cause the Servicer, the Company or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. Neither .
(3) Notwithstanding anything to the Depositorcontrary contained herein, (A) neither the Class C Subsidiary Certificate nor the Class C Master Certificate, nor any interest therein, shall be transferred, sold or otherwise disposed of to a "disqualified organization," within the meaning of Section 860E(e)(5) of the Code (a "Disqualified Organization"), including, but not limited to, (i) the United States, a state or political subdivision thereof, a foreign government, an international organization or an agency or instrumentality of any of the foregoing, (ii) an organization (other than a cooperative described in Section 521 of the Code) which is exempt from the taxes imposed by Chapter 1 of the Code and not subject to the tax imposed on unrelated business income by Section 511 of the Code, or (iii) a cooperative described in Section 1381(a)(2)(C) of the Code, and (B) prior to any registration of any transfer, sale or other disposition of the Class C Subsidiary Certificate or Class C Master Certificate, the Master Servicer nor proposed transferee shall deliver to the Trustee, under penalties of perjury, an affidavit that such transferee is not a Disqualified Organization, with respect to which the Trustee will be shall have no actual knowledge that such affidavit is false, and the transferor and the proposed transferee shall each deliver for the Trustee an affidavit with respect to any other information reasonably required by the Trustee pursuant to obtain such Opinion the REMIC Provisions, including, without limitation, information regarding the transfer of Counsel on behalf noneconomic residual interests and transfers of any prospective transferee. In residual interest to or by a foreign person; PROVIDED, HOWEVER, that, upon the case delivery to the Trustee of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Trustee and rendered by Independent counsel, to the effect that the beneficial ownership of the Class C Subsidiary Certificate or the Class C Master Servicer Certificate, as the case may be, by any Disqualified Organization will not result in the imposition of federal income tax upon the Subsidiary REMIC or the Master REMIC or any Certificateholder or any other person or otherwise adversely affect the status of the Subsidiary REMIC or the Master REMIC as a REMIC, the foregoing prohibition on transfers, sales and other dispositions, as well as the Trustee representing foregoing requirement to deliver a certificate prior to any registration thereof, shall, with respect to such Disqualified Organization, terminate. Notwithstanding any transfer, sale or other disposition of the Class C Subsidiary Certificate or Class C Master Certificate, or any interest therein, to a Disqualified Organization or the registration thereof in the Certificate Register, such transfer, sale or other disposition and warrantingany registration thereof, among other thingsunless accompanied by the Opinion of Counsel described in the preceding sentence, that it is a Permitted Transfereeshall be deemed to be void and of no legal force or effect whatsoever and such Disqualified Organization shall be deemed to not be the Class C Subsidiary or Class C Master Certificateholder, that it is as the case may be, for any purpose hereunder, including, but not acquiring its Ownership Interest limited to, the receipt of distributions on the Class C Subsidiary Certificate or Class C Master Certificate, and shall be deemed to have no interest whatsoever in the Class R C Subsidiary Certificate that is the subject of the proposed Transfer as a nomineeor Class C Master Certificate. Each Class C Subsidiary or Class C Master Certificateholder, trustee or agent by his acceptance thereof, shall be deemed for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor all purposes to remain a Permitted Transferee, and that it has reviewed have consented to the provisions of this Section 5.02 and agrees 9.02(b)(3).
(4) Any transfer, sale or other disposition not in compliance with the provisions of this Section 9.02(b) shall be deemed to be bound by themvoid and of no legal force or effect whatsoever and such transferee shall be deemed to not be the Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions on such Certificate, and shall be deemed to have no interest whatsoever in such Certificate.
(II5) The Trustee shall give notice to Moody's and Xxxxx promptly following any transfer, sale or other disposition of a certificateClass B-2, in Class B-3I, Class C Subsidiary or Class C Master Certificate.
c. At the form attached hereto as Exhibit G-4option of a Certificateholder, from Certificates may be exchanged for other Certificates of authorized denominations of a like aggregate original denomination, upon surrender of such Certificates to be exchanged at such office. Whenever any Certificates are so surrendered for exchange, the Holder wishing Trustee shall execute and deliver the Certificates which the Certificateholder making the exchange is entitled to receive. Every Certificate presented or surrendered for transfer the Class R Certificateor exchange shall be duly endorsed by, or shall be accompanied by a written instrument of transfer in form and substance satisfactory to the Master Servicer Trustee and the Trustee representing and warrantingCertificate Registrar duly executed by the holder thereof or his or her attorney duly authorized in writing.
d. Except as provided in paragraph (e) below, among other things, that no purpose the Book-Entry Certificates shall at all times remain registered in the name of the proposed Transfer is Depository or its nominee and at all times: (i) registration of the Class A-1, Class M-1, Class M-2, Class B-1 and Class B-2 Certificates may not be transferred by the Trustee except to impede another Depository; (ii) the assessment Depository shall maintain book-entry records with respect to the Certificate Owners and with respect to ownership and transfers of such Class A-1, Class M-1, Class M-2, Class B-1, and Class B-2 Certificates; (iii) ownership and transfers of registration of the Class A-1, Class M-1, Class M-2, Class B-1, and Class B-2 Certificates on the books of the Depository shall be governed by applicable rules established by the Depository; (iv) the Depository may collect its usual and customary fees, charges and expenses from its Depository Participants; (v) the Trustee shall deal with the Depository, Depository Participants and indirect participating firms as representatives of the Certificate Owners of the Class A-1, Class M-1, Class M-2, Class B-1, and Class B-2 Certificates for purposes of exercising the rights of Holders under this Agreement, and requests and directions for and votes of such representatives shall not be deemed to be inconsistent if they are made with respect to different Certificate Owners; and (vi) the Trustee may rely and shall be fully protected in relying upon information furnished by the Depository with respect to its Depository Participants and furnished by the Depository Participants with respect to indirect participating firms and persons shown on the books of such indirect participating firms as direct or collection indirect Certificate Owners. All transfers by Certificate Owners of taxBook-Entry Certificates shall be made in accordance with the procedures established by the Depository Participant or brokerage firm representing such Certificate Owner. Each Depository Participant shall only transfer Book-Entry Certificates of Certificate Owners it represents or of brokerage firms for which it acts as agent in accordance with the Depository's normal procedures.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree e. If (x) the Company or the Depository advises the Trustee in writing that the Depository is no longer willing or able properly to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer discharge its Ownership Interest in a Class R Certificate responsibilities as Depository and (y) not the Trustee or the Company is unable to transfer locate a qualified successor or (z) the Company at its Ownership Interest unless sole option advises the Trustee in writing that it provides a certificate elects to terminate the book-entry system through the Depository, the Trustee shall notify all Certificate Owners, through the Depository, of the occurrence of any such event and of the availability of definitive, fully registered Class A-1 Certificates, Class M Certificates and Class B Certificates (the "Definitive Certificates") to Certificate Owners requesting the same. Upon surrender to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R A-1 Certificates, Class M-1 Certificates, Class M-2 Certificates, Class B-1, and Class B-2 Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificateby the Depository, then accompanied by registration instructions from the last preceding Permitted Transferee shall be restoredDepository for registration, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to issue the holder thereof or for taking any other action with respect to such holder under Definitive Certificates. Neither the provisions of this Agreement.Company nor the
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Green Tree Financial Corp)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain a Certificate Register (in such capacity, the "Certificate Registrar") in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B SB or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B SB or Class R Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer; provided however that such representation letters will not be required in connection with any transfer of any such Certificate by the Depositor to an affiliate of the Depositor and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Notwithstanding the requirements of Section 5.02(b), transfers of Class SB or Class R Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of a Certificate provides the Trustee and the Depositor with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the Trustee, the Depositor or the Master Servicer, and which investment letter states that, among other things, such transferee is a "qualified institutional buyer" as defined under Rule 144A. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof; provided, however, that no Transfer of any of the Class SB or Class R Certificates may be made pursuant to this Section 5.02(c) by the Depositor. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(d) The Trustee shall require a written an Opinion of Counsel from a prospective transferee prior to the transfer of any Class B SB or Class R Residual Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto G-6 (or in a form substantially similar to such Exhibit G-6 as shall be agreed upon by the Trustee), in the case of the transfer of any of the foregoing Certificates to a person capable of providing such certification, substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above); provided however that such certification will not be required in connection with any transfer of any such Certificate by the Depositor to an affiliate of the Depositor and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Residual Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Residual Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Residual Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer Transfer of any Ownership Interest in a Class R Residual Certificate, the Trustee shall require delivery to it, and shall not register the transfer Transfer of any Class R Residual Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3G-5) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Residual Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Residual Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- pass-through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Residual Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Residual Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Residual Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3G-5, a certificate of the holder Holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Residual Certificates other than to Non-United States Persons and Disqualified Organizations Permitted Transferees are prohibited.
(iii) (aA) if If any Disqualified Organization Person other than a Permitted Transferee shall become a holder Holder of a Class R Residual Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Residual Certificate. If a transfer of a Class R Residual Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-31.860G-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Residual Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Residual Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain cause to be kept at its Corporate Trust Office, or at the office of its designated agent, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. .
(b) Subject to Section 4.02(c), upon surrender for registration of transfer of any Certificate at any office or agency of the Trustee maintained for such purpose, the Trustee shall execute, authenticate and deliver, in the name of the designated transferee or transferees, a Certificate or Certificates of a like Class and aggregate denomination and dated the date of authentication by the Trustee.
(c) No transfer, sale, pledge or other disposition transfer of a Class B B, Class C, Class R-LT or a Class R R-UT Certificate shall be made unless such transfer, sale, pledge transfer is made pursuant to an effective registration statement or other disposition is exempt in accordance with an exemption from the registration requirements of under the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that If such a transfer of a Class B or Class R Certificate is to be made in reliance upon an exemption from the Act, (i) the Depositor may direct Trustee shall, if not otherwise directed by the Trustee to Depositor, require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said the Act and laws or is being made pursuant to said Act and lawsthe Act, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation lettercertification, substantially in the form of Exhibit G-1 L hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee setting forth the facts surrounding such transfer; provided that such Opinion of Counsel shall not be required in the case of transfers by or to the Mortgage Loan Seller, which representation letters Redwood Trust, Inc., RWT Holdings or any of their wholly-owned subsidiaries. Such Opinion of Counsel and certification shall not be an expense of the Trustee, the Depositor or the Master Servicer. Any The Trustee, the Master Servicer and the Depositor may, without the consent of any Certificateholder, add provisions (which shall include a form of certificate to be attached hereto as an exhibit that must be delivered by the proposed transferee) to this Section 4.02(c) to permit transfers pursuant to Rule 144A of the Securities and Exchange Commission, in which case transfers pursuant to such Certificateholder desiring provisions shall not require an Opinion of Counsel.
(d) No transfer (exclusive of any transfer to effect a Depository or a securitization trustee) of a Class B, Class C, Class R-LT or Class R-UT Certificate shall be made unless the Trustee shall have received either (i) a representation letter (substantially in the form attached hereto as Exhibit N) from the transferee of such transfer shallCertificate, acceptable to and does hereby agree to, indemnify in form and substance satisfactory to the Trustee, to the Depositor and the Master Servicer against any liability effect that may result if the transfer such transferee is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the transfer of any Class B or Class R Certificate to any an employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is plan or arrangement subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") ERISA or Section 4975 of the Code (any of the foregoingCode, nor a "Plan"), to a trustee or other Person acting on behalf of any Plan, such plan or to any other person who is using "arrangement or acquiring such Certificate with funds of such a plan assets" of any Plan to effect such acquisition or arrangement (including without limitation any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction , which representation letter shall not be an expense of the Depositor and Trustee, the Trustee Depositor, the Mortgage Loan Seller or the Master Servicer, or (ii) in the case of any such Certificate Registrar that such disposition will not violate presented for registration in the prohibited transaction provisions name of Section 406 of an employee benefit plan or other retirement plan or arrangement subject to ERISA and or Section 4975 of the Code. Neither Code (or comparable provisions of any subsequent enactments), or a trustee of any such plan or arrangement, an Opinion of Counsel satisfactory to the Trustee to the effect that the purchase or holding of such Certificate is permissible under applicable law, will not constitute or result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Trustee, the Depositor, the Mortgage Loan Seller or the Master Servicer nor the Trustee will be required to obtain such any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer shall not be an expense of the foregoing Trustee, the Depositor, the Mortgage Loan Seller or the Master Servicer.
(e) At the option of the Certificateholder, a Certificate may be exchanged for another Certificate or Certificates of authorized denominations of a like Class and Percentage Interest, upon surrender of the Certificate to an insurance company, in lieu be exchanged at any office or agency of the Trustee maintained for such Opinion of Counselpurpose. Whenever a Certificate is so surrendered for exchange, the Trustee shall require a certification in execute, authenticate and deliver the form of Exhibit G-5 hereto substantially Certificate which the Certificateholder making the exchange is entitled to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan receive. Every Certificate presented or surrendered for transfer or exchange shall (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed if so required by the acceptance Trustee) be duly endorsed by, or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement accompanied by a proposed Transferee under clause (B) above, if a Responsible Officer written instrument of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by satisfactory to the Trustee as a condition to such registration. Transfers of duly executed by, the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder Holder thereof or for taking any other action with respect to such holder under the provisions of this Agreementhis attorney duly authorized in writing.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Sequoia Mort Trust 4 Mort Loan Asset Back Pass-Through Cert)
Registration of Transfer and Exchange of Certificates. The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates Certif icates and of transfers and exchanges of Certificates as herein provided. No transfer, sale, pledge or other disposition of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B or Class R Certificate is to be made (i) the Depositor may direct the Trustee to require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer. Any such Certificateholder Certificate holder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the transfer of any Class B or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx Keogh plans, that is subject to Section 406 of the Employee Retirement Income Xxxxme Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- pass-through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."of
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if If any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-31.860G-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
(b) If any purported Transferee shall become a holder of a Class R Certificate in violation of the restrictions in this Section 5.02 and to the extent that the retroactive restoration of the rights of the holder of such Class R Certificate as described in clause (iii)(a) above shall be invalid, illegal or unenforceable, then the Trustee shall have the right, without notice to the holder or any prior holder of such Class R Certificate, to sell such Class R Certificate to a purchaser selected by the Trustee on such terms as the Trustee may choose. Such purported Transferee shall promptly endorse and deliver each Class R Certificate in accordance with the instructions of the Trustee. Such purchaser may be the Trustee itself. The proceeds of such sale, net of the commissions (which may include commissions payable to the Trustee), expenses and taxes due, if any, will be remitted by the Trustee to such purported Transferee. The terms and conditions of any sale under this clause (iii)(b) shall be determined in the sole discretion of the Trustee, and the Trustee shall not be liable to any Person having an Ownership Interest in a Class R Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions, all information necessary to compute any tax imposed (A) as a result of the transfer of an ownership interest in a Class R Certificate to any Person who is a Disqualified Organization, including the information regarding "excess inclusions" of such
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Namco Securities Corp)
Registration of Transfer and Exchange of Certificates. a. The Trustee shall maintain keep at the office or agency to be maintained in accordance with Section 12.02 a "Certificate Register Register" in which, subject to such reasonable regulations as it may prescribe, which the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No transferThe Trustee initially appoints itself to be the "Certificate Registrar" and transfer agent for the purpose of registering Certificates and transfers and exchanges of Certificates as provided herein. The Trustee will give prompt written notice to Certificateholders and the Servicer of any change in the Certificate Registrar.
(1) Subject to clauses (2) and (3) below, sale, pledge or other disposition no transfer of a Class B B-3I Certificate, Class C Subsidiary Certificate or a Class R C Master Certificate shall be made by the Originator or any other Person unless such transfer, sale, pledge or other disposition transfer is exempt from the registration requirements of the Securities Act of 1933Act, as amended (the "Act")amended, and any applicable state securities laws or is made in accordance with said the Act and laws. In the event that a any such transfer of a Class B or Class R Certificate is to be made made, (iA) the Depositor Originator may direct the Trustee to require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Originator that such transfer shall may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said the Act and laws or is being made pursuant to said the Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Trustee or the Master ServicerOriginator, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (iiB) the Trustee shall require the transferee to execute a representation letter, an investment letter substantially in the form of Exhibit G-1 M attached hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters investment letter shall not be an expense of the Trustee, the Depositor Trustee or the Master ServicerOriginator. Any such Class B-3I Certificateholder, Class C Subsidiary Certificateholder or Class C Master Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor Originator and the Master Servicer Certificate Registrar against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the .
(2) No transfer of a Class M-1, Class M-2, Class B-1 or B-2 Certificate, or any Class B or Class R Certificate interest therein, shall be made to any employee benefit plan plan, trust or other retirement arrangement, including individual retirement accounts and Xxxxx plans, account that is subject to ERISA, or that is described in Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"4975(e)(1) or Section 4975 of the Code (any of the foregoingeach, a "Plan"), to unless the prospective transferee provides the Servicer and the Trustee with a trustee or other Person acting on behalf certification of any Planfacts and, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in at its general or separate accounts that may constitute "plan assets"). Such own expense, an Opinion of Counsel must which establish to the satisfaction of the Depositor Servicer and the Trustee or the Certificate Registrar that such disposition transfer will not violate the prohibited transaction provisions result in a violation of Section 406 of ERISA and or Section 4975 of the Code or cause the Servicer, the Originator or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. Neither the DepositorAlternatively, the Master Servicer nor an insurance company general account may, at its expense, deliver to the Trustee and the Servicer a representation that the transfer and holding of such a Certificate are exempt under Section I and Section III of Prohibited Transaction Class Exemption 95-60. Unless such opinion or representation is delivered, each transferee will be required deemed to obtain such Opinion of Counsel represent to the Trustee and the Servicer that it is not a Plan, is not acting on behalf of a Plan, a qualified retirement Plan or a tax- favored Plan, and is not investing assets of the Plan subject to ERISA or to section 4975 of the Internal Revenue Code.
(3) Notwithstanding anything to the contrary contained herein, (A) neither the Class C Subsidiary Certificate nor the Class C Master Certificate, nor any prospective transferee. In interest therein, shall be transferred, sold or otherwise disposed of to a "disqualified organization," within the case meaning of Section 860E(e)(5) of the Code (a "Disqualified Organization"), including, but not limited to, (i) the United States, a state or political subdivision thereof, a foreign government, an international organization or an agency or instrumentality of any of the foregoing, (ii) an organization (other than a cooperative described in Section 521 of the Code) which is exempt from the taxes imposed by Chapter 1 of the Code and not subject to the tax imposed on unrelated business income by Section 511 of the Code, or (iii) a cooperative described in Section 1381(a)(2)(C) of the Code, and (B) prior to any registration of any transfer, sale or other disposition of the Class C Subsidiary Certificate or Class C Master Certificate, the proposed transferee shall deliver to the Trustee, under penalties of perjury, an affidavit that such transferee is not a Disqualified Organization, with respect to which the Trustee shall have no actual knowledge that such affidavit is false, and the transferor and the proposed transferee shall each deliver for the Trustee an affidavit with respect to any other information reasonably required by the Trustee pursuant to the REMIC Provisions, including, without limitation, information regarding the transfer of noneconomic residual interests and transfers of any residual interest to or by a foreign person; provided, however, that, upon the foregoing Certificates delivery to the Trustee of an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Trustee and rendered by Independent counsel, to the effect that the beneficial ownership of the Class C Subsidiary Certificate or the Class C Master Servicer Certificate, as the case may be, by any Disqualified Organization will not result in the imposition of federal income tax upon the Subsidiary REMIC or the Master REMIC or any Certificateholder or any other person or otherwise adversely affect the status of the Subsidiary REMIC or the Master REMIC as a REMIC, the foregoing prohibition on transfers, sales and other dispositions, as well as the Trustee representing foregoing requirement to deliver a certificate prior to any registration thereof, shall, with respect to such Disqualified Organization, terminate. Notwithstanding any transfer, sale or other disposition of the Class C Subsidiary Certificate or Class C Master Certificate, or any interest therein, to a Disqualified Organization or the registration thereof in the Certificate Register, such transfer, sale or other disposition and warrantingany registration thereof, among other thingsunless accompanied by the Opinion of Counsel described in the preceding sentence, that it is a Permitted Transfereeshall be deemed to be void and of no legal force or effect whatsoever and such Disqualified Organization shall be deemed to not be the Class C Subsidiary or Class C Master Certificateholder, that it is as the case may be, for any purpose hereunder, including, but not acquiring its Ownership Interest limited to, the receipt of distributions on the Class C Subsidiary Certificate or Class C Master Certificate, and shall be deemed to have no interest whatsoever in the Class R C Subsidiary Certificate that is the subject of the proposed Transfer as a nomineeor Class C Master Certificate. Each Class C Subsidiary or Class C Master Certificateholder, trustee or agent by his acceptance thereof, shall be deemed for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor all purposes to remain a Permitted Transferee, and that it has reviewed have consented to the provisions of this Section 5.02 and agrees 9.02(b)(3).
(4) Any transfer, sale or other disposition not in compliance with the provisions of this Section 9.02(b) shall be deemed to be bound by themvoid and of no legal force or effect whatsoever and such transferee shall be deemed to not be the Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions on such Certificate, and shall be deemed to have no interest whatsoever in such Certificate.
(II5) The Trustee shall give notice to Fitch and Xxxxx'x promptly following any transfer, sale or other disposition of a certificateClass B-3I, in Class C Subsidiary or Class C Master Certificate.
c. At the form attached hereto as Exhibit G-4option of a Certificateholder, from Certificates may be exchanged for other Certificates of authorized denominations of a like aggregate original denomination, upon surrender of such Certificates to be exchanged at such office. Whenever any Certificates are so surrendered for exchange, the Holder wishing Trustee shall execute and deliver the Certificates which the Certificateholder making the exchange is entitled to receive. Every Certificate presented or surrendered for transfer the Class R Certificateor exchange shall be duly endorsed by, or shall be accompanied by a written instrument of transfer in form and substance satisfactory to the Master Servicer Trustee and the Trustee representing and warrantingCertificate Registrar duly executed by the holder thereof or his or her attorney duly authorized in writing.
d. Except as provided in paragraph (e) below, among other things, that no purpose the Book-Entry Certificates shall at all times remain registered in the name of the proposed Transfer is Depository or its nominee and at all times: (i) registration of the Class A, Class M-1, Class M-2 and Class B Certificates may not be transferred by the Trustee except to impede another Depository; (ii) the assessment Depository shall maintain book- entry records with respect to the Certificate Owners and with respect to ownership and transfers of such Class A, Class M-1, Class M-2 and Class B Certificates; (iii) ownership and transfers of registration of the Class A, Class M-1, Class M-2 and Class B Certificates on the books of the Depository shall be governed by applicable rules established by the Depository; (iv) the Depository may collect its usual and customary fees, charges and expenses from its Depository Participants; (v) the Trustee shall deal with the Depository, Depository Participants and indirect participating firms as representatives of the Certificate Owners of the Class A, Class M and Class B for purposes of exercising the rights of Holders under this Agreement, and requests and directions for and votes of such representatives shall not be deemed to be inconsistent if they are made with respect to different Certificate Owners; and (vi) the Trustee may rely and shall be fully protected in relying upon information furnished by the Depository with respect to its Depository Participants and furnished by the Depository Participants with respect to indirect participating firms and persons shown on the books of such indirect participating firms as direct or collection indirect Certificate Owners. All transfers by Certificate Owners of taxBook-Entry Certificates shall be made in accordance with the procedures established by the Depository Participant or brokerage firm representing such Certificate Owner. Each Depository Participant shall only transfer Book-Entry Certificates of Certificate Owners it represents or of brokerage firms for which it acts as agent in accordance with the Depository's normal procedures.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree e. If (x) the Seller or the Depository advises the Trustee in writing that the Depository is no longer willing or able properly to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer discharge its Ownership Interest in a Class R Certificate responsibilities as Depository and (y) not the Trustee or the Originator is unable to transfer locate a qualified successor or (z) the Originator at its Ownership Interest unless sole option advises the Trustee in writing that it provides a certificate elects to terminate the book-entry system through the Depository, the Trustee shall notify all Certificate Owners, through the Depository, of the occurrence of any such event and of the availability of definitive, fully registered Class A Certificates, Class M Certificates and Class B Certificates (the "Definitive Certificates") to Certificate Owners requesting the same. Upon surrender to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R A Certificates, Class M-1 Certificates, Class M-2 Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization Class B Certificates by the Depository, accompanied by registration instructions from the Depository for registration, the Trustee shall become a holder of a Class R Certificate, then issue the last preceding Permitted Transferee Definitive Certificates. Neither the Originator nor the Trustee shall be restoredliable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of Definitive Certificates all references herein to obligations imposed upon or to be performed by the Depository shall be deemed to be imposed upon and performed by the Trustee, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action applicable with respect to such holder under Definitive Certificates and the provisions Trustee shall recognize the Holders of the Definitive Certificates as Certificateholders hereunder.
f. On or prior to the Closing Date, there shall be delivered to the Depository one Class A-1 Certificate, one Class A-2 Certificate, one Class A-3 Certificate, one A-4 Class Certificate, two Class A-5 Certificates, one Class M-1 Certificate, one Class M-2 Certificate, one Class B-1 Certificate and one Class B-2 Certificate, each in registered form registered in the name of the Depository's nominee, Cede & Co., the total face amount of which represents 100% of the related Original Principal Balance, respectively. If, however, the aggregate principal amount of a Class of Class A Certificates, Class M Certificates or Class B Certificates exceeds $200,000,000, one such Class A Certificate, Class M Certificate and/or Class B Certificate will be issued with respect to each $200,000,000 of principal amount and an additional Certificate of such Class or Classes will be issued with respect to any remaining principal amount. Each such Class A, Class M and Class B Certificate registered in the name of the Depository's nominee shall bear the following legend: "Unless this AgreementCertificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC") to Issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Conseco Finance Securitizations Corp)
Registration of Transfer and Exchange of Certificates. The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, (a) (See Section 5.02(a) of the Trustee shall provide for Standard Terms)
(b) (See Section 5.02(b) of the registration Standard Terms)
(c) (See Section 5.02(c) of Certificates and of transfers and exchanges of Certificates as herein provided. the Standard Terms)
(d) No transfer, sale, pledge or other disposition of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act")amended, and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B or Certificate, other than a Class R B Certificate that is registered in the name of the Depository, is to be made either (ii)(A) the Depositor may direct the Trustee to shall require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Company that such transfer shall may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Company or the Master ServicerServicer (except that, if such transfer is made by the Company or the Master Servicer or any Affiliate thereof, the Company or the Master Servicer shall provide such Opinion of Counsel at their own expense); provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor Company or any affiliate thereof, Affiliate thereof to a non-affiliate the Company or an Affiliate of the Depositor Company and (iiB) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 heretoH to the Standard Terms, and the Trustee shall require the transferor Transferor to execute a representation letter, substantially in the form of Exhibit G-2 heretoI to the Standard Terms, each acceptable to and in form and substance satisfactory to the Depositor Company and the Trustee certifying to the Depositor Company and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor Company or the Master Servicer. Any ; provided, however, that such Certificateholder representation letters will not be required in connection with any transfer of any such Certificate by the Company or any Affiliate thereof to the Company or an Affiliate of the Company, and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Company, of the status of such transferee as an Affiliate of the Company or (ii) the prospective transferee of such a Certificate shall be required to provide the Trustee, the Company and the Master Servicer with an investment letter substantially in the form of Exhibit J to the Standard Terms (or such other form as the Company in its sole discretion deems acceptable), which investment letter shall not be an expense of the Trustee, the Company or the Master Servicer, and which investment letter states that, among other things, such transferee (A) is a "qualified institutional buyer" as defined under Rule 144A, acting for its own account or the accounts of other "qualified institutional buyers" as defined under Rule 144A, and (B) is aware that the proposed transferor intends to rely on the exemption from registration requirements under the Securities Act of 1933, as amended, provided by Rule 144A. The Holder of any such Certificate desiring to effect any such transfer transfer, sale, pledge or other disposition shall, and does hereby agree to, indemnify the Trustee, the Depositor and Company, the Master Servicer and the Certificate Registrar against any liability that may result if the transfer transfer, sale, pledge or other disposition is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the transfer of If any Class B or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R B Certificate held by a Transferor and to be held by a Transferee as an interest in a Rule 144A Global Offered Certificate is disregarded pursuant to made without registration under the 1933 Act, the Transferor shall be deemed to have made each of the certifications set forth in Exhibit I to the provisions Standard Terms as of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted transfer date and the Transferee shall be restored, deemed to have made each of the certifications set forth in Exhibit J to the extent permitted by lawStandard Terms as of the transfer date, to all rights and obligations in each case as holder thereof retroactive to the date of registration of such Transfer of if such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R B Certificate that is were in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreementphysical form.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (RALI Series 2006-Qs18 Trust)
Registration of Transfer and Exchange of Certificates. (a) The Trustee Securities Administrator shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee Securities Administrator shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B R, Class RX, Class C or a Class R P Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "“Act"”), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B R, Class RX, Class C or Class R P Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to Securities Administrator shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Securities Administrator that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Securities Administrator, the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee Securities Administrator shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee Securities Administrator shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee Securities Administrator certifying to the Depositor and the Trustee Securities Administrator the facts surrounding such transfer, which representation letters shall not be an expense of the Securities Administrator, the Trustee, the Depositor or the Master Servicer; provided, however, that such representation letters will not be required in connection with any transfer of any such Certificate by the Depositor to an affiliate of the Depositor and the Securities Administrator shall be entitled to conclusively rely upon a representation (which, upon the request of the Securities Administrator, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Securities Administrator, the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Notwithstanding the requirements of Section 5.02(b), transfers of Class R, Class RX, Class C or Class P Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of a Certificate provides the Securities Administrator and the Depositor with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the Securities Administrator, the Trustee, the Depositor or the Master Servicer, and which investment letter states that, among other things, such transferee is a “qualified institutional buyer” as defined under Rule 144A, provided that, in the case of any Book-Entry Certificate, such transferee shall be deemed to have made such representations and warranties contained in such investment letter. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Securities Administrator, the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws The Trustee Securities Administrator shall require a written an Opinion of Counsel Counsel, on which the Securities Administrator, the Trustee, the Depositor and the Master Servicer may rely, from a prospective transferee prior to the transfer of any ERISA Restricted Certificate, Class B C, Class P or Class R Certificate RX Certificates to any employee benefit plan or other retirement arrangement, including an individual retirement accounts and account or Xxxxx plansplan, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA") ”), or Section 4975 of the Code (any of the foregoing, a "“Plan"”), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "“plan assets" ” of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "“plan assets"”). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar Securities Administrator that such disposition transfer is permissible under applicable law, will not violate the constitute or result in a prohibited transaction provisions of under Section 406 of ERISA and or Section 4975 of the Code, and will not subject the Securities Administrator, the Trustee, the Master Servicer or the Depositor to any obligation in addition to those undertaken in this Agreement. Neither None of the Depositor, the Master Servicer nor Servicer, the Securities Administrator or the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case A purchaser of any transfer of the foregoing an ERISA Restricted Certificate, Class C, Class P or Class RX Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject represent to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R CertificateSecurities Administrator, the Trustee shall require delivery to itTrustee, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, Depositor that it is not acquiring a Plan or using assets of a Plan if it does not provide such an Opinion of Counsel. For so long as either of the Cap Supplemental Interest Trust, which holds the Cap Agreement, or the Floor Supplemental Interest Trust, which holds the Floor Agreement, is in existence, each beneficial owner of a Class A-1 Certificate or any interest therein, shall be deemed to have represented, by virtue of its Ownership Interest in acquisition or holding of the Class R Certificate A-1 Certificate, or interest therein, that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who either (i) it is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and Plan or (IIii) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(CA) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" an accredited investor within the meaning of Temporary Treasury Regulations Section 1.67the Prohibited Transaction Exemption 2002-3T(a)(2)(i)(A41 and (B) immediately upon acquiring an Ownership the acquisition and holding of such Certificate and the separate right to receive payments from either the Cap Supplemental Interest in Trust or the Floor Supplemental Interest Trust are eligible for the exemptive relief available under Prohibited Transaction Class Exemption 91-38, 96-23, 90-1, 84-14 or 95-60. Each beneficial owner of a Class R CertificateA Certificate (except in the case of the Class A-1 Certificates) or Class M Certificate or any interest therein shall be deemed to have represented, if by virtue of its acquisition or holding of that Certificate or interest therein, that either (i) it is "not a pass-through interest holder", Plan or is holding an Ownership Interest in a Class R Certificate trustee or other Person acting on behalf of a "pass-through interest holder."
Plan or using “plan assets” of a Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute “plan assets”) or (ii) The Trustee will register (1) it is an insurance company, (2) the Transfer source of any Class R funds used to acquire or hold the Certificate only if it shall have received the Transfer Affidavit or interest therein is an “insurance company general account,” as such term is defined in PTCE 95-60, and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii3) (a) if prior to the termination of the Cap Supplemental Interest Trust and the Floor Supplemental Interest Trust, such acquisition or holding is eligible for exemptive relief under PTCE 95-60 and (b) after termination of the Cap Supplemental Interest Trust and the Floor Supplemental Interest Trust, the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Disqualified Organization shall become a holder Certificate, or any interest therein, is acquired or held in violation of this section 5.02(c), the next preceding permitted beneficial owner will be treated as the beneficial owner of that Certificate, retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of a Class R Certificate, then the last preceding Permitted Transferee or interest therein, was effected in violation of this section shall be restored, indemnify to the extent permitted by lawlaw and hold harmless the Depositor, to the Sponsor, the Master Servicer, any servicer, any Underwriter and the Trustee from and against any and all rights and obligations liabilities, claims, costs or expenses incurred by such parties as holder thereof retroactive to the date of registration a result of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 acquisition or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreementholding.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (American Home Mortgage Assets Trust 2007-1)
Registration of Transfer and Exchange of Certificates. (a) The Delaware Trustee shall maintain keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee Registrar shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided.
(b) The Certificates have not been and will not be registered under the Securities Act and will not be listed on any exchange. No transfer, sale, pledge or other disposition transfer of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition transfer is exempt from the made pursuant to an effective registration requirements of statement under the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said exempt from the registration requirements under the Securities Act and such state securities laws. In the event that a transfer of a Class B or Class R Certificate is to be made in reliance upon an exemption from the Securities Act and state securities laws, in order to assure compliance with the Securities Act and such laws, the Certificateholder desiring to effect such transfer and such Certificateholder's prospective transferee shall each certify to the Trust, the Delaware Trustee, the Administrator and the transferring Certificateholder in writing the facts surrounding the transfer in substantially the forms set forth in Exhibit D (ithe Transferor Letter) and Exhibit E (the Depositor may direct Investment Letter) or Exhibit F (the Trustee "Rule 144A Letter"), as applicable. Except in the case of a transfer as to require which the proposed transferee has provided a written Rule 144A Letter with respect to a Rule 144A transaction, there shall also be delivered to the Trust an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor effect that such transfer shall may be made pursuant to an exemption, describing exemption from the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and lawsSecurities Act, which Opinion of Counsel shall not be an expense of the TrusteeTrust, the Depositor Delaware Trustee (unless it is the transferee from whom such opinion is to be obtained) or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute Administrator. Each Certificateholder of a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer. Any such Certificateholder Certificate desiring to effect such a transfer shall, and does hereby agree to, indemnify the TrusteeTrust, the Depositor Delaware Trustee and the Master Servicer Administrator against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state securities laws. The Trustee .
(c) No transfer, sale, pledge or other disposition of the Certificate shall require a written Opinion of Counsel from a prospective transferee be made unless prior to such transfer, sale, pledge or other disposition, the transfer Trust shall have received either (i) a representation letter from the transferee of any Class B or Class R Certificate such Certificate, acceptable to any and in form and substance satisfactory to the Trust, to the effect that such a transferee is not an employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of ERISA or Section 4975 of the Employee Retirement Income Security Act Code, or a person acting on behalf of 1974, as amended any such plan or ("ERISA"ii) in the case of any Certificate presented for registration in the name of an employee benefit plan subject to ERISA or Section 4975 of the Code (or comparable provisions of any of the foregoing, a "Plan"subsequent enactments), to or a trustee of any such plan or any other Person person acting on behalf of any Plansuch plan, an Opinion of Counsel satisfactory to the Trust, the Delaware Trustee and the Administrator to the effect that the purchase or holding of such Certificate will not result in the Trust or the Trust Estate being deemed to any other person who is using be "plan assets" of any Plan and subject to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 the Code and will not subject the Trust, Delaware Trustee, the Administrator or the transferring Certificateholder to any obligation in addition to those undertaken in this Trust Agreement. Notwithstanding anything else to the contrary herein, in the event any purported transfer of any Certificate is made without delivery of the Coderepresentation letter referred to above, such representation shall be deemed to have been made by the transferee by its acceptance of such Certificate. Neither In addition, any purported transfer of a Certificate to or on behalf of an employee benefit plan subject to ERISA or to the DepositorCode without the delivery to the Trust, the Master Servicer nor Delaware Trustee, and the Trustee will be required to obtain such Administrator of an Opinion of Counsel on behalf as described above shall be void and of any prospective transfereeno effect. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Any certificate or Opinion of CounselCounsel furnished pursuant to this Section 3.04 may be relied on conclusively by the Trust, Delaware Trustee, the Trustee Administrator and the transferring Certificateholder in determining whether the provisions hereof have been complied with.
(d) No transfer shall require a certification in the form be effective if immediately after such transfer there would be more than one hundred Beneficial Owners of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above)Certificates. The permission of any Any purported transfer in violation of the restriction on provisions of this Section 3.04(d) shall be VOID AB INITIO and the Delaware Trustee shall have no liability in connection with a transfer set forth in violation of the provisions of this Section 3.04(d).
(e) The foregoing provisions shall not prevent the assignment by a Certificateholder of all or any part of its right to receive distributions in respect of its interest in its Certificate, but such assignment shall effect no change in ownership of the Trust.
(f) The preparation and delivery of the certificate and opinions referred to in this paragraph Section 3.04 shall not constitute be an expense of the Trust, the Delaware Trustee or the Administrator.
(g) Upon surrender for registration of transfer of any Certificate at the office or agency maintained pursuant to Section 3.08, the Delaware Trustee shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations stating the aggregate amount and Percentage Interest so transferred dated the date of authentication by the Delaware Trustee. At the option of a default Certificateholder, Certificates may be exchanged for other Certificates of authorized Percentage Interests and denominations of a like aggregate amount upon surrender of the Certificates to be exchanged at the office or an Event agency maintained pursuant to Section 3.08.
(h) Every Certificate presented or surrendered for registration of Defaulttransfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Trust and duly executed by the Certificateholder or such Certificateholder's attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Trust in accordance with its customary practice.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate No service charge shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of made for any mandatory sale under clause (iii)(B) below and to execute all instruments registration of transfer and or exchange of Certificates, but the Trust or the Delaware Trustee may require payment of a sum sufficient to do all other things necessary cover any tax or governmental charge that may be imposed in connection with any such sale. The rights transfer or exchange of each Person acquiring Certificates.
(j) Notwithstanding any Ownership Interest other provision herein or elsewhere, the Trust, the Delaware Trustee and the Administrator (i) shall not have any obligation to determine whether any transfer or exchange of a Certificate is permitted under or in a Class R Certificate are expressly subject accordance with this Trust Agreement; (ii) shall not have any personal liability to any person in connection with any transfer or exchange or proposed or purported transfer or exchange (and/or registration thereof) that is not permitted under or in accordance with this Trust Agreement; (iii) shall be entitled to rely (and shall be fully justified and protected in so relying) on the Register as to the following provisions:identity of the Certificateholders and as to the Certificates and the Percentage Interests and denominations thereof evidenced thereby.
(Ak) Each Person holding Notwithstanding anything contained herein to the contrary, the Delaware Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or acquiring any Ownership Interest in exemptions from the Securities Act of 1933, as amended, the Securities Act of 1934, as amended, applicable state securities law or the Investment Company Act; provided, however, that if a Class R Certificate certificate is specifically -------- ------- required to be delivered to the Delaware Trustee by a purchaser or transferee of a Certificate, the Delaware Trustee shall be under a Permitted Transferee duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transfereeparty delivering the same if such certificate does not so conform.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 1 contract
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B P, Class C or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "“Act"”), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B P, Class C or Class R Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer; provided, however, that such representation letters will not be required in connection with any transfer of any such Certificate by the Depositor to an affiliate of the Depositor and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Notwithstanding the requirements of Section 5.02(b), transfers of Class P-R, Class P-M, Class C-R, Class C-M and Class R Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of a Certificate provides the Trustee and the Depositor with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the Trustee, the Depositor or the Master Servicer, and which investment letter states that, among other things, such transferee is a “qualified institutional buyer” as defined under Rule 144A. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof; provided, however, that no Transfer of any of the Class P-R, Class P-M, Class C-R, Class C-M and Class R Certificates may be made pursuant to this Section 5.02(c) by the Depositor. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written an Opinion of Counsel Counsel, on which the Trustee, Depositor and Master Servicer may rely, from a prospective transferee prior to the transfer of any Class B or P-R, Class P-M, Class C-R, Class C-M and Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”) or Section 4975 of the Code (any of the foregoing, a "“Plan"”), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "“plan assets" ” of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "“plan assets"”). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition transfer is permissible under applicable law, will not violate the constitute or result in a prohibited transaction provisions of under Section 406 of ERISA and Section 4975 of the Code, and will not subject the Trustee, the Master Servicer or the Depositor to any obligation in addition to those undertaken in this Agreement. Neither the Depositor, the Master Servicer nor the Trustee Trustee, will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In Prior to the case of any transfer termination of the foregoing Certificates Supplemental Interest Trust, each beneficial owner of an Offered Certificate or any interest therein, shall be deemed to have represented, by virtue of its acquisition or holding of the Offered Certificate, or interest therein, that either (i) it is not a Plan or (ii) (A) it is an accredited investor within the meaning of Prohibited Transaction Exemption 2002-41 (the “Exemption”) and (B) the acquisition and holding of such Certificate and the separate right to receive payments from the Supplemental Interest Trust are eligible for the exemptive relief available under one of Prohibited Transaction Class Exemption (“PTCE”) 84-14, 91-38, 95-60, 90-1 or 96-23. Each beneficial owner of a Subordinate Certificate or any interest therein which is acquired subsequent to the termination of the Supplemental Interest Trust shall be deemed to have represented, by virtue of its acquisition or holding of that Certificate or interest therein, that either (i) it is not a Plan or a trustee or other Person acting on behalf of a Plan or using “plan assets” of a Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute “plan assets”), (ii) it has acquired and is holding such Certificate in reliance on the Exemption, and that it understands that there are certain conditions to the availability of the Exemption, including that the Certificate must be rated, at the time of purchase, not lower than “BBB-” (or its equivalent) by S&P, Fitch Ratings, Inc. or Xxxxx’x, and the Certificate is so rated or (iii) (1) it is an insurance company, in lieu (2) the source of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by to acquire or hold the Certificate or interest therein is an “insurance company general account,” as such transferee to purchase such Certificates will be funds held by it term is defined in its general account which it reasonably believes do not constitute "plan assets" PTCE 95-60, and (3) the conditions in Sections I and III of any Plan PTCE 95-60 have been satisfied.
(as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.d) [Reserved]
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer Transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer Transfer of any Class R Certificate until its receipt receipt, of (I) an affidavit and agreement (a "“Transfer Affidavit and Agreement" ” in the form attached hereto as Exhibit G-3G-5) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of taxtax and that it has no knowledge that the proposed transferee is not a Permitted Transferee.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- “pass-through interest holder" ” within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "“a pass-through interest holder"”, or is holding an Ownership Interest in a Class R Certificate on behalf of a "“pass-through interest holder."”
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3G-5, a certificate of the holder Holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates other than to Non-United States Persons and Disqualified Organizations Permitted Transferees are prohibited.
(iii) (aA) if If any Disqualified Organization Person other than a Permitted Transferee shall become a holder Holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-31.860G-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer transfer of such Class R Certificate. The prior Holder shall be entitled to recover from any purported Holder of a Class R Certificate that was in fact not a Permitted Transferee under this Section 5.05(b) at the time it became a Holder all payments made on such Class R Certificate. Each Holder of a Class R Certificate, by acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this clause (b) and to any amendment of this Agreement deemed necessary (whether as a result of new legislation or otherwise) by counsel of the Depositor to ensure that the Class R Certificates are not transferred to any Person who is not a Permitted Transferee and that any transfer of such Class R Certificates will not cause the imposition of a tax upon the Trust or cause any such REMIC to fail to qualify as a REMIC. Neither the Trustee nor the Trustee shall be under no any liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder Holder thereof or for taking any other action with respect to such holder Holder under the provisions of this Agreement.
Appears in 1 contract
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain cause to be kept at its Corporate Trust Office, or at the office of its designated agent, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No transfer.
(b) Subject to Section 4.02(c), saleupon surrender for registration of transfer of any Certificate at any office or agency of the Trustee maintained for such purpose, pledge the Company shall execute and the Trustee shall authenticate and deliver, in the name of the designated transferee or other disposition transferees, a Certificate or Certificates of a like Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from and aggregate denomination and dated the registration requirements date of authentication by the Securities Act of 1933, as amended Trustee.
(the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a c) No transfer of a Class B or Class R Certificate shall be made unless such transfer is made pursuant to an effective registration statement or in accordance with an exemption from the requirements under the Securities Act of 1933, as amended. If such a transfer is to be made in reliance upon an exemption from said Act, (i) the Depositor may direct Trustee shall, if not otherwise directed by the Trustee to Company, require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Company that such transfer shall may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and lawsAct, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Company or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation lettercer- tification, substantially in the form of Exhibit G-1 L hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor Company and the Trustee certifying to the Depositor and the Trustee setting forth the facts surrounding such transfer; provided that such Opinion of Counsel shall not be required in the case of transfers by or to Xxxxxxx Lynch, which representation letters Pierce, Xxxxxx & Xxxxx Incorporated or an affiliate thereof. Such Opinion of Counsel and certification shall not be an expense of the Trustee, the Depositor Company or the Master Servicer. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the The Trustee, the Depositor Master Servicer and the Master Servicer against Company may, without the consent of any liability Certificateholder, add provisions (which shall include a form of certificate to be attached hereto as an exhibit that may result if must be delivered by the transfer is proposed transferee) to this Section 4.02(c) to permit transfers pursuant to Rule 144A of the Securities and Exchange Commission, in which case transfers pursuant to such provisions shall not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written an Opinion of Counsel from a prospective transferee prior to the Counsel.
(d) No transfer (exclusive of any transfer to a Depository or a securitization trustee) of a Class B or Class R Certificate shall be made unless the Trustee shall have received either (i) a representation letter (substantially in the form attached hereto as Exhibit N) from the transferee of such Certificate, acceptable to any and in form and substance satisfactory to the Trustee and the Company, to the effect that such transferee is not an employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") ERISA or Section 4975 of the Code (any of the foregoingCode, nor a "Plan"), to a trustee or other Person person acting on behalf of any Plan, such plan or to any other person who is using "acquiring such Certificate with funds of such a plan assets" of any Plan to effect such acquisition (including without limitation any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such , which representation letter shall not be an expense of the Trustee, the Company or the Master Servicer, or (ii) in the case of any such Certificate presented for registration in the name of an employee benefit plan subject to ERISA or Section 4975 of the Code (or comparable provisions of any subsequent enactments), or a trustee of any such plan, an Opinion of Counsel must establish satisfactory to the satisfaction Trustee and the Company to the effect that the purchase or holding of such Certificate will not result in the assets of the Depositor Trust Fund being deemed to be "plan assets" and the Trustee or the Certificate Registrar that such disposition will not violate subject to the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither Code and will not subject the DepositorTrustee, the Company or the Master Servicer nor to any obligation in addition to those undertaken in this Agreement or cause the Trustee will Trustee, the Company or the Master Servicer to be required to obtain a fiduciary of such Plan, which Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer shall not be an expense of the foregoing Trustee, the Company or the Master Servicer.
(e) At the option of the Certificateholder, a Certificate may be exchanged for another Certificate or Certificates of authorized denominations of a like Class and Percentage Interest, upon surrender of the Certificate to an insurance companybe exchanged at any office or agency of the Trustee maintained for such purpose. Whenever a Certificate is so surrendered for exchange, in lieu of such Opinion of Counsel, the Company shall execute and the Trustee shall require authenticate and deliver, the Certificate which the Certificateholder making the exchange is entitled to receive. Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Trustee) be duly endorsed by, or be accompanied by a certification written instrument of transfer in the form of Exhibit G-5 hereto substantially satisfactory to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it Trustee duly executed by, the Holder thereof or his attorney duly authorized in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Defaultwriting.
(if) Each Person who has or who acquires any Ownership Interest in a Class R Certificate No service charge shall be deemed made to the Holder for any transfer or exchange of the Certificate, but the Trustee may require payment by the acceptance Certificateholders of a sum sufficient to cover any tax or acquisition of such Ownership Interest to have agreed to governmental charge that may be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary imposed in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding transfer or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject exchange of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (MLCC Mortgage Investors Inc)
Registration of Transfer and Exchange of Certificates. (a) The Trustee Securities Administrator shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee Securities Administrator shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B C-B-4, Class C-B-5, Class C-B-6, Class 3-X or a Class R Residual Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "“Act"”), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B C-B-4, Class C-B-5, Class C-B-6, Class 3-X or Class R Residual Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to Securities Administrator shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Securities Administrator that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Securities Administrator, the Trustee, the Depositor Company or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor Company or any affiliate thereof, to a non-affiliate of the Depositor Company and (ii) the Trustee Securities Administrator shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee Securities Administrator shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee Securities Administrator certifying to the Depositor Company and the Trustee Securities Administrator the facts surrounding such transfer, which representation letters shall not be an expense of the Securities Administrator, the Trustee, the Depositor Company or the Master Servicer; provided, however, that such representation letters will not be required in connection with any transfer of any such Certificate by the Company to an affiliate of the Company and the Securities Administrator shall be entitled to conclusively rely upon a representation (which, upon the request of the Securities Administrator, shall be a written representation) from the Company of the status of such transferee as an affiliate of the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Securities Administrator, the Trustee, the Depositor Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Notwithstanding the requirements of Section 5.02(b), transfers of Class C-B-4, Class C-B-5, Class C-B-6, Class 3-X and Residual Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of a Certificate provides the Securities Administrator and the Company with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the Securities Administrator, the Trustee, the Company or the Master Servicer, and which investment letter states that, among other things, such transferee is a “qualified institutional buyer” as defined under Rule 144A, provided that, in the case of any Book-Entry Certificate, such transferee shall be deemed to have made such representations and warranties contained in such investment letter. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof; provided, however, that no Transfer of any of the Class 3-X Certificates or Residual Certificates may be made pursuant to this Section 5.02(c) by the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Securities Administrator, the Trustee, the Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee Securities Administrator shall require a written an Opinion of Counsel Counsel, on which the Securities Administrator, the Trustee, the Company and the Master Servicer may rely, from a prospective transferee prior to the transfer of any Class B or Class R ERISA Restricted Certificate to any employee benefit plan or other retirement arrangement, including an individual retirement accounts and account or Xxxxx plansplan, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA") ”), or Section 4975 of the Code (any of the foregoing, a "“Plan"”), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "“plan assets" ” of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "“plan assets"”). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar Securities Administrator that such disposition transfer is permissible under applicable law, will not violate the constitute or result in a prohibited transaction provisions of under Section 406 of ERISA and or Section 4975 of the Code. Neither , and will not subject the DepositorSecurities Administrator, the Trustee, the Master Servicer nor or the Company to any obligation in addition to those undertaken in this Agreement. None of the Company, the Master Servicer, the Securities Administrator or the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In A purchaser of an ERISA Restricted Certificate shall be deemed to represent to the Securities Administrator, the Trustee, the Master Servicer and the Company that it is not a Plan or using assets of a Plan if it does not provide such an Opinion of Counsel, unless, in the case of any transfer of a Class C-B-4, Class C-B-5, Class C-B-6 or Class 3-X Certificate, the foregoing Certificates to purchaser provides the Securities Administrator a representation that it is an insurance company, in lieu the source of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used to acquire or hold the Certificate or interest therein is an “insurance company general account,” as such term is defined in Prohibited Transaction Class Exemption (“PTCE”) 95-60, and the conditions in sections I and III of PTCE 95-60 have been satisfied. Each beneficial owner of a Class 3-M, Class C-B-1, Class C-B-2 or Class C-B-3 Certificate or any interest therein shall be deemed to have represented, by virtue of its acquisition or holding of that Certificate or interest therein, that either (i) it is not a Plan or a trustee or other Person acting on behalf of a Plan or using “plan assets” of a Plan to effect such transferee to purchase such Certificates will be acquisition (including any insurance company using funds held by it in its general account which it reasonably believes do not or separate accounts that may constitute "“plan assets" ”), (ii) it has acquired and is holding such Certificate in reliance on the Exemption, and that it understands that there are certain conditions to the availability of the Exemption, including that the Certificate must be rated, at the time of purchase, not lower than “BBB-”(or its equivalent) by S&P, Fitch Ratings or Xxxxx’x, and the Certificate is so rated or (iii) (1) it is an insurance company, (2) the source of funds used to acquire or hold the Certificate or interest therein is an “insurance company general account,” as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Plan (as defined above). The permission of Certificate, or any transfer interest therein, is acquired or held in violation of this section 5.02(c), the restriction on next preceding permitted beneficial owner will be treated as the beneficial owner of that Certificate, retroactive to the date of transfer set forth to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of a Certificate, or interest therein, was effected in violation of this paragraph section shall not constitute indemnify to the extent permitted by law and hold harmless the Company, the Seller, the Master Servicer, any servicer, any Underwriter and the Trustee from and against any and all liabilities, claims, costs or expenses incurred by such parties as a default result of such acquisition or an Event of Defaultholding.
(d) [Reserved]
(i) Each Person who has or who acquires any Ownership Interest in a Class R Residual Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee Securities Administrator or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Residual Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Residual Certificate shall be a Permitted Transferee and shall promptly notify the Trustee Securities Administrator of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer Transfer of any Ownership Interest in a Class R Residual Certificate, the Trustee Securities Administrator shall require delivery to it, and shall not register the transfer Transfer of any Class R Residual Certificate until its receipt of (I) an affidavit and agreement (a "“Transfer Affidavit and Agreement" ” in the form attached hereto as Exhibit G-3G-5) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee Securities Administrator representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Residual Certificate, in form and substance satisfactory to the Master Servicer and the Trustee Securities Administrator representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee Securities Administrator assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee Securities Administrator in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Residual Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee Securities Administrator written notice that it is a "pass- “pass-through interest holder" ” within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Residual Certificate, if it is "“a pass-through interest holder"”, or is holding an Ownership Interest in a Class R Residual Certificate on behalf of a "“pass-through interest holder."”
(ii) The Trustee Securities Administrator will register the Transfer of any Class R Residual Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3G-5, a certificate of the holder Holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee Securities Administrator as a condition to such registration. Transfers of the Class R Residual Certificates other than to Non-United States Persons and Disqualified Organizations Permitted Transferees are prohibited.
(iii) (aA) if If any Disqualified Organization Person other than a Permitted Transferee shall become a holder Holder of a Class R Residual Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Residual Certificate. If a Non-United States Person shall become a holder Holder of a Class R Residual Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Residual Certificate. If a transfer of a Residual Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.860G-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as Holder thereof retroactive to the date of registration of such transfer of such Residual Certificate. The Trustee prior Holder shall be entitled to recover from any purported Holder of a Residual Certificate that was in fact not a Permitted Transferee under this Section 5.05(b) at the time it became a Holder all payments made on such Residual Certificate. Each Holder of a Residual Certificate, by acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this clause (b) and to any amendment of this Agreement deemed necessary (whether as a result of new legislation or otherwise) by counsel of the Company to ensure that the Residual Certificates are not transferred to any Person who is not a Permitted Transferee and that any transfer of such Residual Certificates will not cause the imposition of a tax upon the Trust or cause any such REMIC to fail to qualify as a REMIC. The Securities Administrator shall be under no liability to any Person for any registration of Transfer of a Class R Residual Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder Holder thereof or for taking any other action with respect to such holder Holder under the provisions of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (American Home Mortgage Assets Trust 2005-1)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B or a P, Class C, Class R or Class R-X Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B P, Class C, Class R or Class R R-X Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Company or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor Company or any affiliate thereof, to a non-affiliate of the Depositor Company and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor Company and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor Company or the Master Servicer; PROVIDED, HOWEVER, that such representation letters will not be required in connection with any transfer of any such Certificate by the Company to an affiliate of the Company and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Company of the status of such transferee as an affiliate of the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Notwithstanding the requirements of Section 5.02(b), transfers of Class P, Class C, Class R and Class R-X Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of a Certificate provides the Trustee and the Company with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the Trustee, the Company or the Master Servicer, and which investment letter states that, among other things, such transferee is a "qualified institutional buyer" as defined under Rule 144A. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof; PROVIDED, HOWEVER, that no Transfer of any of the Class P, Class C, Class R or Class R-X Certificates may be made pursuant to this Section 5.02(c) by the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written an Opinion of Counsel Counsel, on which the Trustee, Company and Master Servicer may rely, from a prospective transferee prior to the transfer of any Class B P, Class C, Class R or Class R R-X Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the 100 Trustee or the Certificate Registrar that such disposition transfer is permissible under applicable law, will not violate the constitute or result in a prohibited transaction provisions of under Section 406 of ERISA and Section 4975 of the Code, and will not subject the Trustee, the Master Servicer or the Company to any obligation in addition to those undertaken in this Agreement. Neither the DepositorCompany, the Master Servicer nor the Trustee Trustee, will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case Each beneficial owner of a Mezzanine Certificate or any transfer interest therein shall be deemed to have represented, by virtue of the foregoing Certificates to an insurance companyits acquisition or holding of that certificate or interest therein, in lieu that either (i) it is not a Plan or a trustee or other Person acting on behalf of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute Plan or using "plan assets" of a Plan to effect such acquisition (including any Plan insurance company using funds in its general or separate accounts that may constitute "plan assets"), (as defined aboveii) it has acquired and is holding such certificate in reliance on Prohibited Transaction Exemption 2002-41 (the "Exemption"). The permission of any transfer in violation , and that it understands that there are certain conditions to the availability of the restriction on transfer set forth Exemption, including that the certificate must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by S&P, Fitch Ratings, Inc. or Xxxxx'x, and the certificate is so rated or (iii) (1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in this paragraph shall not constitute a default or an Event Prohibited Transaction Class Exemption ("PTCE") 95-60, and (3) the conditions in Sections I and III of DefaultPTCE 95-60 have been satisfied.
(d) [Reserved]
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate or Class R-X shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate or Class R-X Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate or Class R-X Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer Transfer of any Ownership Interest in a Class R Certificate or Class R-X Certificate, the Trustee shall require delivery to it, and shall not register the transfer Transfer of any Class R Certificate or Class R-X Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3G-5) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate or Class R-X Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate or Class R-X Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the 101 Class R Certificate or Class R-X Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate or Class R-X Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate or Class R-X Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate or Class R-X Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate or Class R-X Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- pass-through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate or Class R-X Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate or Class R-X Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate or Class R-X Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3G-5, a certificate of the holder Holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates or Class R-X Certificates other than to Non-United States Persons and Disqualified Organizations Permitted Transferees are prohibited.
(iii) (aA) if If any Disqualified Organization Person other than a Permitted Transferee shall become a holder Holder of a Class R Certificate or Class R-X Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate or Class R-X Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer Holder of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3Class R-X Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate or Class R-X Certificate. If a transfer of a Class R Certificate or Class R-X Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.860G-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as Holder thereof retroactive to the date of registration of such transfer of such Class R Certificate or Class R-X Certificate. The prior Holder shall be entitled to recover from any purported Holder of a Class R Certificate or Class R-X Certificate that was in fact not a Permitted Transferee under this Section 5.05(b) at the time it became a Holder all payments made on such Class R Certificate or Class R-X Certificate. Each Holder of a Class R Certificate or Class R-X 102 Certificate, by acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this clause (b) and to any amendment of this Agreement deemed necessary (whether as a result of new legislation or otherwise) by counsel of the Company to ensure that the Class R Certificates or Class R-X Certificates are not transferred to any Person who is not a Permitted Transferee and that any transfer of such Class R Certificates or Class R-X Certificates will not cause the imposition of a tax upon the Trust or cause any such REMIC to fail to qualify as a REMIC. Neither the Trustee nor the Trustee shall be under no any liability to any Person for any registration of Transfer of a Class R Certificate or Class R-X Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder Holder thereof or for taking any other action with respect to such holder Holder under the provisions of this Agreement.
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Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain cause to be kept at its office or agency in Chicago, Illinois, or at its designated agent, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee it shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No The Certificate Register shall contain the name, remittance instructions, Class and Percentage Interest of each Certificateholder, as well as the Series and the number in the Series.
(b) Except as provided in Section 4.02(c), no transfer, sale, pledge or other disposition of a Class B X or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B X or Class R Certificate is to be made (i) under this Section 4.02(b), the Depositor Depositors may direct the Trustee to require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Depositors that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Depositors or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor Servicer and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 M-2 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 M-3 hereto, each acceptable to and in form and substance satisfactory to the Depositor Depositors and the Trustee certifying to the Depositor Depositors and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor Depositors or the Master Servicer, provided that such representation letter will not be required in connection with any transfer of any such Certificate by the Depositors to an affiliate of the Depositors. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor Depositors, the Certificate Insurer and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion .
(c) Transfers of Counsel from a Class X and Class R Certificates may be made in accordance with this Section 4.02(c) if the prospective transferee prior to the transfer of any Class B or Class R a Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and provides the Trustee or and -58- 70 the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to Depositors with an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification investment letter substantially in the form of Exhibit G-5 hereto substantially to M-4 attached hereto, which investment letter shall not be an expense of the effect that all funds used by Trustee, the Depositors or the Servicer, and which investment letter states that, among other things, such transferee is a "qualified institutional buyer" as defined under Rule 144A. Such transfers shall be deemed to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" have complied with the requirements of Section 4.02(b) hereof; provided, however, that no Transfer of any Plan (as defined above). The permission of any transfer in violation of the restriction on Certificates may be made pursuant to this Section 4.02(c) by the Depositors. Any such Certificateholder desiring to effect such transfer set forth shall, and does hereby agree to, indemnify the Trustee, the Depositors and the Servicer against any liability that may result if the transfer is not so exempt or is not made in this paragraph shall not constitute a default or an Event of Defaultaccordance with such applicable federal and state laws.
(id) Each Person who has or who acquires any Ownership Interest in a Class R Residual Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The , and the rights of each Person acquiring any Ownership Interest in a Class R Residual Certificate are expressly subject to the following provisions:
(A1) Each Person holding or acquiring any Ownership Interest in a Class R Residual Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B2) In connection with any proposed transfer Transfer of any Ownership Interest in a Class R Residual Certificate, the Trustee shall require delivery to it, and shall not register the transfer Transfer of any Class R such Residual Certificate until its receipt of (I) of, an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form ") attached hereto as Exhibit G-3) M-1 from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee Trustee, representing and warranting, among other things, that it such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R such Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R such Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 4.02(d) and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C3) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B2) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Residual Certificate to such proposed Transferee shall be effected.
(D4) Each Person holding or acquiring any Ownership Interest in a Class R Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R such Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form (attached hereto as Exhibit G-4J) to the Trustee stating that, among other things, it has no actual knowledge that such other Person is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii5) The Trustee will register the Transfer of any Class R Residual Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. In addition, no Transfer of a Residual Certificate shall be made unless the Trustee shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is not a Disqualified Non-United States Person and is not a Disqualified Organization or an agent of either. Transfers of the Class R Residual Certificates to Disqualified Non-United States Persons and Disqualified Organizations or their agents are prohibited.
(iii6) (a) if Any attempted or purported transfer of any Disqualified Organization Ownership Interest in a Residual Certificate in violation of the provisions of this Section 4.02 shall be absolutely null and void and shall vest no rights in the purported transferee. If any purported transferee shall become a holder Holder of a Class R CertificateResidual Certificate in violation of the provisions of this Section 4.02, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, restored to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer transfer of such Class R Residual Certificate. If The Trustee shall notify the Depositors upon receipt of written notice or discovery by a Non-United States Person shall become a holder of a Class R Certificate, then Responsible Officer that the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Residual Certificate is disregarded pursuant was not in fact permitted by this Section 4.02. Knowledge shall not be imputed to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then Trustee with respect to an impermissible transfer in the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration absence of such Transfer of such Class R Certificatea written notice or discovery by a Responsible Officer. The Trustee shall be under no liability to any Person for any registration of Transfer transfer of a Class R Residual Certificate that is in fact not permitted by this Section 5.02 4.02 or for making any payments due on such Certificate to the holder Holder thereof or for taking any other action with respect to such holder Holder under the provisions of this Agreement so long as the transfer was registered after receipt of the related Transfer Affidavit and Transfer Certificate. The Trustee shall be entitled, but not obligated to recover from any Holder of a Residual Certificate that was in fact not a Permitted Transferee at the time it became a Holder or, at such subsequent time as it became other than a Permitted Transferee, all payments made on such Residual Certificate at and after either such time. Any such payments so recovered by the Trustee shall be paid and delivered by the Trustee to the last preceding Holder of such Certificate.
(e) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions, all information necessary to compute any tax imposed as a result of the transfer of an ownership interest in a Residual Certificate to any Person who is a Disqualified Organization or an agent thereof, including the information regarding "excess inclusions" of such Residual Certificates required to be provided to the Internal Revenue Service and certain Persons as described in Treasury Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5). The Trustee may charge and shall be entitled to reasonable compensation for providing such information as may be required from those Persons which may have had a tax imposed upon them as specified in this paragraph for providing such information.
(f) No transfer of a Class X or Class R Certificate or any interest therein shall be made to any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keogx xxxns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or the Code (each, an "ERISA Plan"), unless the prospective transferee of such Certificate provides the Servicer and the Trustee with a certification of facts and, at the prospective transferee's expense, an Opinion of Counsel which establish to the satisfaction of the Servicer and the Trustee that such transfer will not result in a violation of Section 406 of ERISA or Section 4975 of the Code or cause the Servicer or the Trustee to be deemed a fiduciary of such ERISA Plan or result in the imposition of an excise tax under Section 4975 of the Code. In the absence of their having received the certification of facts or Opinion of Counsel contemplated by the preceding sentence, the Trustee and the Servicer shall require the prospective transferee of any Class X or Class R Certificate to certify in the form of Exhibit M-2 or Exhibit M-4 that (A) it is neither (i) an ERISA Plan nor (ii) a Person who is directly or indirectly purchasing such Certificate on behalf of, as named fiduciary of, as trustee of, or with assets, of an ERISA Plan or (B) in the case of the Class X Certificates, if the prospective transferee is an insurance company, all funds used by such transferee to purchase such Certificates will be funds held by it in an "insurance company general account" (as such term is defined in Section V(e) of Prohibited Transaction Class Exemption 95- 60 ("PTE 95-60"), 60 Fed. Reg. 35925 (July 12, 1995) and there is no ERISA Plan with respect to which the amount of such general account's reserves and liabilities for the contract(s) held by or on behalf of such ERISA Plan and all other ERISA Plans maintained by the same employer (or affiliate thereof as defined in Section V(a)(1) of PTE 95-60) or by the same employee organization exceeds 10% of the total of all reserves and liabilities of such general account (as such amounts are determined under Section I(a) of PTE 95-60) at the date of acquisition.
(g) Subject to the restrictions set forth in this Agreement, upon surrender for registration of transfer of any Certificate at the office or agency of the Trustee located in [New York, New York or Chicago Illinois], the Trustee shall execute, authenticate and deliver in the name of the designated transferee or transferees, a new Certificate of the same Class and Percentage Interest and dated the date of authentication by the Trustee. The Trustee shall notify the Servicer of any such transfer. At the option of the Certificateholders, Certificates may be exchanged for other Certificates of Authorized Denominations of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at such office. Whenever any Certificates are so surrendered for exchange, the Trustee shall execute, authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive. No service charge shall be made for any transfer or exchange of Certificates, but the Trustee 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. All Certificates surrendered for transfer and exchange shall be canceled by the Trustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Eqcc Receivables Corp)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B P Certificate, a Class SB Certificate or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B P Certificate, a Class SB Certificate or a Class R Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer; provided however that such representation letters will not be required in connection with any transfer of any such Certificate by the Depositor to an affiliate of the Depositor, and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Transfers of Class P Certificates, Class SB Certificates or Class R Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of such a Certificate provides the Trustee and the Depositor with an investment letter substantially in the form of Exhibit H attached hereto, which investment letter shall not be an expense of the Trustee, the Depositor or the Master Servicer, and which investment letter states that, among other things, such transferee is a "qualified institutional buyer" as defined under Rule 144A. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof; provided, however, that no Transfer of any of the Class P Certificates, Class SB Certificates or Class R Certificates may be made pursuant to this Section 5.02(c) by the Depositor. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(d) The Trustee shall require a written an Opinion of Counsel from a prospective transferee prior to the transfer of any Class B B-1 Certificate, Class B-2 Certificate, Class B-3 Certificate, Class SB Certificate or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx Kxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto (or in such other form as shall be mutually agreed upon by the Depositor and the Trustee) substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above); provided however that such certification will not be required in connection with any transfer of any such Certificate by the Depositor to an affiliate of the Depositor, and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer Transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer Transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- pass-through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder Holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iiiA) (a) if If any Disqualified Organization shall become a holder Holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder Holder
of a Class R Certificate, then the last preceding United States Person Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-31.860G-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a Class R Certificate in violation of the restrictions in this Section 5.02 and to the extent that the retroactive restoration of the rights of the Holder of such Class R Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Trustee shall have the right, without notice to the holder or any prior holder of such Class R Certificate, to sell such Class R Certificate to a purchaser selected by the Trustee on such terms as the Trustee may choose. Such purported Transferee shall promptly endorse and deliver each Class R Certificate in accordance with the instructions of the Trustee. Such purchaser may be the Trustee itself. The proceeds of such sale, net of the commissions (which may include commissions payable to the Trustee), expenses and taxes due, if any, will be remitted by the Trustee to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be determined in the sole discretion of the Trustee, and the Trustee shall not be liable to any Person having an Ownership Interest in a Class R Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions, all information necessary to compute any tax imposed (A) as a result of the transfer of an ownership interest in a Class R Certificate to any Person who is a Disqualified Organization, including the information regarding "excess inclusions" of such Class R Certificates required to be provided to the Internal Revenue Service and certain Persons as described in Treasury Regulations Sections 1.860D-1(b)(5) and 1.860E- 2(a)(5), and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Class R Certificate having as among its record holders at any time any Person who is a Disqualified Organization. The Trustee may charge and shall be entitled to reasonable compensation for providing such information as may be required from those Persons which may have had a tax imposed upon them as specified in clauses (A) and (B) of this paragraph for providing such information.
(f) Subject to the preceding paragraphs, upon surrender for registration of transfer of any Certificate at the office of the Trustee maintained for such purpose, the Trustee shall execute and the Trustee or the Authenticating Agent shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest. Every Certificate surrendered for transfer shall be accompanied by notification of the account of the designated transferee or transferees for the purpose of receiving distributions pursuant to Section 4.01 by wire transfer, if any such transferee desires and is eligible for distribution by wire transfer. 77
(g) At the option of the Certificateholders, Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate initial Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee shall execute, authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive. Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Trustee or the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Trustee or the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be made to the Certificateholders for any transfer or exchange of Certificates, but the Trustee 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.
(i) All Certificates surrendered for transfer and exchange shall be canceled and retained by the Trustee in accordance with the Trustee's standard procedures.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (DLJ Mortgage Acceptance Corp Mort Pass THR Cert Ser 1996-Q4)
Registration of Transfer and Exchange of Certificates. The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, (a) (See Section 5.02(a) of the Trustee shall provide for Standard Terms)
(b) (See Section 5.02(b) of the registration Standard Terms)
(c) (See Section 5.02(c) of Certificates and of transfers and exchanges of Certificates as herein provided. the Standard Terms)
(d) No transfer, sale, pledge or other disposition of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act")amended, and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B or Class R Certificate is to be made either (ii)(A) the Depositor may direct the Trustee to shall require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Company that such transfer shall may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Company or the Master ServicerServicer (except that, if such transfer is made by the Company or the Master Servicer or any Affiliate thereof, the Company or the Master Servicer shall provide such Opinion of Counsel at their own expense); provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor Company or any affiliate thereof, Affiliate thereof to a non-affiliate the Company or an Affiliate of the Depositor Company and (iiB) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 H hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 I hereto, each acceptable to and in form and substance satisfactory to the Depositor Company and the Trustee certifying to the Depositor Company and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor Company or the Master Servicer. Any ; provided, however, that such Certificateholder representation letters will not be required in connection with any transfer of any such Certificate by the Company or any Affiliate thereof to the Company or an Affiliate of the Company, and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Company, of the status of such transferee as an Affiliate of the Company or (ii) the prospective transferee of such a Certificate shall be required to provide the Trustee, the Company and the Master Servicer with an investment letter substantially in the form of Exhibit J attached hereto (or such other form as the Company in its sole discretion deems acceptable), which investment letter shall not be an expense of the Trustee, the Company or the Master Servicer, and which investment letter states that, among other things, such transferee (A) is a "qualified institutional buyer" as defined under Rule 144A, acting for its own account or the accounts of other "qualified institutional buyers" as defined under Rule 144A, and (B) is aware that the proposed transferor intends to rely on the exemption from registration requirements under the Securities Act of 1933, as amended, provided by Rule 144A. The Holder of any such Certificate desiring to effect any such transfer transfer, sale, pledge or other disposition shall, and does hereby agree to, indemnify the Trustee, the Depositor and Company, the Master Servicer and the Certificate Registrar against any liability that may result if the transfer transfer, sale, pledge or other disposition is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the transfer of If any Class B or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R B Certificate held by a transferor and to be held by a transferee in book-entry form is disregarded pursuant to be made without registration under the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-31933 Act, then the last preceding Permitted Transferee transferor shall be restoreddeemed to have made each of the certifications set forth in Exhibit I hereto as of the transfer date and the transferee shall be deemed to have made each of the certifications set forth in Exhibit J hereto as of the transfer date, to the extent permitted by law, to all rights and obligations in each case as holder thereof retroactive to the date of registration of such Transfer of if such Class R Certificate. The Trustee shall be under no liability to any Person for any registration B Certificate were in physical form.
(e) (See Section 5.02(e) of Transfer the Standard Terms)
(f) (See Section 5.02(f) of a Class R Certificate that is in fact not permitted by this the Standard Terms)
(g) (See Section 5.02 or for making any payments due on such Certificate to 5.02(g) of the holder thereof or for taking any other action with respect to such holder under Standard Terms)
(h) (See Section 5.02(h) of the provisions of this Agreement.Standard Terms)
Appears in 1 contract
Samples: Pooling and Servicing Agreement (RALI Series 2005-Qa12 Trust)
Registration of Transfer and Exchange of Certificates. (a) The Delaware Trustee shall maintain keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee Registrar shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided.
(b) The Certificates have not been and will not be registered under the Securities Act and will not be listed on any exchange. No transfer, sale, pledge or other disposition transfer of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition transfer is exempt from the made pursuant to an effective registration requirements of statement under the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said exempt from the registration requirements under the Securities Act and such state securities laws. In the event that a transfer of a Class B or Class R Certificate is to be made in reliance upon an exemption from the Securities Act and state securities laws, in order to assure compliance with the Securities Act and such laws, the Certificateholder desiring to effect such transfer and such Certificateholder's prospective transferee shall each certify to the Trust, the Delaware Trustee, the Administrator and the transferring Certificateholder in writing the facts surrounding the transfer in substantially the forms set forth in Exhibit D (ithe "Transferor Letter") and Exhibit E (the Depositor may direct "Investment Letter") or Exhibit F (the Trustee "Rule 144A Letter"), as applicable. Except in the case of a transfer as to require which the proposed transferee has provided a written Rule 144A Letter with respect to a Rule 144A transaction, there shall also be delivered to the Trust an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor effect that such transfer shall may be made pursuant to an exemption, describing exemption from the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and lawsSecurities Act, which Opinion of Counsel shall not be an expense of the TrusteeTrust, the Depositor Delaware Trustee (unless it is the transferee from whom such opinion is to be obtained) or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute Administrator. Each Certificateholder of a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer. Any such Certificateholder Certificate desiring to effect such a transfer shall, and does hereby agree to, indemnify the TrusteeTrust, the Depositor Delaware Trustee and the Master Servicer Administrator against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state securities laws. The Trustee .
(c) No transfer, sale, pledge or other disposition of the Certificates shall require a written Opinion of Counsel from a prospective transferee be made unless prior to such transfer, sale, pledge or other disposition, the transfer Trust shall have received either (i) a representation letter from the transferee of any Class B or Class R Certificate such Certificate, acceptable to any and in form and substance satisfactory to the Trust, to the effect that such a transferee is not an employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of ERISA or Section 4975 of the Employee Retirement Income Security Act Code, or a person acting on behalf of 1974, as amended any such plan or ("ERISA"ii) in the case of any Certificate presented for registration in the name of an employee benefit plan subject to ERISA or Section 4975 of the Code (or comparable provisions of any of the foregoing, a "Plan"subsequent enactments), to or a trustee of any such plan or any other Person person acting on behalf of any Plansuch plan, an Opinion of Counsel satisfactory to the Trust, the Delaware Trustee and the Administrator to the effect that the purchase or holding of such Certificate will not result in the Trust or the Trust Estate being deemed to any other person who is using be "plan assets" of any Plan and subject to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 the Code and will not subject the Trust, Delaware Trustee, the Administrator or the transferring Certificateholder to any obligation in addition to those undertaken in this Trust Agreement. Notwithstanding anything else to the contrary herein, in the event any purported transfer of any Certificate is made without delivery of the Coderepresentation letter referred to above, such representation shall be deemed to have been made by the transferee by its acceptance of such Certificate. Neither In addition, any purported transfer of a Certificate to or on behalf of an employee benefit plan subject to ERISA or to the DepositorCode without the delivery to the Trust, the Master Servicer nor Delaware Trustee, and the Trustee will be required to obtain such Administrator of an Opinion of Counsel on behalf as described above shall be void and of any prospective transfereeno effect. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Any certificate or Opinion of CounselCounsel furnished pursuant to this Section 3.04 may be relied on conclusively by the Trust, Delaware Trustee, the Trustee Administrator and the transferring Certificateholder in determining whether the provisions hereof have been complied with.
(d) No transfer shall require a certification in the form be effective if immediately after such transfer there would be more than one hundred Beneficial Owners of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above)Certificates. The permission of any Any purported transfer in violation of the restriction on provisions of this Section 3.04(d) shall be VOID AB INITIO and the Delaware Trustee shall have no liability in connection with a transfer set forth in violation of the provisions of this Section 3.04(d).
(e) The foregoing provisions shall not prevent the assignment by a Certificateholder of all or any part of its right to receive distributions in respect of its interest in its Certificate, but such assignment shall effect no change in ownership of the Trust.
(f) The preparation and delivery of the certificate and opinions referred to in this paragraph Section 3.04 shall not constitute be an expense of the Trust, the Delaware Trustee or the Administrator.
(g) Upon surrender for registration of transfer of any Certificate at the office or agency maintained pursuant to Section 3.08, the Delaware Trustee shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations stating the aggregate amount and Percentage Interest so transferred dated the date of authentication by the Delaware Trustee. At the option of a default Certificateholder, Certificates may be exchanged for other Certificates of authorized Percentage Interests and denominations of a like aggregate amount upon surrender of the Certificates to be exchanged at the office or an Event agency maintained pursuant to Section 3.08.
(h) Every Certificate presented or surrendered for registration of Defaulttransfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Trust and duly executed by the Certificateholder or such Certificateholder's attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Trust in accordance with its customary practice.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate No service charge shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of made for any mandatory sale under clause (iii)(B) below and to execute all instruments registration of transfer and or exchange of Certificates, but the Trust or the Delaware Trustee may require payment of a sum sufficient to do all other things necessary cover any tax or governmental charge that may be imposed in connection with any such sale. The rights transfer or exchange of each Person acquiring Certificates.
(j) Notwithstanding any Ownership Interest other provision herein or elsewhere, the Trust, the Delaware Trustee and the Administrator (i) shall not have any obligation to determine whether any transfer or exchange of a Certificate is permitted under or in a Class R Certificate are expressly subject accordance with this Trust Agreement; (ii) shall not have any personal liability to any person in connection with any transfer or exchange or proposed or purported transfer or exchange (and/or registration thereof) that is not permitted under or in accordance with this Trust Agreement; (iii) shall be entitled to rely (and shall be fully justified and protected in so relying) on the Register as to the following provisions:identity of the Certificateholders and as to the Certificates and the Percentage Interests and denominations thereof evidenced thereby.
(Ak) Each Person holding Notwithstanding anything contained herein to the contrary, the Delaware Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or acquiring any Ownership Interest in exemptions from the Securities Act of 1933, as amended, the Securities Act of 1934, as amended, applicable state securities law or the Investment Company Act; PROVIDED, HOWEVER, that if a Class R Certificate certificate is specifically required to be delivered to the Delaware Trustee by a purchaser or transferee of a Certificate, the Delaware Trustee shall be under a Permitted Transferee duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transfereeparty delivering the same if such certificate does not so conform.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 1 contract
Samples: Trust Agreement (Gmac Elf LLC)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "“Act"”), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B or Class R Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Company or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor Company or any affiliate thereof, to a non-affiliate of the Depositor Company and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor Company and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor Company or the Master Servicer; provided, however, that such representation letters will not be required in connection with any transfer of any such Certificate by the Company to an affiliate of the Company and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Company of the status of such transferee as an affiliate of the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Notwithstanding the requirements of Section 5.02(b), transfers of Class R Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of a Certificate provides the Trustee and the Company with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the Trustee, the Company or the Master Servicer, and which investment letter states that, among other things, such transferee is a “qualified institutional buyer” as defined under Rule 144A. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof; provided, however, that no Transfer of any of the Class R Certificates may be made pursuant to this Section 5.02(c) by the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written an Opinion of Counsel Counsel, on which the Trustee, Company and Master Servicer may rely, from a prospective transferee prior to the transfer of any Class B or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx Kxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”) or Section 4975 of the Code (any of the foregoing, a "“Plan"”), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "“plan assets" ” of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "“plan assets"”). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition transfer is permissible under applicable law, will not violate the constitute or result in a prohibited transaction provisions of under Section 406 of ERISA and Section 4975 of the Code, and will not subject the Trustee, the Master Servicer or the Company to any obligation in addition to those undertaken in this Agreement. Neither the DepositorCompany, the Master Servicer nor the Trustee Trustee, will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In Each beneficial owner of a Subordinate Certificate or any interest therein shall be deemed to have represented, by virtue of its acquisition or holding of that certificate or interest therein, that either (i) it is not a Plan or a trustee or other Person acting on behalf of a Plan or using “plan assets” of a Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute “plan assets”), (ii) in the case of any transfer the Class B-1, Class B-2 and Class B-3 Certificates, it has acquired and is holding such certificate in reliance on Prohibited Transaction Exemption 2002-41 (the “Exemption”), and that it understands that there are certain conditions to the availability of the foregoing Certificates to Exemption, including that the certificate must be rated, at the time of purchase, not lower than “BBB-” (or its equivalent) by S&P, Fitch Ratings, Inc. or Mxxxx’x, and the certificate is so rated or (iii) (1) it is an insurance company, in lieu (2) the source of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by to acquire or hold the certificate or interest therein is an “insurance company general account,” as such transferee to purchase such Certificates will be funds held by it term is defined in its general account which it reasonably believes do not constitute "plan assets" Prohibited Transaction Class Exemption (“PTCE”) 95-60, and (3) the conditions in Sections I and III of any Plan PTCE 95-60 have been satisfied.
(as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.d) [Reserved]
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer Transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer Transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "“Transfer Affidavit and Agreement" ” in the form attached hereto as Exhibit G-3G-5) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- “pass-through interest holder" ” within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "“a pass-through interest holder"”, or is holding an Ownership Interest in a Class R Certificate on behalf of a "“pass-through interest holder."”
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3G-5, a certificate of the holder Holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates other than to Non-United States Persons and Disqualified Organizations Permitted Transferees are prohibited.
(iii) (aA) if If any Disqualified Organization Person other than a Permitted Transferee shall become a holder Holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder Holder of a Class R Certificate, then the last preceding United States Person Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-31.860G-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer transfer of such Class R Certificate. The prior Holder shall be entitled to recover from any purported Holder of a Class R Certificate that was in fact not a Permitted Transferee under this Section 5.05(b) at the time it became a Holder all payments made on such Class R Certificate. Each Holder of a Class R Certificate, by acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this clause (b) and to any amendment of this Agreement deemed necessary (whether as a result of new legislation or otherwise) by counsel of the Company to ensure that the Class R Certificates are not transferred to any Person who is not a Permitted Transferee and that any transfer of such Class R Certificates will not cause the imposition of a tax upon the Trust or cause any such REMIC to fail to qualify as a REMIC. Neither the Trustee nor the Trustee shall be under no any liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder Holder thereof or for taking any other action with respect to such holder Holder under the provisions of this Agreement.
Appears in 1 contract
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B SB Certificate or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B SB Certificate or a Class R Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer; provided however that such representation letters will not be required in connection with any transfer of any such Certificate by the Depositor to an affiliate of the Depositor and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Transfers of Class SB and Class R Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of such a Certificate provides the Trustee and the Depositor with an investment letter substantially in the form of Exhibit H attached hereto, which investment letter shall not be an expense of the Trustee, the Depositor or the Master Servicer, and which investment letter states that, among other things, such transferee is a "qualified institutional buyer" as defined under Rule 144A. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof; provided, however, that no Transfer of any of the Class SB and Class R Certificates may be made pursuant to this Section 5.02(c) by the Depositor. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(d) The Trustee shall require a written an Opinion of Counsel from a prospective transferee prior to the transfer of any Class A-2 Certificate, Class B Certificate, Class SB Certificate or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx Kxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto (or in such other form as shall be mutually agreed upon by the Depositor and the Trustee) substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above); provided however that such certification will not be required in connection with any transfer of any such Certificate by the Depositor to an affiliate of the Depositor and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Residual Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Residual Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer Transfer of any Ownership Interest in a Class R Residual Certificate, the Trustee shall require delivery to it, and shall not register the transfer Transfer of any Class R Residual Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Residual Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Residual Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- pass-through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Residual Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Residual Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Residual Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder Holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Residual Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iiiA) (a) if If any Disqualified Organization shall become a holder Holder of a Class R Residual Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Residual Certificate. If a Non-United States Person shall become a holder Holder of a Class R Residual Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Residual Certificate. If a transfer of a Residual Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.860G-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as Holder thereof retroactive to the date of registration of such Transfer of such Residual Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Residual Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the restrictions in this Section 5.02 and to the extent that the retroactive restoration of the rights of the Holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Trustee shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Trustee on such terms as the Trustee may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Trustee. Such purchaser may be the Trustee itself. The proceeds of such sale, net of the commissions (which may include commissions payable to the Trustee), expenses and taxes due, if any, will be remitted by the Trustee to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be determined in the sole discretion of the Trustee, and the Trustee shall not be liable to any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions, all information necessary to compute any tax imposed (A) as a result of the transfer of an ownership interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information regarding "excess inclusions" of such Class R Certificates required to be provided to the Internal Revenue Service and certain Persons as described in Treasury Regulations Sections 1.860D-1(b)(5) and 1.860E- 2(a)(5), and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person who is a Disqualified Organization. The Trustee may charge and shall be entitled to reasonable compensation for providing such information as may be required from those Persons which may have had a tax imposed upon them as specified in clauses (A) and (B) of this paragraph for providing such information.
(f) Subject to the preceding paragraphs, upon surrender for registration of transfer of any Certificate at the office of the Trustee maintained for such purpose, the Trustee shall execute and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest. Every Certificate surrendered for transfer shall be accompanied by notification of the account of the designated transferee or transferees for the purpose of receiving distributions pursuant to Section 4.01 by wire transfer, if any such transferee desires and is eligible for distribution by wire transfer.
(g) At the option of the Certificateholders, Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Trustee. Whenever any Certificates are so surrendered for exchange the Trustee shall execute, authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive. Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Trustee) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be made to the Certificateholders for any transfer or exchange of Certificates, but the Trustee 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.
(i) All Certificates surrendered for transfer and exchange shall be canceled and retained by the Trustee in accordance with the Trustee's standard procedures.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (DLJ Mortgage Acceptance Corp Mort Pass THR Cert Ser 1996-Qe3)
Registration of Transfer and Exchange of Certificates. (a) The Trustee Securities Administrator shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee Securities Administrator shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B P, Class C or a Class R Residual Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B P, Class C or Class R Residual Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to Securities Administrator shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Securities Administrator that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Securities Administrator, the Trustee, the Depositor Company or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor Company or any affiliate thereof, to a non-affiliate of the Depositor Company and (ii) the Trustee Securities Administrator shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee Securities Administrator shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee Securities Administrator certifying to the Depositor Company and the Trustee Securities Administrator the facts surrounding such transfer, which representation letters shall not be an expense of the Securities Administrator, the Trustee, the Depositor Company or the Master Servicer; provided, however, that such representation letters will not be required in connection with any transfer of any such Certificate by the Company to an affiliate of the Company and the Securities Administrator shall be entitled to conclusively rely upon a representation (which, upon the request of the Securities Administrator, shall be a written representation) from the Company of the status of such transferee as an affiliate of the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Securities Administrator, the Trustee, the Depositor Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Notwithstanding the requirements of Section 5.02(b), transfers of Class P, Class C and Residual Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of a Certificate provides the Securities Administrator and the Company with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the Securities Administrator, the Trustee, the Company or the Master Servicer, and which investment letter states that, among other things, such transferee is a "qualified institutional buyer" as defined under Rule 144A. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof; provided, however, that no Transfer of any of the Class P Certificates, Class C Certificates or Residual Certificates may be made pursuant to this Section 5.02(c) by the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Securities Administrator, the Trustee, the Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee Securities Administrator shall require a written an Opinion of Counsel Counsel, on which the Securities Administrator, the Trustee, the Company or the Master Servicer may rely, from a prospective transferee prior to the transfer of any Class B P, Class C or Class R Certificate to any employee benefit plan or other retirement arrangement, including an individual retirement accounts and account or Xxxxx plansplan, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") ), or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar Securities Administrator that such disposition transfer is permissible under applicable law, will not violate the constitute or result in a prohibited transaction provisions of under Section 406 of ERISA and or Section 4975 of the Code. Neither , and will not subject the DepositorSecurities Administrator, the Trustee, the Master Servicer nor or the Company to any obligation in addition to those undertaken in this Agreement. None of the Company, the Master Servicer, the Securities Administrator or the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case A purchaser of any transfer of the foregoing Certificates to an insurance companya Class P, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default Class C or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject represent to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R CertificateSecurities Administrator, the Trustee shall require delivery to itTrustee, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, Company that it is not acquiring a Plan or using assets of a Plan if it does not provide such an Opinion of Counsel. Each beneficial owner of a Class M Certificate or any interest therein shall be deemed to have represented, by virtue of its Ownership Interest in the Class R Certificate acquisition or holding of that is the subject of the proposed Transfer as a nomineecertificate or interest therein, trustee or agent for any Person who that either (i) it is not a Permitted TransfereePlan or a trustee or other Person acting on behalf of a Plan or using "plan assets" of a Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"), that for so long (ii) it has acquired and is holding such certificate in reliance on Prohibited Transaction Exemption 2002-41 as it retains its Ownership Interest in a Class R Certificate, it will endeavor amended from time to remain a Permitted Transfereetime (the "Exemption"), and that it has reviewed understands that there are certain conditions to the provisions availability of this Section 5.02 and agrees to the Exemption, including that the certificate must be bound rated, at the time of purchase, not lower than "BBB-"(or its equivalent) by themS&P, Fitch or Xxxxx'x, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer certificate is to impede the assessment so rated or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a1) if any Disqualified Organization shall become a holder it is an insurance company, (2) the source of a funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in Prohibited Transaction Class R CertificateExemption ("PTCE") 95-60, then and (3) the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights conditions in Sections I and obligations as holder thereof retroactive to the date III of registration of such Transfer of such Class R Certificate. If a NonPTCE 95-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement60 have been satisfied.
(d) [Reserved]
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Registration of Transfer and Exchange of Certificates. The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, (a) (See Section 5.02(a) of the Trustee shall provide for Standard Terms)
(b) (See Section 5.02(b) of the registration Standard Terms)
(c) (See Section 5.02(c) of Certificates and of transfers and exchanges of Certificates as herein provided. the Standard Terms)
(d) No transfer, sale, pledge or other disposition of a Class B Certificate or a Class R P Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act")amended, and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B or Class R P Certificate, other than the transfer of an interest in a Class P Certificate that is held by a Transferor and to be made held by a Transferee as an interest in a Rule 144A Global Offered Certificate, either (ii)(A) the Depositor may direct the Trustee to shall require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Company that such transfer shall may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Company or the Master ServicerServicer (except that, if such transfer is made by the Company or the Master Servicer or any Affiliate thereof, the Company or the Master Servicer shall provide such Opinion of Counsel at their own expense); provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor Company or any affiliate thereof, Affiliate thereof to a non-affiliate the Company or an Affiliate of the Depositor and Company, (iiB) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 heretoH to the Standard Terms (other than paragraph 6(b) thereto with respect to a transfer of a Class P Certificate), and (C) the Trustee shall require the transferor Transferor to execute a representation letter, substantially in the form of Exhibit G-2 heretoI to the Standard Terms, each acceptable to and in form and substance satisfactory to the Depositor Company and the Trustee certifying to the Depositor Company and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor Company or the Master Servicer. Any ; provided, however, that such Certificateholder representation letters will not be required in connection with any transfer of any such Certificate by the Company or any Affiliate thereof to the Company or an Affiliate of the Company, and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Company, of the status of such transferee as an Affiliate of the Company or (ii) the prospective transferee of such a Certificate shall be required to provide the Trustee, the Company and the Master Servicer with an investment letter substantially in the form of Exhibit J to the Standard Terms (other than paragraph 3(b) thereto with respect to a transfer of a Class P Certificate) (or such other form as the Company in its sole discretion deems acceptable), which investment letter shall not be an expense of the Trustee, the Company or the Master Servicer, and which investment letter states that, among other things, such transferee (A) is a "qualified institutional buyer" as defined under Rule 144A, acting for its own account or the accounts of other "qualified institutional buyers" as defined under Rule 144A, and (B) is aware that the proposed transferor intends to rely on the exemption from registration requirements under the Securities Act of 1933, as amended, provided by Rule 144A. The Holder of any such Class B Certificate or Class P Certificate desiring to effect any such transfer transfer, sale, pledge or other disposition shall, and does hereby agree to, to indemnify the Trustee, the Depositor and Company, the Master Servicer and the Certificate Registrar against any liability that may result if the transfer transfer, sale, pledge or other disposition is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee If any transfer of a Class P Certificate held by a Transferor and to be held by a Transferee as an interest in a Rule 144A Global Offered Certificate is to be made without registration under the 1933 Act, the Transferor shall require a written Opinion be deemed to have made each of Counsel from a prospective transferee prior the certifications set forth in Exhibit I and Exhibit J to the Standard Terms as of the transfer date and the Transferee shall be deemed to have made each of the certifications set forth in Exhibit J to the Standard Terms (other than as set forth in paragraph 3(b) with respect to the Class P Certificates) as of the transfer date as if such Class P Certificate were in physical form.
(e) (i) In the case of any Class B B, Class P or Class R Certificate presented for registration in the name of any Person, either (A) the Trustee shall require an Opinion of Counsel addressed to the Trustee, the Company and the Master Servicer, acceptable to and in form and substance satisfactory to the Trustee to the effect that the purchase or holding of such Class B, Class P or Class R Certificate is permissible under applicable law, will not constitute or result in any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") ), or Section 4975 of the Code (or comparable provisions of any subsequent enactments), and will not subject the Trustee, the Company or the Master Servicer to any obligation or liability (including obligations or liabilities under ERISA or Section 4975 of the foregoingCode) in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Trustee, the Company or the Master Servicer or (B) the prospective Transferee shall be required to provide the Trustee, the Company and the Master Servicer with a certification to the effect set forth in paragraph 6 of Exhibit H to the Standard Terms (with respect to any Class B Certificate), paragraph 6(a) of Exhibit H to the Standard Terms (with respect to any Class P Certificate), or Exhibit G-1 (with respect to any Class R Certificate), which the Trustee may rely upon without further inquiry or investigation, or such other certifications as the Trustee may deem desirable or necessary in order to establish that such Transferee or the Person in whose name such registration is requested either (a) is not an employee benefit plan or other plan subject to the prohibited transaction provisions of ERISA or Section 4975 of the Code, or any Person (including an investment manager, a "Plan"), to named fiduciary or a trustee or other Person acting on behalf of any Plan, or to any other person such plan) who is using "plan assets" of any Plan such plan to effect such acquisition (including each, a "Plan Investor") or (b) in the case of any Class B Certificate, the following conditions are satisfied: (i) such Transferee is an insurance company, (ii) the source of funds used to purchase or hold such Certificate (or interest therein) is an "insurance company using funds general account" (as defined in its general or separate accounts U.S. Department of Labor Prohibited Transaction Class Exemption ("PTCE") 95-60, and (iii) the conditions of PTCE 95-60 have been satisfied (each entity that may constitute satisfies this clause (b), a "plan assetsComplying Insurance Company"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates Class P Certificate to be held by a Transferee as an insurance company, interest in lieu of such Opinion of Counsela Rule 144A Global Offered Certificate, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate Transferee shall be deemed by the acceptance virtue of its purchase or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to have made each of the holder thereof or for taking any other action with respect certifications set forth in paragraph 6(a) of Exhibit H to the Standard Terms as of the transfer date, as if such holder under the provisions of this AgreementClass P Certificate were in physical form.
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Samples: Series Supplement to Pooling and Servicing Agreement (RALI Series 2007-Qs11 Trust)
Registration of Transfer and Exchange of Certificates. (a) The Trustee Securities Administrator shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee Securities Administrator shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B M-10, Class P, Class C or a Class R Residual Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "“Act"”), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B M-10, Class P, Class C or Class R Residual Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to Securities Administrator shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Securities Administrator that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Securities Administrator, the Trustee, the Depositor Company or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor Company or any affiliate thereof, to a non-affiliate of the Depositor Company and (ii) the Trustee Securities Administrator shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee Securities Administrator shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee Securities Administrator certifying to the Depositor Company and the Trustee Securities Administrator the facts surrounding such transfer, which representation letters shall not be an expense of the Securities Administrator, the Trustee, the Depositor Company or the Master Servicer; provided, however, that such representation letters will not be required in connection with any transfer of any such Certificate by the Company to an affiliate of the Company and the Securities Administrator shall be entitled to conclusively rely upon a representation (which, upon the request of the Securities Administrator, shall be a written representation) from the Company of the status of such transferee as an affiliate of the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Securities Administrator, the Trustee, the Depositor Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Notwithstanding the requirements of Section 5.02(b), transfers of Class M-10, Class P, Class C and Residual Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of a Certificate provides the Securities Administrator and the Company with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the Securities Administrator, the Trustee, the Company or the Master Servicer, and which investment letter states that, among other things, such transferee is a “qualified institutional buyer” as defined under Rule 144A, provided that, in the case of any Book-Entry Certificate, such transferee shall be deemed to have made such representations and warranties contained in such investment letter. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof; provided, however, that no Transfer of any of the Class P Certificates, Class C Certificates or Residual Certificates may be made pursuant to this Section 5.02(c) by the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Securities Administrator, the Trustee, the Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee Securities Administrator shall require a written an Opinion of Counsel Counsel, on which the Securities Administrator, the Trustee, the Company and the Master Servicer may rely, from a prospective transferee prior to the transfer of any Class B or Class R ERISA Restricted Certificate to any employee benefit plan or other retirement arrangement, including an individual retirement accounts and account or Xxxxx plansplan, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA") ”), or Section 4975 of the Code (any of the foregoing, a "“Plan"”), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "“plan assets" ” of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "“plan assets"”). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar Securities Administrator that such disposition transfer is permissible under applicable law, will not violate the constitute or result in a prohibited transaction provisions of under Section 406 of ERISA and or Section 4975 of the Code. Neither , and will not subject the DepositorSecurities Administrator, the Trustee, the Master Servicer nor or the Company to any obligation in addition to those undertaken in this Agreement. None of the Company, the Master Servicer, the Securities Administrator or the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In A purchaser of an ERISA Restricted Certificate shall be deemed to represent to the Securities Administrator, the Trustee, the Master Servicer and the Company that it is not a Plan or using assets of a Plan if it does not provide such an Opinion of Counsel. For so long as the Supplemental Interest Trust is in existence, each beneficial owner of an Offered Certificate or any interest therein shall be deemed to have represented, by virtue of its acquisition or holding of the Offered Certificate, or interest therein, that either (i) it is not a Plan or a trustee or other Person acting on behalf of a Plan or using “plan assets” of a Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute “plan assets”) or (ii)(A) in the case of an Offered Certificate rated, at the time of purchase, not lower than BBB- (or its equivalent) by a Rating Agency, the beneficial owner is an accredited investor within the meaning of Prohibited Transaction Exemption 2002-41, as amended from time to time (the “Exemption”) and (B) the acquisition and holding of such Certificate and the separate right to receive payments from the Supplemental Interest Trust are eligible for the exemptive relief available under Prohibited Transaction Class Exemption (“PTCE”) 84-14 (for transactions by independent “qualified professional asset managers”), 91-38 (for transactions by bank collective investment funds), 90-1 (for transactions by insurance company pooled separate accounts), 95-60 (for transactions by insurance company general accounts) or 96-23 (for transactions effected by “in-house asset managers”). Each beneficial owner of a Class M Certificate or any transfer interest therein that is acquired after the termination of the foregoing Supplemental Interest Trust shall be deemed to have represented, by virtue of its acquisition or holding of that certificate or interest therein, that either (i) it is not a Plan or a trustee or other Person acting on behalf of a Plan or using “plan assets” of a Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute “plan assets”), (ii) in the case of Certificates other than the Class M-10 Certificates, it has acquired and is holding such certificate in reliance on the “Exemption, and that it understands that there are certain conditions to the availability of the Exemption, including that the certificate must be rated, at the time of purchase, not lower than “BBB-” (or its equivalent) by S&P, Fitch or Xxxxx’x, and the certificate is so rated or (iii) (1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an “insurance company general account,” as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. In lieu of such a representation, a beneficial owner of a Class M-10 Certificate may provide the Opinion of Counsel, the Trustee shall require a certification Counsel in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds immediately preceding paragraph. If any Certificate, or any interest therein, is acquired or held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of this section 5.02(c), the restriction on next preceding permitted beneficial owner will be treated as the beneficial owner of that Certificate, retroactive to the date of transfer set forth to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of a Certificate, or interest therein, was effected in violation of this paragraph section shall not constitute indemnify to the extent permitted by law and hold harmless the Company, the Seller, the Master Servicer, any servicer, the Securities Administrator, any Underwriter and the Trustee from and against any and all liabilities, claims, costs or expenses incurred by such parties as a default result of such acquisition or an Event of Defaultholding.
(d) [Reserved]
(i) Each Person who has or who acquires any Ownership Interest in a Class R Residual Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Residual Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Residual Certificate shall be a Permitted Transferee and shall promptly notify the Trustee Securities Administrator of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer Transfer of any Ownership Interest in a Class R Residual Certificate, the Trustee Securities Administrator shall require delivery to it, and shall not register the transfer Transfer of any Class R Residual Certificate until its receipt of (I) an affidavit and agreement (a "“Transfer Affidavit and Agreement" ” in the form attached hereto as Exhibit G-3G-5) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee Securities Administrator representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Residual Certificate, in form and substance satisfactory to the Master Servicer and the Trustee Securities Administrator representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee Securities Administrator assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee Securities Administrator in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Residual Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee Securities Administrator written notice that it is a "pass- “pass-through interest holder" ” within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Residual Certificate, if it is "“a pass-through interest holder"”, or is holding an Ownership Interest in a Class R Residual Certificate on behalf of a "“pass-through interest holder."”
(ii) The Trustee Securities Administrator will register the Transfer of any Class R Residual Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3G-5, a certificate of the holder Holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee Securities Administrator as a condition to such registration. Transfers of the Class R Residual Certificates other than to Non-United States Persons and Disqualified Organizations Permitted Transferees are prohibited.
(iii) (aA) if If any Disqualified Organization Person other than a Permitted Transferee shall become a holder Holder of a Class R Residual Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Residual Certificate. If a Non-United States Person shall become a holder Holder of a Class R Residual Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Residual Certificate. If a transfer of a Residual Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.860G-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as Holder thereof retroactive to the date of registration of such transfer of such Residual Certificate. The Trustee prior Holder shall be entitled to recover from any purported Holder of a Residual Certificate that was in fact not a Permitted Transferee under this Section 5.05(b) at the time it became a Holder all payments made on such Residual Certificate. Each Holder of a Residual Certificate, by acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this clause (b) and to any amendment of this Agreement deemed necessary (whether as a result of new legislation or otherwise) by counsel of the Company to ensure that the Residual Certificates are not transferred to any Person who is not a Permitted Transferee and that any transfer of such Residual Certificates will not cause the imposition of a tax upon the Trust or cause any such REMIC to fail to qualify as a REMIC. The Securities Administrator shall be under no liability to any Person for any registration of Transfer of a Class R Residual Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder Holder thereof or for taking any other action with respect to such holder Holder under the provisions of this Agreement.
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Registration of Transfer and Exchange of Certificates. (a) The Delaware Trustee shall maintain keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee Registrar shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided.
(b) The Certificates have not been and will not be registered under the Securities Act and will not be listed on any exchange. No transfer, sale, pledge or other disposition transfer of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition transfer is exempt from the made pursuant to an effective registration requirements of statement under the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said exempt from the registration requirements under the Securities Act and such state securities laws. In the event that a transfer of a Class B or Class R Certificate is to be made in reliance upon an exemption from the Securities Act and state securities laws, in order to assure compliance with the Securities Act and such laws, the Certificateholder desiring to effect such transfer and such Certificateholder's prospective transferee shall each certify to the Trust, the Delaware Trustee, the Administrator and the transferring Certificateholder in writing the facts surrounding the transfer in substantially the forms set forth in Exhibit D (ithe Transferor Letter) and Exhibit E (the Depositor may direct Investment Letter) or Exhibit F (the Trustee "Rule 144A Letter"), as applicable. Except in the case of a transfer as to require which the proposed transferee has provided a written Rule 144A Letter with respect to a Rule 144A transaction, there shall also be delivered to the Trust an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor effect that such transfer shall may be made pursuant to an exemption, describing exemption from the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and lawsSecurities Act, which Opinion of Counsel shall not be an expense of the TrusteeTrust, the Depositor Delaware Trustee (unless it is the transferee from whom such opinion is to be obtained) or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute Administrator. Each Certificateholder of a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer. Any such Certificateholder Certificate desiring to effect such a transfer shall, and does hereby agree to, indemnify the TrusteeTrust, the Depositor Delaware Trustee and the Master Servicer Administrator against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state securities laws. The Trustee .
(c) No transfer, sale, pledge or other disposition of the Certificate shall require a written Opinion of Counsel from a prospective transferee be made unless prior to such transfer, sale, pledge or other disposition, the transfer Trust shall have received either (i) a representation letter from the transferee of any Class B or Class R Certificate such Certificate, acceptable to any and in form and substance satisfactory to the Trust, to the effect that such a transferee is not an employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of ERISA or Section 4975 of the Employee Retirement Income Security Act Code, or a person acting on behalf of 1974, as amended any such plan or ("ERISA"ii) in the case of any Certificate presented for registration in the name of an employee benefit plan subject to ERISA or Section 4975 of the Code (or comparable provisions of any of the foregoing, a "Plan"subsequent enactments), to or a trustee of any such plan or any other Person person acting on behalf of any Plansuch plan, an Opinion of Counsel satisfactory to the Trust, the Delaware Trustee and the Administrator to the effect that the purchase or holding of such Certificate will not result in the Trust or the Trust Estate being deemed to any other person who is using be "plan assets" of any Plan and subject to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 the Code and will not subject the Trust, Delaware Trustee, the Administrator or the transferring Certificateholder to any obligation in addition to those undertaken in this Trust Agreement. Notwithstanding anything else to the contrary herein, in the event any purported transfer of any Certificate is made without delivery of the Coderepresentation letter referred to above, such representation shall be deemed to have been made by the transferee by its acceptance of such Certificate. Neither In addition, any purported transfer of a Certificate to or on behalf of an employee benefit plan subject to ERISA or to the DepositorCode without the delivery to the Trust, the Master Servicer nor Delaware Trustee, and the Trustee will be required to obtain such Administrator of an Opinion of Counsel on behalf as described above shall be void and of any prospective transfereeno effect. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Any certificate or Opinion of CounselCounsel furnished pursuant to this Section 3.04 may be relied on conclusively by the Trust, Delaware Trustee, the Trustee Administrator and the transferring Certificateholder in determining whether the provisions hereof have been complied with.
(d) No transfer shall require a certification in the form be effective if immediately after such transfer there would be more than one hundred Beneficial Owners of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above)Certificates. The permission of any Any purported transfer in violation of the restriction on provisions of this Section 3.04(d) shall be void ab initio and the Delaware Trustee shall have no liability in connection with a transfer set forth in violation of the provisions of this Section 3.04(d).
(e) The foregoing provisions shall not prevent the assignment by a Certificateholder of all or any part of its right to receive distributions in respect of its interest in its Certificate, but such assignment shall effect no change in ownership of the Trust.
(f) The preparation and delivery of the certificate and opinions referred to in this paragraph Section 3.04 shall not constitute be an expense of the Trust, the Delaware Trustee or the Administrator.
(g) Upon surrender for registration of transfer of any Certificate at the office or agency maintained pursuant to Section 3.08, the Delaware Trustee shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations stating the aggregate amount and Percentage Interest so transferred dated the date of authentication by the Delaware Trustee. At the option of a default Certificateholder, Certificates may be exchanged for other Certificates of authorized Percentage Interests and denominations of a like aggregate amount upon surrender of the Certificates to be exchanged at the office or an Event agency maintained pursuant to Section 3.08.
(h) Every Certificate presented or surrendered for registration of Defaulttransfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Trust and duly executed by the Certificateholder or such Certificateholder's attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the Trust in accordance with its customary practice.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate No service charge shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of made for any mandatory sale under clause (iii)(B) below and to execute all instruments registration of transfer and or exchange of Certificates, but the Trust or the Delaware Trustee may require payment of a sum sufficient to do all other things necessary cover any tax or governmental charge that may be imposed in connection with any such sale. The rights transfer or exchange of each Person acquiring Certificates.
(j) Notwithstanding any Ownership Interest other provision herein or elsewhere, the Trust, the Delaware Trustee and the Administrator (i) shall not have any obligation to determine whether any transfer or exchange of a Certificate is permitted under or in a Class R Certificate are expressly subject accordance with this Trust Agreement; (ii) shall not have any personal liability to any person in connection with any transfer or exchange or proposed or purported transfer or exchange (and/or registration thereof) that is not permitted under or in accordance with this Trust Agreement; (iii) shall be entitled to rely (and shall be fully justified and protected in so relying) on the Register as to the following provisions:identity of the Certificateholders and as to the Certificates and the Percentage Interests and denominations thereof evidenced thereby.
(Ak) Each Person holding Notwithstanding anything contained herein to the contrary, the Delaware Trustee shall not be responsible for ascertaining whether any transfer complies with the registration provisions or acquiring any Ownership Interest in exemptions from the Securities Act of 1933, as amended, the Securities Act of 1934, as amended, applicable state securities law or the Investment Company Act; PROVIDED, HOWEVER, that if a Class R Certificate certificate is specifically required to be delivered to the Delaware Trustee by a purchaser or transferee of a Certificate, the Delaware Trustee shall be under a Permitted Transferee duty to examine the same to determine whether it conforms to the requirements of this Trust Agreement and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transfereeparty delivering the same if such certificate does not so conform.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 1 contract
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No 143
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B P, Class C or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "“Act"”), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B P, Class C or Class R Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer; provided, however, that such representation letters will not be required in connection with any transfer of any such Certificate by the Depositor to an affiliate of the Depositor and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Notwithstanding the requirements of Section 5.02(b), transfers of Class P-R, Class P-M, Class C-R, Class C-M and Class R Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of a Certificate provides the Trustee and the Depositor with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the Trustee, the Depositor or the Master Servicer, and which investment letter states that, among other things, such transferee is a “qualified institutional buyer” as defined under Rule 144A. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof; provided, however, that no Transfer of any of the Class P-R, Class P-M, Class C-R, Class C-M and Class R Certificates may be made pursuant to this Section 5.02(c) by the Depositor. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written an Opinion of Counsel Counsel, on which the Trustee, Depositor and Master Servicer may rely, from a prospective transferee prior to the transfer of any Class B or P-R, Class P-M, Class C-R, Class C-M and Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plansKeoxx xxans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”) or Section 4975 of the Code (any of the foregoing, a "“Plan"”), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "“plan assets" ” of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "“plan assets"”). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition transfer is permissible under applicable law, will not violate the constitute or result in a prohibited transaction provisions of under Section 406 of ERISA and Section 4975 of the Code, and will not subject the Trustee, the Master Servicer or the Depositor to any obligation in addition to those undertaken in this Agreement. Neither the Depositor, the Master Servicer nor the Trustee Trustee, will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In 144 Prior to the case of any transfer termination of the foregoing Certificates Supplemental Interest Trust, each beneficial owner of an Offered Certificate or any interest therein, shall be deemed to have represented, by virtue of its acquisition or holding of the Offered Certificate, or interest therein, that either (i) it is not a Plan or (ii) (A) it is an accredited investor within the meaning of Prohibited Transaction Exemption 2002-41 (the “Exemption”) and (B) the acquisition and holding of such Certificate and the separate right to receive payments from the Supplemental Interest Trust are eligible for the exemptive relief available under one of Prohibited Transaction Class Exemption (“PTCE”) 84-14, 91-38, 95-60, 90-1 or 96-23. Each beneficial owner of a Subordinate Certificate or any interest therein which is acquired subsequent to the termination of the Supplemental Interest Trust shall be deemed to have represented, by virtue of its acquisition or holding of that Certificate or interest therein, that either (i) it is not a Plan or a trustee or other Person acting on behalf of a Plan or using “plan assets” of a Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute “plan assets”), (ii) it has acquired and is holding such Certificate in reliance on the Exemption, and that it understands that there are certain conditions to the availability of the Exemption, including that the Certificate must be rated, at the time of purchase, not lower than “BBB-” (or its equivalent) by S&P, Fitch Ratings, Inc. or Mooxx’x, xnd the Certificate is so rated or (iii) (1) it is an insurance company, in lieu (2) the source of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by to acquire or hold the Certificate or interest therein is an “insurance company general account,” as such transferee to purchase such Certificates will be funds held by it term is defined in its general account which it reasonably believes do not constitute "plan assets" PTCE 95-60, and (3) the conditions in Sections I and III of any Plan PTCE 95-60 have been satisfied.
(as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.d) [Reserved]
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer Transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer Transfer of any Class R Certificate until its receipt receipt, of (I) an affidavit and agreement (a "“Transfer Affidavit and Agreement" ” in the form attached hereto as Exhibit G-3G-5) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of taxtax and that it has no knowledge that the proposed transferee is not a Permitted Transferee.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- “pass-through interest holder" ” within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "“a pass-through interest holder"”, or is holding an Ownership Interest in a Class R Certificate on behalf of a "“pass-through interest holder."”
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3G-5, a certificate of the holder Holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates other than to Non-United States Persons and Disqualified Organizations Permitted Transferees are prohibited.
(iii) (aA) if If any Disqualified Organization Person other than a Permitted Transferee shall become a holder Holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-31.860G-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer transfer of such Class R Certificate. The prior Holder shall be entitled to recover from any purported Holder of a Class R Certificate that was in fact not a Permitted Transferee under this Section 5.05(b) at the time it became a Holder all payments made on such Class R Certificate. Each Holder of a Class R Certificate, by acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this clause (b) and to any amendment of this Agreement deemed necessary (whether as a result of new legislation or otherwise) by counsel of the Depositor to ensure that the Class R Certificates are not transferred to any Person who is not a Permitted Transferee and that any transfer of such Class R Certificates will not cause the imposition of a tax upon the Trust or cause any such REMIC to fail to qualify as a REMIC. Neither the Trustee nor the Trustee shall be under no any liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder Holder thereof or for taking any other action with respect to such holder Holder under the provisions of this Agreement.
Appears in 1 contract
Registration of Transfer and Exchange of Certificates. (a) The Trustee Securities Administrator shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee Securities Administrator shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No 87
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B P, Class C or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B P, Class C or Class R Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to Securities Administrator shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Securities Administrator that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Securities Administrator, the Trustee, the Depositor Company or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor Company or any affiliate thereof, to a non-affiliate of the Depositor Company and (ii) the Trustee Securities Administrator shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee Securities Administrator shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee Securities Administrator certifying to the Depositor Company and the Trustee Securities Administrator the facts surrounding such transfer, which representation letters shall not be an expense of the Securities Administrator, the Trustee, the Depositor Company or the Master Servicer; PROVIDED, HOWEVER, that such representation letters will not be required in connection with any transfer of any such Certificate by the Company to an affiliate of the Company and the Securities Administrator shall be entitled to conclusively rely upon a representation (which, upon the request of the Securities Administrator, shall be a written representation) from the Company of the status of such transferee as an affiliate of the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Securities Administrator, the Trustee, the Depositor Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Notwithstanding the requirements of Section 5.02(b), transfers of Class P, Class C and Class R Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of a Certificate provides the Securities Administrator and the Company with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the Securities Administrator, the Trustee, the Company or the Master Servicer, and which investment letter states that, among other things, such transferee is a "qualified institutional buyer" as defined under Rule 144A. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof; PROVIDED, HOWEVER, that no Transfer of any of the Class P Certificates, Class C Certificates or Class R Certificates may be made pursuant to this Section 5.02(c) by the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Securities Administrator, the Trustee, the Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee Securities Administrator shall require a written an Opinion of Counsel Counsel, on which the Securities Administrator, the Trustee, Company, Master Servicer or the NIMS Insurer may rely, from a prospective transferee prior to the transfer of any Class B P, Class C or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar Securities Administrator that such disposition transfer is permissible under applicable law, will not violate the constitute or result in a prohibited transaction provisions of under Section 406 of ERISA and Section 4975 of the Code. Neither , and will not subject the DepositorSecurities Administrator, the Trustee, the Master Servicer nor Servicer, the Company or the NIMS Insurer to any obligation in addition to those undertaken in this Agreement. None of the Company, the Master Servicer, Securities Administrator, the Trustee or the NIMS Insurer will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case Each beneficial owner of a Class M Certificate or any transfer interest therein shall be deemed to have represented, by virtue of the foregoing Certificates to an insurance companyits acquisition or holding of that certificate or interest therein, in lieu that either (i) it is not a Plan or a trustee or other Person acting on behalf of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute Plan or using "plan assets" of a Plan to effect such acquisition (including any Plan insurance company using funds in its general separate accounts that may constitute "plan assets", (ii) it has acquired and is holding such certificate in reliance on Prohibited Transaction Exemption 2002-41 as defined aboveamended from time to time (the "Exemption"). The permission of any transfer in violation , and that it understands that there are certain conditions to the availability of the restriction on transfer set forth Exemption, including that the certificate must be rated, at the time of purchase, not lower than "BBB-"(or its equivalent) by S&P, Fitch Ratings or Xxxxx'x, and the certificate is so rated or (iii) (1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in this paragraph shall not constitute a default or an Event Prohibited Transaction Class Exemption ("PTCE") 95-60, and (3) the conditions in Sections I and III of DefaultPTCE 95-60 have been satisfied.
(d) [Reserved]
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee Securities Administrator of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer Transfer of any Ownership Interest in a Class R Certificate, the Trustee Securities Administrator shall require delivery to it, and shall not register the transfer Transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3G-5) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee Securities Administrator representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee Securities Administrator representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee Securities Administrator assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee Securities Administrator in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee Securities Administrator written notice that it is a "pass- pass-through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee Securities Administrator will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3G-5, a certificate of the holder Holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee Securities Administrator as a condition to such registration. Transfers of the Class R Certificates other than to Non-United States Persons and Disqualified Organizations Permitted Transferees are prohibited.
(iii) (aA) if If any Disqualified Organization Person other than a Permitted Transferee shall become a holder Holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder Holder of a Class R Certificate, then the last preceding United States Person Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-31.860G-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer transfer of such Class R Certificate. The Trustee prior Holder shall be entitled to recover from any purported Holder of a Class R Certificate that was in fact not a Permitted Transferee under this Section 5.05(b) at the time it became a Holder all payments made on such Class R Certificate. Each Holder of a Class R Certificate, by acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this clause (b) and to any amendment of this Agreement deemed necessary (whether as a result of new legislation or otherwise) by counsel of the Company to ensure that the Class R Certificates are not transferred to any Person who is not a Permitted Transferee and that any transfer of such Class R Certificates will not cause the imposition of a tax upon the Trust or cause any such REMIC to fail to qualify as a REMIC. The Securities Administrator shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder Holder thereof or for taking any other action with respect to such holder Holder under the provisions of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Homestar Mortgage Accep Corp Asst Back Certs Ser 2004-1)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B P, Class C or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "“Act"”), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B P, Class C or Class R Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer; provided, however, that such representation letters will not be required in connection with any transfer of any such Certificate by the Depositor to an affiliate of the Depositor and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the No transfer of any Class B C Certificate shall be made unless the proposed transferee of such Class C Certificate (1) provides to the Trustee the appropriate tax certification forms that would eliminate any withholding or Class R Certificate deduction for taxes from amounts payable by the related Swap Provider, pursuant to any employee benefit plan the related Interest Rate Swap Agreement, and by the related Cap Counterparties, pursuant to the related Cap Contacts, to the related Supplemental Interest Trust (i.e., IRS Form W-9 or other retirement arrangementIRS Form W-0XXX, including individual retirement accounts and Xxxxx plansX-0XXX, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974X-0XXX or W-8ECI, as amended applicable ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"successor form thereto), together with any applicable attachments) and (2) agrees to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect update such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
forms (i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms upon expiration of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificateforms, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall as required under then applicable U.S. Treasury regulations and (iii) promptly upon learning that such forms have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3become obsolete or incorrect, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee each as a condition to such registrationtransfer. Transfers In addition, no transfer of any Class C Certificate shall be made if such transfer would cause the related Supplemental Interest Trust to be beneficially owned by two or more persons for federal income tax purposes, or continue to be so treated, unless (i) each proposed transferee of such Class C Certificate complies with the foregoing conditions, (ii) the proposed majority holder of the Class R C Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iiior each holder, if there is or would be no majority holder) (aA) provides, or causes to be provided, on behalf of the related Supplemental Interest Trust, if applicable, to the Trustee, the appropriate tax certification forms that would be required from the related Supplemental Interest Trust to eliminate any Disqualified Organization withholding or deduction for taxes from amounts payable by the related Swap Provider, pursuant to the related Interest Rate Swap Agreement, and by the related Cap Counterparties, pursuant to the related Cap Contacts, to the related Supplemental Interest Trust (i.e., IRS Form W-9 or IRS Form W-0XXX, X-0XXX, X-0XXX or W-8ECI, as applicable (or any successor form thereto), together with any applicable attachments) and (B) agrees to update such forms (x) upon expiration of any such forms, (y) as required under then applicable U.S. Treasury regulations and (z) promptly upon learning that such forms have become obsolete or incorrect. If, under applicable U.S. Treasury regulations, such tax certification forms may only be signed by a trustee acting on behalf of the related Supplemental Interest Trust, then the Trustee, as the related Supplemental Interest Trust Trustee, shall become sign such certification forms if so directed by a holder Holder of the related Class C Certificates. Upon receipt of any such tax certification forms from a transferee of any Class C Certificate, the Trustee, as the related Supplemental Interest Trust Trustee, shall forward a copy of such tax certification forms provided to it to the related Swap Provider and related Cap Counterparties. Each Holder of a Class R Certificate, then the last preceding Permitted Transferee C Certificate and each transferee thereof shall be restored, deemed to have consented to the extent permitted by law, to all rights and obligations as holder thereof retroactive Trustee forwarding to the date related Swap Provider and related Cap Counterparties any tax certification form it has provided and updated in accordance with these transfer restrictions. Any purported sales or transfers of registration any Class C Certificate to a transferee which does not comply with the requirements of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person this paragraph shall be restored, to the extent permitted by law, to all rights deemed null and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be void under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 1 contract
Registration of Transfer and Exchange of Certificates. a. The Trustee shall maintain keep at the office or agency to be maintained in accordance with Section 12.02 a "Certificate Register Register" in which, subject to such reasonable regulations as it may prescribe, which the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No transferThe Trustee initially appoints itself to be the "Certificate Registrar" and transfer agent for the purpose of registering Certificates and transfers and exchanges of Certificates as provided herein. The Trustee will give prompt written notice to Certificateholders and the Servicer of any change in the Certificate Registrar.
(1) Subject to clauses (2) and (3) below, sale, pledge or other disposition no transfer of a Class B B-2 Certificate, Class B-3I Certificate or a Class R C Certificate shall be made by the Originator or any other Person unless such transfer, sale, pledge or other disposition transfer is exempt from the registration requirements of the Securities Act of 1933Act, as amended (the "Act")amended, and any applicable state securities laws or is made in accordance with said the Act and laws. In the event that a any such transfer of a Class B or Class R Certificate is to be made made, (iA) the Depositor Originator may direct the Trustee to require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Originator that such transfer shall may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said the Act and laws or is being made pursuant to said the Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Trustee or the Master ServicerOriginator, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (iiB) the Trustee shall require the transferee to execute a representation letter, an investment letter substantially in the form of Exhibit G-1 M attached hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters investment letter shall not be an expense of the Trustee, the Depositor Trustee or the Master ServicerOriginator. Any such Class B-2 Certificateholder, Class B-3I Certificateholder or Class C Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor Originator and the Master Servicer Certificate Registrar against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the .
(2) No transfer of any a Class B B-2 Certificate, Class B-3I Certificate or Class R C Certificate or any interest therein, shall be made to any employee benefit plan plan, trust or other retirement arrangement, including individual retirement accounts and Xxxxx plans, account that is subject to ERISA, or that is described in Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"4975(e)(1) or Section 4975 of the Code (any of the foregoingeach, a "Plan"), or to a trustee or other Person acting any person investing on behalf of any Plan, or to any other person who is using with "plan assets" or a plan unless the prospective transferee of any Plan to effect such acquisition (including any insurance company using funds in a Certificate or interest therein provides the Servicer and the Trustee with a certification of facts and, at its general or separate accounts that may constitute "plan assets"). Such own expense, an Opinion of Counsel must which establish to the satisfaction of the Depositor Servicer and the Trustee or the Certificate Registrar that such disposition transfer will not violate the prohibited transaction provisions result in a violation of Section 406 of ERISA and or Section 4975 of the Code or cause the Servicer, the Originator or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. Neither .
(3) Notwithstanding anything to the Depositorcontrary contained herein, (A) no Class C Certificate, nor any interest therein, shall be transferred, sold or otherwise disposed of to a "disqualified organization," within the meaning of Section 860E(e)(5) of the Code (a "Disqualified Organization"), including, but not limited to, (i) the United States, a state or political subdivision thereof, a foreign government, an international organization or an agency or instrumentality of any of the foregoing, (ii) an organization (other than a cooperative described in Section 521 of the Code) which is exempt from the taxes imposed by Chapter 1 of the Code and not subject to the tax imposed on unrelated business income by Section 511 of the Code, or (iii) a cooperative described in Section 1381(a)(2)(C) of the Code, and (B) prior to any registration of any transfer, sale or other disposition of the Class C Subsidiary Certificate or Class C Master Certificate, the Master Servicer nor proposed transferee shall deliver to the Trustee, under penalties of perjury, an affidavit that such transferee is not a Disqualified Organization, with respect to which the Trustee will be shall have no actual knowledge that such affidavit is false, and the transferor and the proposed transferee shall each deliver for the Trustee an affidavit with respect to any other information reasonably required by the Trustee pursuant to obtain such Opinion the REMIC Provisions, including, without limitation, information regarding the transfer of Counsel on behalf noneconomic residual interests and transfers of any prospective transferee. In residual interest to or by a foreign person; provided, however, that, upon the case delivery to the Trustee of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Trustee and rendered by Independent counsel, to the effect that the beneficial ownership of the Class C Certificate by any Disqualified Organization will not result in the imposition of federal income tax upon the Subsidiary REMIC, Intermediate REMIC or Master Servicer REMIC or any Certificateholder or any other person or otherwise adversely affect the status of the Subsidiary REMIC, Intermediate REMIC or Master REMIC as a REMIC, the foregoing prohibition on transfers, sales and other dispositions, as well as the Trustee representing foregoing requirement to deliver a certificate prior to any registration thereof, shall, with respect to such Disqualified Organization, terminate. Notwithstanding any transfer, sale or other disposition of a Class C Certificate, or any interest therein, to a Disqualified Organization or the registration thereof in the Certificate Register, such transfer, sale or other disposition and warrantingany registration thereof, among other thingsunless accompanied by the Opinion of Counsel described in the preceding sentence, that it is a Permitted Transfereeshall be deemed to be void and of no legal force or effect whatsoever and such Disqualified Organization shall be deemed to not be the Class C Certificateholder for any purpose hereunder, that it is including, but not acquiring its Ownership Interest limited to, the receipt of distributions on the Class C Certificate, and shall be deemed to have no interest whatsoever in the Class R Certificate that is the subject of the proposed Transfer as a nomineeC Certificate. Each Class C Certificateholder, trustee or agent by his acceptance thereof, shall be deemed for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor all purposes to remain a Permitted Transferee, and that it has reviewed have consented to the provisions of this Section 5.02 and agrees 9.02(b)(3).
(4) Any transfer, sale or other disposition not in compliance with the provisions of this Section 9.02(b) shall be deemed to be bound by themvoid and of no legal force or effect whatsoever and such transferee shall be deemed to not be the Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions on such Certificate, and shall be deemed to have no interest whatsoever in such Certificate.
(II5) The Trustee shall give notice to Standard & Poor's, Moody's and Fitch promptly following any transfer, sale or other disposition of a certificateClass B-3I or Class C Certificate.
c. At the option of a Certificateholder, in Certificates may be exchanged for other Certificates of authorized denominations of a like aggregate original denomination, upon surrender of such Certificates to be exchanged at such office. Whenever any Certificates are so surrendered for exchange, the form attached hereto as Exhibit G-4Trustee shall execute and deliver the Certificates which the Certificateholder making the exchange is entitled to receive. Every Certificate presented or surrendered for transfer or exchange shall be duly endorsed by, from the Holder wishing to or shall be accompanied by a written instrument of transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer Trustee and the Trustee representing and warrantingCertificate Registrar duly executed by the holder thereof or his or her attorney duly authorized in writing.
d. Except as provided in paragraph (e) below, among other things, that no purpose the Book-Entry Certificates shall at all times remain registered in the name of the proposed Transfer is Depository or its nominee and at all times: (i) registration of the Book-Entry Certificates may not be transferred by the Trustee except to impede another Depository; (ii) the assessment Depository shall maintain book-entry records with respect to the Certificate Owners and with respect to ownership and transfers of such Book-Entry Certificates; (iii) ownership and transfers of registration of the Book-Entry Certificates on the books of the Depository shall be governed by applicable rules established by the Depository; (iv) the Depository may collect its usual and customary fees, charges and expenses from its Depository Participants; (v) the Trustee shall deal with the Depository, Depository Participants and indirect participating firms as representatives of the Certificate Owners of the Book- Entry Certificates for purposes of exercising the rights of Holders under this Agreement, and requests and directions for and votes of such representatives shall not be deemed to be inconsistent if they are made with respect to different Certificate Owners; and (vi) the Trustee may rely and shall be fully protected in relying upon information furnished by the Depository with respect to its Depository Participants and furnished by the Depository Participants with respect to indirect participating firms and persons shown on the books of such indirect participating firms as direct or collection indirect Certificate Owners. All transfers by Certificate Owners of taxBook-Entry Certificates shall be made in accordance with the procedures established by the Depository Participant or brokerage firm representing such Certificate Owner. Each Depository Participant shall only transfer Book-Entry Certificates of Certificate Owners it represents or of brokerage firms for which it acts as agent in accordance with the Depository's normal procedures.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree e. If (x) the Seller or the Depository advises the Trustee in writing that the Depository is no longer willing or able properly to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer discharge its Ownership Interest in a Class R Certificate responsibilities as Depository and (y) not the Trustee or the Originator is unable to transfer locate a qualified successor or (z) the Originator at its Ownership Interest unless sole option advises the Trustee in writing that it provides a certificate elects to terminate the book-entry system through the Depository, the Trustee shall notify all Certificate Owners, through the Depository, of the occurrence of any such event and of the availability of definitive, fully registered Class A Certificates, Class M Certificates and Class B Certificates (the "Definitive Certificates") to Certificate Owners requesting the same. Upon surrender to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R A Certificates, Class M-1 Certificates, Class M-2 Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization Class B Certificates by the Depository, accompanied by registration instructions from the Depository for registration, the Trustee shall become a holder of a Class R Certificate, then issue the last preceding Permitted Transferee Definitive Certificates. Neither the Originator nor the Trustee shall be restoredliable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of Definitive Certificates all references herein to obligations imposed upon or to be performed by the Depository shall be deemed to be imposed upon and performed by the Trustee, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action applicable with respect to such holder under Definitive Certificates and the provisions Trustee shall recognize the Holders of the Definitive Certificates as Certificateholders hereunder.
f. On or prior to the Closing Date, there shall be delivered to the Depository one Class A-1A Certificate, one Class A-1B Certificate, one Class A-2 Certificate, one Class A-3 Certificate, one Class A-4 Certificate, one Class A-5 Certificate, one Class A-IO Certificate, one Class M-1 Certificate, one Class M- 2 Certificate, and one Class B-1 Certificate, each in registered form registered in the name of the Depository's nominee, Cede & Co., the total face amount of which represents 100% of the related Original Principal Balance or Original Notional Principal Amount, respectively. At any time after the Closing Date, subject to compliance with the normal procedures of the Trustee and the Depository, the Class B-2 Certificateholders may deliver to the Depository one Class B-2 Certificate, registered in the name of Cede & Co. (or other nominee of the Depository), the total face amount of which represents 100% of the Original Principal Balance of the Class B-2 Certificate. If, however, the aggregate principal amount of a Class of Class A Certificates, Class M Certificates or Class B Certificates exceeds $400,000,000, one such Class A Certificate, Class M Certificate and/or Class B Certificate will be issued with respect to each $400,000,000 of principal amount and an additional Certificate of such Class or Classes will be issued with respect to any remaining principal amount. Each such Class A, Class M and Class B Certificate registered in the name of the Depository's nominee shall bear the following legend: "Unless this AgreementCertificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC") to Issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Conseco Finance Securitizations Corp)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class P Certificate or Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B P Certificate or Class R B Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Company or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor Company or any affiliate thereof, to a non-affiliate of the Depositor Company and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor Company and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor Company or the Master Servicer; PROVIDED, HOWEVER, that such representation letters will not be required in connection with any transfer of any such Certificate by the Company to an affiliate of the Company and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Company of the status of such transferee as an affiliate of the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Notwithstanding the requirements of Section 5.02(b), transfers of Class P and Class B Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of a Certificate provides the Trustee and the Company with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the Trustee, the Company or the Master Servicer, and which investment letter states that, among other things, such transferee is a "qualified institutional buyer" as defined under Rule 144A. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof; PROVIDED, HOWEVER, that no Transfer of any of the Class B Certificates may be made pursuant to this Section 5.02(c) by the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written an Opinion of Counsel from a prospective transferee prior to the transfer of any Class P Certificate, Class B Certificate or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition transfer is permissible under applicable law, will not violate the constitute or result in a non-exempt prohibited transaction provisions of Section 406 of ERISA and or Section 100 4975 of the CodeCode and will not subject the Trustee, the Master Servicer or the Company to any obligation in addition to those undertaken in this Agreement. Neither the DepositorCompany, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. .
(d) In the case of any transfer of the foregoing Certificates to an insurance companyClass B Certificates, in lieu of such Opinion of Counsel, the Trustee shall require prospective transferee may provide a certification in the form of Exhibit G-5 hereto G-6 (or in a form substantially similar to such Exhibit G-6 as shall be agreed upon by the Trustee), in the case of the transfer of any of the foregoing Class B Certificates to a person capable of providing such certification, substantially to the effect that all the purchase of Class B Certificates by or on behalf of such Plan is permissible under applicable law, will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code, will not subject the Company, the Trustee or the Master Servicer to any obligation in addition to those undertaken in this Agreement and the following conditions are satisfied: (i) the transferee is an insurance company, (ii) the source of funds used by such transferee to purchase such Class B Certificates will be funds held by it in its is an "insurance company general account which it reasonably believes do not constitute "plan assetsaccount" of any Plan (as such term is defined abovein Prohibited Transaction Class Exemption ("PTCE") 95-60). The permission of any transfer in violation of , and (iii) the restriction on transfer conditions set forth in this paragraph shall not constitute a default or an Event Sections I and III of DefaultPTCE 95- 60 have been satisfied.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer Transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer Transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3G-5) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.. 101
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- pass-through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3G-5, a certificate of the holder Holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates other than to Non-United States Persons and Disqualified Organizations Permitted Transferees are prohibited.
(iii) (aA) if If any Disqualified Organization Person other than a Permitted Transferee shall become a holder Holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder Holder of a Class R Certificate, then the last preceding United States Person Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-31.860G-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer transfer of such Class R Certificate. The prior Holder shall be entitled to recover from any purported Holder of a Class R Certificate that was in fact not a Permitted Transferee under this Section 5.05(b) at the time it became a Holder all payments made on such Class R Certificate. Each Holder of a Class R Certificate, by acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this clause (b) and to any amendment of this Agreement deemed necessary (whether as a result of new legislation or otherwise) by counsel of the Company to ensure that the Class R Certificates are not transferred to any Person who is not a Permitted Transferee and that any transfer of such Class R Certificates will not cause the imposition of a tax upon the Trust or cause any such REMIC to fail to qualify as a REMIC. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.of
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B R, Class RX, Class C or a Class R P Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "“Act"”), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B R, Class RX, Class C or Class R P Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Company or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor Company or any affiliate thereof, to a non-affiliate of the Depositor Company and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor Company and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor Company or the Master Servicer; provided, however, that such representation letters will not be required in connection with any transfer of any such Certificate by the Company to an affiliate of the Company and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Company of the status of such transferee as an affiliate of the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Notwithstanding the requirements of Section 5.02(b), transfers of Class R, Class RX, Class C or Class P Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of a Certificate provides the Trustee and the Company with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the, the Trustee, the Company or the Master Servicer, and which investment letter states that, among other things, such transferee is a “qualified institutional buyer” as defined under Rule 144A, provided that, in the case of any Book-Entry Certificate, such transferee shall be deemed to have made such representations and warranties contained in such investment letter. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws The Trustee shall require a written an Opinion of Counsel Counsel, on which the Trustee, the Company and the Master Servicer may rely, from a prospective transferee prior to the transfer of any ERISA Restricted Certificate, Class B C or Class R Certificate P Certificates to any employee benefit plan or other retirement arrangement, including an individual retirement accounts and Xxxxx plansaccount or Kxxxx plan, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA") ”), or Section 4975 of the Code (any of the foregoing, a "“Plan"”), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "“plan assets" ” of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "“plan assets"”). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition transfer is permissible under applicable law, will not violate the constitute or result in a prohibited transaction provisions of under Section 406 of ERISA and or Section 4975 of the Code. Neither , and will not subject the DepositorTrustee, the Master Servicer nor or the Company to any obligation in addition to those undertaken in this Agreement. None of the Company, the Master Servicer or the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case A purchaser of any transfer of the foregoing an ERISA Restricted Certificate, Class C or Class P Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject represent to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R CertificateTrustee, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, Company that it is not acquiring its Ownership Interest in a Plan or using assets of a Plan if it does not provide such an Opinion of Counsel. Each beneficial owner of the Class R I-A-2-1, Class I-A-2-2, Class I-A-3, Class II-A-2, Class II-A-3 and Class M or any interest therein shall be deemed to have represented, by virtue of its acquisition or holding of that Certificate or interest therein, that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who either (i) it is not a Permitted Transferee, that for so long as it retains its Ownership Interest in Plan or a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment trustee or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate acting on behalf of a "pass-through interest holder."
Plan or using “plan assets” of a Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute “plan assets”) or (ii) The Trustee will register (1) it is an insurance company, (2) the Transfer source of any Class R funds used to acquire or hold the Certificate only if it shall have received the Transfer Affidavit or interest therein is an “insurance company general account,” as such term is defined in PTCE 95-60, and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii3) (a) if any Disqualified Organization shall become a holder the conditions in Sections I and III of PTCE 95-60 have been satisfied or (b) in the case of a Class R I-A-2-2 Certificate or any interest therein acquired prior to the termination of the Interest Rate Swap Agreement, the acquisition is eligible for exemptive relief under PTCE 95-60. If any Certificate, then or any interest therein, is acquired or held in violation of this section 5.02(c), the last next preceding Permitted Transferee permitted beneficial owner will be treated as the beneficial owner of that Certificate, retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of a Certificate, or interest therein, was effected in violation of this section shall be restored, indemnify to the extent permitted by lawlaw and hold harmless the Company, to the Sponsor, the Master Servicer, any servicer, any Underwriter and the Trustee from and against any and all rights and obligations liabilities, claims, costs or expenses incurred by such parties as holder thereof retroactive to the date of registration a result of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 acquisition or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreementholding.
(d) [Reserved]
Appears in 1 contract
Samples: Pooling and Servicing Agreement (American Home Mortgage Assets Trust 2006-4)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain cause to be kept at its office or agency in Chicago, Illinois, or at its designated agent, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee it shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No The Certificate Register shall contain the name, remittance instructions, Class and Percentage Interest of each Certificateholder, as well as the Series and the number in the Series.
(b) Except as provided in Section 4.02(c), no transfer, sale, pledge or other disposition of a Class B X, Class R-I, Class R-II, Class R-III or a Class R R-IV Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "ActACT"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B X, Class R-I, Class R-II, Class R-III or Class R R-IV Certificate is to be made under this Section 4.02(b), (i) the Depositor Depositors may direct the Trustee to require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Depositors that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Depositors or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor Servicer and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 M-2 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 M-3 hereto, each acceptable to and in form and substance satisfactory to the Depositor Depositors and the Trustee certifying to the Depositor Depositors and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor Depositors or the Master Servicer, provided that such representation letter will not be required in connection with any transfer of any such Certificate by the Depositors to an affiliate of the Depositors. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor Depositors, the Certificate Insurer and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion .
(c) Transfers of Counsel from a Class X, Class R-I, Class R-II, Class R-III and Class R-IV Certificates may be made in accordance with this Section 4.02(c) if the prospective transferee prior to of a Certificate provides the transfer of any Class B or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor Trustee and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to Depositors with an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification investment letter substantially in the form of Exhibit G-5 hereto substantially to M-4 attached hereto, which investment letter shall not be an expense of the effect that all funds used by Trustee, the Depositors or the Servicer, and which investment letter states that, among other things, such transferee is a "qualified institutional buyer" as defined under Rule 144A. Such transfers shall be deemed to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" have complied with the requirements of Section 4.02(b) hereof; provided, however, that no Transfer of any Plan (as defined above). The permission of any transfer in violation of the restriction on Certificates may be made pursuant to this Section 4.02(c) by the Depositors. Any such Certificateholder desiring to effect such transfer set forth shall, and does hereby agree to, indemnify the Trustee, the Depositors and the Servicer against any liability that may result if the transfer is not so exempt or is not made in this paragraph shall not constitute a default or an Event of Defaultaccordance with such applicable federal and state laws.
(id) Each Person who has or who acquires any Ownership Interest in a Class R Residual Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The , and the rights of each Person acquiring any Ownership Interest in a Class R Residual Certificate are expressly subject to the following provisions:
(A1) Each Person holding or acquiring any Ownership Interest in a Class R Residual Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B2) In connection with any proposed transfer Transfer of any Ownership Interest in a Class R Residual Certificate, the Trustee shall require delivery to it, and shall not register the transfer Transfer of any Class R such Residual Certificate until its receipt of (I) of, an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form TRANSFER AFFIDAVIT AND AGREEMENT") attached hereto as Exhibit G-3) M-1 from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee Trustee, representing and warranting, among other things, that it such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R such Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R such Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 4.02(d) and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C3) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B2) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Residual Certificate to such proposed Transferee shall be effected.
(D4) Each Person holding or acquiring any Ownership Interest in a Class R Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R such Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form (attached hereto as Exhibit G-4J) to the Trustee stating that, among other things, it has no actual knowledge that such other Person is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii5) The Trustee will register the Transfer of any Class R Residual Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. In addition, no Transfer of a Residual Certificate shall be made unless the Trustee shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is not a Disqualified Non-United States Person and is not a Disqualified Organization or an agent of either. Transfers of the Class R Residual Certificates to Disqualified Non-United States Persons and Disqualified Organizations or their agents are prohibited.
(iii6) (a) if Any attempted or purported transfer of any Disqualified Organization Ownership Interest in a Residual Certificate in violation of the provisions of this Section 4.02 shall be absolutely null and void and shall vest no rights in the purported transferee. If any purported transferee shall become a holder Holder of a Class R CertificateResidual Certificate in violation of the provisions of this Section 4.02, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, restored to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer transfer of such Class R Residual Certificate. If The Trustee shall notify the Depositors upon receipt of written notice or discovery by a Non-United States Person shall become a holder of a Class R Certificate, then Responsible Officer that the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Residual Certificate is disregarded pursuant was not in fact permitted by this Section 4.02. Knowledge shall not be imputed to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then Trustee with respect to an impermissible transfer in the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration absence of such Transfer of such Class R Certificatea written notice or discovery by a Responsible Officer. The Trustee shall be under no liability to any Person for any registration of Transfer transfer of a Class R Residual Certificate that is in fact not permitted by this Section 5.02 4.02 or for making any payments due on such Certificate to the holder Holder thereof or for taking any other action with respect to such holder Holder under the provisions of this Agreement so long as the transfer was registered after receipt of the related Transfer Affidavit and Transfer Certificate. The Trustee shall be entitled, but not obligated to recover from any Holder of a Residual Certificate that was in fact not a Permitted Transferee at the time it became a Holder or, at such subsequent time as it became other than a Permitted Transferee, all payments made on such Residual Certificate at and after either such time. Any such payments so recovered by the Trustee shall be paid and delivered by the Trustee to the last preceding Holder of such Certificate.
(e) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions, all information necessary to compute any tax imposed as a result of the transfer of an ownership interest in a Residual Certificate to any Person who is a Disqualified Organization or an agent thereof, including the information regarding "excess inclusions" of such Residual Certificates required to be provided to the Internal Revenue Service and certain Persons as described in Treasury Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5). The Trustee may charge and shall be entitled to reasonable compensation for providing such information as may be required from those Persons which may have had a tax imposed upon them as specified in this paragraph for providing such information.
(f) No transfer of a Class X, Class R-I, Class R-II, Class R-III or Class R-IV Certificate or any interest therein shall be made to any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Xxxxx plans and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or the Code (each, an "ERISA PLAN"), unless the prospective transferee of such Certificate provides the Servicer and the Trustee with a certification of facts and, at the prospective transferee's expense, an Opinion of Counsel which establish to the satisfaction of the Servicer and the Trustee that such transfer will not result in a violation of Section 406 of ERISA or Section 4975 of the Code or cause the Servicer or the Trustee to be deemed a fiduciary of such ERISA Plan or result in the imposition of an excise tax under Section 4975 of the Code. In the absence of their having received the certification of facts or Opinion of Counsel contemplated by the preceding sentence, the Trustee and the Servicer shall require the prospective transferee of any Class X, Class R-I, Class R-II, Class R-III or Class R-IV Certificate to certify in the form of Exhibit M-2 or Exhibit M-4 that (A) it is neither (i) an ERISA Plan nor (ii) a Person who is directly or indirectly purchasing such Certificate on behalf of, as named fiduciary of, as trustee of, or with assets, of an ERISA Plan or (B) in the case of the Class X Certificates, if the prospective transferee is an insurance company, all funds used by such transferee to purchase such Certificates will be funds held by it in an "insurance company general account" (as such term is defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTE 95-60"), 60 Fed. Reg. 35925 (July 12, 1995) and there is no ERISA Plan with respect to which the amount of such general account's reserves and liabilities for the contract(s) held by or on behalf of such ERISA Plan and all other ERISA Plans maintained by the same employer (or affiliate thereof as defined in Section V(a)(1) of PTE 95-60) or by the same employee organization exceeds 10% of the total of all reserves and liabilities of such general account (as such amounts are determined under Section I(a) of PTE 95-60) at the date of acquisition.
(g) Subject to the restrictions set forth in this Agreement, upon surrender for registration of transfer of any Certificate at the office or agency of the Trustee located in New York, New York or Chicago Illinois, the Trustee shall execute, authenticate and deliver in the name of the designated transferee or transferees, a new Certificate of the same Class and Percentage Interest and dated the date of authentication by the Trustee. The Trustee shall notify the Servicer of any such transfer. At the option of the Certificateholders, Certificates may be exchanged for other Certificates of Authorized Denominations of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at such office. Whenever any Certificates are so surrendered for exchange, the Trustee shall execute, authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive. No service charge shall be made for any transfer or exchange of Certificates, but the Trustee 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. All Certificates surrendered for transfer and exchange shall be canceled by the Trustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Eqcc Home Equity Loan Trust 1999-3)
Registration of Transfer and Exchange of Certificates. (a) The Trustee Securities Administrator shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee Securities Administrator shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B R, Class C or a Class R P Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "“Act"”), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B R, Class C or Class R P Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to Securities Administrator shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Securities Administrator that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Securities Administrator, the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee Securities Administrator shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee Securities Administrator shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee Securities Administrator certifying to the Depositor and the Trustee Securities Administrator the facts surrounding such transfer, which representation letters shall not be an expense of the Securities Administrator, the Trustee, the Depositor or the Master Servicer; provided, however, that such representation letters will not be required in connection with any transfer of any such Certificate by the Depositor to an affiliate of the Depositor and the Securities Administrator shall be entitled to conclusively rely upon a representation (which, upon the request of the Securities Administrator, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Securities Administrator, the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Notwithstanding the requirements of Section 5.02(b), transfers of Class R, Class C or Class P Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of a Certificate provides the Securities Administrator and the Depositor with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the Securities Administrator, the Trustee, the Depositor or the Master Servicer, and which investment letter states that, among other things, such transferee is a “qualified institutional buyer” as defined under Rule 144A, provided that, in the case of any Book-Entry Certificate, such transferee shall be deemed to have made such representations and warranties contained in such investment letter. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Securities Administrator, the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws The Trustee Securities Administrator shall require a written an Opinion of Counsel Counsel, on which the Securities Administrator, the Trustee, the Depositor and the Master Servicer may rely, from a prospective transferee prior to the transfer of any ERISA Restricted Certificate, Class B C or Class R Certificate P Certificates to any employee benefit plan or other retirement arrangement, including an individual retirement accounts and Xxxxx plansaccount or Kxxxx plan, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA") ”), or Section 4975 of the Code (any of the foregoing, a "“Plan"”), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "“plan assets" ” of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "“plan assets"” of a Plan). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar Securities Administrator that such disposition transfer is permissible under applicable law, will not violate the constitute or result in a prohibited transaction provisions of under Section 406 of ERISA and or Section 4975 of the Code, and will not subject the Securities Administrator, the Trustee, the Master Servicer or the Depositor to any obligation in addition to those undertaken in this Agreement. Neither None of the Depositor, the Master Servicer nor Servicer, the Securities Administrator or the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case A purchaser of any transfer of the foregoing an ERISA Restricted Certificate, Class C or Class P Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject represent to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R CertificateSecurities Administrator, the Trustee shall require delivery to itTrustee, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, Depositor that it is not acquiring its Ownership Interest in a Plan or using assets of a Plan if it does not provide such an Opinion of Counsel. For so long as the Class R A-1 Swap Agreement is in existence, each beneficial owner of a Class A-1 Certificate that is the subject or any interest therein, shall be deemed to have represented, by virtue of its acquisition or holding of the proposed Transfer as a nomineeClass A-1 Certificate, trustee or agent for any Person who interest therein, that either (i) it is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and Plan or (IIii) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(CA) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" an accredited investor within the meaning of Temporary Treasury Regulations Section 1.67the Prohibited Transaction Exemption 2002-3T(a)(2)(i)(A41 and (B) immediately upon acquiring an Ownership Interest in the acquisition and holding of such Certificate and the separate right to receive payments from the Class A-1 Swap Agreement are eligible for the exemptive relief available under Prohibited Transaction Class Exemption 91-38, 96-23, 90-1, 84-14 or 95-60. Each beneficial owner of a Class R CertificateA Certificate (except in the case of the Class A-1 Certificates) or Class M Certificate or any interest therein shall be deemed to have represented, if by virtue of its acquisition or holding of that Certificate or interest therein, that either (i) it is "not a pass-through interest holder", Plan or is holding an Ownership Interest in a Class R Certificate trustee or other Person acting on behalf of a "pass-through interest holder."
Plan or using “plan assets” of a Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute “plan assets” of a Plan) or (ii) The Trustee will register (1) it is an insurance company, (2) the Transfer source of any Class R funds used to acquire or hold the Certificate only if it shall have received the Transfer Affidavit or interest therein is an “insurance company general account,” as such term is defined in Section V(e) of PTCE 95-60, and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii3) (a) if any Disqualified Organization shall become a holder in the case of a Class R A-2-A Certificate or Class A-3 Certificate that is acquired prior to the termination of the related Interest Rate Swap Agreement, such acquisition or holding is eligible for exemptive relief under PTCE 95-60 or (b) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Certificate, then or any interest therein, is acquired or held in violation of this section 5.02(c), the last next preceding Permitted Transferee permitted beneficial owner will be treated as the beneficial owner of that Certificate, retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of a Certificate, or interest therein, was effected in violation of this section shall be restored, indemnify to the extent permitted by lawlaw and hold harmless the Depositor, to the Sponsor, the Master Servicer, any servicer, any Underwriter and the Trustee from and against any and all rights and obligations liabilities, claims, costs or expenses incurred by such parties as holder thereof retroactive to the date of registration a result of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 acquisition or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreementholding.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (American Home Mortgage Assets Trust 2007-2)
Registration of Transfer and Exchange of Certificates. The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No transfer, sale, pledge or other disposition of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B or Class R Certificate is to be made (i) the Depositor may direct the Trustee to require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the transfer of any Class B or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx Kxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I1) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II11) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
(b) If any purported Transferee shall become a holder of a Class R Certificate in violation of the restrictions in this Section 5.02 and to the extent that the retroactive restoration of the rights of the holder of such Class R Certificate as described in clause (iii)(a) above shall be invalid, illegal or unenforceable, then the Trustee shall have the right, without notice to the holder or any prior holder of such Class R Certificate, to sell such Class R Certificate to a purchaser selected by the Trustee on such terms as the Trustee may choose. Such purported Transferee shall promptly endorse and deliver each Class R Certificate in accordance with the instructions of the Trustee. Such purchaser may be the Trustee itself. The proceeds of such sale, net of the commissions (which may include commissions payable to the Trustee), expenses and taxes due, if any, will be remitted by the Trustee to such purported Transferee. The terms and conditions of any sale under this clause (iii)(b) shall be determined in the sole discretion of the Trustee, and the Trustee shall not be liable to any Person having an Ownership Interest in a Class R Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions, all information necessary to compute any tax imposed (A) as a result of the transfer of an ownership interest in a Class R Certificate to any Person who is a Disqualified Organization, including the information regarding "excess inclusions" of such Class R Certificates required to be provided to the Internal Revenue Service and certain Persons as described in Treasury Regulations Sections 1.86OD-l(b)(5) and 1.860E 2(a)(5), and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Class R Certificate having as among its record holders at any time any Person who is a Disqualified Organization. The Trustee may charge and shall be entitled to reasonable compensation for providing such information as may be required from those Persons which may have had a tax imposed upon them as specified in clauses (A) and (B) of this paragraph for providing such information. Subject to the preceding paragraphs, upon surrender for registration of transfer of any Certificate at the office of the Trustee maintained for such purpose, the Trustee shall execute and the Trustee or the Authenticating Agent shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate initial Certificate Principal Balance. Every Certificate surrendered for transfer shall be accompanied by notification of the account of the designated transferee or transferees for the purpose of receiving distributions pursuant to Section 4.01 by wire transfer, if any such transferee desires and is eligible for distribution by wire transfer. At the option of the Certificateholders, Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate initial Certificate Principal Balance, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee shall execute, authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive. Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Trustee or the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Trustee or the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing. No service charge shall be made to the Certificateholders for any transfer or exchange of Certificates, but the Trustee 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. All Certificates surrendered for transfer and exchange shall be canceled and retained by the Trustee in accordance with the Trustee's standard procedures.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Opteum Mortgage Acceptance CORP)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B SB Certificate or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B SB Certificate or a Class R Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer; provided however that such representation letters will not be required in connection with any transfer of any such Certificate by the Depositor to an affiliate of the Depositor and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. 69
(c) Transfers of Certificates may be made in accordance with this Section 5.02(c) if the transferor and the prospective transferee of a Certificate provide the Trustee and the Depositor with an investment letter substantially in the form of Exhibit H attached hereto, which investment letter shall not be an expense of the Trustee, the Depositor or the Master Servicer, and which investment letter states that, among other things, such transferee is a "qualified institutional buyer" as defined under Rule 144A. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof; provided, however, that no Transfer of any of the Certificates may be made pursuant to this Section 5.02(c) by the Depositor. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(d) The Trustee shall require a written an Opinion of Counsel from a prospective transferee prior to the transfer of any Class A-2 Certificate, Class B Certificate, Class SB Certificate or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto (or in such other form as shall be mutually agreed upon by the Depositor and the Trustee) substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above); provided however that such certification will not be required in connection with any transfer of any such Certificate by the Depositor to an affiliate of the Depositor and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer Transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer Transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transfereetransferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- pass-through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder Holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.. 71
(iiiA) (a) if If any Disqualified Organization shall become a holder Holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder Holder of a Class R Certificate, then the last preceding United States Person Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-31.860G-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a Class R Certificate in violation of the restrictions in this Section 5.02 and to the extent that the retroactive restoration of the rights of the Holder of such Class R Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Trustee shall have the right, without notice to the holder or any prior holder of such Class R Certificate, to sell such Class R Certificate to a purchaser selected by the Trustee on such terms as the Trustee may choose. Such purported Transferee shall promptly endorse and deliver each Class R Certificate in accordance with the instructions of the Trustee. Such purchaser may be the Trustee itself. The proceeds of such sale, net of the commissions (which may include commissions payable to the Trustee), expenses and taxes due, if any, will be remitted by the Trustee to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be determined in the sole discretion of the Trustee, and the Trustee shall not be liable to any Person having an Ownership Interest in a Class R Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions, all information necessary to compute any tax imposed (A) as a result of the transfer of an ownership interest in a Class R Certificate to any Person who is a Disqualified Organization, including the information regarding "excess inclusions" of such Class R Certificates required to be provided to the Internal Revenue Service and certain Persons as described in Treasury Regulations Sections 1.860D-l(b)(5) and 1.860E-2(a)(5), and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Class R Certificate having as among its record holders at any time any Person who is a Disqualified Organization. The Trustee may charge and shall be entitled to reasonable compensation for providing such information as may be required from those Persons which may have had a tax imposed upon them as specified in clauses (A) and (B) of this paragraph for providing such information. 72
(f) Subject to the preceding paragraphs, upon surrender for registration of transfer of any Certificate at the office of the Trustee maintained for such purpose, the Trustee shall execute and the Trustee or the Authenticating Agent shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate initial Certificate Principal Balance. Every Certificate surrendered for transfer shall be accompanied by notification of the account of the designated transferee or transferees for the purpose of receiving distributions pursuant to Section 4.01 by wire transfer, if any such transferee desires and is eligible for distribution by wire transfer.
(g) At the option of the Certificateholders, Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate initial Certificate Principal Balance, upon surrender of the Certificates to be exchanged at the office of the Trustee. Whenever any Certificates are so surrendered for exchange the Trustee shall execute, authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive. Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Trustee) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be made to the Certificateholders for any transfer or exchange of Certificates, but the Trustee 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.
(i) All Certificates surrendered for transfer and exchange shall be canceled and retained by the Trustee in accordance with the Trustee's standard procedures.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (DLJ Mort Accept Corp Mort Pass Through Cert Series 1995 Qe11)
Registration of Transfer and Exchange of Certificates. (a) The Trustee Securities Administrator shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee Securities Administrator shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 4.12(c), no transfer, sale, pledge or other disposition of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "“Act"”), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B or Class R Certificate is to be made under this Section 4.12(b), (i) the Depositor may direct the Trustee to Securities Administrator shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Securities Administrator that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Securities Administrator, the Trustee, the Depositor or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee Securities Administrator shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee Securities Administrator shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee Securities Administrator certifying to the Depositor and the Trustee Securities Administrator the facts surrounding such transfer, which representation letters shall not be an expense of the Securities Administrator, the Trustee, the Depositor or the Master Servicer; provided, however, that such representation letters will not be required in connection with any transfer of any such Certificate by the Depositor to an affiliate of the Depositor and the Securities Administrator shall be entitled to conclusively rely upon a representation (which, upon the request of the Securities Administrator, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Securities Administrator, the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Notwithstanding the requirements of Section 4.12(b), transfers of Class B Certificates may be made in accordance with this Section 4.12(c) if the prospective transferee of a Certificate provides the Securities Administrator and the Depositor with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the Securities Administrator, the Trustee, the Depositor or the Master Servicer, and which investment letter states that, among other things, such transferee is a “qualified institutional buyer” as defined under Rule 144A, provided that, in the case of any Book-Entry Certificate, such transferee shall be deemed to have made such representations and warranties contained in such investment letter. Such transfers shall be deemed to have complied with the requirements of Section 4.12(b) hereof. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Securities Administrator, the Trustee, the Depositor and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee Securities Administrator shall require a written an Opinion of Counsel Counsel, on which the Securities Administrator, the Trustee, the Depositor and the Master Servicer may rely, from a prospective transferee prior to the transfer of any Class B or Class R ERISA Restricted Certificate to any employee benefit plan or other retirement arrangement, including an individual retirement accounts and account or Xxxxx plansplan, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA") ”), or Section 4975 of the Code (any of the foregoing, a "“Plan"”), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "“plan assets" ” of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "“plan assets"”). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar Securities Administrator that such disposition transfer is permissible under applicable law, will not violate the constitute or result in a prohibited transaction provisions of under Section 406 of ERISA and or Section 4975 of the Code, and will not subject the Securities Administrator, the Trustee, the Master Servicer or the Depositor to any obligation in addition to those undertaken in this Agreement. Neither None of the Depositor, the Master Servicer nor Servicer, the Securities Administrator or the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In A purchaser of an ERISA Restricted Certificate shall be deemed to represent to the case Securities Administrator, the Trustee, the Master Servicer and the Depositor that it is not a Plan or using assets of a Plan if it does not provide such an Opinion of Counsel. Each beneficial owner of a Class A Certificate (other than a Class A1-A or Class A2-A Certificate), Class M, Class X-P or Class B Certificate or any transfer interest therein shall be deemed to have represented, by virtue of the foregoing Certificates its acquisition or holding of that Certificate or interest therein, that either (i) it is not a Plan or a trustee or other Person acting on behalf of a Plan or using “plan assets” of a Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute “plan assets”) or (ii) (1) it is an insurance company, in lieu (2) the source of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by to acquire or hold the Certificate or interest therein is an “insurance company general account,” as such transferee to purchase such Certificates will be funds term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Certificate, or any interest therein, is acquired or held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of this section 4.12(c), the restriction on next preceding permitted beneficial owner will be treated as the beneficial owner of that Certificate, retroactive to the date of transfer set forth to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of a Certificate, or interest therein, was effected in violation of this paragraph section shall not constitute indemnify to the extent permitted by law and hold harmless the Depositor, the Sponsor, the Master Servicer, any servicer, any Underwriter and the Trustee from and against any and all liabilities, claims, costs or expenses incurred by such parties as a default result of such acquisition or an Event of Defaultholding.
(d) [Reserved]
(i) Each Person who has or who acquires any Ownership Interest in a Class R Residual Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee Securities Administrator or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Residual Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Residual Certificate shall be a Permitted Transferee and shall promptly notify the Trustee Securities Administrator of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer Transfer of any Ownership Interest in a Class R Residual Certificate, the Trustee Securities Administrator shall require delivery to it, and shall not register the transfer Transfer of any Class R Residual Certificate until its receipt of (I) an affidavit and agreement (a "“Transfer Affidavit and Agreement" ” in the form attached hereto as Exhibit G-3G-5) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee Securities Administrator representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 4.12 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Residual Certificate, in form and substance satisfactory to the Master Servicer and the Trustee Securities Administrator representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee Securities Administrator assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee Securities Administrator in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Residual Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee Securities Administrator written notice that it is a "pass- “pass-through interest holder" ” within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Residual Certificate, if it is "“a pass-through interest holder"”, or is holding an Ownership Interest in a Class R Residual Certificate on behalf of a "“pass-through interest holder."”
(ii) The Trustee Securities Administrator will register the Transfer of any Class R Residual Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3G-5, a certificate of the holder Holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee Securities Administrator as a condition to such registration. Transfers of the Class R Residual Certificates other than to Non-United States Persons and Disqualified Organizations Permitted Transferees are prohibited.
(iii) (aA) if If any Disqualified Organization Person other than a Permitted Transferee shall become a holder Holder of a Class R Residual Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Residual Certificate. If a Non-United States Person shall become a holder Holder of a Class R Residual Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Residual Certificate. If a transfer of a Residual Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.860G-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as Holder thereof retroactive to the date of registration of such transfer of such Residual Certificate. The Trustee prior Holder shall be entitled to recover from any purported Holder of a Residual Certificate that was in fact not a Permitted Transferee under this Section 4.15(b) at the time it became a Holder all payments made on such Residual Certificate. Each Holder of a Residual Certificate, by acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this clause (b) and to any amendment of this Agreement deemed necessary (whether as a result of new legislation or otherwise) by counsel of the Depositor to ensure that the Residual Certificates are not transferred to any Person who is not a Permitted Transferee and that any transfer of such Residual Certificates will not cause the imposition of a tax upon the Issuing Entity or cause any such REMIC to fail to qualify as a REMIC. The Securities Administrator shall be under no liability to any Person for any registration of Transfer of a Class R Residual Certificate that is in fact not permitted by this Section 5.02 4.12 or for making any payments due on such Certificate to the holder Holder thereof or for taking any other action with respect to such holder Holder under the provisions of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (American Home Mortgage Assets Trust 2006-6)
Registration of Transfer and Exchange of Certificates. The Trustee Trustee, or such other Person as it shall maintain designate in writing, shall be the Certificate Registrar, who shall cause to be kept at the office or agency to be maintained by the Certificate Registrar a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee Certificate Registrar shall provide for the registration of each Series of Certificates and of transfers and exchanges of all such Certificates as herein provided. The Trustee, whose principal corporate trust office is located at the Corporate Trust Office, is hereby initially appointed Certificate Registrar for the purpose of registering each Series of Certificates and transfers and exchanges of all such Certificates as herein provided. No transfer, sale, pledge or other disposition transfer of a Class B Certificate or a Class R Certificate Certificates shall be made unless such transfertransfer is made pursuant to an effective registration statement under the Certificates Act of 1933, saleas amended, pledge (the "Act") or other disposition is exempt from the registration requirements of under the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B or Class R Certificate is to be made (iin reliance upon an exemption from the Act, the Certificate Registrar may require, in order to assure compliance with the Act, that the Certificateholder desiring to effect such transfer and such Certificateholder's prospective transferee each certify to the Certificate Registrar in writing the facts surrounding such transfer. In the event that such certification of facts does not on its face establish the availability of an exemption under Section 4(5) or a comparable provision of the Depositor Act, the Certificate Registrar may direct the Trustee to require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor it that such transfer shall may be made pursuant to an exemption, describing exemption from the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and lawsAct, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Master Servicer or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor and Neither the Master Servicer against nor the Trustee is obligated to register any liability that may result if of the transfer Certificates under the Act or any other federal or state securities law. It is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior condition to the transfer of any Class B or Class R Certificate that the transferee certify in writing to any the Seller and the Certificate Registrar that such transferee (i) is not an employee benefit plan plan, trust or other retirement arrangementaccount, including an individual retirement accounts and Xxxxx plansaccount, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"amended, or that is described in Section 4975(e)(1) or Section 4975 of the Code Federal Tax Laws (any of the foregoingsuch plan, trust or account being referred to as a "Plan")) and (ii) has not acquired and will not acquire such Certificate with plan assets, to within the meaning of 29 CFR 2510.3-101, of a trustee or other Person acting on behalf Plan. A form of the letter from the purchaser of any PlanCertificate, or containing the representations described in the preceding two paragraphs, is in the form of a Purchaser Letter attached hereto as Exhibit E. Subject to any other person who is using "plan assets" the preceding three paragraphs, upon surrender for registration of transfer of any Plan Certificate at any office or agency of the Certificate Registrar maintained for such purpose pursuant to effect such acquisition (including any insurance company using funds this Section 5.02 and upon satisfaction of all requirements for transfer, the Seller shall execute, and the Trustee shall authenticate and deliver, in its general the name of the designated transferee or separate accounts that may constitute "plan assets")transferees, one or more new Certificates of the same Series and of a like aggregate Fractional Undivided Interest. Such Opinion At the option of Counsel must establish to the Certificateholders, Certificates may, upon satisfaction of the Depositor requirement for exchange, be exchanged for other Certificates of such Series of authorized denominations of the same aggregate Fractional Undivided Interest, upon surrender of the Certificates to be exchanged at any such office or agency. Whenever any Certificates are so surrendered for exchange the Seller shall execute, and the Trustee shall authenticate and deliver, the Certificates which the Certificateholder making the exchange is entitled to receive. Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Seller or the Trustee or the Certificate Registrar that such disposition will not violate Registrar) (a) be duly endorsed by, or be accompanied by a written instrument of transfer in form acceptable to transfer agents registered with the prohibited transaction provisions of Section 406 of ERISA Securities and Section 4975 of Exchange Commission and the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of CounselSeller, the Trustee and the Certificate Registrar, and (b) be duly executed by the holder thereof or his attorney duly authorized in writing. No service charge shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" made for any transfer or exchange of any Plan (as defined above). The permission Certificates, but the Certificate Registrar may require payment of a sum sufficient to cover any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default tax or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall other governmental charge that may be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary imposed in connection with any such saletransfer or exchange of any Certificates. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate All Certificates surrendered for transfer and exchange shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required held by the Trustee as Certificate Registrar for a condition to such registration. Transfers period of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions three years after termination of this Agreement, and thereafter may be destroyed, in which event a destruction certificate shall be delivered to the Trustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (CMC Securities Corp Iv)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain keep at the office or agency to be maintained in accordance with Section 12.02 a "Certificate Register Register" in which, subject to such reasonable regulations as it may prescribe, which the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No transferThe Trustee initially appoints itself to be the "Certificate Registrar" and transfer agent for the purpose of registering Certificates and transfers and exchanges of Certificates as provided herein. The Trustee will give prompt written notice to Certificateholders and the Servicer of any change in the Certificate Registrar.
(b) The provisions of this Subsection (b) also apply with respect to any transfers of Certificates.
(1) Subject to clauses (2) and (3) below, sale, pledge or other disposition no transfer of a Class B B-2 Certificate, Class B-3I Certificate or a Class R C Certificate shall be made by the Originator or any other Person unless such transfer, sale, pledge or other disposition transfer is exempt from the registration requirements of the Securities Act of 1933Act, as amended (the "Act")amended, and any applicable state securities laws or is made in accordance with said the Act and laws. In the event that a any such transfer of a Class B or Class R Certificate is to be made made, (ia) the Depositor Originator may direct the Trustee to require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Originator that such transfer shall may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said the Act and laws or is being made pursuant to said the Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Trustee or the Master ServicerOriginator, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (iib) the Trustee shall require the transferee to execute a representation letter, an investment letter substantially in the form of Exhibit G-1 L attached hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters investment letter shall not be an expense of the Trustee, the Depositor Trustee or the Master ServicerOriginator. Any such Class B-2 Certificateholder, Class B-3I Certificateholder or Class C Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor Originator and the Master Servicer Certificate Registrar against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the .
(2) No transfer of a Class B-2 Certificate, a Class B-3I Certificate or a Class C Certificate or any Class B or Class R Certificate interest therein, shall be made to any employee benefit plan plan, trust or other retirement arrangement, including individual retirement accounts and Xxxxx plans, 110 account that is subject to ERISA, or that is described in Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"4975(e)(1) or Section 4975 of the Code (any of the foregoingeach, a "Plan"), or to a trustee or other Person acting any person investing on behalf of any Plan, or to any other person who is using with "plan assets" or a plan unless the prospective transferee of any Plan to effect such acquisition (including any insurance company using funds in a Certificate or interest therein provides the Servicer and the Trustee with a certification of facts and, at its general or separate accounts that may constitute "plan assets"). Such own expense, an Opinion of Counsel must which establish to the satisfaction of the Depositor Servicer and the Trustee or the Certificate Registrar that such disposition transfer will not violate the prohibited transaction provisions result in a violation of Section 406 of ERISA and or Section 4975 of the Code or cause the Servicer, the Originator or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. Neither .
(3) Notwithstanding anything to the Depositor, contrary contained herein,
(A) neither the Master Servicer Class C Subsidiary Certificate nor the Trustee will Class C Master Certificate, nor any interest therein, shall be required transferred, sold or otherwise disposed of to obtain such Opinion a "disqualified organization," within the meaning of Counsel on behalf of any prospective transferee. In the case of any transfer Section 860E(e)(5) of the foregoing Certificates to an insurance companyCode (a "Disqualified Organization"), in lieu of such Opinion of Counselincluding, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do but not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.limited to,
(i) Each Person who has the United States, a state or who acquires political subdivision thereof, a foreign government, an international organization or an agency or instrumentality of any Ownership Interest in a Class R Certificate shall be deemed by of the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause foregoing,
(iii)(Aii) below to deliver payments to a Person an organization (other than such Person a cooperative described in Section 521 of the Code) which is exempt from the taxes imposed by Chapter 1 of the Code and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly not subject to the following provisions:tax imposed on unrelated business income by Section 511 of the Code, or
(Aiii) Each Person holding or acquiring any Ownership Interest a cooperative described in a Class R Certificate shall be a Permitted Transferee and shall promptly notify Section 1381(a)(2)(C) of the Trustee of any change or impending change in its status as a Permitted Transferee.Code, and
(B) In connection with prior to any proposed transfer registration of any Ownership Interest in a transfer, sale or other disposition of the Class R C Subsidiary Certificate or Class C Master Certificate, the proposed transferee shall deliver to the Trustee, under penalties of perjury, an affidavit that such transferee is not a Disqualified Organization, with respect to which the Trustee shall require delivery to ithave no actual knowledge that such affidavit is false, and the transferor and the proposed transferee shall not register each deliver for the Trustee an affidavit with respect to any other information reasonably required by the Trustee pursuant to the REMIC Provisions, including, without limitation, information regarding the transfer of noneconomic residual interests and transfers of any Class R Certificate until its receipt residual interest to or by a foreign person; provided, however, that, upon the delivery to the Trustee of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed TransfereeOpinion of Counsel, in form and substance satisfactory to the Trustee and rendered by Independent counsel, to the effect that the beneficial ownership of the Class C Certificate by any Disqualified Organization will not result in the imposition of federal income tax upon the Subsidiary REMIC, Intermediate REMIC or Master Servicer REMIC or any Certificateholder or any other person or otherwise adversely affect the status of the Subsidiary REMIC, Intermediate REMIC or Master REMIC as a 111 REMIC, the foregoing prohibition on transfers, sales and other dispositions, as well as the Trustee representing foregoing requirement to deliver a certificate prior to any registration thereof, shall, with respect to such Disqualified Organization, terminate. Notwithstanding any transfer, sale or other disposition of the Class C Certificate, or any interest therein, to a Disqualified Organization or the registration thereof in the Certificate Register, such transfer, sale or other disposition and warrantingany registration thereof, among other thingsunless accompanied by the Opinion of Counsel described in the preceding sentence, that it is a Permitted Transfereeshall be deemed to be void and of no legal force or effect whatsoever and such Disqualified Organization shall be deemed to not be the Class C Certificateholder for any purpose hereunder, that it is including, but not acquiring its Ownership Interest limited to, the receipt of distributions on the Class C Certificate, and shall be deemed to have no interest whatsoever in the Class R Certificate that is the subject of the proposed Transfer as a nomineeC Certificate. Each Class C Certificateholder, trustee or agent by his acceptance thereof, shall be deemed for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor all purposes to remain a Permitted Transferee, and that it has reviewed have consented to the provisions of this Section 5.02 and agrees 9.02(b)(3).
(4) Any transfer, sale or other disposition not in compliance with the provisions of this Section 9.02(b) shall be deemed to be bound by themvoid and of no legal force or effect whatsoever and such transferee shall be deemed to not be the Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions on such Certificate, and shall be deemed to have no interest whatsoever in such Certificate.
(II5) The Trustee shall give notice to Standard & Poor's, Xxxxx'x and Fitch promptly following any transfer, sale or other disposition of a certificateClass B-3I or Class C Certificate.
(c) At the option of a Certificateholder, in Certificates may be exchanged for other Certificates of authorized denominations of a like aggregate original denomination, upon surrender of such Certificates to be exchanged at such office. Whenever any Certificates are so surrendered for exchange, the form attached hereto as Exhibit G-4Trustee shall execute and deliver the Certificates which the Certificateholder making the exchange is entitled to receive. Every Certificate presented or surrendered for transfer or exchange shall be duly endorsed by, from the Holder wishing to or shall be accompanied by a written instrument of transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer Trustee and the Trustee representing and warranting, among other things, that no purpose of Certificate Registrar duly executed by the proposed Transfer is to impede the assessment holder thereof or collection of taxhis or her attorney duly authorized in writing.
(Cd) Notwithstanding Except as provided in paragraph (e) below, the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer Book-Entry Certificates shall at all times remain registered in the name of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.Depository or its nominee and at all times:
(Di) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) registration of the Book-Entry Certificates may not to transfer its Ownership Interest unless it provides a certificate to be transferred by the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees except to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."another Depository;
(ii) The Trustee will register the Transfer of any Class R Depository shall maintain book-entry records with respect to the Certificate only if it shall have received the Transfer Affidavit Owners and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 with respect to ownership and all transfers of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to NonBook-United States Persons and Disqualified Organizations are prohibited.Entry Certificates;
(iii) (a) if any Disqualified Organization shall become a holder ownership and transfers of a Class R Certificate, then registration of the last preceding Permitted Transferee Book-Entry Certificates on the books of the Depository shall be restoredgoverned by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and expenses from its Depository Participants;
(v) the Trustee shall deal with the Depository, Depository Participants and indirect participating firms as representatives of the Certificate Owners of the Book-Entry Certificates for purposes of exercising the rights of Holders under this Agreement, and requests and directions for and votes of such representatives shall not be deemed to be inconsistent if they are made with respect to different Certificate Owners; and
(vi) the Trustee may rely and shall be fully protected in relying upon information furnished by the Depository with respect to its Depository Participants and furnished by the Depository Participants with respect to indirect participating firms and persons shown on the books of such indirect participating firms as direct or indirect Certificate Owners. All transfers by Certificate Owners of Book-Entry Certificates shall be made in accordance with the procedures established by the Depository Participant or brokerage firm representing such Certificate Owner. Each Depository Participant shall only transfer Book-Entry Certificates of Certificate Owners it represents or of brokerage firms for which it acts as agent in accordance with the Depository's normal procedures.
(e) If
(i) the Seller or the Depository advises the Trustee in writing that the Depository is no longer willing or able properly to discharge its responsibilities as Depository, and
(ii) the Trustee or the Originator is unable to locate a qualified successor OR
(iii) the Originator at its sole option advises the Trustee in writing that it elects to terminate the book-entry system through the Depository, the Trustee shall notify all Certificate Owners, through the Depository, of the occurrence of any such event and of the availability of definitive, fully registered Class A Certificates, Class M Certificates and Class B Certificates (the "Definitive Certificates") to Certificate Owners requesting the same. Upon surrender to the Trustee of the Class A Certificates, Class M-1 Certificates, Class M-2 Certificates and Class B Certificates by the Depository, accompanied by registration instructions from the Depository for registration, the Trustee shall issue the Definitive Certificates. Neither the Originator nor the Trustee shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of Definitive Certificates all references herein to obligations imposed upon or to be performed by the Depository shall be deemed to be imposed upon and performed by the Trustee, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action applicable with respect to such holder under Definitive Certificates and the provisions Trustee shall recognize the Holders of the Definitive Certificates as Certificateholders hereunder.
(f) On or prior to the Closing Date, there shall be delivered to the Depository two Class A Certificates, one Class A-IO Certificate, one Class M-1 Certificate, one Class M-2 Certificate, and one Class B-1 Certificate, each in registered form registered in the name of the Depository's nominee, Cede & Co., the total face amount of which represents 100% of the related Original Principal Balance or Original Notional Principal Amount, respectively. At any time after the Closing Date, subject to compliance with the normal procedures of the Trustee and the Depository, the Class B-2 Certificateholders may deliver to the Depository one Class B-2 Certificate, registered in the name of Cede & Co. (or other nominee of the Depository), the total face amount of which represents 100% of the Original Principal Balance of the Class B-2 Certificate. If, however, the aggregate principal amount of a Class of Class A Certificates, Class M Certificates or Class B Certificates exceeds $400,000,000, one such Class A Certificate, Class M Certificate and/or Class B Certificate will be issued with respect to each $400,000,000 of principal amount and an additional Certificate of such Class or Classes will be issued with respect to any remaining principal amount. Each such Class A, Class M and Class B Certificate registered in the name of the Depository's nominee shall bear the following legend: "Unless this AgreementCertificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC") to Issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Conseco Finance Securitizations Corp)
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain cause to be kept at its Corporate Trust Office, or at the office of its designated agent, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No transfer.
(b) Subject to Section 4.02(c), saleupon surrender for registration of transfer of any Certificate at any office or agency of the Trustee maintained for such purpose, pledge the Company shall execute and the Trustee shall authenticate and deliver, in the name of the designated transferee or other disposition transferees, a Certificate or Certificates of a like Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from and aggregate denomination and dated the registration requirements date of authentication by the Securities Act of 1933, as amended Trustee.
(the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a c) No transfer of a Class B or Class R Certificate shall be made unless such transfer is made pursuant to an effective registration statement or in accordance with an exemption from the requirements under the Securities Act of 1933, as amended. If such a transfer is to be made in reliance upon an exemption from said Act, (i) the Depositor may direct Trustee shall, if not otherwise directed by the Trustee to Company, require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Company that such transfer shall may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and lawsAct, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Company or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation lettercer- tification, substantially in the form of Exhibit G-1 L hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor Company and the Trustee certifying to the Depositor and the Trustee setting forth the facts surrounding such transfer; provided that such Opinion of Counsel shall not be required in the case of transfers by or to Merrill Lynch, which representation letters Pierce, Fexxxx & Smith Incorporxxxx xr an xxxiliate thereof. Such Opinion of Counsel and certification shall not be an expense of the Trustee, the Depositor Company or the Master Servicer. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the The Trustee, the Depositor Master Servicer and the Master Servicer against Company may, without the consent of any liability Certificateholder, add provisions (which shall include a form of certificate to be attached hereto as an exhibit that may result if must be delivered by the transfer is proposed transferee) to this Section 4.02(c) to permit transfers pursuant to Rule 144A of the Securities and Exchange Commission, in which case transfers pursuant to such provisions shall not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written an Opinion of Counsel from a prospective transferee prior to the Counsel.
(d) No transfer (exclusive of any transfer to a Depository or a securitization trustee) of a Class B or Class R Certificate shall be made unless the Trustee shall have received either (i) a representation letter (substantially in the form attached hereto as Exhibit N) from the transferee of such Certificate, acceptable to any and in form and substance satisfactory to the Trustee and the Company, to the effect that such transferee is not an employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") ERISA or Section 4975 of the Code (any of the foregoingCode, nor a "Plan"), to a trustee or other Person person acting on behalf of any Plan, such plan or to any other person who is using "acquiring such Certificate with funds of such a plan assets" of any Plan to effect such acquisition (including without limitation any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such , which representation letter shall not be an expense of the Trustee, the Company or the Master Servicer, or (ii) in the case of any such Certificate presented for registration in the name of an employee benefit plan subject to ERISA or Section 4975 of the Code (or comparable provisions of any subsequent enactments), or a trustee of any such plan, an Opinion of Counsel must establish satisfactory to the satisfaction Trustee and the Company to the effect that the purchase or holding of such Certificate will not result in the assets of the Depositor Trust Fund being deemed to be "plan assets" and the Trustee or the Certificate Registrar that such disposition will not violate subject to the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither Code and will not subject the DepositorTrustee, the Company or the Master Servicer nor to any obligation in addition to those undertaken in this Agreement or cause the Trustee will Trustee, the Company or the Master Servicer to be required to obtain a fiduciary of such Plan, which Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer shall not be an expense of the foregoing Trustee, the Company or the Master Servicer.
(e) At the option of the Certificateholder, a Certificate may be exchanged for another Certificate or Certificates of authorized denominations of a like Class and Percentage Interest, upon surrender of the Certificate to an insurance companybe exchanged at any office or agency of the Trustee maintained for such purpose. Whenever a Certificate is so surrendered for exchange, in lieu of such Opinion of Counsel, the Company shall execute and the Trustee shall require authenticate and deliver, the Certificate which the Certificateholder making the exchange is entitled to receive. Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Trustee) be duly endorsed by, or be accompanied by a certification written instrument of transfer in the form of Exhibit G-5 hereto substantially satisfactory to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it Trustee duly executed by, the Holder thereof or his attorney duly authorized in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Defaultwriting.
(if) Each Person who has or who acquires any Ownership Interest in a Class R Certificate No service charge shall be deemed made to the Holder for any transfer or exchange of the Certificate, but the Trustee may require payment by the acceptance Certificateholders of a sum sufficient to cover any tax or acquisition of such Ownership Interest to have agreed to governmental charge that may be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary imposed in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding transfer or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject exchange of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (MLCC Mortgage Investors Inc)
Registration of Transfer and Exchange of Certificates. The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, (a) (See Section 5.02(a) of the Trustee shall provide for Standard Terms)
(b) (See Section 5.02(b) of the registration Standard Terms)
(c) (See Section 5.02(c) of Certificates and of transfers and exchanges of Certificates as herein provided. the Standard Terms)
(d) No transfer, sale, pledge or other disposition of a Class B or Certificate that is a Class R Definitive Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act")amended, and any applicable state securities laws or is made in accordance with said Act and laws. In Except with respect to (i) the transfer of a Class B Certificate by the Company to an Affiliate of the Company or the transfer of a Class B Certificate from the Company or an Affiliate of the Company to an owner trust or other entity established by the Company (including to the Trustee, as a NIM Trustee), or (ii) a transfer of a Class B Certificate from the NIM Trustee to the Company or an Affiliate of the Company, in the event that a transfer of a Class B or Class R Certificate is to be made made, either (iI)(A) the Depositor may direct the Trustee to shall require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Company that such transfer shall may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Company or the Master ServicerServicer (except that, if such transfer is made by the Company or the Master Servicer or any Affiliate thereof, the Company or the Master Servicer shall provide such Opinion of Counsel at their own expense); provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor Company or any affiliate thereof, Affiliate thereof to a non-affiliate the Company or an Affiliate of the Depositor Company and (iiB) the Trustee shall require (i) in the case of a transfer solely pursuant to Rule 144A, the transferee to execute a representation letter, substantially in the form of Exhibit G-1 heretoH to the Standard Terms, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 I to the Standard Terms, (ii) in the case of an transfer from a 144A Class B Certificate to a transferee that is not a U.S. person and is purchasing the Class B Certificate pursuant to Rule 903 or 904 of Regulation S (a "Regulation S Purchaser"), the Trustee shall require the transferor to execute a transferor certificate, substantially in the form of Exhibit Five hereto, and the Trustee shall require the transferee to execute a transferee certificate substantially in the form of Exhibit Eight hereto and (iii) in the case of a transfer from a Regulation S Purchaser to a 144A Class B Certificate, the Trustee shall require the transferor to execute a transferor certificate, substantially in the form of Exhibit Four hereto, and the Trustee shall require the transferee to execute a transferee certificate substantially in the form of Exhibit Eight hereto, in each case, such certificate or letter acceptable to and in form and substance satisfactory to the Depositor Company and the Trustee certifying to the Depositor Company and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor Company or the Master Servicer. Any ; provided, however, that such Certificateholder representation letters will not be required in connection with any transfer of any such Certificate by the Company or any Affiliate thereof to the Company or an Affiliate of the Company, and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Company, of the status of such transferee as an Affiliate of the Company or (II) the prospective transferee of such a Certificate shall be required to provide the Trustee, the Company and the Master Servicer with an investment letter substantially in the form of Exhibit J attached to the Standard Terms (or such other form as the Company in its sole discretion deems acceptable), which investment letter shall not be an expense of the Trustee, the Company or the Master Servicer, and which investment letter states that, among other things, such transferee (A) is a "qualified institutional buyer" as defined under Rule 144A, acting for its own account or the accounts of other "qualified institutional buyers" as defined under Rule 144A and (B) is aware that the proposed transferor intends to rely on the exemption from registration requirements under the Securities Act of 1933, as amended, provided by Rule 144A. The Holder of any such Certificate desiring to effect any such transfer transfer, sale, pledge or other disposition shall, and does hereby agree to, indemnify the Trustee, the Depositor and Company, the Master Servicer and the Certificate Registrar against any liability that may result if the transfer transfer, sale, pledge or other disposition is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to .
(e) (i) In the transfer case of any Class B or Class R Certificate presented for registration in the name of any Person, either (A) the Trustee shall require an Opinion of Counsel addressed to the Trustee, the Company and the Master Servicer, acceptable to and in form and substance satisfactory to the Trustee to the effect that the purchase or holding of such Class B or Class R Certificate is permissible under applicable law, will not constitute or result in any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") ), or Section 4975 of the Code (or comparable provisions of any subsequent enactments), and will not subject the Trustee, the Company or the Master Servicer to any obligation or liability (including obligations or liabilities under ERISA or Section 4975 of the foregoingCode) in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Trustee, the Company or the Master Servicer or (B) the prospective Transferee shall be required to provide the Trustee, the Company and the Master Servicer with a certification to the effect set forth in paragraph 6 of Exhibit H to the Standard Terms (with respect to any Class B Certificate) or Exhibit G-1 (with respect to any Class R Certificate), which the Trustee may rely upon without further inquiry or investigation, or such other certifications as the Trustee may deem desirable or necessary in order to establish that such Transferee or the Person in whose name such registration is requested either (a) is not an employee benefit plan or other plan subject to the prohibited transaction provisions of ERISA or Section 4975 of the Code, or any Person (including an investment manager, a "Plan"), to named fiduciary or a trustee or other Person acting on behalf of any Plan, or to any other person such plan) who is using "plan assets" of any Plan such plan to effect such acquisition (including any insurance company using funds each, a "Plan Investor") or (b) in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of Class B Certificate, the foregoing Certificates to following conditions are satisfied: (i) such Transferee is an insurance company, in lieu (ii) the source of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase or hold such Certificates will be funds held by it in its Certificate (or interest therein) is an "insurance company general account which it reasonably believes do not constitute "plan assetsaccount" of any Plan (as defined above). The permission in U.S. Department of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
Labor Prohibited Transaction Class Exemption (i"PTCE") Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them95-60, and (IIiii) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, conditions of PTCE 95-60 have been satisfied (each entity that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under satisfies this clause (B) aboveb), if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is Complying Insurance Company"a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder)."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (RALI Series 2007-Qa5 Trust)
Registration of Transfer and Exchange of Certificates. a. The Trustee shall maintain keep at the office or agency to be maintained in accordance with Section 12.02 a "Certificate Register Register" in which, subject to such reasonable regulations as it may prescribe, which the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No transferThe Trustee initially appoints itself to be the "Certificate Registrar" and transfer agent for the purpose of registering Certificates and transfers and exchanges of Certificates as provided herein. The Trustee will give prompt written notice to Certificateholders and the Servicer of any change in the Certificate Registrar.
(1) Subject to clauses (2) and (3) below, sale, pledge or other disposition no transfer of a Class B B-2 Certificate, Class B-3I Certificate, Class C Subsidiary Certificate or a Class R C Master Certificate shall be made by the Company or any other Person unless such transfer, sale, pledge or other disposition transfer is exempt from the registration requirements of the Securities Act of 1933, as amended 1933 (the "Act"), as amended, and any applicable state securities laws or is made in accordance with said the Act and laws. In the event that a any such transfer of a Class B or Class R Certificate is to be made made, (iA) the Depositor Company may direct the Trustee to require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Company that such transfer shall may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said the Act and laws or is being made pursuant to said the Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Trustee or the Master ServicerCompany, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (iiB) the Trustee shall require the transferee to execute a representation letter, an investment letter substantially in the form of Exhibit G-1 M attached hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters investment letter shall not be an expense of the Trustee, the Depositor Trustee or the Master ServicerCompany. Any such Class B-2 Certificateholder, Class B-3I Certificateholder, Class C Subsidiary Certificateholder or Class C Master Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor Company and the Master Servicer Certificate Registrar against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the .
(2) No transfer of any a Class M-1 Certificate, a Class M-2 Certificate, a Class B Certificate, a Class B-3I Certificate, a Class C Subsidiary Certificate or a Class R C Master Certificate or any interest therein shall be made to any employee benefit plan plan, trust or other retirement arrangement, including individual retirement accounts and Xxxxx plans, account that is subject to ERISA, or that is described in Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"4975(e)(1) or Section 4975 of the Code (any of the foregoingeach, a "Plan"), to unless the prospective transferee of a trustee Certificate or other Person acting on behalf interest therein provides the Servicer and the Trustee with a certification of any Planfacts and, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in at its general or separate accounts that may constitute "plan assets"). Such own expense, an Opinion of Counsel must which establish to the satisfaction of the Depositor Servicer and the Trustee or the Certificate Registrar that such disposition transfer will not violate the prohibited transaction provisions result in a violation of Section 406 of ERISA and or Section 4975 of the Code or cause the Servicer, the Company or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. Neither .
(3) Notwithstanding anything to the Depositorcontrary contained herein, (A) neither the Class C Subsidiary Certificate nor the Class C Master Certificate, nor any interest therein, shall be transferred, sold or otherwise disposed of to a "disqualified organization," within the meaning of Section 860E(e)(5) of the Code (a "Disqualified Organization"), including, but not limited to, (i) the United States, a state or political subdivision thereof, a foreign government, an international organization or an agency or instrumentality of any of the foregoing, (ii) an organization (other than a cooperative described in Section 521 of the Code) which is exempt from the taxes imposed by Chapter 1 of the Code and not subject to the tax imposed on unrelated business income by Section 511 of the Code, or (iii) a cooperative described in Section 1381(a)(2)(C) of the Code, and (B) prior to any registration of any transfer, sale or other disposition of the Class C Subsidiary Certificate or Class C Master Certificate, the Master Servicer nor proposed transferee shall deliver to the Trustee, under penalties of perjury, an affidavit that such transferee is not a Disqualified Organization, with respect to which the Trustee will be shall have no actual knowledge that such affidavit is false, and the transferor and the proposed transferee shall each deliver for the Trustee an affidavit with respect to any other information reasonably required by the Trustee pursuant to obtain such Opinion the REMIC Provisions, including, without limitation, information regarding the transfer of Counsel on behalf noneconomic residual interests and transfers of any prospective transferee. In residual interest to or by a foreign person; provided, however, that, upon the case delivery to the Trustee of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Trustee and rendered by Independent counsel, to the effect that the beneficial ownership of the Class C Subsidiary Certificate or the Class C Master Servicer Certificate, as the case may be, by any Disqualified Organization will not result in the imposition of federal income tax upon the Subsidiary REMIC or the Master REMIC or any Certificateholder or any other person or otherwise adversely affect the status of the Subsidiary REMIC or the Master REMIC as a REMIC, the foregoing prohibition on transfers, sales and other dispositions, as well as the Trustee representing foregoing requirement to deliver a certificate prior to any registration thereof, shall, with respect to such Disqualified Organization, terminate. Notwithstanding any transfer, sale or other disposition of the Class C Subsidiary Certificate or Class C Master Certificate, or any interest therein, to a Disqualified Organization or the registration thereof in the Certificate Register, such transfer, sale or other disposition and warrantingany registration thereof, among other thingsunless accompanied by the Opinion of Counsel described in the preceding sentence, that it is a Permitted Transfereeshall be deemed to be void and of no legal force or effect whatsoever and such Disqualified Organization shall be deemed to not be the Class C Subsidiary or Class C Master Certificateholder, that it is as the case may be, for any purpose hereunder, including, but not acquiring its Ownership Interest limited to, the receipt of distributions on the Class C Subsidiary Certificate or Class C Master Certificate, and shall be deemed to have no interest whatsoever in the Class R C Subsidiary Certificate that is the subject of the proposed Transfer as a nomineeor Class C Master Certificate. Each Class C Subsidiary or Class C Master Certificateholder, trustee or agent by his acceptance thereof, shall be deemed for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor all purposes to remain a Permitted Transferee, and that it has reviewed have consented to the provisions of this Section 5.02 and agrees 9.02(b)(3).
(4) Any transfer, sale or other disposition not in compliance with the provisions of this Section 9.02(b) shall be deemed to be bound by themvoid and of no legal force or effect whatsoever and such transferee shall be deemed to not be the Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions on such Certificate, and shall be deemed to have no interest whatsoever in such Certificate.
(II5) The Trustee shall give notice to Standard & Poor's and Fitch promptly following any transfer, sale or other disposition of a certificateClass B-2, in Class B-3I, Class C Subsidiary or Class C Master Certificate.
c. At the form attached hereto as Exhibit G-4option of a Certificateholder, from Certificates may be exchanged for other Certificates of authorized denominations of a like aggregate original denomination, upon surrender of such Certificates to be exchanged at such office. Whenever any Certificates are so surrendered for exchange, the Holder wishing Trustee shall execute and deliver the Certificates which the Certificateholder making the exchange is entitled to receive. Every Certificate presented or surrendered for transfer the Class R Certificateor exchange shall be duly endorsed by, or shall be accompanied by a written instrument of transfer in form and substance satisfactory to the Master Servicer Trustee and the Trustee representing and warrantingCertificate Registrar duly executed by the holder thereof or his or her attorney duly authorized in writing.
d. Except as provided in paragraph (e) below, among other things, that no purpose the Book-Entry Certificates shall at all times remain registered in the name of the proposed Transfer is Depository or its nominee and at all times: (i) registration of the Class A, Class M-1, Class M-2 and Class B-1 Certificates may not be transferred by the Trustee except to impede another Depository; (ii) the assessment Depository shall maintain book-entry records with respect to the Certificate Owners and with respect to ownership and transfers of such Class A, Class M-1, Class M-2 and Class B-1 Certificates; (iii) ownership and transfers of registration of the Class A, Class M-1, Class M-2 and Class B-1 Certificates on the books of the Depository shall be governed by applicable rules established by the Depository; (iv) the Depository may collect its usual and customary fees, charges and expenses from its Depository Participants; (v) the Trustee shall deal with the Depository, Depository Participants and indirect participating firms as representatives of the Certificate Owners of the Class A, Class M-1, Class M-2 and Class B-1 Certificates for purposes of exercising the rights of Holders under this Agreement, and requests and directions for and votes of such representatives shall not be deemed to be inconsistent if they are made with respect to different Certificate Owners; and (vi) the Trustee may rely and shall be fully protected in relying upon information furnished by the Depository with respect to its Depository Participants and furnished by the Depository Participants with respect to indirect participating firms and persons shown on the books of such indirect participating firms as direct or collection indirect Certificate Owners. All transfers by Certificate Owners of taxBook-Entry Certificates shall be made in accordance with the procedures established by the Depository Participant or brokerage firm representing such Certificate Owner. Each Depository Participant shall only transfer Book-Entry Certificates of Certificate Owners it represents or of brokerage firms for which it acts as agent in accordance with the Depository's normal procedures.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree e. If (x) the Company or the Depository advises the Trustee in writing that the Depository is no longer willing or able properly to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer discharge its Ownership Interest in a Class R Certificate responsibilities as Depository and (y) not the Trustee or the Company is unable to transfer locate a qualified successor or (z) the Company at its Ownership Interest unless sole option advises the Trustee in writing that it provides a certificate elects to terminate the book-entry system through the Depository, the Trustee shall notify all Certificate Owners, through the Depository, of the occurrence of any such event and of the availability of definitive, fully registered Class A Certificates, Class M Certificates and Class B-1 Certificates (the "Definitive Certificates") to Certificate Owners requesting the same. Upon surrender to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R A Certificates, Class M-1 Certificates, Class M-2 Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization Class B-1 Certificates by the Depository, accompanied by registration instructions from the Depository for registration, the Trustee shall become a holder of a Class R Certificate, then issue the last preceding Permitted Transferee Definitive Certificates. Neither the Company nor the Trustee shall be restoredliable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of Definitive Certificates all references herein to obligations imposed upon or to be performed by the Depository shall be deemed to be imposed upon and performed by the Trustee, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action applicable with respect to such holder under Definitive Certificates and the provisions Trustee shall recognize the Holders of the Definitive Certificates as Certificateholders hereunder.
f. On or prior to the Closing Date, there shall be delivered to the Depository one Class A-1 Certificate, one Class A-2 Certificate, one Class A-3 Certificate, one Class A-4 Certificate, one Class A-5 Certificate, one Class A-6 Certificate, one Class A-7 Certificate, one Class A-8 Certificate, one Class M-1 Certificate, one Class M-2 Certificate and one Class B-1 Certificate, each in registered form registered in the name of the Depository's nominee, Cede & Co., the total face amount of which represents 100% of the related Original Principal Balance, respectively. If, however, the aggregate principal amount of a Class of Class A Certificates, the Class M-1 Certificates, the Class M-2 Certificates or the Class B-1 Certificates exceeds $200,000,000, one such Class A Certificate, Class M-1 Certificate, Class M-2 Certificate and/or Class B-1 Certificate will be issued with respect to each 9-5 $200,000,000 of principal amount and an additional Certificate of such Class or Classes will be issued with respect to any remaining principal amount. Each such Class A, Class M-1, Class M-2 and Class B-1 Certificate registered in the name of the Depositary's nominee shall bear the following legend: "Unless this AgreementCertificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC") to Issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein."
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Green Tree Financial Corp)
Registration of Transfer and Exchange of Certificates. The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, (A) (See Section 5.02(a) of the Trustee shall provide for Standard Terms.)
(B) (See Section 5.02(b) of the registration Standard Terms.)
(C) (See Section 5.02(c) of Certificates and of transfers and exchanges of Certificates as herein provided. the Standard Terms.)
(D) No transfer, sale, pledge or other disposition of a Class B or SB Certificate that is a Class R Definitive Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act")amended, and any applicable state securities laws or is made in accordance with said Act and laws. In Except with respect to (i) the transfer of a Class SB Certificate by the Company to an Affiliate of the Company or the transfer of a Class SB Certificate from the Company or an Affiliate of the Company to an owner trust or other entity established by the Company (including to the Trustee, as a NIM Trustee), or (ii) a transfer of a Class SB Certificate from the NIM Trustee to the Company or an Affiliate of the Company, in the event that a transfer of a Class B or Class R SB Certificate is to be made either (ii)(A) the Depositor may direct the Trustee to shall require a written Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor Company that such transfer shall may be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Company or the Master ServicerServicer (except that, if such transfer is made by the Company or the Master Servicer or any Affiliate thereof, the Company or the Master Servicer shall provide such Opinion of Counsel at their own expense); provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor Company or any affiliate thereof, Affiliate thereof to a non-affiliate the Company or an Affiliate of the Depositor Company and (iiB) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 heretoH to the Standard Terms, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 heretoI to the Standard Terms, each acceptable to and in form and substance satisfactory to the Depositor Company and the Trustee certifying to the Depositor Company and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor Company or the Master Servicer; provided, however, that such representation letters will not be required in connection with any transfer of any such Certificate by the Company or any Affiliate thereof to the Company or an Affiliate of the Company, and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Company, of the status of such transferee as an Affiliate of the Company or (ii) the prospective transferee of such a Certificate shall be required to provide the Trustee, the Company and the Master Servicer with an investment letter substantially in the form of Exhibit J attached to the Standard Terms (or such other form as the Company in its sole discretion deems acceptable), which investment letter shall not be an expense of the Trustee, the Company or the Master Servicer, and which investment letter states that, among other things, such transferee (A) is a "qualified institutional buyer" as defined under Rule 144A, acting for its own account or the accounts of other "qualified institutional buyers" as defined under Rule 144A and (B) is aware that the proposed transferor intends to rely on the exemption from registration requirements under the Securities Act of 1933, as amended, provided by Rule 144A. With respect to any transfer of an interest in a Global Offered Certificate from a Holder of an interest in a Global Offered Certificate, the requirements of (I)(A) and (B) above shall not apply and any transferee of a Rule 144A Global Offered Certificate will be deemed to have represented and warranted as to the matters set forth in Exhibit J attached to the Standard Terms and any transferee of a Temporary Regulation S Global Offered Certificate or Permanent Regulation S Global Offered Certificate will be deemed to have represented and warranted as to the matters set forth in Exhibit Twelve of this Series Supplement. Any The Holder of any such Certificateholder Certificate desiring to effect any such transfer transfer, sale, pledge or other disposition shall, and does hereby agree to, indemnify the Trustee, the Depositor and Company, the Master Servicer and the Certificate Registrar against any liability that may result if the transfer transfer, sale, pledge or other disposition is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to .
(E) (i) In the transfer case of any Class B SB Certificate that is a Definitive Certificate or Class R Certificate presented for registration in the name of any Person, either (I) (A) the Trustee shall require an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee, the Company and the Master Servicer to the effect that the purchase or holding of such Class SB Certificate or Class R Certificate is permissible under applicable law, will not constitute or result in any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") ), or Section 4975 of the Code (or comparable provisions of any subsequent enactments), and will not subject the Trustee, the Company or the Master Servicer to any obligation or liability (including obligations or liabilities under ERISA or Section 4975 of the foregoingCode) in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Trustee, the Company or the Master Servicer or (B) the prospective Transferee shall be required to provide the Trustee, the Company and the Master Servicer with a certification to the effect set forth in paragraph fifteen of Exhibit G-1, which the Trustee may rely upon without further inquiry or investigation, or such other certifications as the Trustee may deem desirable or necessary in order to establish that such Transferee or the Person in whose name such registration is requested is not an employee benefit plan or other plan subject to the prohibited transaction provisions of ERISA or Section 4975 of the Code, or any Person (including an investment manager, a "Plan"), to named fiduciary or a trustee or other Person acting on behalf of any Plan, or to any other person such plan) who is using "plan assets" of any Plan such plan to effect such acquisition (including each, a "Plan Investor") or (II) in the case of any insurance company using funds in its general or separate accounts Global Offered Certificate, the Transferee will be deemed to represent that may constitute "plan assets")it is not a Plan Investor. Such Opinion of Counsel must establish Notwithstanding anything to the satisfaction contrary contained herein, the Trustee and the Supplemental Interest Trust Trustee shall not permit the transfer of a beneficial interest in a Class SB Certificate or Global Offered Certificate unless the Depositor transferee executes and delivers to the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the DepositorSupplemental Interest Trust Trustee, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of as applicable, any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, 10.06(c) prior to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreementtransfer.
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Samples: Series Supplement to Pooling and Servicing Agreement (RALI Series 2007-Qh1 Trust)
Registration of Transfer and Exchange of Certificates. (a) The Delaware Trustee shall maintain keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee Registrar shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided.
(b) The Certificates have not been and will not be registered under the Securities Act and will not be listed on any exchange. No transfer, sale, pledge or other disposition transfer of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition transfer is exempt from the made pursuant to an effective registration requirements of statement under the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said exempt from the registration requirements under the Securities Act and such state securities laws. In the event that a transfer of a Class B or Class R Certificate is to be made in reliance upon an exemption from the Securities Act and state securities laws, in order to assure compliance with the Securities Act and such laws, the Certificateholder desiring to effect such transfer and such Certificateholder's prospective transferee shall each certify to the Trust, the Delaware Trustee, the Administrator and the transferring Certificateholder in writing the facts surrounding the transfer in substantially the forms set forth in Exhibit D (ithe Transferor Letter) and Exhibit E (the Depositor may direct Investment Letter) or Exhibit F (the Trustee "Rule 144A Letter"), as applicable. Except in the case of a transfer as to require which the proposed transferee has provided a written Rule 144A Letter with respect to a Rule 144A transaction, there shall also be delivered to the Trust an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor effect that such transfer shall may be made pursuant to an exemption, describing exemption from the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and lawsSecurities Act, which Opinion of Counsel shall not be an expense of the TrusteeTrust, the Depositor Delaware Trustee (unless it is the transferee from whom such opinion is to be obtained) or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute Administrator. Each Certificateholder of a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer. Any such Certificateholder Certificate desiring to effect such a transfer shall, and does hereby agree to, indemnify the TrusteeTrust, the Depositor Delaware Trustee and the Master Servicer Administrator against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state securities laws. The Trustee .
(c) No transfer, sale, pledge or other disposition of the Certificate shall require a written Opinion of Counsel from a prospective transferee be made unless prior to such transfer, sale, pledge or other disposition, the transfer Trust shall have received either (i) a representation letter from the transferee of any Class B or Class R Certificate such Certificate, acceptable to any and in form and substance satisfactory to the Trust, to the effect that such a transferee (A) is not an employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of ERISA or Section 4975 of the Employee Retirement Income Security Act Code, or a person acting on behalf of 1974any such plan, or (B) is an insurance company which is purchasing such Certificates with funds contained in an "insurance company general account" (as amended such term is defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("ERISAPTCE 95-60")) and that the purchase and holding of such Certificates are covered under PTCE 95-60, or (ii) in the case of any Certificate presented for registration in the name of an employee benefit plan subject to ERISA or Section 4975 of the Code (or comparable provisions of any of the foregoing, a "Plan"subsequent enactments), to or a trustee of any such plan or any other Person person acting on behalf of any Plansuch plan, an Opinion of Counsel satisfactory to the Trust, the Delaware Trustee and the Administrator to the effect that the purchase or holding of such Certificate will not result in the Trust or the Trust Estate being deemed to any other person who is using be "plan assets" of any Plan and subject to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 the Code and will not subject the Trust, Delaware Trustee, the Administrator or the transferring Certificateholder to any obligation in addition to those undertaken in this Trust Agreement. Notwithstanding anything else to the contrary herein, in the event any purported transfer of any Certificate is made without delivery of the Coderepresentation letter referred to above, such representation shall be deemed to have been made by the transferee by its acceptance of such Certificate. Neither In addition, any purported transfer of an Certificate to or on behalf of an employee benefit plan subject to ERISA or to the DepositorCode without the delivery to the Trust, the Master Servicer nor Delaware Trustee, and the Trustee will be required to obtain such Administrator of an Opinion of Counsel as described above shall be void and of no effect. Any certificate or Opinion of Counsel furnished pursuant to this Section 3.04 may be relied on behalf of any prospective transferee. conclusively by the Trust, Delaware Trustee, the Administrator and the transferring Certificateholder in determining whether the provisions hereof have been complied with.
(d) In the case of any transfer addition, no transfer, sale, pledge or other disposition of the foregoing Certificates to an insurance company, in lieu Certificate (except by operation of such Opinion law) shall be permitted unless evidenced by [one or more] [an] Opinion[S] of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially Counsel to the effect that [(i)] such transfer, sale, pledge or other disposition, if consummated, would not cause the Trust to be characterized as an association or a publicly traded partnership taxable as a corporation by having more than 100 beneficial owners at any time during the taxable year of the Trust, a corporation or a taxable mortgage pool for federal income tax purposes [and (ii) the assets of the proposed transferee would not be consolidated with the Trust Estate in the event of such transferee's bankruptcy or insolvency].
(e) The foregoing provisions shall not prevent the assignment by a Certificateholder of all funds used by such transferee or any part of its right to purchase such Certificates will be funds held by it receive distributions in respect of its interest in its general account which it reasonably believes do Certificate, but such assignment shall effect no change in ownership of the Trust.
(f) The preparation and delivery of the certificate and opinions referred to in this Section 3.04 shall not constitute "plan assets" be an expense of the Trust, the Delaware Trustee or the Administrator.
(g) Upon surrender for registration of transfer of any Plan Certificate at the office or agency maintained pursuant to Section 3.08, the Delaware Trustee shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations stating the aggregate amount and Percentage Interest so transferred dated the date of authentication by the Delaware Trustee. At the option of a Certificateholder, Certificates may be exchanged for other Certificates of authorized Percentage Interests and denominations of a like aggregate amount upon surrender of the Certificates to be exchanged at the office or agency maintained pursuant to Section 3.08.
(as defined above). The permission h) Every Certificate presented or surrendered for registration of any transfer or exchange shall be accompanied by a written instrument of transfer in violation form satisfactory to the Trust and duly executed by the Certificateholder or such Certificateholder's attorney duly authorized in writing. Each Certificate surrendered for registration of transfer or exchange shall be cancelled and subsequently disposed of by the restriction on transfer set forth Trust in this paragraph shall not constitute a default or an Event of Defaultaccordance with its customary practice.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate No service charge shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of made for any mandatory sale under clause (iii)(B) below and to execute all instruments registration of transfer and or exchange of Certificates, but the Trust may require payment of a sum sufficient to do all other things necessary cover any tax or governmental charge that may be imposed in connection with any such sale. The rights transfer or exchange of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted TransfereeCertificates.
(Bj) In Notwithstanding any other provision herein or elsewhere, the Trust, the Delaware Trustee and the Administrator (i) shall not have any obligation to determine whether any transfer or exchange of a Certificate is permitted under or in accordance with this Trust Agreement; (ii) shall not have any personal liability to any person in connection with any transfer or exchange or proposed or purported transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of or exchange (Iand/or registration thereof) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest permitted under or in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of accordance with this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
Trust Agreement; (iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, entitled to rely (and shall be fully justified and protected in so relying) on the Register as to the extent permitted by law, to all rights identity of the Certificateholders and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then Certificates and the last preceding United States Person shall be restored, to the extent permitted by law, to all rights Percentage Interests and obligations as holder denominations thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreementevidenced thereby.
Appears in 1 contract
Registration of Transfer and Exchange of Certificates. The Trustee Certificate Registrar shall maintain keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Owner Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. BONY shall be the initial Certificate Registrar. The Certificates have not been and will not be registered under the Securities Act and will not be listed on any exchange. No transfer, sale, pledge or other disposition transfer of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition transfer is exempt from the made pursuant to an effective registration requirements of statement under the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with exempt from the registration requirements under said Act and such state securities laws. In the event that a transfer of a Class B or Class R Certificate is to be made (i) in reliance upon an exemption from the Securities Act and state securities laws, in order to assure compliance with the Securities Act and such laws, the Holder desiring to effect such transfer and such Holder's prospective transferee shall each certify to the Owner Trustee or the Certificate Registrar and the Depositor may direct in writing the facts surrounding the transfer in substantially the forms set forth in Exhibit B and Exhibit C (the "Investment Letter"). Except in the case of a transfer as to which the proposed transferee has provided an Investment Letter with respect to a Rule 144A transaction, there shall also be delivered to the Owner Trustee to require a written or the Certificate Registrar and the Depositor an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall may be made pursuant to an exemption, describing exemption from the applicable exemption and the basis therefor, from said Securities Act and laws or is being made pursuant to said Act and state securities laws, which Opinion of Counsel shall not be an expense of the Issuer, the Owner Trustee, the Certificate Registrar or the Indenture Trustee (unless it is the transferee from whom such opinion is to be obtained) or of the Depositor or the Master ServicerSeller; provided, provided that such Opinion of Counsel will in respect of the applicable state securities laws may be a memorandum of law rather than an opinion if such counsel is not licensed in the applicable jurisdiction. Upon request, the Owner Trustee shall provide to any Holder of a Certificate and any prospective transferee designated by any such Holder information regarding the Certificates and the Receivables and such other information which is in the possession of the Owner Trustee or which can be required obtained by the Owner Trustee without undue burden or expense in connection with order to satisfy the initial condition to eligibility set forth in Rule 144A(d)(4) for transfer of any such Certificate by without registration thereof under the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory Securities Act pursuant to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense registration exemption provided by Rule 144A. Each Holder of the Trustee, the Depositor or the Master Servicer. Any such Certificateholder a Certificate desiring to effect such a transfer shall, and 7 Amended and Restated Trust Agreement 2007-1 does hereby agree to, indemnify the Issuer, the Owner Trustee, the Depositor Indenture Trustee, the Certificate Registrar and the Master Servicer Depositor against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state securities laws. The Trustee All transfers of Certificates shall require a written Opinion of Counsel from a prospective transferee prior be subject to the transfer restrictions described in Section 11.13 of any Class B or Class R this Agreement. Furthermore, no transfer of a Certificate shall be made to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of Person unless the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Owner Trustee or the Certificate Registrar and the Depositor have received a certificate in the form of paragraphs 3 and 4 to the Investment Letter attached hereto as Exhibit C from such Person to the effect that such disposition will Person is not violate a Benefit Plan (as defined in Section 11.13(a)) and that such person is not a partnership, grantor trust, or S Corporation (as defined in the prohibited transaction provisions Code) in which, after giving effect to the proposed transfer, 50% or more of the value of each beneficial ownership interest of such entity is attributable to the Certificates and/or the Notes and that such Certificates have not been transferred through an "established securities market" within the meaning of Section 406 of ERISA and Section 4975 7704(b) of the Code. Neither Upon surrender for registration of transfer of any Certificate at the Depositoroffice or agency maintained pursuant to Section 3.08, the Master Servicer nor Owner Trustee shall execute, authenticate and deliver (or shall cause BONY as its authenticating agent to authenticate and deliver), in the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer name of the foregoing 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. 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 an insurance company, be exchanged at the office or agency maintained pursuant to Section 3.08. Every Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially satisfactory to the effect that all funds used Owner Trustee and the Certificate Registrar duly executed by the related Certificateholder or such transferee to purchase such Certificates will be funds held by it Certificateholder's attorney duly authorized in its general account which it reasonably believes do not constitute "plan assets" writing. Each Certificate surrendered for registration of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate exchange shall be deemed cancelled and subsequently disposed of by the acceptance Owner Trustee in accordance with its customary practice. No service charge shall be made for any registration of transfer or acquisition exchange of such Ownership Interest to have agreed to be bound by Certificates, but the following provisions and to have irrevocably authorized the Owner Trustee or its designee under clause (iii)(A) below the Certificate Registrar may require payment of a sum sufficient to deliver payments to a Person other than such Person and to negotiate the terms of cover any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary tax or governmental charge that may be imposed in connection with any such saletransfer or exchange of Certificates. The rights preceding provisions of each Person acquiring this Section notwithstanding, the Owner Trustee shall not make, and the Certificate Registrar shall not register transfers or exchanges of, Certificates for a period of fifteen (15) days preceding the due date for any Ownership Interest in a Class R Certificate are expressly subject payment with respect to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificates. Notwithstanding anything contained herein to the contrary, neither the Certificate Registrar nor the Owner Trustee shall be responsible for ascertaining whether any transfer complies with the registration provisions or exemptions from the Securities Act, the Securities Act of 1934, as amended, applicable state securities law or the Investment Company Act of 1940, as amended; provided, however, that if a Permitted Transferee certificate or opinion is specifically required to be delivered to the Owner Trustee or the Certificate Registrar by a purchaser or transferee of a 8 Amended and Restated Trust Agreement 2007-1 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 shall promptly notify the Trustee of any change party delivering the same if such certificate or impending change in its status as a Permitted Transfereeopinion does not so conform.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
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Registration of Transfer and Exchange of Certificates. (a) The Delaware Trustee shall maintain keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08 hereof, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee Registrar shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided.
(b) The Certificates have not been and will not be registered under the Securities Act and will not be listed on any exchange. No transfer, sale, pledge or other disposition transfer of a Class B or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition transfer is exempt from the made pursuant to an effective registration requirements of statement under the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said exempt from the registration requirements under the Securities Act and such state securities laws. In the event that a transfer of a Class B or Class R Certificate is to be made in reliance upon an exemption from the Securities Act and state securities laws, in order to assure compliance with the Securities Act and such laws, the Certificateholder desiring to effect such transfer and such Certificateholder's prospective transferee shall each certify to the Trust, the Delaware Trustee, the Administrator and the transferring Certificateholder in writing the facts surrounding the transfer in substantially the forms set forth in Exhibit D (ithe "Transferor Letter") and Exhibit E (the Depositor may direct "Investment Letter") or Exhibit F (the Trustee "Rule 144A Letter") hereto, as applicable. Except in the case of a transfer as to require which the proposed transferee has provided a written Rule 144A Letter with respect to a Rule 144A transaction, there shall also be delivered to the Trust an Opinion of Counsel acceptable (unless such transfer is made to and in form and substance satisfactory an affiliate of the transferor) to the Trustee and the Depositor effect that such transfer shall may be made pursuant to an exemption, describing exemption from the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and lawsSecurities Act, which Opinion of Counsel shall not be an expense of the TrusteeTrust, the Depositor Delaware Trustee (unless it is the transferee from whom such opinion is to be obtained) or the Master Servicer, provided that such Opinion Administrator. Each Certificateholder of Counsel will not be required in connection with the initial transfer of any such a Certificate by the Depositor or any affiliate thereof, to a non-affiliate of the Depositor and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor or the Master Servicer. Any such Certificateholder desiring to effect such a transfer shall, and does hereby agree to, indemnify the TrusteeTrust, the Depositor Delaware Trustee and the Master Servicer Administrator against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state securities laws. The Trustee shall require a written Opinion of Counsel from a prospective transferee prior to the transfer of any Class B or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx plans, that is subject to Section 406 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code. Neither the Depositor, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3, a certificate of the holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates to Non-United States Persons and Disqualified Organizations are prohibited.
(iii) (a) if any Disqualified Organization shall become a holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder of a Class R Certificate, then the last preceding United States Person shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
Appears in 1 contract
Registration of Transfer and Exchange of Certificates. (a) The Trustee shall maintain a Certificate Register in which, subject to such reasonable regulations as it may prescribe, the Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. No .
(b) Except as provided in Section 5.02(c), no transfer, sale, pledge or other disposition of a Class B P Certificate, Class C Certificate or a Class R Certificate shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), and any applicable state securities laws or is made in accordance with said Act and laws. In the event that a transfer of a Class B P Certificate, Class C Certificate or Class R Certificate is to be made under this Section 5.02(b), (i) the Depositor may direct the Trustee to shall require a written an Opinion of Counsel acceptable to and in form and substance satisfactory to the Trustee and the Depositor that such transfer shall be made pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an expense of the Trustee, the Depositor Company or the Master Servicer, provided that such Opinion of Counsel will not be required in connection with the initial transfer of any such Certificate by the Depositor Company or any affiliate thereof, to a non-affiliate of the Depositor Company and (ii) the Trustee shall require the transferee to execute a representation letter, substantially in the form of Exhibit G-1 hereto, and the Trustee shall require the transferor to execute a representation letter, substantially in the form of Exhibit G-2 hereto, each acceptable to and in form and substance satisfactory to the Depositor and the Trustee certifying to the Depositor Company and the Trustee the facts surrounding such transfer, which representation letters shall not be an expense of the Trustee, the Depositor Company or the Master Servicer; provided however that such representation letters will not be required in connection with any transfer of any such Certificate by the Company to an affiliate of the Company and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Company of the status of such transferee as an affiliate of the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor Company and the Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) Notwithstanding the requirements of Section 5.02(b), transfers of Class P Certificates, Class C Certificates and Class R Certificates may be made in accordance with this Section 5.02(c) if the prospective transferee of a Certificate provides the Trustee and the Company with an investment letter substantially in the form of Exhibit G-3 attached hereto, which investment letter shall not be an expense of the Trustee, the Company or the Master Servicer, and which investment letter states that, among other things, such transferee is a "qualified institutional buyer" as defined under Rule 144A. Such transfers shall be deemed to have complied with the requirements of Section 5.02(b) hereof; provided, however, that no Transfer of any of the Class P Certificates, Class C Certificates or Class R Certificates may be made pursuant to this Section 5.02(c) by the Company. Any such Certificateholder desiring to effect such transfer shall, and does hereby agree to, indemnify the Trustee, the Company and the Master Servicer against any liability that may result 102 if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws. The Trustee shall require a written an Opinion of Counsel from a prospective transferee prior to the transfer of any Class B P Certificate, Class C Certificate or Class R Certificate to any employee benefit plan or other retirement arrangement, including individual retirement accounts and Xxxxx Keogh plans, that is subject to Section 406 Sectiox 000 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of the Code (any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf of any Plan, or to any other person who is using "plan assets" of any Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute "plan assets"). Such Opinion of Counsel must establish to the satisfaction of the Depositor and the Trustee or the Certificate Registrar that such disposition transfer is permissible under applicable law, will not violate the prohibited transaction provisions of Section 406 of ERISA and Section 4975 of the Code, will not cause the assets of the Trust Fund to constitute "plan assets" within the meaning of 29 C.F.R. ss.2510.3-101, and will not subject the Trustee, the Master Servicer or the Company to any obligation in addition to those undertaken in this Agreement. Neither the DepositorCompany, the Master Servicer nor the Trustee will be required to obtain such Opinion of Counsel on behalf of any prospective transferee. In the case of any transfer of the foregoing Certificates to an insurance company, in lieu of such Opinion of Counsel, the Trustee shall require a certification in the form of Exhibit G-5 hereto substantially to the effect that all funds used by such transferee to purchase such Certificates will be funds held by it in its general account which it reasonably believes do not constitute "plan assets" of any Plan (as defined above). The permission of any transfer in violation of the restriction on transfer set forth in this paragraph shall not constitute a default or an Event of Default.
(i) Each Person who has or who acquires any Ownership Interest in a Class R Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed transfer Transfer of any Ownership Interest in a Class R Certificate, the Trustee shall require delivery to it, and shall not register the transfer Transfer of any Class R Certificate until its receipt of (I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit G-3G-5) from the proposed Transferee, in form and substance satisfactory to the Master Servicer and the Trustee representing and warranting, among other things, that it is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Class R Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person who is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Class R Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 and agrees to be bound by them, and (II) a certificate, in the form attached hereto as Exhibit G-4, from the Holder wishing to transfer the Class R Certificate, in form and substance satisfactory to the Master Servicer and the Trustee representing and 103 warranting, among other things, that no purpose of the proposed Transfer is to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Class R Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate to the Trustee in the form attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership Interest in a Class R Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Trustee written notice that it is a "pass- pass-through interest holder" within the meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Class R Certificate, if it is "a pass-through interest holder", or is holding an Ownership Interest in a Class R Certificate on behalf of a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Class R Certificate only if it shall have received the Transfer Affidavit and Agreement in the form attached hereto as Exhibit G-3G-5, a certificate of the holder Holder requesting such transfer in the form attached hereto as Exhibit G-4 and all of such other documents as shall have been reasonably required by the Trustee as a condition to such registration. Transfers of the Class R Certificates other than to Non-United States Persons and Disqualified Organizations Permitted Transferees are prohibited.
(iii) (aA) if If any Disqualified Organization Person other than a Permitted Transferee shall become a holder Holder of a Class R Certificate, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a Non-United States Person shall become a holder Holder of a Class R Certificate, then the last preceding United States Person Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer of such Class R Certificate. If a transfer of a Class R Certificate is disregarded pursuant to the provisions of Treasury Regulations Section 1.860E-1 or Section 1.86OG-31.860G-3, then the last preceding Permitted Transferee shall be restored, to the extent permitted by law, to all rights and obligations as holder Holder thereof retroactive to the date of registration of such Transfer transfer of such Class R Certificate. The prior Holder shall be entitled to recover from any purported Holder of a Class R Certificate that was in fact not a Permitted Transferee under this Section 5.05(b) at the time it became a Holder all payments made on such Class R Certificate. Each Holder of a Class R Certificate, by acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this clause (b) and to any amendment of this Agreement deemed necessary (whether 104 as a result of new legislation or otherwise) by counsel of the Company to ensure that the Class R Certificates are not transferred to any Person who is not a Permitted Transferee and that any transfer of such Class R Certificates will not cause the imposition of a tax upon the Trust or cause any such REMIC to fail to qualify as a REMIC. The Trustee shall be under no liability to any Person for any registration of Transfer of a Class R Certificate that is in fact not permitted by this Section 5.02 or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
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Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp)
