Restriction on Transfers of Certificate. (a) Each prospective purchaser and any subsequent transferee of a Certificate (each, a "Prospective Holder"), other than First Alliance Portfolio Services, Inc., shall either: (i) represent and warrant, in writing, to the Owner Trustee and the Certificate Registrar and any of their respective successors that: (A) Such Person is (I) a "qualified institutional buyer" as defined in Rule 144A under the Securities Act of 1933, as amended (the "Securities Act"), and is aware that the seller of the Certificate may be relying on the exemption from the registration requirements of the Securities Act provided by Rule 144A and is acquiring such Certificate for its own account or for the account of one or more qualified institutional buyers for whom it is authorized to act, or (II) a Person involved in the organization or operation of the Trust or an affiliate of such Person within the meaning of Rule 3a-7 of the Investment Company Act of 1940, as amended (including, but not limited to, the Seller). (B) Such Person understands that the Certificate has not been and will not be registered under the Securities Act and may be offered, sold, pledged or otherwise transferred only to a person whom the seller reasonably believes is (A) a qualified institutional buyer or (B) a Person involved in the organization or operation of the Trust or an affiliate of such Person, in a transaction meeting the requirements of Rule 144A under the Securities Act and in accordance with any applicable securities laws of any state of the United States. (C) Such Person understands that the Certificate bears a legend to the following effect: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. THIS CERTIFICATE MAY BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR OTHERWISE DISPOSED OF (INCLUDING PLEDGED) BY THE HOLDER HEREOF ONLY TO (I) A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE ACT, IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT PURSUANT TO RULE 144A OR (II) A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF THE TRUST OR AN AFFILIATE OF SUCH A PERSON WITHIN THE MEANING OF RULE 3a-7 OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (INCLUDING, BUT NOT LIMITED TO, FIRST ALLIANCE MORTGAGE COMPANY) IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND SUCH LAWS. NO PERSON IS OBLIGATED TO REGISTER THIS CERTIFICATE UNDER THE ACT OR ANY STATE SECURITIES LAWS"; or (ii) furnish to the Owner Trustee and the Certificate Registrar and any of their respective successors an opinion of counsel acceptable to such persons that such transfer may be made pursuant to an exemption to the Securities Act, describing the applicable exemption and the basis therefor, or is being made pursuant to the Securities Act, which opinion of counsel shall not be an expense of the Trust, the Owner Trustee or the Certificate Registrar. (b) Each Prospective Holder, other than First Alliance Portfolio Services, Inc., shall represent and warrant, in writing, to the Owner Trustee and the Certificate Registrar and any of their respective successors that the Prospective Holder is not an "employee benefit plan" within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or a "plan" within the meaning of Section 4975(e)(1) of the Code (any such plan or employee benefit plan, a "Plan") and is not directly or indirectly purchasing such Certificate on behalf of, as investment manager of, as named fiduciary of, as trustee of, or with assets of a Plan. (c) By its acceptance of a Certificate, each Prospective Holder agrees and acknowledges that no legal or beneficial interest in all or any portion of any Certificate may be transferred directly or indirectly to (i) an entity that holds residual securities as nominee to facilitate the clearance and settlement of such securities through electronic book-entry changes in accounts of participating organizations (a "Book-Entry Nominee"), or (ii) an individual, corporation, partnership or other person unless such transferee is not a Non-U.S. Person (any such person being referred to herein as a "Non-permitted Foreign Holder"), and any such purported transfer shall be void and have no effect. (d) The Owner Trustee shall not execute, and shall not countersign and deliver, a Certificate in connection with any transfer thereof unless the transferor shall have provided to the Owner Trustee an IRS Form W-9 and a certificate, signed by the transferee, that it is not a Book-Entry Nominee or a Non-permitted Foreign Holder, which certificate shall contain the consent of the transferee to any amendments of this Agreement as may be required to effectuate further the foregoing restrictions on transfer of the Certificate to Book-Entry Nominees or Non-permitted Foreign Holders, and an agreement by the transferee that it will not transfer a Certificate without providing to the Owner Trustee a certificate in the form provided above. (e) The Certificates shall bear an additional legend referring to the restrictions contained in paragraph (c) above. (f) No offer, sale, transfer, pledge, hypothecation or other disposition (including any pledge or transfer under a repurchase transaction or securities loan) of any Certificate shall be made to any entity unless, prior to such disposition, (i) the Note Insurer has given its prior written consent to the offer, sale, transfer, pledge, hypothecation or other disposition; provided, however, that such consent shall not be unreasonably withheld and (ii) the Prospective Holder delivers to the Owner Trustee an opinion of counsel, rendered by a law firm generally recognized to be qualified to opine concerning the tax aspects of asset securitization, to the effect that such transfer (including any disposition permitted following any default under any pledge or repurchase transaction will not cause the Trust to be (i) treated as an association taxable as a corporation for federal income tax purposes, (ii) taxable as a taxable mortgage pool as defined in Section 7701(i) of the Code or (iii) taxable as a "publicly traded partnership" as defined in Treasury Regulation Section 1.7704-1. Notwithstanding the foregoing, the provisions of this paragraph shall not apply to the initial transfer of the Certificates to First Alliance Portfolio Services, Inc.
Appears in 2 contracts
Samples: Trust Agreement (First Alliance Mortgage Loan Trust 1998-1f), Trust Agreement (First Alliance Mortgage Loan Trust 1998-2)
Restriction on Transfers of Certificate. (a) Each prospective purchaser and any subsequent transferee of a Certificate (each, a "Prospective Holder"), other than First Alliance Portfolio Services, Inc.the Depositor or the Seller, shall either:
(i) represent and warrant, in writing, to the Owner Trustee and the Certificate Registrar and any of their respective successors that:
(Ai) Such Person is one of the following: (IA) a an "qualified institutional buyeraccredited investor" as defined in (an entity meeting the requirements of Rule 144A 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as amended (the "Securities Act")) and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of investment in the Certificate, and the Transferee is acquiring the Certificate for its own account or for one or more institutional accredited investors for whom it is authorized to act, (B) a "qualified institutional buyer" as defined in Rule 144A under the Securities Act; the Transferee is aware that the seller of the Certificate Transferor may be relying on the exemption from the registration requirements of the Securities Act provided by Rule 144A 144A; and the Transferee is acquiring such the Certificate for its own account or for the account of one or more qualified institutional buyers for whom it is authorized to act, act or (IIC) a Person involved in the organization or operation of the Trust or an affiliate of such Person within the meaning of Rule 3a-7 of the Investment Company Act of 1940, as amended (including, but not limited to, the Depositor or the Seller).
(Bii) Such Person understands that the Certificate has not been and will not be registered under the Securities Act and may be offered, sold, pledged or otherwise transferred only to a person whom the seller reasonably believes is (A) a qualified institutional buyer or (B) a Person involved in the organization or operation of the Trust or an affiliate of such Person, in a transaction meeting the requirements of Rule 144A under the Securities Act and in accordance with any applicable securities laws of any state of the United States.
(Ciii) Such Person understands that the Certificate bears a legend to the following effect: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. THIS CERTIFICATE MAY BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR OTHERWISE DISPOSED OF (INCLUDING PLEDGED) BY THE HOLDER HEREOF ONLY TO (I) AN "INSTITUTIONAL ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT, (II) A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE ACT, IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT PURSUANT TO RULE 144A OR (IIIII) A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF THE TRUST OR AN AFFILIATE OF SUCH A PERSON DESCRIBED IN (II) WITHIN THE MEANING OF RULE 3a-7 OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (INCLUDING, BUT NOT LIMITED TO, FIRST ALLIANCE IMC MORTGAGE COMPANYCOMPANY AND IMC SECURITIES, INC.) IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND SUCH LAWS. NO PERSON IS OBLIGATED TO REGISTER THIS CERTIFICATE UNDER THE ACT OR ANY STATE SECURITIES LAWS."; or
(ii) furnish to the Owner Trustee and the Certificate Registrar and any of their respective successors an opinion of counsel acceptable to such persons that such transfer may be made pursuant to an exemption to the Securities Act, describing the applicable exemption and the basis therefor, or is being made pursuant to the Securities Act, which opinion of counsel shall not be an expense of the Trust, the Owner Trustee or the Certificate Registrar.
(b) Each Prospective Holder, other than First Alliance Portfolio Services, Inc.the Depositor or the Seller, shall either:
(i) represent and warrant, in writing, to the Owner Trustee and the Certificate Registrar and any of their respective successors that (1) the Prospective Holder is not an "employee benefit plan" within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or a "plan" within the meaning of Section 4975(e)(1) of the Code (any such plan or employee benefit plan, a "Plan") and is not directly or indirectly purchasing such Certificate on behalf of, as investment manager of, as named fiduciary of, as trustee of, or with assets of a Plan, or (2) either (I) the Prospective Holder is acquiring such Certificate for its own account and no part of the assets used to acquire such Certificate constitutes assets of a Plan, or (II) the source of funds to be used to acquire such Certificate is an "insurance company general account," within the meaning of Prohibited Transaction Class Exemption 95-60, 60 Fed. Reg. 35925 (July 12, 1995) (the "Exemption"), and there is no Plan with respect to which the amount of such general account's reserves for the contract(s) held by or on behalf of such Plan (determined under Section 807(d) of the Code), together with the amount of the reserves of the contract(s) held by or on behalf of any other Plans (determined under section 807(d) of the Code) maintained by the same employer (or an affiliate thereof as defined in Section V(a)(1) of the Exemption) or by the same employee organization, exceed 10% of the total of all liabilities of such general account; or
(ii) furnish to the Owner Trustee and the Certificate Registrar and any of their respective successors an opinion of counsel acceptable to such persons that (A) the proposed issuance or transfer of the Certificate to such Prospective Holder will not cause any assets of the Trust to be deemed assets of a Plan, or (B) the proposed issuance or transfer of the Certificate will not cause the Owner Trustee or the Certificate Registrar or any of their respective successors to be a fiduciary of a Plan within the meaning of Section 3(21) of ERISA and will not give rise to a transaction described in Section 406 of ERISA or Section 4975(c)(1) of the Code for which a statutory or administrative exemption is unavailable.
(c) By its acceptance of a Certificate, each Prospective Holder agrees and acknowledges that no legal or beneficial interest in all or any portion of any Certificate may be transferred directly or indirectly to (i) an entity that holds residual securities as nominee to facilitate the clearance and settlement of such securities through electronic book-entry changes in accounts of participating organizations (a "Book-Entry Nominee"), or (ii) an individual, corporation, partnership or other person unless such transferee is not a Non-U.S. Person (any such person being referred to herein as a "Non-permitted Foreign Holder"), and any such purported transfer shall be void and have no effect.
(d) The Owner Trustee shall not execute, and shall not countersign and deliver, a Certificate in connection with any transfer thereof unless the transferor shall have provided to the Owner Trustee an IRS Form W-9 and a certificate, signed by the transferee, that it is not a Book-Entry Nominee or a Non-permitted Foreign Holder, which certificate shall contain the consent of the transferee to any amendments of this Agreement as may be required to effectuate further the foregoing restrictions on transfer of the Certificate to Book-Entry Nominees or Non-permitted Foreign Holders, and an agreement by the transferee that it will not transfer a Certificate without providing to the Owner Trustee a certificate in the form provided above.
(e) The Certificates shall bear an additional legend referring to the restrictions contained in paragraph (cb) above.
(f) No offer, sale, transfer, pledge, hypothecation or other disposition (including any pledge or transfer under a repurchase transaction or securities loan) of any Certificate shall be made to any entity unless, prior to such disposition, (i) the Note Insurer has given its prior written consent to the offer, sale, transfer, pledge, hypothecation or other disposition; provided, however, that such consent shall not be unreasonably withheld and (ii) the Prospective Holder delivers to the Owner Trustee and the Certificate Registrar an opinion of counsel, rendered by a law firm generally recognized to be qualified to opine concerning the tax aspects of asset securitization, to the effect that such transfer (including any disposition permitted following any default under any pledge or repurchase transaction will not cause the Trust to be (i) treated as an association taxable as a corporation for federal income tax purposes, (ii) taxable as a taxable mortgage pool as defined in Section 7701(i) of the Code or (iii) taxable as a "publicly traded partnership" as defined in Treasury Regulation Section 1.7704-1. Notwithstanding the foregoing, the provisions of this paragraph shall not apply to the initial transfer of the Certificates to First Alliance Portfolio Services, Inc.the Seller or the Depositor.
Appears in 1 contract
Samples: Trust Agreement (Imc Home Equity Loan Owner Trust 1998-6)
Restriction on Transfers of Certificate. (a) Each prospective purchaser and any subsequent transferee of a Certificate (each, a "Prospective Holder"), other than First Alliance Portfolio Services, Inc.the Depositor or the Seller, shall either:
(i) represent and warrant, in writing, to the Owner Trustee and the Certificate Registrar and any of their respective successors that:
(Ai) Such Person is (IA) a "qualified institutional buyer" as defined in Rule 144A under the Securities Act of 1933, as amended (the "Securities Act"), and is aware that the seller of the Certificate may be relying on the exemption from the registration requirements of the Securities Act provided by Rule 144A and is acquiring such Certificate for its own account or for the account of one or more qualified institutional buyers for whom it is authorized to act, or (IIB) a Person involved in the organization or operation of the Trust or an affiliate of such Person within the meaning of Rule 3a-7 of the Investment Company Act of 1940, as amended (including, but not limited to, the Depositor or the Seller).
(Bii) Such Person understands that the Certificate has not been and will not be registered under the Securities Act and may be offered, sold, pledged or otherwise transferred only to a person whom the seller reasonably believes is (A) a qualified institutional buyer or (B) a Person involved in the organization or operation of the Trust or an affiliate of such Person, in a transaction meeting the requirements of Rule 144A under the Securities Act and in accordance with any applicable securities laws of any state of the United States.
(Ciii) Such Person understands that the Certificate bears a legend to the following effect: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. THIS CERTIFICATE MAY BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR OTHERWISE DISPOSED OF (INCLUDING PLEDGED) BY THE HOLDER HEREOF ONLY TO (I) A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE ACT, IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT PURSUANT TO RULE 144A OR (II) A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF THE TRUST OR AN AFFILIATE OF SUCH A PERSON WITHIN THE MEANING OF RULE 3a-7 OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (INCLUDING, BUT NOT LIMITED TO, FIRST ALLIANCE MORTGAGE COMPANYAMRESCO RESIDENTIAL SECURITIES CORPORATION AND AMRESCO RESIDENTIAL CAPITAL MARKETS, INC.) IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND SUCH LAWS. NO PERSON IS OBLIGATED TO REGISTER THIS CERTIFICATE UNDER THE ACT OR ANY STATE SECURITIES LAWS."; or
(ii) furnish to the Owner Trustee and the Certificate Registrar and any of their respective successors an opinion of counsel acceptable to such persons that such transfer may be made pursuant to an exemption to the Securities Act, describing the applicable exemption and the basis therefor, or is being made pursuant to the Securities Act, which opinion of counsel shall not be an expense of the Trust, the Owner Trustee or the Certificate Registrar.
(b) Each Prospective Holder, other than First Alliance Portfolio Services, Inc.the Depositor or the Seller, shall either:
(i) represent and warrant, in writing, to the Owner Trustee and the Certificate Registrar and any of their respective successors that (1) the Prospective Holder is not an "employee benefit plan" within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or a "plan" within the meaning of Section 4975(e)(1) of the Code (any such plan or employee benefit plan, a "Plan") and is not directly or indirectly purchasing such Certificate on behalf of, as investment manager of, as named fiduciary of, as trustee of, or with assets of a Plan, or (2) either (I) the Prospective Holder is acquiring such Certificate for its own account and no part of the assets used to acquire such Certificate constitutes assets of a Plan, or (II) the source of funds to be used to acquire such Certificate is an "insurance company general account," within the meaning of Prohibited Transaction Class Exemption 95-60, 60 Fed. Reg. 35925 (July 12, 1995) (the "Exemption"), and there is no Plan with respect to which the amount of such general account's reserves for the contract(s) held by or on behalf of such Plan (determined under Section 807(d) of the Code), together with the amount of the reserves of the contract(s) held by or on behalf of any other Plans (determined under section 807(d) of the Code) maintained by the same employer (or an affiliate thereof as defined in Section V(a)(1) of the Exemption) or by the same employee organization, exceed 10% of the total of all liabilities of such general account; or
(ii) furnish to the Owner Trustee and the Certificate Registrar and any of their respective successors an opinion of counsel acceptable to such persons that (A) the proposed issuance or transfer of the Certificate to such Prospective Holder will not cause any assets of the Trust to be deemed assets of a Plan, or (B) the proposed issuance or transfer of the Certificate will not cause the Owner Trustee or the Certificate Registrar or any of their respective successors to be a fiduciary of a Plan within the meaning of Section 3(21) of ERISA and will not give rise to a transaction described in Section 406 of ERISA or Section 4975(c)(1) of the Code for which a statutory or administrative exemption is unavailable.
(c) By its acceptance of a Certificate, each Prospective Holder agrees and acknowledges that no legal or beneficial interest in all or any portion of any Certificate may be transferred directly or indirectly to (i) an entity that holds residual securities as nominee to facilitate the clearance and settlement of such securities through electronic book-entry changes in accounts of participating organizations (a "Book-Entry Nominee"), or (ii) an individual, corporation, partnership or other person unless such transferee is not a Non-U.S. Person (any such person being referred to herein as a "Non-permitted Foreign Holder"), and any such purported transfer shall be void and have no effect.
(d) The Owner Trustee shall not execute, and shall not countersign and deliver, a Certificate in connection with any transfer thereof unless the transferor shall have provided to the Owner Trustee an IRS Form W-9 and a certificate, signed by the transferee, that it is not a Book-Entry Nominee or a Non-permitted Foreign Holder, which certificate shall contain the consent of the transferee to any amendments of this Agreement as may be required to effectuate further the foregoing restrictions on transfer of the Certificate to Book-Entry Nominees or Non-permitted Foreign Holders, and an agreement by the transferee that it will not transfer a Certificate without providing to the Owner Trustee a certificate in the form provided above.
(e) The Certificates shall bear an additional legend referring to the restrictions contained in paragraph (cb) above.
(f) No offer, sale, transfer, pledge, hypothecation or other disposition (including any pledge or transfer under a repurchase transaction or securities loan) of any Certificate shall be made to any entity unless, prior to such disposition, (i) the Note Insurer has given its prior written consent to the offer, sale, transfer, pledge, hypothecation or other disposition; provided, however, that such consent shall not be unreasonably withheld and (ii) the Prospective Holder delivers to the Owner Trustee and the Certificate Registrar an opinion of counsel, rendered by a law firm generally recognized to be qualified to opine concerning the tax aspects of asset securitization, to the effect that such transfer (including any disposition permitted following any default under any pledge or repurchase transaction will not cause the Trust to be (i) treated as an association taxable as a corporation for federal income tax purposes, (ii) taxable as a taxable mortgage pool as defined in Section 7701(i) of the Code or (iii) taxable as a "publicly traded partnership" as defined in Treasury Regulation Section 1.7704-1. Notwithstanding the foregoing, the provisions of this paragraph shall not apply to the initial transfer of the Certificates to First Alliance Portfolio Services, Inc.the Seller or the Depositor.
Appears in 1 contract
Samples: Trust Agreement (Amresco Residential Securities Corp)
Restriction on Transfers of Certificate. (a) Each prospective purchaser and any subsequent transferee of a Certificate (each, a "Prospective Holder"), other than First Alliance Portfolio Services, Inc.the Depositor or the Seller, shall either:
(i) represent and warrant, in writing, to the Owner Trustee and the Certificate Registrar and any of their respective successors that:
(Ai) Such Person is (IA) a "qualified institutional buyer" as defined in Rule 144A under the Securities Act of 1933, as amended (the "Securities Act"), and is aware that the seller of the Certificate may be relying on the exemption from the 12 17 registration requirements of the Securities Act provided by Rule 144A and is acquiring such Certificate for its own account or for the account of one or more qualified institutional buyers for whom it is authorized to act, or (IIB) a Person involved in the organization or operation of the Trust or an affiliate of such Person within the meaning of Rule 3a-7 of the Investment Company Act of 1940, as amended (including, but not limited to, the Depositor or the Seller).
(Bii) Such Person understands that the Certificate has not been and will not be registered under the Securities Act and may be offered, sold, pledged or otherwise transferred only to a person whom the seller reasonably believes is (A) a qualified institutional buyer or (B) a Person involved in the organization or operation of the Trust or an affiliate of such Person, in a transaction meeting the requirements of Rule 144A under the Securities Act and in accordance with any applicable securities laws of any state of the United States.
(Ciii) Such Person understands that the Certificate bears a legend to the following effect: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. THIS CERTIFICATE MAY BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR OTHERWISE DISPOSED OF (INCLUDING PLEDGED) BY THE HOLDER HEREOF ONLY TO (I) A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE ACT, IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT PURSUANT TO RULE 144A OR (II) A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF THE TRUST OR AN AFFILIATE OF SUCH A PERSON WITHIN THE MEANING OF RULE 3a-7 OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (INCLUDING, BUT NOT LIMITED TO, FIRST ALLIANCE MORTGAGE COMPANYIMC SECURITIES, INC.) IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND SUCH LAWS. NO PERSON IS OBLIGATED TO REGISTER THIS CERTIFICATE UNDER THE ACT OR ANY STATE SECURITIES LAWS."; or
(ii) furnish to the Owner Trustee and the Certificate Registrar and any of their respective successors an opinion of counsel acceptable to such persons that such transfer may be made pursuant to an exemption to the Securities Act, describing the applicable exemption and the basis therefor, or is being made pursuant to the Securities Act, which opinion of counsel shall not be an expense of the Trust, the Owner Trustee or the Certificate Registrar.
(b) Each Prospective Holder, other than First Alliance Portfolio Services, Inc.the Depositor or the Seller, shall either:
(i) represent and warrant, in writing, to the Owner Trustee and the Certificate Registrar and any of their respective successors that (1) the Prospective Holder is not an "employee benefit plan" within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or a "plan" within the meaning of Section 4975(e)(1) of the Code (any such plan or employee benefit plan, a "Plan") and is not directly or indirectly purchasing such Certificate on behalf of, as investment manager of, as named fiduciary of, as trustee of, or with assets of a Plan.
(c) By its acceptance of a Certificate, each Prospective Holder agrees and acknowledges that no legal or beneficial interest in all or any portion of any Certificate may be transferred directly or indirectly to (i) an entity that holds residual securities as nominee to facilitate the clearance and settlement of such securities through electronic book-entry changes in accounts of participating organizations (a "Book-Entry Nominee"), or (ii) an individual, corporation, partnership or other person unless such transferee is not a Non-U.S. Person (any such person being referred to herein as a "Non-permitted Foreign Holder"), and any such purported transfer shall be void and have no effect.
(d) The Owner Trustee shall not execute, and shall not countersign and deliver, a Certificate in connection with any transfer thereof unless the transferor shall have provided to the Owner Trustee an IRS Form W-9 and a certificate, signed by the transferee, that it is not a Book-Entry Nominee or a Non-permitted Foreign Holder, which certificate shall contain the consent of the transferee to any amendments of this Agreement as may be required to effectuate further the foregoing restrictions on transfer of the Certificate to Book-Entry Nominees or Non-permitted Foreign Holders, and an agreement by the transferee that it will not transfer a Certificate without providing to the Owner Trustee a certificate in the form provided above.
(e) The Certificates shall bear an additional legend referring to the restrictions contained in paragraph (c) above.
(f) No offer, sale, transfer, pledge, hypothecation or other disposition (including any pledge or transfer under a repurchase transaction or securities loan) of any Certificate shall be made to any entity unless, prior to such disposition, (i) the Note Insurer has given its prior written consent to the offer, sale, transfer, pledge, hypothecation or other disposition; provided, however, that such consent shall not be unreasonably withheld and (ii) the Prospective Holder delivers to the Owner Trustee an opinion of counsel, rendered by a law firm generally recognized to be qualified to opine concerning the tax aspects of asset securitization, to the effect that such transfer (including any disposition permitted following any default under any pledge or repurchase transaction will not cause the Trust to be (i) treated as an association taxable as a corporation for federal income tax purposes, (ii) taxable as a taxable mortgage pool as defined in Section 7701(i) of the Code or (iii) taxable as a "publicly traded partnership" as defined in Treasury Regulation Section 1.7704-1. Notwithstanding the foregoing, the provisions of this paragraph shall not apply to the initial transfer of the Certificates to First Alliance Portfolio Services, Inc.a
Appears in 1 contract
Samples: Owner Trust Agreement (Imc Home Equity Loan Owner Trust 1997-8)
Restriction on Transfers of Certificate. (a) Each prospective purchaser and any subsequent transferee of a Certificate (each, a "Prospective Holder"), other than First Alliance Portfolio Services, Inc.the Seller, shall either:
(i) represent and warrant, in writing, to the Owner Trustee and the Certificate Registrar and any of their respective successors that:
(Ai) Such Person is (IA) a "qualified institutional buyer" as defined in Rule 144A under the Securities Act of 1933, as amended (the "Securities Act"), and is aware that the seller of the Certificate may be relying on the exemption from the registration requirements of the Securities Act provided by Rule 144A and is acquiring such Certificate for its own account or for the account of one or more qualified institutional buyers for whom it is authorized to act, or (IIB) a Person involved in the organization or operation of the Trust or an affiliate of such Person within the meaning of Rule 3a-7 of the Investment Company Act of 1940, as amended (including, but not limited to, the Seller).
(Bii) Such Person understands that the Certificate has not been and will not be registered under the Securities Act and may be offered, sold, pledged or otherwise transferred only to a person whom the seller reasonably believes is (A) a qualified institutional buyer or (B) a Person involved in the organization or operation of the Trust or an affiliate of such Person, in a transaction meeting the requirements of Rule 144A under the Securities Act and in accordance with any applicable securities laws of any state of the United States.
(Ciii) Such Person understands that the Certificate bears a legend to the following effect: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. THIS CERTIFICATE MAY BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR OTHERWISE DISPOSED OF (INCLUDING PLEDGED) BY THE HOLDER HEREOF ONLY TO (I) A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE ACT, IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT PURSUANT TO RULE 144A OR (II) A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF THE TRUST OR AN AFFILIATE OF SUCH A PERSON WITHIN THE MEANING OF RULE 3a-7 OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (INCLUDING, BUT NOT LIMITED TO, FIRST ALLIANCE MORTGAGE COMPANY) IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND SUCH LAWS. NO PERSON IS OBLIGATED TO REGISTER THIS CERTIFICATE UNDER THE ACT OR ANY STATE SECURITIES LAWS."; or
(ii) furnish to the Owner Trustee and the Certificate Registrar and any of their respective successors an opinion of counsel acceptable to such persons that such transfer may be made pursuant to an exemption to the Securities Act, describing the applicable exemption and the basis therefor, or is being made pursuant to the Securities Act, which opinion of counsel shall not be an expense of the Trust, the Owner Trustee or the Certificate Registrar.
(b) Each Prospective Holder, other than First Alliance Portfolio Services, Inc.the Seller, shall either:
(i) represent and warrant, in writing, to the Owner Trustee and the Certificate Registrar and any of their respective successors that (1) the Prospective Holder is not an "employee benefit plan" within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or a "plan" within the meaning of Section 4975(e)(1) of the Code (any such plan or employee benefit plan, a "Plan") and is not directly or indirectly purchasing such Certificate on behalf of, as investment manager of, as named fiduciary of, as trustee of, or with assets of a Plan, or (2) either (I) the Prospective Holder is acquiring such Certificate for its own account and no part of the assets used to acquire such Certificate constitutes assets of a Plan, or (II) the source of funds to be used to acquire such Certificate is an "insurance company general account," within the meaning of Prohibited Transaction Class Exemption 95-60, 60 Fed. Reg. 35925 (July 12, 1995) (the "Exemption"), and there is no Plan with respect to which the amount of such general account's reserves for the contract(s) held by or on behalf of such Plan (determined under Section 807(d) of the Code), together with the amount of the reserves of the contract(s) held by or on behalf of any other Plans (determined under section 807(d) of the Code) maintained by the same employer (or an affiliate thereof as defined in Section V(a)(1) of the Exemption) or by the same employee organization, exceed 10% of the total of all liabilities of such general account; or
(ii) furnish to the Owner Trustee and the Certificate Registrar and any of their respective successors an opinion of counsel acceptable to such persons that (A) the proposed issuance or transfer of the Certificate to such Prospective Holder will not cause any assets of the Trust to be deemed assets of a Plan, or (B) the proposed issuance or transfer of the Certificate will not cause the Owner Trustee or the Certificate Registrar or any of their respective successors to be a fiduciary of a Plan within the meaning of Section 3(21) of ERISA and will not give rise to a transaction described in Section 406 of ERISA or Section 4975(c)(1) of the Code for which a statutory or administrative exemption is unavailable.
(c) By its acceptance of a Certificate, each Prospective Holder agrees and acknowledges that no legal or beneficial interest in all or any portion of any Certificate may be transferred directly or indirectly to (i) an entity that holds residual securities as nominee to facilitate the clearance and settlement of such securities through electronic book-entry changes in accounts of participating organizations (a "Book-Entry Nominee"), or (ii) an individual, corporation, partnership or other person unless such transferee is not a Non-U.S. Person (any such person being referred to herein as a "Non-permitted Foreign Holder"), and any such purported transfer shall be void and have no effect.
(d) The Owner Trustee shall not execute, and shall not countersign and deliver, a Certificate in connection with any transfer thereof unless the transferor shall have provided to the Owner Trustee an IRS Form W-9 and a certificate, signed by the transferee, that it is not a Book-Entry Nominee or a Non-Non- permitted Foreign Holder, which certificate shall contain the consent of the transferee to any amendments of this Agreement as may be required to effectuate further the foregoing restrictions on transfer of the Certificate to Book-Entry Nominees or Non-permitted Foreign Holders, and an agreement by the transferee that it will not transfer a Certificate without providing to the Owner Trustee a certificate in the form provided above.
(e) The Certificates shall bear an additional legend referring to the restrictions contained in paragraph (cb) above.
(f) No offer, sale, transfer, pledge, hypothecation or other disposition (including any pledge or transfer under a repurchase transaction or securities loan) of any Certificate shall be made to any entity unless, prior to such disposition, (i) the Note Insurer has given its prior written consent to the offer, sale, transfer, pledge, hypothecation or other disposition; provided, however, that such consent shall not be unreasonably withheld and (ii) the Prospective Holder delivers to the Owner Trustee an opinion of counsel, rendered by a law firm generally recognized to be qualified to opine concerning the tax aspects of asset securitization, to the effect that such transfer (including any disposition permitted following any default under any pledge or repurchase transaction will not cause the Trust to be (i) treated as an association taxable as a corporation for federal income tax purposes, (ii) taxable as a taxable mortgage pool as defined in Section 7701(i) of the Code or (iii) taxable as a "publicly traded partnership" as defined in Treasury Regulation Section 1.7704-1. Notwithstanding the foregoing, the provisions of this paragraph shall not apply to the initial transfer of the Certificates to First Alliance Portfolio Services, Inc.
Appears in 1 contract
Restriction on Transfers of Certificate. (a) Each prospective purchaser and any subsequent transferee of a Certificate (each, a "Prospective Holder"), other than First Alliance Portfolio Services, Inc.the Depositor or the Seller, shall either:
(i) represent and warrant, in writing, to the Owner Trustee and the Certificate Registrar and any of their respective successors that:
(Ai) Such Person is one of the following: (IA) a an "qualified institutional buyeraccredited investor" as defined in (an entity meeting the requirements of Rule 144A 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as amended (the "Securities Act")) and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of investment in the Certificate, and the Transferee is acquiring the Certificate for its own account or for one or more institutional accredited investors for whom it is authorized to act, (B) a "qualified institutional buyer" as defined in Rule 144A under the Securities Act; the Transferee is aware that the seller of the Certificate Transferor may be relying on the exemption from the registration requirements of the Securities Act provided by Rule 144A 144A; and the Transferee is acquiring such the Certificate for its own account or for the account of one or more qualified institutional buyers for whom it is authorized to act, act or (IIC) a Person involved in the organization or operation of the Trust or an affiliate of such Person within the meaning of Rule 3a-7 of the Investment Company Act of 1940, as amended (including, but not limited to, the Depositor or the Seller).
(Bii) Such Person understands that the Certificate has not been and will not be registered under the Securities Act and may be offered, sold, pledged or otherwise transferred only to a person whom the seller reasonably believes is (A) a qualified institutional buyer or (B) a Person involved in the organization or operation of the Trust or an affiliate of such Person, in a transaction meeting the requirements of Rule 144A under the Securities Act and in accordance with any applicable securities laws of any state of the United States.
(Ciii) Such Person understands that the Certificate bears a legend to the following effect: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. THIS CERTIFICATE MAY BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR OTHERWISE DISPOSED OF (INCLUDING PLEDGED) BY THE HOLDER HEREOF ONLY TO (I) AN "INSTITUTIONAL ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT, (II) A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE ACT, IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT PURSUANT TO RULE 144A OR (IIIII) A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF THE TRUST OR AN AFFILIATE OF SUCH A PERSON DESCRIBED IN (II) WITHIN THE MEANING OF RULE 3a-7 OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (INCLUDING, BUT NOT LIMITED TO, FIRST ALLIANCE IMC MORTGAGE COMPANYCOMPANY AND IMC SECURITIES, INC.) IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND SUCH LAWS. NO PERSON IS OBLIGATED TO REGISTER THIS CERTIFICATE UNDER THE ACT OR ANY STATE SECURITIES LAWS."; or
(ii) furnish to the Owner Trustee and the Certificate Registrar and any of their respective successors an opinion of counsel acceptable to such persons that such transfer may be made pursuant to an exemption to the Securities Act, describing the applicable exemption and the basis therefor, or is being made pursuant to the Securities Act, which opinion of counsel shall not be an expense of the Trust, the Owner Trustee or the Certificate Registrar.
(b) Each Prospective Holder, other than First Alliance Portfolio Services, Inc.the Depositor or the Seller, shall either:
(i) represent and warrant, in writing, to the Owner Trustee and the Certificate Registrar and any of their respective successors that (1) the Prospective Holder is not an "employee benefit plan" within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or a "plan" within the meaning of Section 4975(e)(1) of the Code (any such plan or employee benefit plan, a "Plan") and is not directly or indirectly purchasing such Certificate on behalf of, as investment manager of, as named fiduciary of, as trustee of, or with assets of a Plan, or (2) either (I) the Prospective Holder is acquiring such Certificate for its own account and no part of the assets used to acquire such Certificate constitutes assets of a Plan, or (II) the source of funds to be used to acquire such Certificate is an "insurance company general account," within the meaning of Prohibited Transaction Class Exemption 95-60, 60 Fed. Reg. 35925 (July 12, 1995) (the "Exemption"), and there is no Plan with respect to which the amount of such general account's reserves for the contract(s) held by or on behalf of such Plan (determined under Section 807(d) of the Code), together with the amount of the reserves of the contract(s) held by or on behalf of any other Plans (determined under section 807(d) of the Code) maintained by the same employer (or an affiliate thereof as defined in Section V(a)(1) of the Exemption) or by the same employee organization, exceed 10% of the total of all liabilities of such general account; or
(ii) furnish to the Owner Trustee and the Certificate Registrar and any of their respective successors an opinion of counsel acceptable to such persons that (A) the proposed issuance or transfer of the Certificate to such Prospective Holder will not cause any assets of the Trust to be deemed assets of a Plan, or (B) the proposed issuance or transfer of the Certificate will not cause the Owner Trustee or the Certificate Registrar or any of their respective successors to be a fiduciary of a Plan within the meaning of Section 3(21) of ERISA and will not give rise to a transaction described in Section 406 of ERISA or Section 4975(c)(1) of the Code for which a statutory or administrative exemption is unavailable.
(c) By its acceptance of a Certificate, each Prospective Holder agrees and acknowledges that no legal or beneficial interest in all or any portion of any Certificate may be transferred directly or indirectly to (i) an entity that holds residual securities as nominee to facilitate the clearance and settlement of such securities through electronic book-entry changes in accounts of participating organizations (a "Book-Entry Nominee"), or (ii) an individual, corporation, partnership or other person unless such transferee is not a Non-U.S. Person (any such person being referred to herein as a "Non-permitted Foreign Holder"), and any such purported transfer shall be void and have no effect.
(d) The Owner Trustee shall not execute, and shall not countersign and deliver, a Certificate in connection with any transfer thereof unless the transferor shall have provided to the Owner Trustee an IRS Form W-9 and a certificate, signed by the transferee, that it is not a Book-Entry Nominee or a Non-permitted Foreign Holder, which certificate shall contain the consent of the transferee to any amendments of this Agreement as may be required to effectuate further the foregoing restrictions on transfer of the Certificate to Book-Entry Nominees or Non-permitted Foreign Holders, and an agreement by the transferee that it will not transfer a Certificate without providing to the Owner Trustee a certificate in the form provided above.
(e) The Certificates shall bear an additional legend referring to the restrictions contained in paragraph (cb) above.
(f) No offer, sale, transfer, pledge, hypothecation or other disposition (including any pledge or transfer under a repurchase transaction or securities loan) of any Certificate shall be made to any entity unless, prior to such disposition, (i) the Note Insurer has given its prior written consent to the offer, sale, transfer, pledge, hypothecation or other disposition; provided, however, that such consent shall not be unreasonably withheld and (ii) the Prospective Holder delivers to the Owner Trustee and the Certificate Registrar an opinion of counsel, rendered by a law firm generally recognized to be qualified to opine concerning the tax aspects of asset securitization, to the effect that such transfer (including any disposition permitted following any default under any pledge or repurchase transaction will not cause the Trust to be (i) treated as an association taxable as a corporation for federal income tax purposes, (ii) taxable as a taxable mortgage pool as defined in Section 7701(i) of the Code or (iii) taxable as a "publicly traded partnership" as defined in Treasury Regulation Section 1.7704-1. Notwithstanding the foregoing, the provisions of this paragraph shall not apply to the initial transfer of the Certificates to First Alliance Portfolio Services, Inc.the Seller or the Depositor.
Appears in 1 contract
Samples: Trust Agreement (Imc Home Equity Loan Owner Trust 1998-7)
Restriction on Transfers of Certificate. (a) Each prospective purchaser and any subsequent transferee of a Certificate (each, a "Prospective Holder"), other than First Alliance Portfolio Services, Inc.the Depositor or the Seller, shall either:
(i) represent and warrant, in writing, to the Owner Trustee and the Certificate Registrar and any of their respective successors that:
(Ai) Such Person is (IA) a "qualified institutional buyer" as defined in Rule 144A under the Securities Act of 1933, as amended (the "Securities Act"), and is aware that the seller of the Certificate may be relying on the exemption from the registration requirements of the Securities Act provided by Rule 144A and is acquiring such Certificate for its own account or for the account of one or more qualified institutional buyers for whom it is authorized to act, or (IIB) a Person involved in the organization or operation of the Trust or an affiliate of such Person within the meaning of Rule 3a-7 of the Investment Company Act of 1940, as amended (including, but not limited to, the Depositor or the Seller).
(Bii) Such Person understands that the Certificate has not been and will not be registered under the Securities Act and may be offered, sold, pledged or otherwise transferred only to a person whom the seller reasonably believes is (A) a qualified institutional buyer or (B) a Person involved in the organization or operation of the Trust or an affiliate of such Person, in a transaction meeting the requirements of Rule 144A under the Securities Act and in accordance with any applicable securities laws of any state of the United States.
(Ciii) Such Person understands that the Certificate bears a legend to the following effect: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. THIS CERTIFICATE MAY BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR OTHERWISE DISPOSED OF (INCLUDING PLEDGED) BY THE HOLDER HEREOF ONLY TO (I) A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE ACT, IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT PURSUANT TO RULE 144A OR (II) A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF THE TRUST OR AN AFFILIATE OF SUCH A PERSON WITHIN THE MEANING OF RULE 3a-7 OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (INCLUDING, BUT NOT LIMITED TO, FIRST ALLIANCE MORTGAGE COMPANYIMC SECURITIES, INC.) IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND SUCH LAWS. NO PERSON IS OBLIGATED TO REGISTER THIS CERTIFICATE UNDER THE ACT OR ANY STATE SECURITIES LAWS."; or
(ii) furnish to the Owner Trustee and the Certificate Registrar and any of their respective successors an opinion of counsel acceptable to such persons that such transfer may be made pursuant to an exemption to the Securities Act, describing the applicable exemption and the basis therefor, or is being made pursuant to the Securities Act, which opinion of counsel shall not be an expense of the Trust, the Owner Trustee or the Certificate Registrar.
(b) Each Prospective Holder, other than First Alliance Portfolio Services, Inc.the Depositor or the Seller, shall either:
(i) represent and warrant, in writing, to the Owner Trustee and the Certificate Registrar and any of their respective successors that (1) the Prospective Holder is not an "employee benefit plan" within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or a "plan" within the meaning of Section 4975(e)(1) of the Code (any such plan or employee benefit plan, a "Plan") and is not directly or indirectly purchasing such Certificate on behalf of, as investment manager of, as named fiduciary of, as trustee of, or with assets of a Plan, or (2) either (I) the Prospective Holder is acquiring such Certificate for its own account and no part of the assets used to acquire such Certificate constitutes assets of a Plan, or (II) the source of funds to be used to acquire such Certificate is an "insurance company general account," within the meaning of Prohibited Transaction Class Exemption 95-60, 60 Fed. Reg. 35925 (July 12, 1995) (the "Exemption"), and there is no Plan with respect to which the amount of such general account's reserves for the contract(s) held by or on behalf of such Plan (determined under Section 807(d) of the Code), together with the amount of the reserves of the contract(s) held by or on behalf of any other Plans (determined under section 807(d) of the Code) maintained by the same employer (or an affiliate thereof as defined in Section V(a)(1) of the Exemption) or by the same employee organization, exceed 10% of the total of all liabilities of such general account; or
(ii) furnish to the Owner Trustee and the Certificate Registrar and any of their respective successors an opinion of counsel acceptable to such persons that (A) the proposed issuance or transfer of the Certificate to such Prospective Holder will not cause any assets of the Trust to be deemed assets of a Plan, or (B) the proposed issuance or transfer of the Certificate will not cause the Owner Trustee or the Certificate Registrar or any of their respective successors to be a fiduciary of a Plan within the meaning of Section 3(21) of ERISA and will not give rise to a transaction described in Section 406 of ERISA or Section 4975(c)(1) of the Code for which a statutory or administrative exemption is unavailable.
(c) By its acceptance of a Certificate, each Prospective Holder agrees and acknowledges that no legal or beneficial interest in all or any portion of any Certificate may be transferred directly or indirectly to (i) an entity that holds residual securities as nominee to facilitate the clearance and settlement of such securities through electronic book-entry changes in accounts of participating organizations (a "Book-Entry Nominee"), or (ii) an individual, corporation, partnership or other person unless such transferee is not a Non-U.S. Person (any such person being referred to herein as a "Non-permitted Foreign Holder"), and any such purported transfer shall be void and have no effect.
(d) The Owner Trustee shall not execute, and shall not countersign and deliver, a Certificate in connection with any transfer thereof unless the transferor shall have provided to the Owner Trustee an IRS Form W-9 and a certificate, signed by the transferee, that it is not a Book-Entry Nominee or a Non-Non- permitted Foreign Holder, which certificate shall contain the consent of the transferee to any amendments of this Agreement as may be required to effectuate further the foregoing restrictions on transfer of the Certificate to Book-Entry Nominees or Non-permitted Foreign Holders, and an agreement by the transferee that it will not transfer a Certificate without providing to the Owner Trustee a certificate in the form provided above.
(e) The Certificates shall bear an additional legend referring to the restrictions contained in paragraph (cb) above.
(f) No offer, sale, transfer, pledge, hypothecation or other disposition (including any pledge or transfer under a repurchase transaction or securities loan) of any Certificate shall be made to any entity unless, prior to such disposition, (i) the Note Insurer has given its prior written consent to the offer, sale, transfer, pledge, hypothecation or other disposition; provided, however, that such consent shall not be unreasonably withheld and (ii) the Prospective Holder delivers to the Owner Trustee an opinion of counsel, rendered by a law firm generally recognized to be qualified to opine concerning the tax aspects of asset securitization, to the effect that such transfer (including any disposition permitted following any default under any pledge or repurchase transaction will not cause the Trust to be (i) treated as an association taxable as a corporation for federal income tax purposes, (ii) taxable as a taxable mortgage pool as defined in Section 7701(i) of the Code or (iii) taxable as a "publicly traded partnership" as defined in Treasury Regulation Section 1.7704-1. Notwithstanding the foregoing, the provisions of this paragraph shall not apply to the initial transfer of the Certificates to First Alliance Portfolio Services, Inc.
Appears in 1 contract
Samples: Trust Agreement (Imc Securities Inc)
Restriction on Transfers of Certificate. (a) Each prospective purchaser and any subsequent transferee of a Certificate (each, a "Prospective Holder"), other than First Alliance Portfolio Services, Inc.the Depositor or the Seller, shall either:
(i) represent and warrant, in writing, to the Owner Trustee and the Certificate Registrar and any of their respective successors that:
(Ai) Such Person is (IA) a "qualified institutional buyer" as defined in Rule 144A under the Securities Act of 1933, as amended (the "Securities Act"), and is aware that the seller of the Certificate may be relying on the exemption from the registration requirements of the Securities Act provided by Rule 144A and is acquiring such Certificate for its own account or for the account of one or more qualified institutional buyers for whom it is authorized to act, or (IIB) a Person involved in the organization or operation of the Trust or an affiliate of such Person within the meaning of Rule 3a-7 of the Investment Company Act of 1940, as amended (including, but not limited to, the Seller).
(Bii) Such Person understands that the Certificate has not been and will not be registered under the Securities Act and may be offered, sold, pledged or otherwise transferred only to a person whom the seller reasonably believes is (A) a qualified institutional buyer or (B) a Person involved in the organization or operation of the Trust or an affiliate of such Person, in a transaction meeting the requirements of Rule 144A under the Securities Act and in accordance with any applicable securities laws of any state of the United States.
(Ciii) Such Person understands that the Certificate bears a legend to the following effect: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. THIS CERTIFICATE MAY BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR OTHERWISE DISPOSED OF (INCLUDING PLEDGED) BY THE HOLDER HEREOF ONLY TO (I) A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE ACT, IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT PURSUANT TO RULE 144A OR (II) A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF THE TRUST OR AN AFFILIATE OF SUCH A PERSON WITHIN THE MEANING OF RULE 3a-7 OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (INCLUDING, BUT NOT LIMITED TO, FIRST ALLIANCE IMC MORTGAGE COMPANY) IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND SUCH LAWS. NO PERSON IS OBLIGATED TO REGISTER THIS CERTIFICATE UNDER THE ACT OR ANY STATE SECURITIES LAWS."; or
(ii) furnish to the Owner Trustee and the Certificate Registrar and any of their respective successors an opinion of counsel acceptable to such persons that such transfer may be made pursuant to an exemption to the Securities Act, describing the applicable exemption and the basis therefor, or is being made pursuant to the Securities Act, which opinion of counsel shall not be an expense of the Trust, the Owner Trustee or the Certificate Registrar.
(b) Each Prospective Holder, other than First Alliance Portfolio Services, Inc.the Depositor or the Seller, shall either:
(i) represent and warrant, in writing, to the Owner Trustee and the Certificate Registrar and any of their respective successors that (1) the Prospective Holder is not an "employee benefit plan" within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or a "plan" within the meaning of Section 4975(e)(1) of the Code (any such plan or employee benefit plan, a "Plan") and is not directly or indirectly purchasing such Certificate on behalf of, as investment manager of, as named fiduciary of, as trustee of, or with assets of a Plan, or (2) either (I) the Prospective Holder is acquiring such Certificate for its own account and no part of the assets used to acquire such Certificate constitutes assets of a Plan, or (II) the source of funds to be used to acquire such Certificate is an "insurance company general account," within the meaning of Prohibited Transaction Class Exemption 95-60, 60 Fed. Reg. 35925 (July 12, 1995) (the "Exemption"), and there is no Plan with respect to which the amount of such general account's reserves for the contract(s) held by or on behalf of such Plan (determined under Section 807(d) of the Code), together with the amount of the reserves of the contract(s) held by or on behalf of any other Plans (determined under section 807(d) of the Code) maintained by the same employer (or an affiliate thereof as defined in Section V(a)(1) of the Exemption) or by the same employee organization, exceed 10% of the total of all liabilities of such general account; or
(ii) furnish to the Owner Trustee and the Certificate Registrar and any of their respective successors an opinion of counsel acceptable to such persons that (A) the proposed issuance or transfer of the Certificate to such Prospective Holder will not cause any assets of the Trust to be deemed assets of a Plan, or (B) the proposed issuance or transfer of the Certificate will not cause the Owner Trustee or the Certificate Registrar or any of their respective successors to be a fiduciary of a Plan within the meaning of Section 3(21) of ERISA and will not give rise to a transaction described in Section 406 of ERISA or Section 4975(c)(1) of the Code for which a statutory or administrative exemption is unavailable.
(c) By its acceptance of a Certificate, each Prospective Holder agrees and acknowledges that no legal or beneficial interest in all or any portion of any Certificate may be transferred directly or indirectly to (i) an entity that holds residual securities as nominee to facilitate the clearance and settlement of such securities through electronic book-entry changes in accounts of participating organizations (a "Book-Entry Nominee"), or (ii) an individual, corporation, partnership or other person unless such transferee is not a Non-U.S. Person (any such person being referred to herein as a "Non-permitted Foreign Holder"), and any such purported transfer shall be void and have no effect.
(d) The Owner Trustee shall not execute, and shall not countersign and deliver, a Certificate in connection with any transfer thereof unless the transferor shall have provided to the Owner Trustee an IRS Form W-9 and a certificate, signed by the transferee, that it is not a Book-Book- Entry Nominee or a Non-permitted Foreign Holder, which certificate shall contain the consent of the transferee to any amendments of this Agreement as may be required to effectuate further the foregoing restrictions on transfer of the Certificate to Book-Entry Nominees or Non-permitted Foreign Holders, and an agreement by the transferee that it will not transfer a Certificate without providing to the Owner Trustee a certificate in the form provided above.
(e) The Certificates shall bear an additional legend referring to the restrictions contained in paragraph (cb) above.
(f) No offer, sale, transfer, pledge, hypothecation or other disposition (including any pledge or transfer under a repurchase transaction or securities loan) of any Certificate shall be made to any entity unless, prior to such disposition, (i) the Note Insurer has given its prior written consent to the offer, sale, transfer, pledge, hypothecation or other disposition; provided, however, that such consent shall not be unreasonably withheld and (ii) the Prospective Holder delivers to the Owner Trustee and the Certificate Registrar an opinion of counsel, rendered by a law firm generally recognized to be qualified to opine concerning the tax aspects of asset securitization, to the effect that such transfer (including any disposition permitted following any default under any pledge or repurchase transaction will not cause the Trust to be (i) treated as an association taxable as a corporation for federal income tax purposes, (ii) taxable as a taxable mortgage pool as defined in Section 7701(i) of the Code or (iii) taxable as a "publicly traded partnership" as defined in Treasury Regulation Section 1.7704-1. Notwithstanding the foregoing, the provisions of this paragraph shall not apply to the initial transfer of the Certificates to First Alliance Portfolio Services, Inc.the Seller or the Depositor.
Appears in 1 contract
Samples: Trust Agreement (Bear Stearns Asset Backed Securities Inc)
Restriction on Transfers of Certificate. (a) Each prospective purchaser and any subsequent transferee of a Certificate (each, a "Prospective Holder"), other than First Alliance Portfolio Services, Inc.the Depositor or the Seller, shall either:
(i) represent and warrant, in writing, to the Owner Trustee and the Certificate Registrar and any of their respective successors that:
(Ai) Such Person is (IA) a "qualified institutional buyer" as defined in Rule 144A under the Securities Act of 1933, as amended (the "Securities Act"), and is aware that the seller of the Certificate may be relying on the exemption from the registration requirements of the Securities Act provided by Rule 144A and is acquiring such Certificate for its own account or for the account of one or more qualified institutional buyers for whom it is authorized to act, or (IIB) a Person involved in the organization or operation of the Trust or an affiliate of such Person within the meaning of Rule 3a-7 of the Investment Company Act of 1940, as amended (including, but not limited to, the Depositor or the Seller).
(Bii) Such Person understands that the Certificate has not been and will not be registered under the Securities Act and may be offered, sold, pledged or otherwise transferred only to a person whom the seller reasonably believes is (A) a qualified institutional buyer or (B) a Person involved in the organization or operation of the Trust or an affiliate of such Person, in a transaction meeting the requirements of Rule 144A under the Securities Act and in accordance with any applicable securities laws of any state of the United States.
(Ciii) Such Person understands that the Certificate bears a legend to the following effect: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. THIS CERTIFICATE MAY BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR OTHERWISE DISPOSED OF (INCLUDING PLEDGED) BY THE HOLDER HEREOF ONLY TO (I) A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE ACT, IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT PURSUANT TO RULE 144A OR (II) A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF THE TRUST OR AN AFFILIATE OF SUCH A PERSON WITHIN THE MEANING OF RULE 3a-7 OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (INCLUDING, BUT NOT LIMITED TO, FIRST ALLIANCE IMC MORTGAGE COMPANYCOMPANY AND IMC SECURITIES, INC.) IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND SUCH LAWS. NO PERSON IS OBLIGATED TO REGISTER THIS CERTIFICATE UNDER THE ACT OR ANY STATE SECURITIES LAWS."; or
(ii) furnish to the Owner Trustee and the Certificate Registrar and any of their respective successors an opinion of counsel acceptable to such persons that such transfer may be made pursuant to an exemption to the Securities Act, describing the applicable exemption and the basis therefor, or is being made pursuant to the Securities Act, which opinion of counsel shall not be an expense of the Trust, the Owner Trustee or the Certificate Registrar.
(b) Each Prospective Holder, other than First Alliance Portfolio Services, Inc.the Depositor or the Seller, shall either:
(i) represent and warrant, in writing, to the Owner Trustee and the Certificate Registrar and any of their respective successors that (1) the Prospective Holder is not an "employee benefit plan" within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or a "plan" within the meaning of Section 4975(e)(1) of the Code (any such plan or employee benefit plan, a "Plan") and is not directly or indirectly purchasing such Certificate on behalf of, as investment manager of, as named fiduciary of, as trustee of, or with assets of a Plan, or (2) either (I) the Prospective Holder is acquiring such Certificate for its own account and no part of the assets used to acquire such Certificate constitutes assets of a Plan, or (II) the source of funds to be used to acquire such Certificate is an "insurance company general account," within the meaning of Prohibited Transaction Class Exemption 95-60, 60 Fed. Reg. 35925 (July 12, 1995) (the "Exemption"), and there is no Plan with respect to which the amount of such general account's reserves for the contract(s) held by or on behalf of such Plan (determined under Section 807(d) of the Code), together with the amount of the reserves of the contract(s) held by or on behalf of any other Plans (determined under section 807(d) of the Code) maintained by the same employer (or an affiliate thereof as defined in Section V(a)(1) of the Exemption) or by the same employee organization, exceed 10% of the total of all liabilities of such general account; or
(ii) furnish to the Owner Trustee and the Certificate Registrar and any of their respective successors an opinion of counsel acceptable to such persons that (A) the proposed issuance or transfer of the Certificate to such Prospective Holder will not cause any assets of the Trust to be deemed assets of a Plan, or (B) the proposed issuance or transfer of the Certificate will not cause the Owner Trustee or the Certificate Registrar or any of their respective successors to be a fiduciary of a Plan within the meaning of Section 3(21) of ERISA and will not give rise to a transaction described in Section 406 of ERISA or Section 4975(c)(1) of the Code for which a statutory or administrative exemption is unavailable.
(c) By its acceptance of a Certificate, each Prospective Holder agrees and acknowledges that no legal or beneficial interest in all or any portion of any Certificate may be transferred directly or indirectly to (i) an entity that holds residual securities as nominee to facilitate the clearance and settlement of such securities through electronic book-entry changes in accounts of participating organizations (a "Book-Entry Nominee"), or (ii) an individual, corporation, partnership or other person unless such transferee is not a Non-U.S. Person (any such person being referred to herein as a "Non-permitted Foreign Holder"), and any such purported transfer shall be void and have no effect.
(d) The Owner Trustee shall not execute, and shall not countersign and deliver, a Certificate in connection with any transfer thereof unless the transferor shall have provided to the Owner Trustee an IRS Form W-9 and a certificate, signed by the transferee, that it is not a Book-Book- Entry Nominee or a Non-permitted Foreign Holder, which certificate shall contain the consent of the transferee to any amendments of this Agreement as may be required to effectuate further the foregoing restrictions on transfer of the Certificate to Book-Entry Nominees or Non-permitted Foreign Holders, and an agreement by the transferee that it will not transfer a Certificate without providing to the Owner Trustee a certificate in the form provided above.
(e) The Certificates shall bear an additional legend referring to the restrictions contained in paragraph (cb) above.
(f) No offer, sale, transfer, pledge, hypothecation or other disposition (including any pledge or transfer under a repurchase transaction or securities loan) of any Certificate shall be made to any entity unless, prior to such disposition, (i) the Note Insurer has given its prior written consent to the offer, sale, transfer, pledge, hypothecation or other disposition; provided, however, that such consent shall not be unreasonably withheld and (ii) the Prospective Holder delivers to the Owner Trustee and the Certificate Registrar an opinion of counsel, rendered by a law firm generally recognized to be qualified to opine concerning the tax aspects of asset securitization, to the effect that such transfer (including any disposition permitted following any default under any pledge or repurchase transaction will not cause the Trust to be (i) treated as an association taxable as a corporation for federal income tax purposes, (ii) taxable as a taxable mortgage pool as defined in Section 7701(i) of the Code or (iii) taxable as a "publicly traded partnership" as defined in Treasury Regulation Section 1.7704-1. Notwithstanding the foregoing, the provisions of this paragraph shall not apply to the initial transfer of the Certificates to First Alliance Portfolio Services, Inc.the Seller or the Depositor.
Appears in 1 contract
Samples: Trust Agreement (Imc Home Equity Loan Owner Trust 1998-4)
Restriction on Transfers of Certificate. (a) Each prospective purchaser and any subsequent transferee of a Certificate (each, a "Prospective Holder"), other than First Alliance Portfolio Services, Inc.the Depositor or the Seller, shall either:
(i) represent and warrant, in writing, to the Owner Trustee and the Certificate Registrar and any of their respective successors that:
(Ai) Such Person is (IA) a "qualified institutional buyer" as defined in Rule 144A under the Securities Act of 1933, as amended (the "Securities Act"), and is aware that the seller of the Certificate may be relying on the exemption from the registration requirements of the Securities Act provided by Rule 144A and is acquiring such Certificate for its own account or for the account of one or more qualified institutional buyers for whom it is authorized to act, or (IIB) a Person involved in the organization or operation of the Trust or an affiliate of such Person within the meaning of Rule 3a-7 of the Investment Company Act of 1940, as amended (including, but not limited to, the Depositor or the Seller).
(Bii) Such Person understands that the Certificate has not been and will not be registered under the Securities Act and may be offered, sold, pledged or otherwise transferred only to a person whom the seller reasonably believes is (A) a qualified institutional buyer or (B) a Person involved in the organization or operation of the Trust or an affiliate of such Person, in a transaction meeting the requirements of Rule 144A under the Securities Act and in accordance with any applicable securities laws of any state of the United States.
(Ciii) Such Person understands that the Certificate bears a legend to the following effect: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. THIS CERTIFICATE MAY BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR OTHERWISE DISPOSED OF (INCLUDING PLEDGED) BY THE HOLDER HEREOF ONLY TO (I) A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE ACT, IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT PURSUANT TO RULE 144A OR (II) A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF THE TRUST OR AN AFFILIATE OF SUCH A PERSON WITHIN THE MEANING OF RULE 3a-7 OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (INCLUDING, BUT NOT LIMITED TO, FIRST ALLIANCE MORTGAGE COMPANYIMC SECURITIES, INC.) IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND SUCH LAWS. NO PERSON IS OBLIGATED TO REGISTER THIS CERTIFICATE UNDER THE ACT OR ANY STATE SECURITIES LAWS."; or
(ii) furnish to the Owner Trustee and the Certificate Registrar and any of their respective successors an opinion of counsel acceptable to such persons that such transfer may be made pursuant to an exemption to the Securities Act, describing the applicable exemption and the basis therefor, or is being made pursuant to the Securities Act, which opinion of counsel shall not be an expense of the Trust, the Owner Trustee or the Certificate Registrar.
(b) Each Prospective Holder, other than First Alliance Portfolio Services, Inc.the Depositor or the Seller, shall either:
(i) represent and warrant, in writing, to the Owner Trustee and the Certificate Registrar and any of their respective successors that (1) the Prospective Holder is not an "employee benefit plan" within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or a "plan" within the meaning of Section 4975(e)(1) of the Code (any such plan or employee benefit plan, a "Plan") and is not directly or indirectly purchasing such Certificate on behalf of, as investment manager of, as named fiduciary of, as trustee of, or with assets of a Plan.
(c) By its acceptance of a Certificate, each Prospective Holder agrees and acknowledges that no legal or beneficial interest in all or any portion of any Certificate may be transferred directly or indirectly to (i) an entity that holds residual securities as nominee to facilitate the clearance and settlement of such securities through electronic book-entry changes in accounts of participating organizations (a "Book-Entry Nominee"), or (ii2) either (I) the Prospective Holder is acquiring such Certificate for its own account and no part of the assets used to acquire such Certificate constitutes assets of a Plan, or (II) the source of funds to be used to acquire such Certificate is an individual"insurance company general account," within the meaning of Prohibited Transaction Class Exemption 95-60, corporation60 Fed. Reg. 35925 (July 12, partnership or other person unless such transferee is not a Non-U.S. Person 1995) (any such person being referred to herein as a the "Non-permitted Foreign HolderExemption"), and any there is no Plan with respect to which the amount of such purported transfer shall be void and have no effect.
general account's reserves for the contract(s) held by or on behalf of such Plan (d) The Owner Trustee shall not execute, and shall not countersign and deliver, a Certificate in connection with any transfer thereof unless the transferor shall have provided to the Owner Trustee an IRS Form W-9 and a certificate, signed by the transferee, that it is not a Book-Entry Nominee or a Non-permitted Foreign Holder, which certificate shall contain the consent of the transferee to any amendments of this Agreement as may be required to effectuate further the foregoing restrictions on transfer of the Certificate to Book-Entry Nominees or Non-permitted Foreign Holders, and an agreement by the transferee that it will not transfer a Certificate without providing to the Owner Trustee a certificate in the form provided above.
(e) The Certificates shall bear an additional legend referring to the restrictions contained in paragraph (c) above.
(f) No offer, sale, transfer, pledge, hypothecation or other disposition (including any pledge or transfer determined under a repurchase transaction or securities loan) of any Certificate shall be made to any entity unless, prior to such disposition, (i) the Note Insurer has given its prior written consent to the offer, sale, transfer, pledge, hypothecation or other disposition; provided, however, that such consent shall not be unreasonably withheld and (ii) the Prospective Holder delivers to the Owner Trustee an opinion of counsel, rendered by a law firm generally recognized to be qualified to opine concerning the tax aspects of asset securitization, to the effect that such transfer (including any disposition permitted following any default under any pledge or repurchase transaction will not cause the Trust to be (i) treated as an association taxable as a corporation for federal income tax purposes, (ii) taxable as a taxable mortgage pool as defined in Section 7701(i807(d) of the Code or (iii) taxable as a "publicly traded partnership" as defined in Treasury Regulation Section 1.7704-1. Notwithstanding Code), together with the foregoing, the provisions of this paragraph shall not apply to the initial transfer amount of the Certificates to First Alliance Portfolio Services, Inc.reserves of the contract(s) held by or on behalf of any other Plans (determined under section 807(d) of the Code) maintained by the same
Appears in 1 contract
Samples: Owner Trust Agreement (Imc Home Equity Loan Owner Trust 1997-6)
Restriction on Transfers of Certificate. (a) Each prospective purchaser and any subsequent transferee of a Certificate (each, a "Prospective Holder"), other than First Alliance Portfolio Services, Inc., shall either:
(i) represent and warrant, in writing, to the Owner Trustee and the Certificate Registrar and any of their respective successors that:
(A) Such Person is (I) a "qualified institutional buyer" as defined in Rule 144A under the Securities Act of 1933, as amended (the "Securities Act"), and is aware that the seller of the Certificate may be relying on the exemption from the registration requirements of the Securities Act provided by Rule 144A and is acquiring such Certificate for its own account or for the account of one or more qualified institutional buyers for whom it is authorized to act, or (II) a Person involved in the organization or operation of the Trust or an affiliate of such Person within the meaning of Rule 3a-7 of the Investment Company Act of 1940, as amended (including, but not limited to, the Seller).
(B) Such Person understands that the Certificate has not been and will not be registered under the Securities Act and may be offered, sold, pledged or otherwise transferred only to a person whom the seller reasonably believes is (A) a qualified institutional buyer or (B) a Person involved in the organization or operation of the Trust or an affiliate of such Person, in a transaction meeting the requirements of Rule 144A under the Securities Act and in accordance with any applicable securities laws of any state of the United States.
(C) Such Person understands that the Certificate bears a legend to the following effect: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. THIS CERTIFICATE MAY BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR OTHERWISE DISPOSED OF (INCLUDING PLEDGED) BY THE HOLDER HEREOF ONLY TO (I) A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE ACT, IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT PURSUANT TO RULE 144A OR (II) A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF THE TRUST OR AN AFFILIATE OF SUCH A PERSON WITHIN THE MEANING OF RULE 3a-7 OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (INCLUDING, BUT NOT LIMITED TO, FIRST ALLIANCE MORTGAGE COMPANY) IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR THAT IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND SUCH LAWS. NO PERSON IS OBLIGATED TO REGISTER THIS CERTIFICATE UNDER THE ACT OR ANY STATE SECURITIES LAWS"; or
(ii) furnish to the Owner Trustee and the Certificate Registrar and any of their respective successors an opinion of counsel acceptable to such persons that such transfer may be made pursuant to an exemption to the Securities Act, describing the applicable exemption and the basis therefor, or is being made pursuant to the Securities Act, which opinion of counsel shall not be an expense of the Trust, the Owner Trustee or the Certificate Registrar.
(b) Each Prospective Holder, other than First Alliance Portfolio Services, Inc., shall represent and warrant, in writing, to the Owner Trustee and the Certificate Registrar and any of their respective successors that the Prospective Holder is not an "employee benefit plan" within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or a "plan" within the meaning of Section 4975(e)(1) of the Code (any such plan or employee benefit plan, a "Plan") and is not directly or indirectly purchasing such Certificate on behalf of, as investment manager of, as named fiduciary of, as trustee of, or with assets of a Plan.
(c) By its acceptance of a Certificate, each Prospective Holder agrees and acknowledges that no legal or beneficial interest in all or any portion of any Certificate may be transferred directly or indirectly to (i) an entity that holds residual securities as nominee to facilitate the clearance and settlement of such securities through electronic book-entry changes in accounts of participating organizations (a "Book-Entry Nominee"), or (ii) an individual, corporation, partnership or other person unless such transferee is not a Non-U.S. Person (any such person being referred to herein as a "Non-permitted Foreign Holder"), and any such purported transfer shall be void and have no effect.
(d) The Owner Trustee shall not execute, and shall not countersign and deliver, a Certificate in connection with any transfer thereof unless the transferor shall have provided to the Owner Trustee an IRS Form W-9 and a certificate, signed by the transferee, that it is not a Book-Entry Nominee or a Non-permitted Foreign Holder, which certificate shall contain the consent of the transferee to any amendments of this Agreement as may be required to effectuate further the foregoing restrictions on transfer of the Certificate to Book-Entry Nominees or Non-permitted Foreign Holders, and an agreement by the transferee that it will not transfer a Certificate without providing to the Owner Trustee a certificate in the form provided above.
(e) The Certificates shall bear an additional legend referring to the restrictions contained in paragraph (c) above.
(f) No offer, sale, transfer, pledge, hypothecation or other disposition (including any pledge or transfer under a repurchase transaction or securities loan) of any Certificate shall be made to any entity unless, prior to such disposition, (i) the Note Insurer has given its prior written consent to the offer, sale, transfer, pledge, hypothecation or other disposition; provided, however, that such consent shall not be unreasonably withheld and (ii) the Prospective Holder delivers to the Owner Trustee an opinion of counsel, rendered by a law firm generally recognized to be qualified to opine concerning the tax aspects of asset securitization, to the effect that such transfer (including any disposition permitted following any default under any pledge or repurchase transaction will not cause the Trust to be (i) treated as an association taxable as a corporation for federal income tax purposes, (ii) taxable as a taxable mortgage pool as defined in Section 7701(i) of the Code or (iii) taxable as a "publicly Apublicly traded partnership" partnership@ as defined in Treasury Regulation Section 1.7704-1. Notwithstanding the foregoing, the provisions of this paragraph shall not apply to the initial transfer of the Certificates to First Alliance Portfolio Services, Inc.
Appears in 1 contract
Samples: Trust Agreement (First Alliance Mortgage Loan Trust 1998-1a)
