Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section. (b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either: (i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or (ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws. (c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either: (i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or (ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made. (d) No transfer of an interest in a Transferor Certificate after its initial issuance will be made unless: (i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee, (ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with; (iii) the Rating Agency Condition is satisfied with respect to the transfer; (iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that (A) the transfer will not adversely affect the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes, (B) the transfer will not result in the Trust being subject to tax at the entity level for federal or applicable State tax purposes, (C) the transfer will not have any material adverse effect on the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and (D) the transfer will not result in the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of the Code; (v) all filings and other actions necessary to continue the perfection of the interest of the Trust in the Mortgage Loans and the other Assets has been taken or made; and (vi) the proposed Transferor agrees to the obligations imposed pursuant to Section 3.
Appears in 9 contracts
Samples: Trust Agreement (CWABS Revolving Home Equity Loan Trust, Series 2004-D), Trust Agreement (CWABS Revolving Home Equity Loan Trust, Series 2004-J), Trust Agreement (CWABS Revolving Home Equity Loan Trust, Series 2004-I)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "“transferred" ” or a "“transfer"”) only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "“Act"”) and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by that Transferor any of them to one of its Affiliates), the Owner Trustee will require either:
(i1) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii2) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder Holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i1) a representation letter from the proposed Transferortransferee, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor transferee is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii2) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-non exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by the Transferor any of them to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Class R-1 Certificate after its initial issuance will be made unless:
(i1) the proposed Transferor is organized and existing under the laws of the United States or any State and Holder expressly assumes the performance of every obligation of the existing Transferor Holder under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,, including the obligation to advance funds to the Trust as necessary so that the Trust is able to pay the purchase price for Additional Home Equity Loans;
(ii2) the existing Transferor Holder delivers to the Owner Trustee an Officer's ’s Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;; and
(iii3) the Rating Agency Condition is satisfied with respect to the transfer;.
(ive) Each person who has or who acquires any ownership interest in a Residual Certificate by accepting its ownership interest agrees to the following provisions, and the rights of each person acquiring any ownership interest in a Residual Certificate are subject to the following provisions:
(1) Only a Permitted Transferee may hold an ownership interest in a Residual Certificate and each person holding or acquiring any ownership interest in a Residual Certificate shall promptly notify the Indenture Trustee of any change or impending change in its status as a Permitted Transferee.
(2) No ownership interest in a Residual Certificate may be registered on the Closing Date or thereafter transferred, and the Indenture Trustee shall not register the transfer of any Residual Certificate unless the Indenture Trustee has received a Transfer Affidavit from the initial owner or the proposed transferee, except in connection with any registration in the name of, or transfer of a Residual Certificate to, an Affiliate of the Depositor (either directly or through a nominee).
(3) Each person holding or acquiring any ownership interest in a Residual Certificate shall
(A) obtain a Transfer Affidavit from any other person it attempts to transfer its ownership interest in a Residual Certificate to,
(B) obtain a Transfer Affidavit from any person for whom it is acting as nominee, trustee, or agent in connection with any transfer of any ownership interest in a Residual Certificate, and
(C) not transfer its ownership interest in a Residual Certificate to any other person if it has actual knowledge that such person is not a Permitted Transferee.
(4) Any attempted transfer of any ownership interest in a Residual Certificate in violation of this Section 3.10(e) shall be void ab initio and shall vest no rights in the purported transferee. If any purported transferee becomes a Holder of a Residual Certificate in violation of this Section 3.10(e), then the last preceding Permitted Transferee shall be restored to all rights as Holder of the Residual Certificate retroactive to the date of registration of transfer of the Residual Certificate. The Indenture Trustee shall be under no liability to any person for any registration of transfer of a Residual Certificate that is in fact not permitted by this Section 3.10(e) or for making any payments due on the Residual Certificate to its Holder or taking any other action with respect to the Holder under this Agreement so long as the transfer was registered after receipt of the related Transfer Affidavit and any other required documents. The Indenture 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 the Residual Certificate at and after either such time. Any such payments so recovered by the Indenture Trustee shall be paid and delivered by the Indenture Trustee to the last preceding Permitted Transferee of the Residual Certificate.
(5) The Depositor shall use its best efforts to make available, upon receipt of written request from the Indenture Trustee, all information necessary to compute any tax imposed under Section 860E(e) of the Code as a result of a transfer of an ownership interest in a Residual Certificate to any Holder who is not a Permitted Transferee.
(f) Each Certificate shall bear a legend substantially in the following form:
(g) No Certificate shall be transferred except to (i) the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, or the Trust (or an affiliate of them)) to whom a Certificate is proposed Transferor delivers to be transferred will be required to certify to the Owner Trustee holder of the R-1 Certificates, the Trust, and the Certificate Registrar that it is a qualified institutional buyer. The Class R-1 Certificates may not be transferred except to the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them). The Class R-1 Certificates may only be transferable in their entirety and may not have more than a single Certificateholder.
(h) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect thatthat the amendment will not cause the imposition of any tax on any REMIC or the Certificateholders or Noteholders, or cause any REMIC to fail to qualify as a REMIC at any time that any Certificates or Notes are outstanding.
(Ai) The restrictions on transfers of a Residual Certificate in this Section 3.10 shall cease to apply (and the transfer applicable portions of the legend on a Residual Certificate may be deleted) with respect to transfers occurring after delivery to the Owner Trustee of an Opinion of Counsel to the effect that the elimination of the restrictions will not adversely affect cause any REMIC to fail to qualify as a REMIC at any time that the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not Certificates are outstanding or result in the Trust being subject imposition of any tax on the Trust, a Certificateholder, Noteholder, or another person. Each person holding or acquiring any ownership interest in a Residual Certificate consents to tax at any amendment of this Agreement that, based on an Opinion of Counsel furnished to the entity level for federal or applicable State tax purposes,Owner Trustee, is reasonably necessary
(C1) to ensure that the record ownership of, or any beneficial interest in, a Residual Certificate is not transferred, directly or indirectly, to a person that is not a Permitted Transferee or
(2) to provide for a means to compel the transfer will of a Residual Certificate that is held by a person that is not have a Permitted Transferee to a Holder that is a Permitted Transferee.
(j) Pursuant to the Sale and Servicing Agreement, Principal Collections may be applied to purchase Additional Balances for the Trust during a Collection Period. If on any material adverse effect on Collection Period Principal Collections are insufficient to purchase all Additional Balances, the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer Class R-1 Certificates will not result in advance funds to the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of to purchase the Code;
(v) all filings and other actions necessary Additional Balances that were not funded by Principal Collections. The Class R-1 Balance will be repaid to continue the perfection of the interest of the Trust in Class R-1 Certificates from Principal Collections on the Mortgage Loans allocated to the Certificates on future Payment Dates and will be entitled to allocation of Interest Collections on the Mortgage Loans. If the Holder of the Class R-1 Certificates fails to advance to the Trust amounts specified in the previous paragraph, the Sponsor will be required to purchase, and the other Assets has been taken or made; and
(vi) Holder of the proposed Transferor agrees Class R-1 Certificates will be required to sell, the Class R-1 Certificates and the Sponsor will assume all of the obligations imposed pursuant of the Holder of the R-1 Certificates, including the obligation to Section 3make advances as provided in the preceding paragraph.
Appears in 2 contracts
Samples: Trust Agreement (CWHEQ Revolving Home Equity Loan Trust, Series 2007-E), Trust Agreement (CWHEQ Revolving Home Equity Loan Trust, Series 2007-D)
Restrictions on Transfer; Legends. (a) The Series 2003-D Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Series 2003-D Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Series 2003-D Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Series 2003-D Transferor Certificate desiring to effect a transfer shall indemnify the Series 2003-D Subtrust and the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Series 2003-D Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Series 2003-D Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this the Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Series 2003-D Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Series 2003-D Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this the Agreement and the other Series 2003-D Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 4.05(d) and that all the conditions in this Section 3.10 4.05(d) have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 4.05(d) have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization treatment of the Series 2003-D Notes after the transfer as debt for federal and applicable State state income tax purposes,
(B) the transfer will not result in the Series 2003-D Subtrust or the Trust being subject to tax at the entity level for federal or applicable State state tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State state income taxation of any Holder of the Series 2003-D Notes or any person who is the beneficial owner of a Series 2003-D book-entry Note, and
(D) the transfer will not result in the Trust arrangement created by the Agreement or any "portion" of the Trust, being characterized treated as a taxable mortgage pool as defined in Section 7701(i) of the Code;
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust Series 2003-D Subtrust in the related Mortgage Loans and the other Assets related property conveyed to the Series 2003-D Subtrust has been taken or made; and
(vi) the proposed Transferor agrees to the obligations imposed pursuant to Section 34.06. The requirement that the proposed Transferor be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition has been satisfied taking that into account.
(e) Each Series 2003-D Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 4.05 of the Series 2003-D Trust Supplement to the CWABS Master Trust Agreement. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 4.05(c) of the Series 2003-D Trust Supplement to the CWABS Master Trust Agreement. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(f) No Series 2003-D Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust (or an affiliate of them)) to whom a Series 2003-D Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Series 2003-D Trust Supplement or the Master Trust Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 4.05 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of any outstanding Series of Notes and Transferor Certificates,
(ii) the characterization of the Trust as an entity that is not a publicly traded partnership taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Transferor Certificate (Cwabs Inc Revolving Home Eq Loan Ast Back Notes Ser 2003-D)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by that Transferor any of them to one of its Affiliates), the Owner Trustee will require either:
(i1) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii2) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder Holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i1) a representation letter from the proposed Transferortransferee, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor transferee is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii2) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by the Transferor any of them to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Class R-1 Certificate after its initial issuance will be made unless:
(i1) the proposed Transferor is organized and existing under the laws of the United States or any State and Holder expressly assumes the performance of every obligation of the existing Transferor Holder under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,, including the obligation to advance funds to the Trust as necessary so that the Trust is able to pay the purchase price for Additional Home Equity Loans;
(ii2) the existing Transferor Holder delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;; and
(iii3) the Rating Agency Condition is satisfied with respect to the transfer;.
(ive) Each person who has or who acquires any ownership interest in a Residual Certificate by accepting its ownership interest agrees to the following provisions, and the rights of each person acquiring any ownership interest in a Residual Certificate are subject to the following provisions:
(1) Only Permitted Transferee may hold an ownership interest in a Residual Certificate and each person holding or acquiring any ownership interest in a Residual Certificate shall promptly notify the Indenture Trustee of any change or impending change in its status as a Permitted Transferee.
(2) No ownership interest in a Residual Certificate may be registered on the Closing Date or thereafter transferred, and the Indenture Trustee shall not register the transfer of any Residual Certificate unless the Indenture Trustee has received a Transfer Affidavit from the initial owner or the proposed Transferor transferee, except in connection with the registration of the Tax Matters Person Certificate in the name of the Indenture Trustee or any registration in the name of, or transfer of a Residual Certificate to, an Affiliate of the Depositor (either directly or through a nominee).
(3) Each person holding or acquiring any ownership interest in a Residual Certificate shall
(A) obtain a Transfer Affidavit from any other person it attempts to transfer its ownership interest in a Residual Certificate to,
(B) obtain a Transfer Affidavit from any person for whom it is acting as nominee, trustee, or agent in connection with any transfer of any ownership interest in a Residual Certificate, and
(C) not transfer its ownership interest in a Residual Certificate to any other person if it has actual knowledge that such person is not a Permitted Transferee.
(4) Any attempted transfer of any ownership interest in a Residual Certificate in violation of this Section 3.10(e) shall be void ab initio and shall vest no rights in the purported transferee. If any purported transferee becomes a Holder of a Residual Certificate in violation of this Section 3.10(e), then the last preceding Permitted Transferee shall be restored to all rights as Holder of the Residual Certificate retroactive to the date of registration of transfer of the Residual Certificate. The Indenture Trustee shall be under no liability to any person for any registration of transfer of a Residual Certificate that is in fact not permitted by this Section 3.10(e) or for making any payments due on the Residual Certificate to its Holder or taking any other action with respect to the Holder under this Agreement so long as the transfer was registered after receipt of the related Transfer Affidavit and any other required documents. The Indenture 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 the Residual Certificate at and after either such time. Any such payments so recovered by the Indenture Trustee shall be paid and delivered by the Indenture Trustee to the last preceding Permitted Transferee of the Residual Certificate.
(5) The Depositor shall use its best efforts to make available, upon receipt of written request from the Indenture Trustee, all information necessary to compute any tax imposed under Section 860E(e) of the Code as a result of a transfer of an ownership interest in a Residual Certificate to any Holder who is not a Permitted Transferee.
(f) Each Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 3.10 of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2007-C. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the Owner Trustee trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2007-C. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to Section 4975 of the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(g) No Certificate shall be transferred except to (i) the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, or the Trust (or an affiliate of them)) to whom a Certificate is proposed to be transferred will be required to certify to the holder of the R-1 Certificates, the Trust, and the Certificate Registrar that it is a qualified institutional buyer. The Class R-1 Certificates may not be transferred except to the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them).
(h) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect thatthat the amendment will not cause the imposition of any tax on any REMIC or the Certificateholders or Noteholders, or cause any REMIC to fail to qualify as a REMIC at any time that any Certificates or Notes are outstanding.
(Ai) The restrictions on transfers of a Residual Certificate in Section 3.10(e) shall cease to apply (and the transfer applicable portions of the legend on a Residual Certificate may be deleted) with respect to transfers occurring after delivery to the Owner Trustee of an Opinion of Counsel to the effect that the elimination of the restrictions will not adversely affect cause any REMIC to fail to qualify as a REMIC at any time that the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not Certificates are outstanding or result in the Trust being subject imposition of any tax on the Trust, a Certificateholder, Noteholder, or another person. Each person holding or acquiring any ownership interest in a Residual Certificate consents to tax at any amendment of this Agreement that, based on an Opinion of Counsel furnished to the entity level for federal or applicable State tax purposes,Owner Trustee, is reasonably necessary
(C1) to ensure that the record ownership of, or any beneficial interest in, a Residual Certificate is not transferred, directly or indirectly, to a person that is not a Permitted Transferee or
(2) to provide for a means to compel the transfer will of a Residual Certificate that is held by a person that is not have a Permitted Transferee to a Holder that is a Permitted Transferee.
(j) Pursuant to the Sale and Servicing Agreement, Principal Collections may be applied to purchase Additional Balances for the Trust during a Collection Period. If on any material adverse effect on Collection Period Principal Collections are insufficient to purchase all Additional Balances, the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer Class R-1 Certificates will not result in advance funds to the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of to purchase the Code;
(v) all filings and other actions necessary Additional Balances that were not funded by Principal Collections. The Class R-1 Balance will be repaid to continue the perfection of the interest of the Trust in Class R-1 Certificates from Principal Collections on the Mortgage Loans allocated to the Certificates on future Payment Dates and will be entitled to allocation of Interest Collections on the Mortgage Loans. If the Holder of the Class R-1 Certificates fails to advance to the Trust amounts specified in the previous paragraph, the Sponsor will be required to purchase, and the other Assets has been taken or made; and
(vi) Holder of the proposed Transferor agrees Class R-1 Certificates will be required to sell, the Class R-1 Certificates and the Sponsor will assume all of the obligations imposed pursuant of the Holder of the R-1 Certificates, including the obligation to Section 3make advances as provided in the preceding paragraph.
Appears in 1 contract
Samples: Trust Agreement (CWHEQ Revolving Home Equity Loan Trust, Series 2007-C)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not result in the Trust being subject to tax at the entity level for federal or applicable State tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer will not result in the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of the Code;; and
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust in the Mortgage Loans and the other Assets has been taken or made; and
(vi) . The requirement that the proposed Transferor agrees be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition (without regard to the obligations imposed Policy, as defined in the Indenture) has been satisfied taking that into account.
(e) Each Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 33.10 of the Trust Agreement related to CWABS Revolving Home Equity Loan Trust, Series 2004-S. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWABS Revolving Home Equity Loan Trust, Series 2004-S. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(f) No Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust (or an affiliate of them)) to whom a Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of the outstanding Notes and Transferor Certificates for federal or applicable state income tax purposes,
(ii) the characterization of the Trust as an entity that is not a publicly traded partnership or other business entity taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Trust Agreement (CWABS Revolving Home Equity Loan Trust, Series 2004-S)
Restrictions on Transfer; Legends. (a) The Series 2001-B Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Series 2001-B Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Series 2001-B Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Series 2001-B Transferor Certificate desiring to effect a transfer shall indemnify the Series 2001-B Subtrust and the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Series 2001-B Transferor Certificate will be made after its initial issuance unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Series 2001-B Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code, will not result in the assets of the Series 2001-B Subtrust being deemed to be "plan assets" and subject to the prohibited transaction provisions of ERISA and the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this the Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Series 2001-B Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this the Agreement and the other Series 2001-B Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 4.05(d) and that all the conditions in this Section 3.10 4.05(d) have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 4.05(d) have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization treatment of the Series 2001-B Notes after the transfer as debt for federal and applicable State state income tax purposes,
(B) the transfer will not result in the Series 2001-B Subtrust or the Trust being subject to tax at the entity level for federal or applicable State state tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State state income taxation of any Holder of the Series 2001-B Notes or any person who is the beneficial owner of a Series 2001-B book-entry Note, and
(D) the transfer will not result in the Trust arrangement created by the Agreement or any "portion" of the Trust, being characterized treated as a taxable mortgage pool as defined in Section 7701(i) of the Code;
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust Series 2001-B Subtrust in the related Mortgage Loans and the other Assets related property conveyed to the Series 2001-B Subtrust has been taken or made; and
(vi) the proposed Transferor agrees to the obligations imposed pursuant to Section 34.06. The requirement that the proposed Transferor be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition has been satisfied taking that into account.
(e) Each Series 2001-B Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 4.05 of the Series 2001-B Trust Supplement to the CWABS Master Trust Agreement. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code as amended, or a person acting on behalf of or using the assets of any such plan, or that if the transferee is an insurance company, that the transferee is an insurance company that is purchasing this certificate with funds contained in an "insurance company general account" (as defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of this certificate are covered under Sections i and iii of PTCE 95-60; or an opinion of counsel in accordance with Section 4.05(c) of the Series 2001-B Trust Supplement to the CWABS Master Trust Agreement. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(f) No Series 2001-B Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust) to whom a Series 2001-B Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Series 2001-B Trust Supplement or the Master Trust Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 4.05 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of any outstanding Series of Notes and Transferor Certificates,
(ii) the characterization of the Trust as an entity that is not a publicly traded partnership taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Transferor Certificate (Cwabs Inc Revolving Home Eq Loan Asset BKD Notes Ser 2001-B)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not result in the Trust being subject to tax at the entity level for federal or applicable State tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer will not result in the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of the Code;; and
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust in the Mortgage Loans and the other Assets has been taken or made; and
(vi) . The requirement that the proposed Transferor agrees be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition (without regard to the obligations imposed Policy, as defined in the Indenture) has been satisfied taking that into account.
(e) Each Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 33.10 of the Trust Agreement related to CWABS Revolving Home Equity Loan Trust, Series 2004-P. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWABS Revolving Home Equity Loan Trust, Series 2004-P. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(f) No Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust (or an affiliate of them)) to whom a Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of the outstanding Notes and Transferor Certificates for federal or applicable state income tax purposes,
(ii) the characterization of the Trust as an entity that is not a publicly traded partnership or other business entity taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Trust Agreement (CWABS Revolving Home Equity Loan Trust Series, 2004-P)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by that Transferor any of them to one of its Affiliates), the Owner Trustee will require either:
(i1) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii2) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder Holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i1) a representation letter from the proposed Transferortransferee, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor transferee is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii2) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by the Transferor any of them to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Class R-1 Certificate after its initial issuance will be made unless:
(i1) the proposed Transferor is organized and existing under the laws of the United States or any State and Holder expressly assumes the performance of every obligation of the existing Transferor Holder under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,, including the obligation to advance funds to the Trust as necessary so that the Trust is able to pay the purchase price for Additional Home Equity Loans;
(ii2) the existing Transferor Holder delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;; and
(iii3) the Rating Agency Condition is satisfied with respect to the transfer;.
(ive) Each person who has or who acquires any ownership interest in a Residual Certificate by accepting its ownership interest agrees to the following provisions, and the rights of each person acquiring any ownership interest in a Residual Certificate are subject to the following provisions:
(1) Only a Permitted Transferee may hold an ownership interest in a Residual Certificate and each person holding or acquiring any ownership interest in a Residual Certificate shall promptly notify the Indenture Trustee of any change or impending change in its status as a Permitted Transferee.
(2) No ownership interest in a Residual Certificate may be registered on the Closing Date or thereafter transferred, and the Indenture Trustee shall not register the transfer of any Residual Certificate unless the Indenture Trustee has received a Transfer Affidavit from the initial owner or the proposed Transferor transferee, except in connection with the registration of the Tax Matters Person Certificate in the name of the Indenture Trustee or any registration in the name of, or transfer of a Residual Certificate to, an Affiliate of the Depositor (either directly or through a nominee).
(3) Each person holding or acquiring any ownership interest in a Residual Certificate shall
(A) obtain a Transfer Affidavit from any other person it attempts to transfer its ownership interest in a Residual Certificate to,
(B) obtain a Transfer Affidavit from any person for whom it is acting as nominee, trustee, or agent in connection with any transfer of any ownership interest in a Residual Certificate, and
(C) not transfer its ownership interest in a Residual Certificate to any other person if it has actual knowledge that such person is not a Permitted Transferee.
(4) Any attempted transfer of any ownership interest in a Residual Certificate in violation of this Section 3.10(e) shall be void ab initio and shall vest no rights in the purported transferee. If any purported transferee becomes a Holder of a Residual Certificate in violation of this Section 3.10(e), then the last preceding Permitted Transferee shall be restored to all rights as Holder of the Residual Certificate retroactive to the date of registration of transfer of the Residual Certificate. The Indenture Trustee shall be under no liability to any person for any registration of transfer of a Residual Certificate that is in fact not permitted by this Section 3.10(e) or for making any payments due on the Residual Certificate to its Holder or taking any other action with respect to the Holder under this Agreement so long as the transfer was registered after receipt of the related Transfer Affidavit and any other required documents. The Indenture 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 the Residual Certificate at and after either such time. Any such payments so recovered by the Indenture Trustee shall be paid and delivered by the Indenture Trustee to the last preceding Permitted Transferee of the Residual Certificate.
(5) The Depositor shall use its best efforts to make available, upon receipt of written request from the Indenture Trustee, all information necessary to compute any tax imposed under Section 860E(e) of the Code as a result of a transfer of an ownership interest in a Residual Certificate to any Holder who is not a Permitted Transferee.
(f) Each Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 3.10 of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2005-K. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the Owner Trustee trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2005-K. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(g) No Certificate shall be transferred except to (i) the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, or the Trust (or an affiliate of them)) to whom a Certificate is proposed to be transferred will be required to certify to the transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer. The Class R-1 Certificates may not be transferred except to the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them).
(h) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect thatthat the amendment will not cause the imposition of any tax on any REMIC or the Certificateholders or Noteholders, or cause any REMIC to fail to qualify as a REMIC at any time that any Certificates or Notes are outstanding.
(Ai) The restrictions on transfers of a Residual Certificate in this Section 3.10 shall cease to apply (and the transfer applicable portions of the legend on a Residual Certificate may be deleted) with respect to transfers occurring after delivery to the Owner Trustee of an Opinion of Counsel to the effect that the elimination of the restrictions will not adversely affect cause any REMIC to fail to qualify as a REMIC at any time that the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not Certificates are outstanding or result in the Trust being subject imposition of any tax on the Trust, a Certificateholder, Noteholder, or another person. Each person holding or acquiring any ownership interest in a Residual Certificate consents to tax at any amendment of this Agreement that, based on an Opinion of Counsel furnished to the entity level for federal or applicable State tax purposes,Owner Trustee, is reasonably necessary
(C1) to ensure that the record ownership of, or any beneficial interest in, a Residual Certificate is not transferred, directly or indirectly, to a person that is not a Permitted Transferee or
(2) to provide for a means to compel the transfer will of a Residual Certificate that is held by a person that is not have a Permitted Transferee to a Holder that is a Permitted Transferee.
(j) Pursuant to the Sale and Servicing Agreement, Principal Collections may be applied to purchase Additional Balances for the Trust during a Collection Period. If on any material adverse effect on Collection Period Principal Collections are insufficient to purchase all Additional Balances, the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer Class R-1 Certificates will not result in advance funds to the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of to purchase the Code;
(v) all filings and other actions necessary Additional Balances that were not funded by Principal Collections. The Class R-1 Balance will be repaid to continue the perfection of the interest of the Trust in Class R-1 Certificates from Principal Collections on the Mortgage Loans allocated to the Certificates on future Payment Dates and will be entitled to allocation of Interest Collections on the Mortgage Loans. If the Holder of the Class R-1 Certificates fails to advance to the Trust amounts specified in the previous paragraph, the Sponsor will be required to purchase, and the other Assets has been taken or made; and
(vi) Holder of the proposed Transferor agrees Class R-1 Certificates will be required to sell, the Class R-1 Certificates and the Sponsor will assume all of the obligations imposed pursuant of the Holder of the R-1 Certificates, including the obligation to Section 3make advances as provided in the preceding paragraph.
Appears in 1 contract
Samples: Trust Agreement (CWHEQ Revolving Home Equity Loan Trust, Series 2005-K)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by that Transferor any of them to one of its Affiliates), the Owner Trustee will require either:
(i1) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii2) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder Holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i1) a representation letter from the proposed Transferortransferee, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor transferee is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii2) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by the Transferor any of them to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Class R-1 Certificate after its initial issuance will be made unless:
(i1) the proposed Transferor is organized and existing under the laws of the United States or any State and Holder expressly assumes the performance of every obligation of the existing Transferor Holder under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,, including the obligation to advance funds to the Trust as necessary so that the Trust is able to pay the purchase price for Additional Home Equity Loans;
(ii2) the existing Transferor Holder delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;; and
(iii3) the Rating Agency Condition is satisfied with respect to the transfer;.
(ive) Each person who has or who acquires any ownership interest in a Residual Certificate by accepting its ownership interest agrees to the following provisions, and the rights of each person acquiring any ownership interest in a Residual Certificate are subject to the following provisions:
(1) Only Permitted Transferee may hold an ownership interest in a Residual Certificate and each person holding or acquiring any ownership interest in a Residual Certificate shall promptly notify the Indenture Trustee of any change or impending change in its status as a Permitted Transferee.
(2) No ownership interest in a Residual Certificate may be registered on the Closing Date or thereafter transferred, and the Indenture Trustee shall not register the transfer of any Residual Certificate unless the Indenture Trustee has received a Transfer Affidavit from the initial owner or the proposed Transferor transferee, except in connection with the registration of the Tax Matters Person Certificate in the name of the Indenture Trustee or any registration in the name of, or transfer of a Residual Certificate to, an Affiliate of the Depositor (either directly or through a nominee).
(3) Each person holding or acquiring any ownership interest in a Residual Certificate shall
(A) obtain a Transfer Affidavit from any other person it attempts to transfer its ownership interest in a Residual Certificate to,
(B) obtain a Transfer Affidavit from any person for whom it is acting as nominee, trustee, or agent in connection with any transfer of any ownership interest in a Residual Certificate, and
(C) not transfer its ownership interest in a Residual Certificate to any other person if it has actual knowledge that such person is not a Permitted Transferee.
(4) Any attempted transfer of any ownership interest in a Residual Certificate in violation of this Section 3.10(e) shall be void ab initio and shall vest no rights in the purported transferee. If any purported transferee becomes a Holder of a Residual Certificate in violation of this Section 3.10(e), then the last preceding Permitted Transferee shall be restored to all rights as Holder of the Residual Certificate retroactive to the date of registration of transfer of the Residual Certificate. The Indenture Trustee shall be under no liability to any person for any registration of transfer of a Residual Certificate that is in fact not permitted by this Section 3.10(e) or for making any payments due on the Residual Certificate to its Holder or taking any other action with respect to the Holder under this Agreement so long as the transfer was registered after receipt of the related Transfer Affidavit and any other required documents. The Indenture 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 the Residual Certificate at and after either such time. Any such payments so recovered by the Indenture Trustee shall be paid and delivered by the Indenture Trustee to the last preceding Permitted Transferee of the Residual Certificate.
(5) The Depositor shall use its best efforts to make available, upon receipt of written request from the Indenture Trustee, all information necessary to compute any tax imposed under Section 860E(e) of the Code as a result of a transfer of an ownership interest in a Residual Certificate to any Holder who is not a Permitted Transferee.
(f) Each Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 3.10 of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2007-A. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the Owner Trustee trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2007-A. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to Section 4975 of the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(g) No Certificate shall be transferred except to (i) the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, or the Trust (or an affiliate of them)) to whom a Certificate is proposed to be transferred will be required to certify to the holder of the R-1 Certificates, the Trust, and the Certificate Registrar that it is a qualified institutional buyer. The Class R-1 Certificates may not be transferred except to the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them).
(h) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect thatthat the amendment will not cause the imposition of any tax on any REMIC or the Certificateholders or Noteholders, or cause any REMIC to fail to qualify as a REMIC at any time that any Certificates or Notes are outstanding.
(Ai) The restrictions on transfers of a Residual Certificate in this Section 3.10 shall cease to apply (and the transfer applicable portions of the legend on a Residual Certificate may be deleted) with respect to transfers occurring after delivery to the Owner Trustee of an Opinion of Counsel to the effect that the elimination of the restrictions will not adversely affect cause any REMIC to fail to qualify as a REMIC at any time that the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not Certificates are outstanding or result in the Trust being subject imposition of any tax on the Trust, a Certificateholder, Noteholder, or another person. Each person holding or acquiring any ownership interest in a Residual Certificate consents to tax at any amendment of this Agreement that, based on an Opinion of Counsel furnished to the entity level for federal or applicable State tax purposes,Owner Trustee, is reasonably necessary
(C1) to ensure that the record ownership of, or any beneficial interest in, a Residual Certificate is not transferred, directly or indirectly, to a person that is not a Permitted Transferee or
(2) to provide for a means to compel the transfer will of a Residual Certificate that is held by a person that is not have a Permitted Transferee to a Holder that is a Permitted Transferee.
(j) Pursuant to the Sale and Servicing Agreement, Principal Collections may be applied to purchase Additional Balances for the Trust during a Collection Period. If on any material adverse effect on Collection Period Principal Collections are insufficient to purchase all Additional Balances, the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer Class R-1 Certificates will not result in advance funds to the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of to purchase the Code;
(v) all filings and other actions necessary Additional Balances that were not funded by Principal Collections. The Class R-1 Balance will be repaid to continue the perfection of the interest of the Trust in Class R-1 Certificates from Principal Collections on the Mortgage Loans allocated to the Certificates on future Payment Dates and will be entitled to allocation of Interest Collections on the Mortgage Loans. If the Holder of the Class R-1 Certificates fails to advance to the Trust amounts specified in the previous paragraph, the Sponsor will be required to purchase, and the other Assets has been taken or made; and
(vi) Holder of the proposed Transferor agrees Class R-1 Certificates will be required to sell, the Class R-1 Certificates and the Sponsor will assume all of the obligations imposed pursuant of the Holder of the R-1 Certificates, including the obligation to Section 3make advances as provided in the preceding paragraph.
Appears in 1 contract
Samples: Trust Agreement (CWHEQ Revolving Home Equity Loan Trust, Series 2007-A)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not result in the Trust being subject to tax at the entity level for federal or applicable State tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer will not result in the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of the Code;; and
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust in the Mortgage Loans and the other Assets has been taken or made; and
(vi) . The requirement that the proposed Transferor agrees be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition (without regard to the obligations imposed Policy, as defined in the Indenture) has been satisfied taking that into account.
(e) Each Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 33.10 of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2005-D. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2005-D. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(f) No Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust (or an affiliate of them)) to whom a Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of the outstanding Notes and Transferor Certificates for federal or applicable state income tax purposes,
(ii) the characterization of the Trust as taxable mortgage pool, an entity that is not a publicly traded partnership, or other business entity taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Trust Agreement (CWHEQ Revolving Home Equity Loan Asset Backed Notes, Series 2005-D)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not result in the Trust being subject to tax at the entity level for federal or applicable State tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer will not result in the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of the Code;; and
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust in the Mortgage Loans and the other Assets has been taken or made; and
(vi) . The requirement that the proposed Transferor agrees be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition (without regard to the obligations imposed Policy, as defined in the Indenture) has been satisfied taking that into account.
(e) Each Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 33.10 of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2005-B. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2005-B. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(f) No Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust (or an affiliate of them)) to whom a Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of the outstanding Notes and Transferor Certificates for federal or applicable state income tax purposes,
(ii) the characterization of the Trust as an entity that is not a publicly traded partnership or other business entity taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Trust Agreement (CWHEQ Revolving Home Equity Loan Asset Backed Notes, Series 2005-B)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not result in the Trust being subject to tax at the entity level for federal or applicable State tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer will not result in the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of the Code;; and
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust in the Mortgage Loans and the other Assets has been taken or made; and
(vi) . The requirement that the proposed Transferor agrees be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition (without regard to the obligations imposed Policy, as defined in the Indenture) has been satisfied taking that into account.
(e) Each Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 33.10 of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2005-G. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2005-G. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(f) No Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust (or an affiliate of them)) to whom a Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of the outstanding Notes and Transferor Certificates for federal or applicable state income tax purposes,
(ii) the characterization of the Trust as an entity that is not a publicly traded partnership or other business entity taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Trust Agreement (CWHEQ Revolving Home Equity Loan Asset Backed Notes, Series 2005-G)
Restrictions on Transfer; Legends. (a) The Series 2002-B Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Series 2002-B Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Series 2002-B Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Series 2002-B Transferor Certificate desiring to effect a transfer shall indemnify the Series 2002-B Subtrust and the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Series 2002-B Transferor Certificate will be made after its initial issuance unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Series 2002-B Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this the Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Series 2002-B Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this the Agreement and the other Series 2002-B Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 4.05(d) and that all the conditions in this Section 3.10 4.05(d) have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 4.05(d) have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization treatment of the Series 2002-B Notes after the transfer as debt for federal and applicable State state income tax purposes,
(B) the transfer will not result in the Series 2002-B Subtrust or the Trust being subject to tax at the entity level for federal or applicable State state tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State state income taxation of any Holder of the Series 2002-B Notes or any person who is the beneficial owner of a Series 2002-B book-entry Note, and
(D) the transfer will not result in the Trust arrangement created by the Agreement or any "portion" of the Trust, being characterized treated as a taxable mortgage pool as defined in Section 7701(i) of the Code;
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust Series 2002-B Subtrust in the related Mortgage Loans and the other Assets related property conveyed to the Series 2002-B Subtrust has been taken or made; and
(vi) the proposed Transferor agrees to the obligations imposed pursuant to Section 34.06. The requirement that the proposed Transferor be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition has been satisfied taking that into account.
(e) Each Series 2002-B Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 4.05 of the Series 2002-B Trust Supplement to the CWABS Master Trust Agreement. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 4.05(c) of the Series 2002-B Trust Supplement to the CWABS Master Trust Agreement. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(f) No Series 2002-B Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust (or an affiliate of them)) to whom a Series 2002-B Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Series 2002-B Trust Supplement or the Master Trust Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 4.05 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of any outstanding Series of Notes and Transferor Certificates,
(ii) the characterization of the Trust as an entity that is not a publicly traded partnership taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Transferor Certificate (Cwabs Inc)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by that Transferor any of them to one of its Affiliates), the Owner Trustee will require either:
(i1) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii2) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder Holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i1) a representation letter from the proposed Transferortransferee, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor transferee is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii2) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by the Transferor any of them to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Class R-1 Certificate after its initial issuance will be made unless:
(i1) the proposed Transferor is organized and existing under the laws of the United States or any State and Holder expressly assumes the performance of every obligation of the existing Transferor Holder under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,, including the obligation to advance funds to the Trust as necessary so that the Trust is able to pay the purchase price for Additional Home Equity Loans;
(ii2) the existing Transferor Holder delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;; and
(iii3) the Rating Agency Condition is satisfied with respect to the transfer;.
(ive) Each person who has or who acquires any ownership interest in a Residual Certificate by accepting its ownership interest agrees to the following provisions, and the rights of each person acquiring any ownership interest in a Residual Certificate are subject to the following provisions:
(1) Only Permitted Transferee may hold an ownership interest in a Residual Certificate and each person holding or acquiring any ownership interest in a Residual Certificate shall promptly notify the Indenture Trustee of any change or impending change in its status as a Permitted Transferee.
(2) No ownership interest in a Residual Certificate may be registered on the Closing Date or thereafter transferred, and the Indenture Trustee shall not register the transfer of any Residual Certificate unless the Indenture Trustee has received a Transfer Affidavit from the initial owner or the proposed Transferor transferee, except in connection with the registration of the Tax Matters Person Certificate in the name of the Indenture Trustee or any registration in the name of, or transfer of a Residual Certificate to, an Affiliate of the Depositor (either directly or through a nominee).
(3) Each person holding or acquiring any ownership interest in a Residual Certificate shall
(A) obtain a Transfer Affidavit from any other person it attempts to transfer its ownership interest in a Residual Certificate to,
(B) obtain a Transfer Affidavit from any person for whom it is acting as nominee, trustee, or agent in connection with any transfer of any ownership interest in a Residual Certificate, and
(C) not transfer its ownership interest in a Residual Certificate to any other person if it has actual knowledge that such person is not a Permitted Transferee.
(4) Any attempted transfer of any ownership interest in a Residual Certificate in violation of this Section 3.10(e) shall be void ab initio and shall vest no rights in the purported transferee. If any purported transferee becomes a Holder of a Residual Certificate in violation of this Section 3.10(e), then the last preceding Permitted Transferee shall be restored to all rights as Holder of the Residual Certificate retroactive to the date of registration of transfer of the Residual Certificate. The Indenture Trustee shall be under no liability to any person for any registration of transfer of a Residual Certificate that is in fact not permitted by this Section 3.10(e) or for making any payments due on the Residual Certificate to its Holder or taking any other action with respect to the Holder under this Agreement so long as the transfer was registered after receipt of the related Transfer Affidavit and any other required documents. The Indenture 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 the Residual Certificate at and after either such time. Any such payments so recovered by the Indenture Trustee shall be paid and delivered by the Indenture Trustee to the last preceding Permitted Transferee of the Residual Certificate.
(5) The Depositor shall use its best efforts to make available, upon receipt of written request from the Indenture Trustee, all information necessary to compute any tax imposed under Section 860E(e) of the Code as a result of a transfer of an ownership interest in a Residual Certificate to any Holder who is not a Permitted Transferee.
(f) Each Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 3.10 of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2006-D. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the Owner Trustee trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2006-D. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to Section 4975 of the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(g) No Certificate shall be transferred except to (i) the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, or the Trust (or an affiliate of them)) to whom a Certificate is proposed to be transferred will be required to certify to the holder of the R-1 Certificates, the Trust, and the Certificate Registrar that it is a qualified institutional buyer. The Class R-1 Certificates may not be transferred except to the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them).
(h) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect thatthat the amendment will not cause the imposition of any tax on any REMIC or the Certificateholders or Noteholders, or cause any REMIC to fail to qualify as a REMIC at any time that any Certificates or Notes are outstanding.
(Ai) The restrictions on transfers of a Residual Certificate in this Section 3.10 shall cease to apply (and the transfer applicable portions of the legend on a Residual Certificate may be deleted) with respect to transfers occurring after delivery to the Owner Trustee of an Opinion of Counsel to the effect that the elimination of the restrictions will not adversely affect cause any REMIC to fail to qualify as a REMIC at any time that the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not Certificates are outstanding or result in the Trust being subject imposition of any tax on the Trust, a Certificateholder, Noteholder, or another person. Each person holding or acquiring any ownership interest in a Residual Certificate consents to tax at any amendment of this Agreement that, based on an Opinion of Counsel furnished to the entity level for federal or applicable State tax purposes,Owner Trustee, is reasonably necessary
(C1) to ensure that the record ownership of, or any beneficial interest in, a Residual Certificate is not transferred, directly or indirectly, to a person that is not a Permitted Transferee or
(2) to provide for a means to compel the transfer will of a Residual Certificate that is held by a person that is not have a Permitted Transferee to a Holder that is a Permitted Transferee.
(j) Pursuant to the Sale and Servicing Agreement, Principal Collections may be applied to purchase Additional Balances for the Trust during a Collection Period. If on any material adverse effect on Collection Period Principal Collections are insufficient to purchase all Additional Balances, the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer Class R-1 Certificates will not result in advance funds to the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of to purchase the Code;
(v) all filings and other actions necessary Additional Balances that were not funded by Principal Collections. The Class R-1 Balance will be repaid to continue the perfection of the interest of the Trust in Class R-1 Certificates from Principal Collections on the Mortgage Loans allocated to the Certificates on future Payment Dates and will be entitled to allocation of Interest Collections on the Mortgage Loans. If the Holder of the Class R-1 Certificates fails to advance to the Trust amounts specified in the previous paragraph, the Sponsor will be required to purchase, and the other Assets has been taken or made; and
(vi) Holder of the proposed Transferor agrees Class R-1 Certificates will be required to sell, the Class R-1 Certificates and the Sponsor will assume all of the obligations imposed pursuant of the Holder of the R-1 Certificates, including the obligation to Section 3make advances as provided in the preceding paragraph.
Appears in 1 contract
Samples: Trust Agreement (CWHEQ Revolving Home Equity Loan Asset Backed Notes, Series 2006-D)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by that Transferor any of them to one of its Affiliates), the Owner Trustee will require either:
(i1) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii2) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder Holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i1) a representation letter from the proposed Transferortransferee, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor transferee is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii2) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by the Transferor any of them to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Class R-1 Certificate after its initial issuance will be made unless:
(i1) the proposed Transferor is organized and existing under the laws of the United States or any State and Holder expressly assumes the performance of every obligation of the existing Transferor Holder under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,, including the obligation to advance funds to the Trust as necessary so that the Trust is able to pay the purchase price for Additional Home Equity Loans;
(ii2) the existing Transferor Holder delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;; and
(iii3) the Rating Agency Condition is satisfied with respect to the transfer;.
(ive) Each person who has or who acquires any ownership interest in a Residual Certificate by accepting its ownership interest agrees to the following provisions, and the rights of each person acquiring any ownership interest in a Residual Certificate are subject to the following provisions:
(1) Only Permitted Transferee may hold an ownership interest in a Residual Certificate and each person holding or acquiring any ownership interest in a Residual Certificate shall promptly notify the Indenture Trustee of any change or impending change in its status as a Permitted Transferee.
(2) No ownership interest in a Residual Certificate may be registered on the Closing Date or thereafter transferred, and the Indenture Trustee shall not register the transfer of any Residual Certificate unless the Indenture Trustee has received a Transfer Affidavit from the initial owner or the proposed Transferor transferee, except in connection with the registration of the Tax Matters Person Certificate in the name of the Indenture Trustee or any registration in the name of, or transfer of a Residual Certificate to, an Affiliate of the Depositor (either directly or through a nominee).
(3) Each person holding or acquiring any ownership interest in a Residual Certificate shall
(A) obtain a Transfer Affidavit from any other person it attempts to transfer its ownership interest in a Residual Certificate to,
(B) obtain a Transfer Affidavit from any person for whom it is acting as nominee, trustee, or agent in connection with any transfer of any ownership interest in a Residual Certificate, and
(C) not transfer its ownership interest in a Residual Certificate to any other person if it has actual knowledge that such person is not a Permitted Transferee.
(4) Any attempted transfer of any ownership interest in a Residual Certificate in violation of this Section 3.10(e) shall be void ab initio and shall vest no rights in the purported transferee. If any purported transferee becomes a Holder of a Residual Certificate in violation of this Section 3.10(e), then the last preceding Permitted Transferee shall be restored to all rights as Holder of the Residual Certificate retroactive to the date of registration of transfer of the Residual Certificate. The Indenture Trustee shall be under no liability to any person for any registration of transfer of a Residual Certificate that is in fact not permitted by this Section 3.10(e) or for making any payments due on the Residual Certificate to its Holder or taking any other action with respect to the Holder under this Agreement so long as the transfer was registered after receipt of the related Transfer Affidavit and any other required documents. The Indenture 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 the Residual Certificate at and after either such time. Any such payments so recovered by the Indenture Trustee shall be paid and delivered by the Indenture Trustee to the last preceding Permitted Transferee of the Residual Certificate.
(5) The Depositor shall use its best efforts to make available, upon receipt of written request from the Indenture Trustee, all information necessary to compute any tax imposed under Section 860E(e) of the Code as a result of a transfer of an ownership interest in a Residual Certificate to any Holder who is not a Permitted Transferee.
(f) Each Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 3.10 of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2006-E. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the Owner Trustee trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2006-E. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to Section 4975 of the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(g) No Certificate shall be transferred except to (i) the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, or the Trust (or an affiliate of them)) to whom a Certificate is proposed to be transferred will be required to certify to the holder of the R-1 Certificates, the Trust, and the Certificate Registrar that it is a qualified institutional buyer. The Class R-1 Certificates may not be transferred except to the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them).
(h) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect thatthat the amendment will not cause the imposition of any tax on any REMIC or the Certificateholders or Noteholders, or cause any REMIC to fail to qualify as a REMIC at any time that any Certificates or Notes are outstanding.
(Ai) The restrictions on transfers of a Residual Certificate in this Section 3.10 shall cease to apply (and the transfer applicable portions of the legend on a Residual Certificate may be deleted) with respect to transfers occurring after delivery to the Owner Trustee of an Opinion of Counsel to the effect that the elimination of the restrictions will not adversely affect cause any REMIC to fail to qualify as a REMIC at any time that the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not Certificates are outstanding or result in the Trust being subject imposition of any tax on the Trust, a Certificateholder, Noteholder, or another person. Each person holding or acquiring any ownership interest in a Residual Certificate consents to tax at any amendment of this Agreement that, based on an Opinion of Counsel furnished to the entity level for federal or applicable State tax purposes,Owner Trustee, is reasonably necessary
(C1) to ensure that the record ownership of, or any beneficial interest in, a Residual Certificate is not transferred, directly or indirectly, to a person that is not a Permitted Transferee or
(2) to provide for a means to compel the transfer will of a Residual Certificate that is held by a person that is not have a Permitted Transferee to a Holder that is a Permitted Transferee.
(j) Pursuant to the Sale and Servicing Agreement, Principal Collections may be applied to purchase Additional Balances for the Trust during a Collection Period. If on any material adverse effect on Collection Period Principal Collections are insufficient to purchase all Additional Balances, the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer Class R-1 Certificates will not result in advance funds to the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of to purchase the Code;
(v) all filings and other actions necessary Additional Balances that were not funded by Principal Collections. The Class R-1 Balance will be repaid to continue the perfection of the interest of the Trust in Class R-1 Certificates from Principal Collections on the Mortgage Loans allocated to the Certificates on future Payment Dates and will be entitled to allocation of Interest Collections on the Mortgage Loans. If the Holder of the Class R-1 Certificates fails to advance to the Trust amounts specified in the previous paragraph, the Sponsor will be required to purchase, and the other Assets has been taken or made; and
(vi) Holder of the proposed Transferor agrees Class R-1 Certificates will be required to sell, the Class R-1 Certificates and the Sponsor will assume all of the obligations imposed pursuant of the Holder of the R-1 Certificates, including the obligation to Section 3make advances as provided in the preceding paragraph.
Appears in 1 contract
Samples: Trust Agreement (CWHEQ Revolving Home Equity Loan Trust, Series 2006-E)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not result in the Trust being subject to tax at the entity level for federal or applicable State tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer will not result in the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of the Code;; and
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust in the Mortgage Loans and the other Assets has been taken or made; and
(vi) . The requirement that the proposed Transferor agrees be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition (without regard to the obligations imposed Policy, as defined in the Indenture) has been satisfied taking that into account.
(e) Each Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 33.10 of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2005-A. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2005-A. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(f) No Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust (or an affiliate of them)) to whom a Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of the outstanding Notes and Transferor Certificates for federal or applicable state income tax purposes,
(ii) the characterization of the Trust as an entity that is not a publicly traded partnership or other business entity taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Trust Agreement (CWHEQ Revolving Home Equity Loan Asset Backed Notes, Series 2005-A)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not result in the Trust being subject to tax at the entity level for federal or applicable State tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer will not result in the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of the Code;; and
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust in the Mortgage Loans and the other Assets has been taken or made; and
(vi) . The requirement that the proposed Transferor agrees be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition (without regard to the obligations Policy, as defined in the Indenture) has been satisfied taking that into account.
(e) Each Transferor Certificate shall bear a legend substantially in the following form: THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933 AND THE SECURITIES LAWS OF ANY STATE OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933 AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH SECTION 3.10 OF THE TRUST AGREEMENT RELATED TO CWABS REVOLVING HOME EQUITY LOAN TRUST, SERIES 2004-U. NEITHER THIS CERTIFICATE NOR ANY INTEREST IN IT MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT THAT THE TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, A PLAN SUBJECT TO SECTION 4975 OF THE CODE, AS AMENDED, OR A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN; OR AN OPINION OF COUNSEL IN ACCORDANCE WITH SECTION 3.10(C) OF THE TRUST AGREEMENT RELATED TO CWABS REVOLVING HOME EQUITY LOAN TRUST, SERIES 2004-U. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID.
(f) No Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust (or an affiliate of them)) to whom a Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of the outstanding Notes and Transferor Certificates for federal or applicable state income tax purposes,
(ii) the characterization of the Trust as an entity that is not a publicly traded partnership or other business entity taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed pursuant to Section 3on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Trust Agreement (CWABS Revolving Home Equity Loan Trust Series, 2004-U)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,;
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not result in the Trust being subject to tax at the entity level for federal or applicable State tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer will not result in the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of the Code;; and
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust in the Mortgage Loans and the other Assets has been taken or made; and
(vi) . The requirement that the proposed Transferor agrees be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition (without regard to the obligations imposed Policy, as defined in the Indenture) has been satisfied taking that into account.
(e) Each Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 33.10 of the Trust Agreement related to CWABS Revolving Home Equity Loan Trust, Series 2004-Q. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWABS Revolving Home Equity Loan Trust, Series 2004-Q. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(f) No Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust (or an affiliate of them)) to whom a Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of the outstanding Notes and Transferor Certificates for federal or applicable state income tax purposes,
(ii) the characterization of the Trust as an entity that is not a publicly traded partnership or other business entity taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Trust Agreement (CWABS Revolving Home Equity Loan Trust Series, 2004-Q)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i1) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii2) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i1) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii2) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Certificate after its initial issuance will be made unless:
(i1) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii2) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;
(iii3) the Rating Agency Condition is satisfied with respect to the transfer;
(iv4) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not result in the Trust being subject to tax at the entity level for federal or applicable State tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer will not result in the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of the Code;; and
(v5) all filings and other actions necessary to continue the perfection of the interest of the Trust in the Mortgage Loans and the other Assets has been taken or made; and
(vi) . The requirement that the proposed Transferor agrees be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition (without regard to the obligations imposed Policy, as defined in the Indenture) has been satisfied taking that into account.
(e) Each Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 3.10 of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2005-F. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2005-F. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(f) No Transferor Certificate shall be transferred except to (1) the Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate of any of them) or (2) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust (or an affiliate of them)) to whom a Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(1) the tax characterization of the outstanding Notes and Transferor Certificates for federal or applicable state income tax purposes,
(2) the characterization of the Trust as taxable mortgage pool, an entity that is not a publicly traded partnership or other business entity taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(3) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Trust Agreement (CWHEQ Revolving Home Equity Loan Asset Backed Notes, Series 2005-F)
Restrictions on Transfer; Legends. (a) The Series 2003-A Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Series 2003-A Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Series 2003-A Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Series 2003-A Transferor Certificate desiring to effect a transfer shall indemnify the Series 2003-A Subtrust and the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Series 2003-A Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Series 2003-A Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this the Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Series 2003-A Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Series 2003-A Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this the Agreement and the other Series 2003-A Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 4.05(d) and that all the conditions in this Section 3.10 4.05(d) have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 4.05(d) have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization treatment of the Series 2003-A Notes after the transfer as debt for federal and applicable State state income tax purposes,
(B) the transfer will not result in the Series 2003-A Subtrust or the Trust being subject to tax at the entity level for federal or applicable State state tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State state income taxation of any Holder of the Series 2003-A Notes or any person who is the beneficial owner of a Series 2003-A book-entry Note, and
(D) the transfer will not result in the Trust arrangement created by the Agreement or any "portion" of the Trust, being characterized treated as a taxable mortgage pool as defined in Section 7701(i) of the Code;
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust Series 2003-A Subtrust in the related Mortgage Loans and the other Assets related property conveyed to the Series 2003-A Subtrust has been taken or made; and
(vi) the proposed Transferor agrees to the obligations imposed pursuant to Section 34.06. The requirement that the proposed Transferor be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition has been satisfied taking that into account.
(e) Each Series 2003-A Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 4.05 of the Series 2003-A Trust Supplement to the CWABS Master Trust Agreement. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 4.05(c) of the Series 2003-A Trust Supplement to the CWABS Master Trust Agreement. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(f) No Series 2003-A Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust (or an affiliate of them)) to whom a Series 2003-A Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Series 2003-A Trust Supplement or the Master Trust Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 4.05 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of any outstanding Series of Notes and Transferor Certificates,
(ii) the characterization of the Trust as an entity that is not a publicly traded partnership taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Transferor Certificate (Cwabs Inc)
Restrictions on Transfer; Legends. (a) The Series 2002-F Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Series 2002-F Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Series 2002-F Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Series 2002-F Transferor Certificate desiring to effect a transfer shall indemnify the Series 2002-F Subtrust and the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Series 2002-F Transferor Certificate will be made after its initial issuance unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Series 2002-F Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this the Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Series 2002-F Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this the Agreement and the other Series 2002-F Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 4.05(d) and that all the conditions in this Section 3.10 4.05(d) have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 4.05(d) have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization treatment of the Series 2002-F Notes after the transfer as debt for federal and applicable State state income tax purposes,
(B) the transfer will not result in the Series 2002-F Subtrust or the Trust being subject to tax at the entity level for federal or applicable State state tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State state income taxation of any Holder of the Series 2002-F Notes or any person who is the beneficial owner of a Series 2002-F book-entry Note, and
(D) the transfer will not result in the Trust arrangement created by the Agreement or any "portion" of the Trust, being characterized treated as a taxable mortgage pool as defined in Section 7701(i) of the Code;
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust Series 2002-F Subtrust in the related Mortgage Loans and the other Assets related property conveyed to the Series 2002-F Subtrust has been taken or made; and
(vi) the proposed Transferor agrees to the obligations imposed pursuant to Section 34.06. The requirement that the proposed Transferor be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition has been satisfied taking that into account.
(e) Each Series 2002-F Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 4.05 of the Series 2002-F Trust Supplement to the CWABS Master Trust Agreement. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 4.05(c) of the Series 2002-F Trust Supplement to the CWABS Master Trust Agreement. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(f) No Series 2002-F Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust (or an affiliate of them)) to whom a Series 2002-F Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Series 2002-F Trust Supplement or the Master Trust Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 4.05 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of any outstanding Series of Notes and Transferor Certificates,
(ii) the characterization of the Trust as an entity that is not a publicly traded partnership taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Transferor Certificate (Cwabs Inc)
Restrictions on Transfer; Legends. (a) The Series 2002-D Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Series 2002-D Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Series 2002-D Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Series 2002-D Transferor Certificate desiring to effect a transfer shall indemnify the Series 2002-D Subtrust and the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Series 2002-D Transferor Certificate will be made after its initial issuance unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Series 2002-D Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this the Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Series 2002-D Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this the Agreement and the other Series 2002-D Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee and the Credit Enhancer an Officer's Certificate stating that the transfer complies with this Section 3.10 4.05(d) and that all the conditions in this Section 3.10 4.05(d) have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 4.05(d) have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee and the Credit Enhancer an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization treatment of the Series 2002-D Notes after the transfer as debt for federal and applicable State state income tax purposes,
(B) the transfer will not result in the Series 2002-D Subtrust or the Trust being subject to tax at the entity level for federal or applicable State state tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State state income taxation of any Holder of the Series 2002-D Notes or any person who is the beneficial owner of a Series 2002-D book-entry Note, and
(D) the transfer will not result in the Trust arrangement created by the Agreement or any "portion" of the Trust, being characterized treated as a taxable mortgage pool as defined in Section 7701(i) of the Code;
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust Series 2002-D Subtrust in the related Mortgage Loans and the other Assets related property conveyed to the Series 2002-D Subtrust has been taken or made; and
(vi) the proposed Transferor agrees to the obligations imposed pursuant to Section 34.06. The requirement that the proposed Transferor be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition has been satisfied taking that into account.
(e) Each Series 2002-D Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 4.05 of the Series 2002-D Trust Supplement to the CWABS Master Trust Agreement. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code as amended, or a person acting on behalf of or using the assets of any such plan, or an opinion of counsel in accordance with Section 4.05(c) of the Series 2002-D Trust Supplement to the CWABS Master Trust Agreement. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(f) No Series 2002-D Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust (or an affiliate of them)) to whom a Series 2002-D Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Series 2002-D Trust Supplement or the Master Trust Agreement to the contrary, the Depositor, without the consent of any Noteholder or Series 2002-D Transferor Certificateholder, may amend this Section 4.05 with the consent of the Credit Enhancer if it and the Credit Enhancer receive an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of any outstanding Series of Notes and Transferor Certificates,
(ii) the characterization of the Trust as an entity that is not a publicly traded partnership taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Transferor Certificate (Cwabs Inc)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by that Transferor any of them to one of its Affiliates), the Owner Trustee will require either:
(i1) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii2) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder Holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i1) a representation letter from the proposed Transferortransferee, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor transferee is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii2) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by the Transferor any of them to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Class R-1 Certificate after its initial issuance will be made unless:
(i1) the proposed Transferor is organized and existing under the laws of the United States or any State and Holder expressly assumes the performance of every obligation of the existing Transferor Holder under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,, including the obligation to advance funds to the Trust as necessary so that the Trust is able to pay the purchase price for Additional Home Equity Loans;
(ii2) the existing Transferor Holder delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;; and
(iii3) the Rating Agency Condition is satisfied with respect to the transfer;.
(ive) Each person who has or who acquires any ownership interest in a Residual Certificate by accepting its ownership interest agrees to the following provisions, and the rights of each person acquiring any ownership interest in a Residual Certificate are subject to the following provisions:
(1) Only Permitted Transferee may hold an ownership interest in a Residual Certificate and each person holding or acquiring any ownership interest in a Residual Certificate shall promptly notify the Indenture Trustee of any change or impending change in its status as a Permitted Transferee.
(2) No ownership interest in a Residual Certificate may be registered on the Closing Date or thereafter transferred, and the Indenture Trustee shall not register the transfer of any Residual Certificate unless the Indenture Trustee has received a Transfer Affidavit from the initial owner or the proposed Transferor transferee, except in connection with the registration of the Tax Matters Person Certificate in the name of the Indenture Trustee or any registration in the name of, or transfer of a Residual Certificate to, an Affiliate of the Depositor (either directly or through a nominee).
(3) Each person holding or acquiring any ownership interest in a Residual Certificate shall
(A) obtain a Transfer Affidavit from any other person it attempts to transfer its ownership interest in a Residual Certificate to,
(B) obtain a Transfer Affidavit from any person for whom it is acting as nominee, trustee, or agent in connection with any transfer of any ownership interest in a Residual Certificate, and
(C) not transfer its ownership interest in a Residual Certificate to any other person if it has actual knowledge that such person is not a Permitted Transferee.
(4) Any attempted transfer of any ownership interest in a Residual Certificate in violation of this Section 3.10(e) shall be void ab initio and shall vest no rights in the purported transferee. If any purported transferee becomes a Holder of a Residual Certificate in violation of this Section 3.10(e), then the last preceding Permitted Transferee shall be restored to all rights as Holder of the Residual Certificate retroactive to the date of registration of transfer of the Residual Certificate. The Indenture Trustee shall be under no liability to any person for any registration of transfer of a Residual Certificate that is in fact not permitted by this Section 3.10(e) or for making any payments due on the Residual Certificate to its Holder or taking any other action with respect to the Holder under this Agreement so long as the transfer was registered after receipt of the related Transfer Affidavit and any other required documents. The Indenture 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 the Residual Certificate at and after either such time. Any such payments so recovered by the Indenture Trustee shall be paid and delivered by the Indenture Trustee to the last preceding Permitted Transferee of the Residual Certificate.
(5) The Depositor shall use its best efforts to make available, upon receipt of written request from the Indenture Trustee, all information necessary to compute any tax imposed under Section 860E(e) of the Code as a result of a transfer of an ownership interest in a Residual Certificate to any Holder who is not a Permitted Transferee.
(f) Each Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 3.10 of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2006-B. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the Owner Trustee trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2006-B. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to Section 4975 of the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(g) No Certificate shall be transferred except to (i) the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, or the Trust (or an affiliate of them)) to whom a Certificate is proposed to be transferred will be required to certify to the holder of the R-1 Certificates, the Trust, and the Certificate Registrar that it is a qualified institutional buyer. The Class R-1 Certificates may not be transferred except to the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them).
(h) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect thatthat the amendment will not cause the imposition of any tax on any REMIC or the Certificateholders or Noteholders, or cause any REMIC to fail to qualify as a REMIC at any time that any Certificates or Notes are outstanding.
(Ai) The restrictions on transfers of a Residual Certificate in this Section 3.10 shall cease to apply (and the transfer applicable portions of the legend on a Residual Certificate may be deleted) with respect to transfers occurring after delivery to the Owner Trustee of an Opinion of Counsel to the effect that the elimination of the restrictions will not adversely affect cause any REMIC to fail to qualify as a REMIC at any time that the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not Certificates are outstanding or result in the Trust being subject imposition of any tax on the Trust, a Certificateholder, Noteholder, or another person. Each person holding or acquiring any ownership interest in a Residual Certificate consents to tax at any amendment of this Agreement that, based on an Opinion of Counsel furnished to the entity level for federal or applicable State tax purposes,Owner Trustee, is reasonably necessary
(C1) to ensure that the record ownership of, or any beneficial interest in, a Residual Certificate is not transferred, directly or indirectly, to a person that is not a Permitted Transferee or
(2) to provide for a means to compel the transfer will of a Residual Certificate that is held by a person that is not have a Permitted Transferee to a Holder that is a Permitted Transferee.
(j) Pursuant to the Sale and Servicing Agreement, Principal Collections may be applied to purchase Additional Balances for the Trust during a Collection Period. If on any material adverse effect on Collection Period Principal Collections are insufficient to purchase all Additional Balances, the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer Class R-1 Certificates will not result in advance funds to the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of to purchase the Code;
(v) all filings and other actions necessary Additional Balances that were not funded by Principal Collections. The Class R-1 Balance will be repaid to continue the perfection of the interest of the Trust in Class R-1 Certificates from Principal Collections on the Mortgage Loans allocated to the Certificates on future Payment Dates and will be entitled to allocation of Interest Collections on the Mortgage Loans. If the Holder of the Class R-1 Certificates fails to advance to the Trust amounts specified in the previous paragraph, the Sponsor will be required to purchase, and the other Assets has been taken or made; and
(vi) Holder of the proposed Transferor agrees Class R-1 Certificates will be required to sell, the Class R-1 Certificates and the Sponsor will assume all of the obligations imposed pursuant of the Holder of the R-1 Certificates, including the obligation to Section 3make advances as provided in the preceding paragraph.
Appears in 1 contract
Samples: Trust Agreement (CWHEQ Revolving Home Equity Loan Trust, Series 2006-B)
Restrictions on Transfer; Legends. Prior to any proposed transfer (awhether by sale, assignment, pledge or otherwise) The Transferor Certificates of the Common Stock, Xxxxxxxx or any subsequent proposed transferor (the “Transferor”) will give written notice to FIC of his intention to effect such transfer. Each such notice shall describe the manner and circumstances of the proposed transfer, and shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes accompanied by a written opinion of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will legal counsel who shall be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance reasonably satisfactory to the Owner Trustee certifying FIC, addressed to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner TrusteeFIC, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 transfer of the Codesecurities in question may be effected without registration under the Securities Act. Any such legal opinion must be reasonably satisfactory to FIC and must state that it may also be relied upon by any applicable transfer agent or stock exchange or counsel to FIC. Upon compliance with the terms of this paragraph 6 to the reasonable satisfaction of FIC, nor a person acting on behalf of, or investing plan assets of, any the Transferor shall be entitled to transfer such plan, which representation letter shall not be an expense securities in accordance with the terms of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer notice delivered by the Transferor to one of its AffiliatesFIC. The Transferor will, prior to any transfer (unless such transfer is made pursuant to Rule 144 or an effective registration statement under the Securities Act), cause any transferee of the representation Common Stock, to enter into an agreement with FIC that the transferee will take and hold such securities subject to the provisions and upon the conditions specified in clause this paragraph 6. FIC shall have no obligation to effect any transfer on its books and records (i) and no such attempted transfer shall be deemed effective) unless such transfer is made in accordance with the terms of this paragraph 6. FIC may issue stop transfer instructions to have been madeany transfer agent for the Common Stock in order to implement any restriction on transfer contemplated by this paragraph 6. The Common Stock shall contain the following legend: THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY AS TO THE AVAILABILITY OF AN EXEMPTION FROM REGISTRATION THAT SUCH REGISTRATION IS NOT REQUIRED AND THAT ANY PROSPECTUS DELIVERY REQUIREMENTS ARE NOT APPLICABLE. ADDITIONALLY, THE TRANSFER OF SUCH SHARES IS SUBJECT TO COMPLIANCE WITH THE TERMS OF AN AGREEMENT WITH THE COMPANY DATED SEPTEMBER 27, 2005 AND NO TRANSFER OF SUCH SHARES WILL BE VALID WITHOUT SUCH COMPLIANCE. A COPY OF SUCH AGREEMENT WILL BE PROVIDED BY THE COMPANY UPON REQUEST.
(d) No transfer of an interest in a Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not result in the Trust being subject to tax at the entity level for federal or applicable State tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer will not result in the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of the Code;
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust in the Mortgage Loans and the other Assets has been taken or made; and
(vi) the proposed Transferor agrees to the obligations imposed pursuant to Section 3.
Appears in 1 contract
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not result in the Trust being subject to tax at the entity level for federal or applicable State tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer will not result in the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of the Code;; and
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust in the Mortgage Loans and the other Assets has been taken or made; and
(vi) . The requirement that the proposed Transferor agrees be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition (without regard to the obligations imposed Policy, as defined in the Indenture) has been satisfied taking that into account.
(e) Each Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 33.10 of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2005-H. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2005-H. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(f) No Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust (or an affiliate of them)) to whom a Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of the outstanding Notes and Transferor Certificates for federal or applicable state income tax purposes,
(ii) the characterization of the Trust as an entity that is not a publicly traded partnership or other business entity taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Trust Agreement (CWHEQ Revolving Home Equity Loan Asset Backed Notes, Series 2005-H)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not result in the Trust being subject to tax at the entity level for federal or applicable State tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer will not result in the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of the Code;; and
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust in the Mortgage Loans and the other Assets has been taken or made; and
(vi) . The requirement that the proposed Transferor agrees be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition (without regard to the obligations imposed Policy, as defined in the Indenture) has been satisfied taking that into account.
(e) Each Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 33.10 of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 200_-_. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 200_-_. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(f) No Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust (or an affiliate of them)) to whom a Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of the outstanding Notes and Transferor Certificates for federal or applicable state income tax purposes,
(ii) the characterization of the Trust as an entity that is not a publicly traded partnership or other business entity taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Trust Agreement (CWHEQ, Inc.)
Restrictions on Transfer; Legends. (a) The Series 2004-B Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Series 2004-B Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Series 2004-B Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Series 2004-B Transferor Certificate desiring to effect a transfer shall indemnify the Series 2004-B Subtrust and the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Series 2004-B Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Series 2004-B Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this the Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Series 2004-B Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Series 2004-B Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this the Agreement and the other Series 2004-B Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 4.05(d) and that all the conditions in this Section 3.10 4.05(d) have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 4.05(d) have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization of the Series 2004-B Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not result in the Series 2004-B Subtrust or the Trust being subject to tax at the entity level for federal or applicable State tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State income taxation of any Holder of the Series 2004-B Notes or any person who is the beneficial owner of a Series 2004-B book-entry Note, and
(D) the transfer will not result in the Trust arrangement created by the Agreement or any "portion" of the Series 2004-B Subtrust or the Trust, being characterized as a taxable mortgage pool as defined in Section 7701(i) of the Code;
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust Series 2004-B Subtrust in the related Mortgage Loans and the other Assets related property conveyed to the Series 2004-B Subtrust has been taken or made; and
(vi) the proposed Transferor agrees to the obligations imposed pursuant to Section 34.06. The requirement that the proposed Transferor be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition has been satisfied taking that into account.
(e) Each Series 2004-B Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 4.05 of the Series 2004-B Trust Supplement to the CWABS Master Trust Agreement. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 4.05(c) of the Series 2004-B Trust Supplement to the CWABS Master Trust Agreement. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(f) No Series 2004-B Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust (or an affiliate of them)) to whom a Series 2004-B Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Series 2004-B Trust Supplement or the Master Trust Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 4.05 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of any outstanding Series of Notes and Transferor Certificates for federal or applicable state income tax purposes,
(ii) the characterization of the Trust as an entity that is not a publicly traded partnership or other business entity taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Transferor Certificate (Cwabs Master Trust Series 2004-B)
Restrictions on Transfer; Legends. (a) The Series 2003-B Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Series 2003-B Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Series 2003-B Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Series 2003-B Transferor Certificate desiring to effect a transfer shall indemnify the Series 2003-B Subtrust and the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Series 2003-B Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Series 2003-B Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this the Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Series 2003-B Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Series 2003-B Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this the Agreement and the other Series 2003-B Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,;
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 4.05(d) and that all the conditions in this Section 3.10 4.05(d) have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 4.05(d) have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization treatment of the Series 2003-B Notes after the transfer as debt for federal and applicable State state income tax purposes,
(B) the transfer will not result in the Series 2003-B Subtrust or the Trust being subject to tax at the entity level for federal or applicable State state tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State state income taxation of any Holder of the Series 2003-B Notes or any person who is the beneficial owner of a Series 2003-B book-entry Note, and
(D) the transfer will not result in the Trust arrangement created by the Agreement or any "portion" of the Trust, being characterized treated as a taxable mortgage pool as defined in Section 7701(i) of the Code;
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust Series 2003-B Subtrust in the related Mortgage Loans and the other Assets related property conveyed to the Series 2003-B Subtrust has been taken or made; and
(vi) the proposed Transferor agrees to the obligations imposed pursuant to Section 34.06. The requirement that the proposed Transferor be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition has been satisfied taking that into account.
(e) Each Series 2003-B Transferor Certificate shall bear a legend substantially in the following form: THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933 AND THE SECURITIES LAWS OF ANY STATE OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933 AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH SECTION 4.05 OF THE SERIES 2003-B TRUST SUPPLEMENT TO THE CWABS MASTER TRUST AGREEMENT. NEITHER THIS CERTIFICATE NOR ANY INTEREST IN IT MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT THAT THE TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, A PLAN SUBJECT TO SECTION 4975 OF THE CODE, AS AMENDED, OR A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN; OR AN OPINION OF COUNSEL IN ACCORDANCE WITH SECTION 4.05(C) OF THE SERIES 2003-B TRUST SUPPLEMENT TO THE CWABS MASTER TRUST AGREEMENT. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID.
(f) No Series 2003-B Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust (or an affiliate of them)) to whom a Series 2003-B Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Series 2003-B Trust Supplement or the Master Trust Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 4.05 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of any outstanding Series of Notes and Transferor Certificates,
(ii) the characterization of the Trust as an entity that is not a publicly traded partnership taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Transferor Certificate (Cwabs Inc Revolving Hm Equ Ln Asst Back NTS Ser 2003-B)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by that Transferor any of them to one of its Affiliates), the Owner Trustee will require either:
(i1) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii2) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder Holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i1) a representation letter from the proposed Transferortransferee, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor transferee is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii2) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by the Transferor any of them to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Class R-[1] Certificate after its initial issuance will be made unless:
(i1) the proposed Transferor is organized and existing under the laws of the United States or any State and Holder expressly assumes the performance of every obligation of the existing Transferor Holder under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,, including the obligation to advance funds to the Trust as necessary so that the Trust is able to pay the purchase price for Additional Home Equity Loans;
(ii2) the existing Transferor Holder delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;; and
(iii3) the Rating Agency Condition is satisfied with respect to the transfer;.
(ive) Each person who has or who acquires any ownership interest in a Residual Certificate by accepting its ownership interest agrees to the following provisions, and the rights of each person acquiring any ownership interest in a Residual Certificate are subject to the following provisions:
(1) Only Permitted Transferee may hold an ownership interest in a Residual Certificate and each person holding or acquiring any ownership interest in a Residual Certificate shall promptly notify the Indenture Trustee of any change or impending change in its status as a Permitted Transferee.
(2) No ownership interest in a Residual Certificate may be registered on the Closing Date or thereafter transferred, and the Indenture Trustee shall not register the transfer of any Residual Certificate unless the Indenture Trustee has received a Transfer Affidavit from the initial owner or the proposed Transferor transferee, except in connection with the registration of the Tax Matters Person Certificate in the name of the Indenture Trustee or any registration in the name of, or transfer of a Residual Certificate to, an Affiliate of the Depositor (either directly or through a nominee).
(3) Each person holding or acquiring any ownership interest in a Residual Certificate shall
(A) obtain a Transfer Affidavit from any other person it attempts to transfer its ownership interest in a Residual Certificate to,
(B) obtain a Transfer Affidavit from any person for whom it is acting as nominee, trustee, or agent in connection with any transfer of any ownership interest in a Residual Certificate, and
(C) not transfer its ownership interest in a Residual Certificate to any other person if it has actual knowledge that such person is not a Permitted Transferee.
(4) Any attempted transfer of any ownership interest in a Residual Certificate in violation of this Section 3.10(e) shall be void ab initio and shall vest no rights in the purported transferee. If any purported transferee becomes a Holder of a Residual Certificate in violation of this Section 3.10(e), then the last preceding Permitted Transferee shall be restored to all rights as Holder of the Residual Certificate retroactive to the date of registration of transfer of the Residual Certificate. The Indenture Trustee shall be under no liability to any person for any registration of transfer of a Residual Certificate that is in fact not permitted by this Section 3.10(e) or for making any payments due on the Residual Certificate to its Holder or taking any other action with respect to the Holder under this Agreement so long as the transfer was registered after receipt of the related Transfer Affidavit and any other required documents. The Indenture 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 the Residual Certificate at and after either such time. Any such payments so recovered by the Indenture Trustee shall be paid and delivered by the Indenture Trustee to the last preceding Permitted Transferee of the Residual Certificate.
(5) The Depositor shall use its best efforts to make available, upon receipt of written request from the Indenture Trustee, all information necessary to compute any tax imposed under Section 860E(e) of the Code as a result of a transfer of an ownership interest in a Residual Certificate to any Holder who is not a Permitted Transferee.
(f) Each Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 3.10 of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 200_-_. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the Owner Trustee trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 200_-_. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(g) No Certificate shall be transferred except to (i) the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, or the Trust (or an affiliate of them)) to whom a Certificate is proposed to be transferred will be required to certify to the holder of the R-[1] Certificates, the Trust, and the Certificate Registrar that it is a qualified institutional buyer. The Class R-[1] Certificates may not be transferred except to the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them). The Class R-[1] Certificates may only be transferable in their entirety and may not have more than a single Certificateholder.
(h) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 if it receives an Opinion of Counsel to the effect thatthat the amendment will not cause the imposition of any tax on any REMIC or the Certificateholders or Noteholders, or cause any REMIC to fail to qualify as a REMIC at any time that any Certificates or Notes are outstanding.
(Ai) The restrictions on transfers of a Residual Certificate in this Section 3.10 shall cease to apply (and the transfer applicable portions of the legend on a Residual Certificate may be deleted) with respect to transfers occurring after delivery to the Owner Trustee of an Opinion of Counsel to the effect that the elimination of the restrictions will not adversely affect cause any REMIC to fail to qualify as a REMIC at any time that the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not Certificates are outstanding or result in the Trust being subject imposition of any tax on the Trust, a Certificateholder, Noteholder, or another person. Each person holding or acquiring any ownership interest in a Residual Certificate consents to tax at any amendment of this Agreement that, based on an Opinion of Counsel furnished to the entity level for federal or applicable State tax purposes,Owner Trustee, is reasonably necessary
(C1) to ensure that the record ownership of, or any beneficial interest in, a Residual Certificate is not transferred, directly or indirectly, to a person that is not a Permitted Transferee or
(2) to provide for a means to compel the transfer will of a Residual Certificate that is held by a person that is not have a Permitted Transferee to a Holder that is a Permitted Transferee.
(j) Pursuant to the Sale and Servicing Agreement, Principal Collections may be applied to purchase Additional Balances for the Trust during a Collection Period. If on any material adverse effect on Collection Period Principal Collections are insufficient to purchase all Additional Balances, the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer Class R-[1] Certificates will not result in advance funds to the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of to purchase the Code;
(v) all filings and other actions necessary Additional Balances that were not funded by Principal Collections. The Class R-[1] Balance will be repaid to continue the perfection of the interest of the Trust in Class R-[1] Certificates from Principal Collections on the Mortgage Loans allocated to the Certificates on future Payment Dates and will be entitled to allocation of Interest Collections on the Mortgage Loans. If the Holder of the Class R-[1] Certificates fails to advance to the Trust amounts specified in the previous paragraph, the Sponsor will be required to purchase, and the other Assets has been taken or made; and
(vi) Holder of the proposed Transferor agrees Class R-[1] Certificates will be required to sell, the Class R-[1] Certificates and the Sponsor will assume all of the obligations imposed pursuant of the Holder of the R-[1] Certificates, including the obligation to Section 3make advances as provided in the preceding paragraph.
Appears in 1 contract
Samples: Trust Agreement (CWHEQ, Inc.)
Restrictions on Transfer; Legends. (a) The Series 2003-C Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Series 2003-C Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Series 2003-C Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Series 2003-C Transferor Certificate desiring to effect a transfer shall indemnify the Series 2003-C Subtrust and the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Series 2003-C Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Series 2003-C Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this the Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Series 2003-C Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Series 2003-C Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this the Agreement and the other Series 2003-C Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 4.05(d) and that all the conditions in this Section 3.10 4.05(d) have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 4.05(d) have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization treatment of the Series 2003-C Notes after the transfer as debt for federal and applicable State state income tax purposes,
(B) the transfer will not result in the Series 2003-C Subtrust or the Trust being subject to tax at the entity level for federal or applicable State state tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State state income taxation of any Holder of the Series 2003-C Notes or any person who is the beneficial owner of a Series 2003-C book-entry Note, and
(D) the transfer will not result in the Trust arrangement created by the Agreement or any "portion" of the Trust, being characterized treated as a taxable mortgage pool as defined in Section 7701(i) of the Code;
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust Series 2003-C Subtrust in the related Mortgage Loans and the other Assets related property conveyed to the Series 2003-C Subtrust has been taken or made; and
(vi) the proposed Transferor agrees to the obligations imposed pursuant to Section 34.06. The requirement that the proposed Transferor be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition has been satisfied taking that into account.
(e) Each Series 2003-C Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 4.05 of the Series 2003-C Trust Supplement to the CWABS Master Trust Agreement. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 4.05(c) of the Series 2003-C Trust Supplement to the CWABS Master Trust Agreement. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(f) No Series 2003-C Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust (or an affiliate of them)) to whom a Series 2003-C Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Series 2003-C Trust Supplement or the Master Trust Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 4.05 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of any outstanding Series of Notes and Transferor Certificates,
(ii) the characterization of the Trust as an entity that is not a publicly traded partnership taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Transferor Certificate (Cwabs Inc Revolving Home Eq Loan Asset BKD Notes Ser 2003-C)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by that Transferor any of them to one of its Affiliates), the Owner Trustee will require either:
(i1) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii2) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder Holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i1) a representation letter from the proposed Transferortransferee, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor transferee is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii2) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by the Transferor any of them to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Class R-1 Certificate after its initial issuance will be made unless:
(i1) the proposed Transferor is organized and existing under the laws of the United States or any State and Holder expressly assumes the performance of every obligation of the existing Transferor Holder under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,, including the obligation to advance funds to the Trust as necessary so that the Trust is able to pay the purchase price for Additional Home Equity Loans;
(ii2) the existing Transferor Holder delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;; and
(iii3) the Rating Agency Condition is satisfied with respect to the transfer;.
(ive) Each person who has or who acquires any ownership interest in a Residual Certificate by accepting its ownership interest agrees to the following provisions, and the rights of each person acquiring any ownership interest in a Residual Certificate are subject to the following provisions:
(1) Only Permitted Transferee may hold an ownership interest in a Residual Certificate and each person holding or acquiring any ownership interest in a Residual Certificate shall promptly notify the Indenture Trustee of any change or impending change in its status as a Permitted Transferee.
(2) No ownership interest in a Residual Certificate may be registered on the Closing Date or thereafter transferred, and the Indenture Trustee shall not register the transfer of any Residual Certificate unless the Indenture Trustee has received a Transfer Affidavit from the initial owner or the proposed Transferor transferee, except in connection with the registration of the Tax Matters Person Certificate in the name of the Indenture Trustee or any registration in the name of, or transfer of a Residual Certificate to, an Affiliate of the Depositor (either directly or through a nominee).
(3) Each person holding or acquiring any ownership interest in a Residual Certificate shall
(A) obtain a Transfer Affidavit from any other person it attempts to transfer its ownership interest in a Residual Certificate to,
(B) obtain a Transfer Affidavit from any person for whom it is acting as nominee, trustee, or agent in connection with any transfer of any ownership interest in a Residual Certificate, and
(C) not transfer its ownership interest in a Residual Certificate to any other person if it has actual knowledge that such person is not a Permitted Transferee.
(4) Any attempted transfer of any ownership interest in a Residual Certificate in violation of this Section 3.10(e) shall be void ab initio and shall vest no rights in the purported transferee. If any purported transferee becomes a Holder of a Residual Certificate in violation of this Section 3.10(e), then the last preceding Permitted Transferee shall be restored to all rights as Holder of the Residual Certificate retroactive to the date of registration of transfer of the Residual Certificate. The Indenture Trustee shall be under no liability to any person for any registration of transfer of a Residual Certificate that is in fact not permitted by this Section 3.10(e) or for making any payments due on the Residual Certificate to its Holder or taking any other action with respect to the Holder under this Agreement so long as the transfer was registered after receipt of the related Transfer Affidavit and any other required documents. The Indenture 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 the Residual Certificate at and after either such time. Any such payments so recovered by the Indenture Trustee shall be paid and delivered by the Indenture Trustee to the last preceding Permitted Transferee of the Residual Certificate.
(5) The Depositor shall use its best efforts to make available, upon receipt of written request from the Indenture Trustee, all information necessary to compute any tax imposed under Section 860E(e) of the Code as a result of a transfer of an ownership interest in a Residual Certificate to any Holder who is not a Permitted Transferee.
(f) Each Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 3.10 of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2006-F. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the Owner Trustee trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2006-F. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to Section 4975 of the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(g) No Certificate shall be transferred except to (i) the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, or the Trust (or an affiliate of them)) to whom a Certificate is proposed to be transferred will be required to certify to the holder of the R-1 Certificates, the Trust, and the Certificate Registrar that it is a qualified institutional buyer. The Class R-1 Certificates may not be transferred except to the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them).
(h) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect thatthat the amendment will not cause the imposition of any tax on any REMIC or the Certificateholders or Noteholders, or cause any REMIC to fail to qualify as a REMIC at any time that any Certificates or Notes are outstanding.
(Ai) The restrictions on transfers of a Residual Certificate in this Section 3.10 shall cease to apply (and the transfer applicable portions of the legend on a Residual Certificate may be deleted) with respect to transfers occurring after delivery to the Owner Trustee of an Opinion of Counsel to the effect that the elimination of the restrictions will not adversely affect cause any REMIC to fail to qualify as a REMIC at any time that the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not Certificates are outstanding or result in the Trust being subject imposition of any tax on the Trust, a Certificateholder, Noteholder, or another person. Each person holding or acquiring any ownership interest in a Residual Certificate consents to tax at any amendment of this Agreement that, based on an Opinion of Counsel furnished to the entity level for federal or applicable State tax purposes,Owner Trustee, is reasonably necessary
(C1) to ensure that the record ownership of, or any beneficial interest in, a Residual Certificate is not transferred, directly or indirectly, to a person that is not a Permitted Transferee or
(2) to provide for a means to compel the transfer will of a Residual Certificate that is held by a person that is not have a Permitted Transferee to a Holder that is a Permitted Transferee.
(j) Pursuant to the Sale and Servicing Agreement, Principal Collections may be applied to purchase Additional Balances for the Trust during a Collection Period. If on any material adverse effect on Collection Period Principal Collections are insufficient to purchase all Additional Balances, the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer Class R-1 Certificates will not result in advance funds to the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of to purchase the Code;
(v) all filings and other actions necessary Additional Balances that were not funded by Principal Collections. The Class R-1 Balance will be repaid to continue the perfection of the interest of the Trust in Class R-1 Certificates from Principal Collections on the Mortgage Loans allocated to the Certificates on future Payment Dates and will be entitled to allocation of Interest Collections on the Mortgage Loans. If the Holder of the Class R-1 Certificates fails to advance to the Trust amounts specified in the previous paragraph, the Sponsor will be required to purchase, and the other Assets has been taken or made; and
(vi) Holder of the proposed Transferor agrees Class R-1 Certificates will be required to sell, the Class R-1 Certificates and the Sponsor will assume all of the obligations imposed pursuant of the Holder of the R-1 Certificates, including the obligation to Section 3make advances as provided in the preceding paragraph.
Appears in 1 contract
Samples: Trust Agreement (CWHEQ Revolving Home Equity Loan Trust, Series 2006-F)
Restrictions on Transfer; Legends. (a) The Series 2002-C Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Series 2002-C Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Series 2002-C Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Series 2002-C Transferor Certificate desiring to effect a transfer shall indemnify the Series 2002-C Subtrust and the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Series 2002-C Transferor Certificate will be made after its initial issuance unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Series 2002-C Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this the Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Series 2002-C Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this the Agreement and the other Series 2002-C Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee and the Credit Enhancer an Officer's Certificate stating that the transfer complies with this Section 3.10 4.05(d) and that all the conditions in this Section 3.10 4.05(d) have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 4.05(d) have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee and the Credit Enhancer an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization treatment of the Series 2002-C Notes after the transfer as debt for federal and applicable State state income tax purposes,
(B) the transfer will not result in the Series 2002-C Subtrust or the Trust being subject to tax at the entity level for federal or applicable State state tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State state income taxation of any Holder of the Series 2002-C Notes or any person who is the beneficial owner of a Series 2002-C book-entry Note, and
(D) the transfer will not result in the Trust arrangement created by the Agreement or any "portion" of the Trust, being characterized treated as a taxable mortgage pool as defined in Section 7701(i) of the Code;
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust Series 2002-C Subtrust in the related Mortgage Loans and the other Assets related property conveyed to the Series 2002-C Subtrust has been taken or made; and
(vi) the proposed Transferor agrees to the obligations imposed pursuant to Section 34.06. The requirement that the proposed Transferor be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition has been satisfied taking that into account.
(e) Each Series 2002-C Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 4.05 of the Series 2002-C Trust Supplement to the CWABS Master Trust Agreement. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code as amended, or a person acting on behalf of or using the assets of any such plan, or an opinion of counsel in accordance with Section 4.05(c) of the Series 2002-C Trust Supplement to the CWABS Master Trust Agreement. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(f) No Series 2002-C Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust (or an affiliate of them)) to whom a Series 2002-C Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Series 2002-C Trust Supplement or the Master Trust Agreement to the contrary, the Depositor, without the consent of any Noteholder or Series 2002-C Transferor Certificateholder, may amend this Section 4.05 with the consent of the Credit Enhancer if it and the Credit Enhancer receive an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of any outstanding Series of Notes and Transferor Certificates,
(ii) the characterization of the Trust as an entity that is not a publicly traded partnership taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Transferor Certificate (Cwabs Inc)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "“transferred" ” or a "“transfer"”) only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "“Act"”) and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by that Transferor any of them to one of its Affiliates), the Owner Trustee will require either:
(i1) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii2) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder Holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i1) a representation letter from the proposed Transferortransferee, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor transferee is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii2) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-non exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by the Transferor any of them to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Class R-1 Certificate after its initial issuance will be made unless:
(i1) the proposed Transferor is organized and existing under the laws of the United States or any State and Holder expressly assumes the performance of every obligation of the existing Transferor Holder under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,;
(ii2) the existing Transferor Holder delivers to the Owner Trustee an Officer's ’s Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;; and
(iii3) the Rating Agency Condition is satisfied with respect to the transfer;.
(ive) Each person who has or who acquires any ownership interest in a Residual Certificate by accepting its ownership interest agrees to the following provisions, and the rights of each person acquiring any ownership interest in a Residual Certificate are subject to the following provisions:
(1) Only a Permitted Transferee may hold an ownership interest in a Residual Certificate and each person holding or acquiring any ownership interest in a Residual Certificate shall promptly notify the Indenture Trustee of any change or impending change in its status as a Permitted Transferee.
(2) No ownership interest in a Residual Certificate may be registered on the Closing Date or thereafter transferred, and the Indenture Trustee shall not register the transfer of any Residual Certificate unless the Indenture Trustee has received a Transfer Affidavit from the initial owner or the proposed transferee, except in connection with any registration in the name of, or transfer of a Residual Certificate to, an Affiliate of the Depositor (either directly or through a nominee).
(3) Each person holding or acquiring any ownership interest in a Residual Certificate shall
(A) obtain a Transfer Affidavit from any other person it attempts to transfer its ownership interest in a Residual Certificate to,
(B) obtain a Transfer Affidavit from any person for whom it is acting as nominee, trustee, or agent in connection with any transfer of any ownership interest in a Residual Certificate, and
(C) not transfer its ownership interest in a Residual Certificate to any other person if it has actual knowledge that such person is not a Permitted Transferee.
(4) Any attempted transfer of any ownership interest in a Residual Certificate in violation of this Section 3.10(e) shall be void ab initio and shall vest no rights in the purported transferee. If any purported transferee becomes a Holder of a Residual Certificate in violation of this Section 3.10(e), then the last preceding Permitted Transferee shall be restored to all rights as Holder of the Residual Certificate retroactive to the date of registration of transfer of the Residual Certificate. The Indenture Trustee shall be under no liability to any person for any registration of transfer of a Residual Certificate that is in fact not permitted by this Section 3.10(e) or for making any payments due on the Residual Certificate to its Holder or taking any other action with respect to the Holder under this Agreement so long as the transfer was registered after receipt of the related Transfer Affidavit and any other required documents. The Indenture 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 the Residual Certificate at and after either such time. Any such payments so recovered by the Indenture Trustee shall be paid and delivered by the Indenture Trustee to the last preceding Permitted Transferee of the Residual Certificate.
(5) The Depositor shall use its best efforts to make available, upon receipt of written request from the Indenture Trustee, all information necessary to compute any tax imposed under Section 860E(e) of the Code as a result of a transfer of an ownership interest in a Residual Certificate to any Holder who is not a Permitted Transferee.
(f) Each Certificate shall bear a legend substantially in the following form:
(g) No Certificate shall be transferred except to (i) the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, or the Trust (or an affiliate of them)) to whom a Certificate is proposed Transferor delivers to be transferred will be required to certify to the Owner Trustee holder of the R-1 Certificates, the Trust, and the Certificate Registrar that it is a qualified institutional buyer. The Class R-1 Certificates may not be transferred except to the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them). The Class R-1 Certificates may only be transferable in their entirety and may not have more than a single Certificateholder.
(h) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 if it receives an Opinion of Counsel to the effect thatthat the amendment will not cause the imposition of any tax on any REMIC or the Certificateholders or Noteholders, or cause any REMIC to fail to qualify as a REMIC at any time that any Certificates or Notes are outstanding.
(Ai) The restrictions on transfers of a Residual Certificate in this Section 3.10 shall cease to apply (and the transfer applicable portions of the legend on a Residual Certificate may be deleted) with respect to transfers occurring after delivery to the Owner Trustee of an Opinion of Counsel to the effect that the elimination of the restrictions will not adversely affect cause any REMIC to fail to qualify as a REMIC at any time that the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not Certificates are outstanding or result in the Trust being subject imposition of any tax on the Trust, a Certificateholder, Noteholder, or another person. Each person holding or acquiring any ownership interest in a Residual Certificate consents to tax at any amendment of this Agreement that, based on an Opinion of Counsel furnished to the entity level for federal or applicable State tax purposes,Owner Trustee, is reasonably necessary
(C1) to ensure that the record ownership of, or any beneficial interest in, a Residual Certificate is not transferred, directly or indirectly, to a person that is not a Permitted Transferee or
(2) to provide for a means to compel the transfer will not have any material adverse effect on the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer will Residual Certificate that is held by a person that is not result in the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of the Code;
(v) all filings and other actions necessary Permitted Transferee to continue the perfection of the interest of the Trust in the Mortgage Loans and the other Assets has been taken or made; and
(vi) the proposed Transferor agrees to the obligations imposed pursuant to Section 3a Holder that is a Permitted Transferee.
Appears in 1 contract
Samples: Trust Agreement (CWHEQ Revolving Home Equity Loan Trust, Series 2007-G)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by that Transferor any of them to one of its Affiliates), the Owner Trustee will require either:
(i1) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii2) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder Holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i1) a representation letter from the proposed Transferortransferee, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor transferee is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii2) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by the Transferor any of them to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Class R-1 Certificate after its initial issuance will be made unless:
(i1) the proposed Transferor is organized and existing under the laws of the United States or any State and Holder expressly assumes the performance of every obligation of the existing Transferor Holder under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,, including the obligation to advance funds to the Trust as necessary so that the Trust is able to pay the purchase price for Additional Home Equity Loans;
(ii2) the existing Transferor Holder delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;; and
(iii3) the Rating Agency Condition is satisfied with respect to the transfer;.
(ive) Each person who has or who acquires any ownership interest in a Residual Certificate by accepting its ownership interest agrees to the following provisions, and the rights of each person acquiring any ownership interest in a Residual Certificate are subject to the following provisions:
(1) Only Permitted Transferee may hold an ownership interest in a Residual Certificate and each person holding or acquiring any ownership interest in a Residual Certificate shall promptly notify the Indenture Trustee of any change or impending change in its status as a Permitted Transferee.
(2) No ownership interest in a Residual Certificate may be registered on the Closing Date or thereafter transferred, and the Indenture Trustee shall not register the transfer of any Residual Certificate unless the Indenture Trustee has received a Transfer Affidavit from the initial owner or the proposed Transferor transferee, except in connection with the registration of the Tax Matters Person Certificate in the name of the Indenture Trustee or any registration in the name of, or transfer of a Residual Certificate to, an Affiliate of the Depositor (either directly or through a nominee).
(3) Each person holding or acquiring any ownership interest in a Residual Certificate shall
(A) obtain a Transfer Affidavit from any other person it attempts to transfer its ownership interest in a Residual Certificate to,
(B) obtain a Transfer Affidavit from any person for whom it is acting as nominee, trustee, or agent in connection with any transfer of any ownership interest in a Residual Certificate, and
(C) not transfer its ownership interest in a Residual Certificate to any other person if it has actual knowledge that such person is not a Permitted Transferee.
(4) Any attempted transfer of any ownership interest in a Residual Certificate in violation of this Section 3.10(e) shall be void ab initio and shall vest no rights in the purported transferee. If any purported transferee becomes a Holder of a Residual Certificate in violation of this Section 3.10(e), then the last preceding Permitted Transferee shall be restored to all rights as Holder of the Residual Certificate retroactive to the date of registration of transfer of the Residual Certificate. The Indenture Trustee shall be under no liability to any person for any registration of transfer of a Residual Certificate that is in fact not permitted by this Section 3.10(e) or for making any payments due on the Residual Certificate to its Holder or taking any other action with respect to the Holder under this Agreement so long as the transfer was registered after receipt of the related Transfer Affidavit and any other required documents. The Indenture 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 the Residual Certificate at and after either such time. Any such payments so recovered by the Indenture Trustee shall be paid and delivered by the Indenture Trustee to the last preceding Permitted Transferee of the Residual Certificate.
(5) The Depositor shall use its best efforts to make available, upon receipt of written request from the Indenture Trustee, all information necessary to compute any tax imposed under Section 860E(e) of the Code as a result of a transfer of an ownership interest in a Residual Certificate to any Holder who is not a Permitted Transferee.
(f) Each Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 3.10 of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2006-A. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the Owner Trustee trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2006-A. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to Section 4975 of the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(g) No Certificate shall be transferred except to (i) the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, or the Trust (or an affiliate of them)) to whom a Certificate is proposed to be transferred will be required to certify to the holder of the R-1 Certificates, the Trust, and the Certificate Registrar that it is a qualified institutional buyer. The Class R-1 Certificates may not be transferred except to the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them).
(h) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 if it receives an Opinion of Counsel to the effect thatthat the amendment will not cause the imposition of any tax on any REMIC or the Certificateholders or Noteholders, or cause any REMIC to fail to qualify as a REMIC at any time that any Certificates or Notes are outstanding.
(Ai) The restrictions on transfers of a Residual Certificate in this Section 3.10 shall cease to apply (and the transfer applicable portions of the legend on a Residual Certificate may be deleted) with respect to transfers occurring after delivery to the Owner Trustee of an Opinion of Counsel to the effect that the elimination of the restrictions will not adversely affect cause any REMIC to fail to qualify as a REMIC at any time that the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not Certificates are outstanding or result in the Trust being subject imposition of any tax on the Trust, a Certificateholder, Noteholder, or another person. Each person holding or acquiring any ownership interest in a Residual Certificate consents to tax at any amendment of this Agreement that, based on an Opinion of Counsel furnished to the entity level for federal or applicable State tax purposes,Owner Trustee, is reasonably necessary
(C1) to ensure that the record ownership of, or any beneficial interest in, a Residual Certificate is not transferred, directly or indirectly, to a person that is not a Permitted Transferee or
(2) to provide for a means to compel the transfer will of a Residual Certificate that is held by a person that is not have a Permitted Transferee to a Holder that is a Permitted Transferee.
(j) Pursuant to the Sale and Servicing Agreement, Principal Collections may be applied to purchase Additional Balances for the Trust during a Collection Period. If on any material adverse effect on Collection Period Principal Collections are insufficient to purchase all Additional Balances, the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer Class R-1 Certificates will not result in advance funds to the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of to purchase the Code;
(v) all filings and other actions necessary Additional Balances that were not funded by Principal Collections. The Class R-1 Balance will be repaid to continue the perfection of the interest of the Trust in Class R-1 Certificates from Principal Collections on the Mortgage Loans allocated to the Certificates on future Payment Dates and will be entitled to allocation of Interest Collections on the Mortgage Loans. If the Holder of the Class R-1 Certificates fails to advance to the Trust amounts specified in the previous paragraph, the Sponsor will be required to purchase, and the other Assets has been taken or made; and
(vi) Holder of the proposed Transferor agrees Class R-1 Certificates will be required to sell, the Class R-1 Certificates and the Sponsor will assume all of the obligations imposed pursuant of the Holder of the R-1 Certificates, including the obligation to Section 3make advances as provided in the preceding paragraph.
Appears in 1 contract
Samples: Trust Agreement (CWHEQ Revolving Home Equity Loan Trust, Series 2006-A)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by that Transferor any of them to one of its Affiliates), the Owner Trustee will require either:
(i1) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii2) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder Holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i1) a representation letter from the proposed Transferortransferee, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor transferee is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii2) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by the Transferor any of them to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Class R-1 Certificate after its initial issuance will be made unless:
(i1) the proposed Transferor is organized and existing under the laws of the United States or any State and Holder expressly assumes the performance of every obligation of the existing Transferor Holder under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,, including the obligation to advance funds to the Trust as necessary so that the Trust is able to pay the purchase price for Additional Home Equity Loans;
(ii2) the existing Transferor Holder delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;; and
(iii3) the Rating Agency Condition is satisfied with respect to the transfer;.
(ive) Each person who has or who acquires any ownership interest in a Residual Certificate by accepting its ownership interest agrees to the following provisions, and the rights of each person acquiring any ownership interest in a Residual Certificate are subject to the following provisions:
(1) Only Permitted Transferee may hold an ownership interest in a Residual Certificate and each person holding or acquiring any ownership interest in a Residual Certificate shall promptly notify the Indenture Trustee of any change or impending change in its status as a Permitted Transferee.
(2) No ownership interest in a Residual Certificate may be registered on the Closing Date or thereafter transferred, and the Indenture Trustee shall not register the transfer of any Residual Certificate unless the Indenture Trustee has received a Transfer Affidavit from the initial owner or the proposed transferee, except in connection with the registration of the Tax Matters Person Certificate in the name of the Indenture Trustee or any registration in the name of, or transfer of a Residual Certificate to, an Affiliate of the Depositor (either directly or through a nominee).
(3) Each person holding or acquiring any ownership interest in a Residual Certificate shall
(A) obtain a Transfer Affidavit from any other person it attempts to transfer its ownership interest in a Residual Certificate to,
(B) obtain a Transfer Affidavit from any person for whom it is acting as nominee, trustee, or agent in connection with any transfer of any ownership interest in a Residual Certificate, and
(C) not transfer its ownership interest in a Residual Certificate to any other person if it has actual knowledge that such person is not a Permitted Transferee.
(4) Any attempted transfer of any ownership interest in a Residual Certificate in violation of this Section 3.10(e) shall be void ab initio and shall vest no rights in the purported transferee. If any purported transferee becomes a Holder of a Residual Certificate in violation of this Section 3.10(e), then the last preceding Permitted Transferee shall be restored to all rights as Holder of the Residual Certificate retroactive to the date of registration of transfer of the Residual Certificate. The Indenture Trustee shall be under no liability to any person for any registration of transfer of a Residual Certificate that is in fact not permitted by this Section 3.10(e) or for making any payments due on the Residual Certificate to its Holder or taking any other action with respect to the Holder under this Agreement so long as the transfer was registered after receipt of the related Transfer Affidavit and any other required documents. The Indenture 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 the Residual Certificate at and after either such time. Any such payments so recovered by the Indenture Trustee shall be paid and delivered by the Indenture Trustee to the last preceding Permitted Transferee of the Residual Certificate.
(5) The Depositor shall use its best efforts to make available, upon receipt of written request from the Indenture Trustee, all information necessary to compute any tax imposed under Section 860E(e) of the Code as a result of a transfer of an ownership interest in a Residual Certificate to any Holder who is not a Permitted Transferee.
(f) Each Certificate shall bear a legend substantially in the following form: THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933 AND THE SECURITIES LAWS OF ANY STATE OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933 AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH SECTION 3.10 OF THE TRUST AGREEMENT RELATED TO CWHEQ REVOLVING HOME EQUITY LOAN TRUST, SERIES 2006-H. NEITHER THIS CERTIFICATE NOR ANY INTEREST IN IT MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT THAT THE TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, A PLAN SUBJECT TO SECTION 4975 OF THE CODE, AS AMENDED, OR A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN; OR AN OPINION OF COUNSEL IN ACCORDANCE WITH SECTION 3.10(C) OF THE TRUST AGREEMENT RELATED TO CWHEQ REVOLVING HOME EQUITY LOAN TRUST, SERIES 2006-H. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO SECTION 4975 OF THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID.
(g) No Certificate shall be transferred except to (i) the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, or the Trust (or an affiliate of them)) to whom a Certificate is proposed Transferor delivers to be transferred will be required to certify to the Owner Trustee holder of the R-1 Certificates, the Trust, and the Certificate Registrar that it is a qualified institutional buyer. The Class R-1 Certificates may not be transferred except to the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them).
(h) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect thatthat the amendment will not cause the imposition of any tax on any REMIC or the Certificateholders or Noteholders, or cause any REMIC to fail to qualify as a REMIC at any time that any Certificates or Notes are outstanding.
(Ai) The restrictions on transfers of a Residual Certificate in this Section 3.10 shall cease to apply (and the transfer applicable portions of the legend on a Residual Certificate may be deleted) with respect to transfers occurring after delivery to the Owner Trustee of an Opinion of Counsel to the effect that the elimination of the restrictions will not adversely affect cause any REMIC to fail to qualify as a REMIC at any time that the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not Certificates are outstanding or result in the Trust being subject imposition of any tax on the Trust, a Certificateholder, Noteholder, or another person. Each person holding or acquiring any ownership interest in a Residual Certificate consents to tax at any amendment of this Agreement that, based on an Opinion of Counsel furnished to the entity level for federal or applicable State tax purposes,Owner Trustee, is reasonably necessary
(C1) to ensure that the record ownership of, or any beneficial interest in, a Residual Certificate is not transferred, directly or indirectly, to a person that is not a Permitted Transferee or
(2) to provide for a means to compel the transfer will of a Residual Certificate that is held by a person that is not have a Permitted Transferee to a Holder that is a Permitted Transferee.
(j) Pursuant to the Sale and Servicing Agreement, Principal Collections may be applied to purchase Additional Balances for the Trust during a Collection Period. If on any material adverse effect on Collection Period Principal Collections are insufficient to purchase all Additional Balances, the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer Class R-1 Certificates will not result in advance funds to the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of to purchase the Code;
(v) all filings and other actions necessary Additional Balances that were not funded by Principal Collections. The Class R-1 Balance will be repaid to continue the perfection of the interest of the Trust in Class R-1 Certificates from Principal Collections on the Mortgage Loans allocated to the Certificates on future Payment Dates and will be entitled to allocation of Interest Collections on the Mortgage Loans. If the Holder of the Class R-1 Certificates fails to advance to the Trust amounts specified in the previous paragraph, the Sponsor will be required to purchase, and the other Assets has been taken or made; and
(vi) Holder of the proposed Transferor agrees Class R-1 Certificates will be required to sell, the Class R-1 Certificates and the Sponsor will assume all of the obligations imposed pursuant of the Holder of the R-1 Certificates, including the obligation to Section 3make advances as provided in the preceding paragraph.
Appears in 1 contract
Samples: Trust Agreement (CWHEQ Revolving Home Equity Loan Trust, Series 2006-H)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by that Transferor any of them to one of its Affiliates), the Owner Trustee will require either:
(i1) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii2) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder Holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i1) a representation letter from the proposed Transferortransferee, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor transferee is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii2) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by the Transferor any of them to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Class R-1 Certificate after its initial issuance will be made unless:
(i1) the proposed Transferor is organized and existing under the laws of the United States or any State and Holder expressly assumes the performance of every obligation of the existing Transferor Holder under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,, including the obligation to advance funds to the Trust as necessary so that the Trust is able to pay the purchase price for Additional Home Equity Loans;
(ii2) the existing Transferor Holder delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;; and
(iii3) the Rating Agency Condition is satisfied with respect to the transfer;.
(ive) Each person who has or who acquires any ownership interest in a Residual Certificate by accepting its ownership interest agrees to the following provisions, and the rights of each person acquiring any ownership interest in a Residual Certificate are subject to the following provisions:
(1) Only Permitted Transferee may hold an ownership interest in a Residual Certificate and each person holding or acquiring any ownership interest in a Residual Certificate shall promptly notify the Indenture Trustee of any change or impending change in its status as a Permitted Transferee.
(2) No ownership interest in a Residual Certificate may be registered on the Closing Date or thereafter transferred, and the Indenture Trustee shall not register the transfer of any Residual Certificate unless the Indenture Trustee has received a Transfer Affidavit from the initial owner or the proposed Transferor transferee, except in connection with the registration of the Tax Matters Person Certificate in the name of the Indenture Trustee or any registration in the name of, or transfer of a Residual Certificate to, an Affiliate of the Depositor (either directly or through a nominee).
(3) Each person holding or acquiring any ownership interest in a Residual Certificate shall
(A) obtain a Transfer Affidavit from any other person it attempts to transfer its ownership interest in a Residual Certificate to,
(B) obtain a Transfer Affidavit from any person for whom it is acting as nominee, trustee, or agent in connection with any transfer of any ownership interest in a Residual Certificate, and
(C) not transfer its ownership interest in a Residual Certificate to any other person if it has actual knowledge that such person is not a Permitted Transferee.
(4) Any attempted transfer of any ownership interest in a Residual Certificate in violation of this Section 3.10(e) shall be void ab initio and shall vest no rights in the purported transferee. If any purported transferee becomes a Holder of a Residual Certificate in violation of this Section 3.10(e), then the last preceding Permitted Transferee shall be restored to all rights as Holder of the Residual Certificate retroactive to the date of registration of transfer of the Residual Certificate. The Indenture Trustee shall be under no liability to any person for any registration of transfer of a Residual Certificate that is in fact not permitted by this Section 3.10(e) or for making any payments due on the Residual Certificate to its Holder or taking any other action with respect to the Holder under this Agreement so long as the transfer was registered after receipt of the related Transfer Affidavit and any other required documents. The Indenture 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 the Residual Certificate at and after either such time. Any such payments so recovered by the Indenture Trustee shall be paid and delivered by the Indenture Trustee to the last preceding Permitted Transferee of the Residual Certificate.
(5) The Depositor shall use its best efforts to make available, upon receipt of written request from the Indenture Trustee, all information necessary to compute any tax imposed under Section 860E(e) of the Code as a result of a transfer of an ownership interest in a Residual Certificate to any Holder who is not a Permitted Transferee.
(f) Each Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 3.10 of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2005-I. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the Owner Trustee trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2005-I. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(g) No Certificate shall be transferred except to (i) the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, or the Trust (or an affiliate of them)) to whom a Certificate is proposed to be transferred will be required to certify to the transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer. The Class R-1 Certificates may not be transferred except to the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them).
(h) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect thatthat the amendment will not cause the imposition of any tax on any REMIC or the Certificateholders or Noteholders, or cause any REMIC to fail to qualify as a REMIC at any time that any Certificates or Notes are outstanding.
(Ai) The restrictions on transfers of a Residual Certificate in this Section 3.10 shall cease to apply (and the transfer applicable portions of the legend on a Residual Certificate may be deleted) with respect to transfers occurring after delivery to the Owner Trustee of an Opinion of Counsel to the effect that the elimination of the restrictions will not adversely affect cause any REMIC to fail to qualify as a REMIC at any time that the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not Certificates are outstanding or result in the Trust being subject imposition of any tax on the Trust, a Certificateholder, Noteholder, or another person. Each person holding or acquiring any ownership interest in a Residual Certificate consents to tax at any amendment of this Agreement that, based on an Opinion of Counsel furnished to the entity level for federal or applicable State tax purposes,Owner Trustee, is reasonably necessary
(C1) to ensure that the record ownership of, or any beneficial interest in, a Residual Certificate is not transferred, directly or indirectly, to a person that is not a Permitted Transferee or
(2) to provide for a means to compel the transfer will of a Residual Certificate that is held by a person that is not have a Permitted Transferee to a Holder that is a Permitted Transferee.
(j) Pursuant to the Sale and Servicing Agreement, Principal Collections may be applied to purchase Additional Balances for the Trust during a Collection Period. If on any material adverse effect on Collection Period Principal Collections are insufficient to purchase all Additional Balances, the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer Class R-1 Certificates will not result in advance funds to the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of to purchase the Code;
(v) all filings and other actions necessary Additional Balances that were not funded by Principal Collections. The Class R-1 Balance will be repaid to continue the perfection of the interest of the Trust in Class R-1 Certificates from Principal Collections on the Mortgage Loans allocated to the Certificates on future Payment Dates and will be entitled to allocation of Interest Collections on the Mortgage Loans. If the Holder of the Class R-1 Certificates fails to advance to the Trust amounts specified in the previous paragraph, the Sponsor will be required to purchase, and the other Assets has been taken or made; and
(vi) Holder of the proposed Transferor agrees Class R-1 Certificates will be required to sell, the Class R-1 Certificates and the Sponsor will assume all of the obligations imposed pursuant of the Holder of the R-1 Certificates, including the obligation to Section 3make advances as provided in the preceding paragraph.
Appears in 1 contract
Samples: Trust Agreement (CWHEQ Revolving Home Equity Loan Trust, Series 2005-I)
Restrictions on Transfer; Legends. (a) The Series 2003-E Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Series 2003-E Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Series 2003-E Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Series 2003-E Transferor Certificate desiring to effect a transfer shall indemnify the Series 2003-E Subtrust and the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Series 2003-E Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Series 2003-E Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this the Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Series 2003-E Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Series 2003-E Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this the Agreement and the other Series 2003-E Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 4.05(d) and that all the conditions in this Section 3.10 4.05(d) have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 4.05(d) have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization treatment of the Series 2003-E Notes after the transfer as debt for federal and applicable State state income tax purposes,
(B) the transfer will not result in the Series 2003-E Subtrust or the Trust being subject to tax at the entity level for federal or applicable State state tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State state income taxation of any Holder of the Series 2003-E Notes or any person who is the beneficial owner of a Series 2003-E book-entry Note, and
(D) the transfer will not result in the Trust arrangement created by the Agreement or any "portion" of the Trust, being characterized treated as a taxable mortgage pool as defined in Section 7701(i) of the Code;
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust Series 2003-E Subtrust in the related Mortgage Loans and the other Assets related property conveyed to the Series 2003-E Subtrust has been taken or made; and
(vi) the proposed Transferor agrees to the obligations imposed pursuant to Section 34.06. The requirement that the proposed Transferor be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition has been satisfied taking that into account.
(e) Each Series 2003-E Transferor Certificate shall bear a legend substantially in the following form: THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933 AND THE SECURITIES LAWS OF ANY STATE OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933 AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH SECTION 4.05 OF THE SERIES 2003-E TRUST SUPPLEMENT TO THE CWABS MASTER TRUST AGREEMENT. NEITHER THIS CERTIFICATE NOR ANY INTEREST IN IT MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT THAT THE TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, A PLAN SUBJECT TO SECTION 4975 OF THE CODE, AS AMENDED, OR A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN; OR AN OPINION OF COUNSEL IN ACCORDANCE WITH SECTION 4.05(C) OF THE SERIES 2003-E TRUST SUPPLEMENT TO THE CWABS MASTER TRUST AGREEMENT. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID.
(f) No Series 2003-E Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust (or an affiliate of them)) to whom a Series 2003-E Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Series 2003-E Trust Supplement or the Master Trust Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 4.05 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of any outstanding Series of Notes and Transferor Certificates,
(ii) the characterization of the Trust as an entity that is not a publicly traded partnership taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Transferor Certificate (Cwabs Revolving Home Equity Ln Asset Backed Notes Ser 2003-E)
Restrictions on Transfer; Legends. (a) The Series 2002-H Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Series 2002-H Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Series 2002-H Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Series 2002-H Transferor Certificate desiring to effect a transfer shall indemnify the Series 2002-H Subtrust and the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Series 2002-H Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Series 2002-H Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this the Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Series 2002-H Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Series 2002-H Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this the Agreement and the other Series 2002-H Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 4.05(d) and that all the conditions in this Section 3.10 4.05(d) have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 4.05(d) have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization treatment of the Series 2002-H Notes after the transfer as debt for federal and applicable State state income tax purposes,
(B) the transfer will not result in the Series 2002-H Subtrust or the Trust being subject to tax at the entity level for federal or applicable State state tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State state income taxation of any Holder of the Series 2002-H Notes or any person who is the beneficial owner of a Series 2002-H book-entry Note, and
(D) the transfer will not result in the Trust arrangement created by the Agreement or any "portion" of the Trust, being characterized treated as a taxable mortgage pool as defined in Section 7701(i) of the Code;
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust Series 2002-H Subtrust in the related Mortgage Loans and the other Assets related property conveyed to the Series 2002-H Subtrust has been taken or made; and
(vi) the proposed Transferor agrees to the obligations imposed pursuant to Section 34.06. The requirement that the proposed Transferor be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition has been satisfied taking that into account.
(e) Each Series 2002-H Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 4.05 of the Series 2002-H Trust Supplement to the CWABS Master Trust Agreement. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 4.05(c) of the Series 2002-H Trust Supplement to the CWABS Master Trust Agreement. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
Appears in 1 contract
Samples: Transferor Certificate (Cwabs Inc)
Restrictions on Transfer; Legends. Prior to any proposed transfer (awhether by sale, assignment, pledge or otherwise) The Transferor Certificates shall be assignedof Shares, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 proposed transferor (the "ActTransferor") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate will give written notice to the Transferor (Company of his intention to effect such transfer. Each such notice shall describe the manner and any subsequent circumstances of the proposed transfer in sufficient detail, and shall be accompanied by that Transferor to one a written opinion of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance legal counsel who shall be reasonably satisfactory to the Owner Trustee certifying Company, addressed to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner TrusteeCompany, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 transfer of the Codesecurities in question may be effected without registration under the Securities Act, nor a person acting on behalf of, or investing plan assets of, any and that such plan, proposed transfer does call into question the exemption from registration under which representation letter shall not such Shares were initially issued by the Company. Any such legal opinion must be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable reasonably satisfactory to the Owner Trustee Company and must state that it may also be relied upon by any transfer agent, stock exchange or counsel to the effect that the purchase or holding Company. The Company may also require a certificate of the Transferor Certificate will not result that certifies as to matters that assist the Company in a non-exempt prohibited transaction under ERISA or Section 4975 establishing compliance with securities laws at the time of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense original issuance of the Owner Trustee or Shares as well as at the Depositor; except that, in the case time of the initial issuance of a Transferor Certificate proposed transfer (including without limitation, the representations set forth on Exhibit B attached hereto). Upon compliance with the terms hereof to the satisfaction of the Company, the Transferor (and any subsequent shall be entitled to transfer such securities in accordance with the terms of the notice delivered by the Transferor to one of its Affiliatesthe Company. Each certificate evidencing the Shares so transferred shall bear an appropriate restrictive legend reasonably deemed appropriate by the Company, including any appropriate legend relating to the restrictions and obligations under this Agreement. The Transferor will, prior to any transfer (unless such transfer is made pursuant to Rule 144 or an effective registration statement under the Securities Act), cause any transferee of the representation in clause (i) Shares, to enter into an agreement with the Company that the transferee will take and hold such securities subject to the provisions and upon the conditions specified herein. Without limiting the generality of any other provision hereof, the provisions of this Section 16.3 shall be deemed to binding on successive transferees. The Company shall have been made.
(d) No transfer of an interest in a Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every no obligation of the existing Transferor under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not result in the Trust being subject to tax at the entity level for federal or applicable State tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer will not result in the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of the Code;
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust in the Mortgage Loans and the other Assets has been taken or made; and
(vi) the proposed Transferor agrees to the obligations imposed pursuant to Section 3.to
Appears in 1 contract
Restrictions on Transfer; Legends. (a) The Series 2002-G Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Series 2002-G Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Series 2002-G Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Series 2002-G Transferor Certificate desiring to effect a transfer shall indemnify the Series 2002-G Subtrust and the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Series 2002-G Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Series 2002-G Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this the Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; , except that, in the case of the initial issuance of a Series 2002-G Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Series 2002-G Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this the Agreement and the other Series 2002-G Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 4.05(d) and that all the conditions in this Section 3.10 4.05(d) have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 4.05(d) have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization treatment of the Series 2002-G Notes after the transfer as debt for federal and applicable State state income tax purposes,
(B) the transfer will not result in the Series 2002-G Subtrust or the Trust being subject to tax at the entity level for federal or applicable State state tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State state income taxation of any Holder of the Series 2002-G Notes or any person who is the beneficial owner of a Series 2002-G book-entry Note, and
(D) the transfer will not result in the Trust arrangement created by the Agreement or any "portion" of the Trust, being characterized treated as a taxable mortgage pool as defined in Section 7701(i) of the Code;
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust Series 2002-G Subtrust in the related Mortgage Loans and the other Assets related property conveyed to the Series 2002-G Subtrust has been taken or made; and
(vi) the proposed Transferor agrees to the obligations imposed pursuant to Section 34.06. The requirement that the proposed Transferor be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition has been satisfied taking that into account.
(e) Each Series 2002-G Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 4.05 of the Series 2002-G Trust Supplement to the CWABS Master Trust Agreement. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 4.05(c) of the Series 2002-G Trust Supplement to the CWABS Master Trust Agreement. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(f) No Series 2002-G Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust (or an affiliate of them)) to whom a Series 2002-G Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Series 2002-G Trust Supplement or the Master Trust Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 4.05 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of any outstanding Series of Notes and Transferor Certificates,
(ii) the characterization of the Trust as an entity that is not a publicly traded partnership taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Transferor Certificate (Cwabs Inc)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not result in the Trust being subject to tax at the entity level for federal or applicable State tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer will not result in the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of the Code;; and
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust in the Mortgage Loans and the other Assets has been taken or made; and
(vi) . The requirement that the proposed Transferor agrees be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition (without regard to the obligations imposed Policy, as defined in the Indenture) has been satisfied taking that into account.
(e) Each Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 33.10 of the Trust Agreement related to CWABS Revolving Home Equity Loan Trust, Series 2004-T. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWABS Revolving Home Equity Loan Trust, Series 2004-T. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(f) No Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust (or an affiliate of them)) to whom a Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of the outstanding Notes and Transferor Certificates for federal or applicable state income tax purposes,
(ii) the characterization of the Trust as an entity that is not a publicly traded partnership or other business entity taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Trust Agreement (CWABS Revolving Home Equity Loan Trust, Series 2004-T)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not result in the Trust being subject to tax at the entity level for federal or applicable State tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer will not result in the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of the Code;
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust in the Mortgage Loans and the other Assets has been taken or made; and
(vi) the proposed Transferor agrees to the obligations imposed pursuant to Section 33.11. The requirement that the proposed Transferor be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition (without regard to the Policy, as defined in the Indenture) has been satisfied taking that into account.
(e) Each Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 3.10 of the Trust Agreement related to CWABS Revolving Home Equity Loan Trust, Series 2004-F. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWABS Revolving Home Equity Loan Trust, Series 2004-F. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(f) No Transferor Certificate shall be transferred except to (i)the Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust (or an affiliate of them)) to whom a Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Trust Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of the outstanding Notes and Transferor Certificates for federal or applicable state income tax purposes,
(ii) the characterization of the Trust as an entity that is not a publicly traded partnership or other business entity taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Trust Agreement (CWABS Revolving Home Equity Loan Trust, Series 2004-F)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by that Transferor any of them to one of its Affiliates), the Owner Trustee will require either:
(i1) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii2) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder Holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i1) a representation letter from the proposed Transferortransferee, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor transferee is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii2) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by the Transferor any of them to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Class R-1 Certificate after its initial issuance will be made unless:
(i1) the proposed Transferor is organized and existing under the laws of the United States or any State and Holder expressly assumes the performance of every obligation of the existing Transferor Holder under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,, including the obligation to advance funds to the Trust as necessary so that the Trust is able to pay the purchase price for Additional Home Equity Loans;
(ii2) the existing Transferor Holder delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;; and
(iii3) the Rating Agency Condition is satisfied with respect to the transfer;.
(ive) Each person who has or who acquires any ownership interest in a Residual Certificate by accepting its ownership interest agrees to the following provisions, and the rights of each person acquiring any ownership interest in a Residual Certificate are subject to the following provisions:
(1) Only Permitted Transferee may hold an ownership interest in a Residual Certificate and each person holding or acquiring any ownership interest in a Residual Certificate shall promptly notify the Indenture Trustee of any change or impending change in its status as a Permitted Transferee.
(2) No ownership interest in a Residual Certificate may be registered on the Closing Date or thereafter transferred, and the Indenture Trustee shall not register the transfer of any Residual Certificate unless the Indenture Trustee has received a Transfer Affidavit from the initial owner or the proposed Transferor transferee, except in connection with the registration of the Tax Matters Person Certificate in the name of the Indenture Trustee or any registration in the name of, or transfer of a Residual Certificate to, an Affiliate of the Depositor (either directly or through a nominee).
(3) Each person holding or acquiring any ownership interest in a Residual Certificate shall
(A) obtain a Transfer Affidavit from any other person it attempts to transfer its ownership interest in a Residual Certificate to,
(B) obtain a Transfer Affidavit from any person for whom it is acting as nominee, trustee, or agent in connection with any transfer of any ownership interest in a Residual Certificate, and
(C) not transfer its ownership interest in a Residual Certificate to any other person if it has actual knowledge that such person is not a Permitted Transferee.
(4) Any attempted transfer of any ownership interest in a Residual Certificate in violation of this Section 3.10(e) shall be void ab initio and shall vest no rights in the purported transferee. If any purported transferee becomes a Holder of a Residual Certificate in violation of this Section 3.10(e), then the last preceding Permitted Transferee shall be restored to all rights as Holder of the Residual Certificate retroactive to the date of registration of transfer of the Residual Certificate. The Indenture Trustee shall be under no liability to any person for any registration of transfer of a Residual Certificate that is in fact not permitted by this Section 3.10(e) or for making any payments due on the Residual Certificate to its Holder or taking any other action with respect to the Holder under this Agreement so long as the transfer was registered after receipt of the related Transfer Affidavit and any other required documents. The Indenture 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 the Residual Certificate at and after either such time. Any such payments so recovered by the Indenture Trustee shall be paid and delivered by the Indenture Trustee to the last preceding Permitted Transferee of the Residual Certificate.
(5) The Depositor shall use its best efforts to make available, upon receipt of written request from the Indenture Trustee, all information necessary to compute any tax imposed under Section 860E(e) of the Code as a result of a transfer of an ownership interest in a Residual Certificate to any Holder who is not a Permitted Transferee.
(f) Each Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 3.10 of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2005-M. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the Owner Trustee trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2005-M. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(g) No Certificate shall be transferred except to (i) the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, or the Trust (or an affiliate of them)) to whom a Certificate is proposed to be transferred will be required to certify to the transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer. The Class R-1 Certificates may not be transferred except to the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them).
(h) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect thatthat the amendment will not cause the imposition of any tax on any REMIC or the Certificateholders or Noteholders, or cause any REMIC to fail to qualify as a REMIC at any time that any Certificates or Notes are outstanding.
(Ai) The restrictions on transfers of a Residual Certificate in this Section 3.10 shall cease to apply (and the transfer applicable portions of the legend on a Residual Certificate may be deleted) with respect to transfers occurring after delivery to the Owner Trustee of an Opinion of Counsel to the effect that the elimination of the restrictions will not adversely affect cause any REMIC to fail to qualify as a REMIC at any time that the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not Certificates are outstanding or result in the Trust being subject imposition of any tax on the Trust, a Certificateholder, Noteholder, or another person. Each person holding or acquiring any ownership interest in a Residual Certificate consents to tax at any amendment of this Agreement that, based on an Opinion of Counsel furnished to the entity level for federal or applicable State tax purposes,Owner Trustee, is reasonably necessary
(C1) to ensure that the record ownership of, or any beneficial interest in, a Residual Certificate is not transferred, directly or indirectly, to a person that is not a Permitted Transferee or
(2) to provide for a means to compel the transfer will of a Residual Certificate that is held by a person that is not have a Permitted Transferee to a Holder that is a Permitted Transferee.
(j) Pursuant to the Sale and Servicing Agreement, Principal Collections may be applied to purchase Additional Balances for the Trust during a Collection Period. If on any material adverse effect on Collection Period Principal Collections are insufficient to purchase all Additional Balances, the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer Class R-1 Certificates will not result in advance funds to the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of to purchase the Code;
(v) all filings and other actions necessary Additional Balances that were not funded by Principal Collections. The Class R-1 Balance will be repaid to continue the perfection of the interest of the Trust in Class R-1 Certificates from Principal Collections on the Mortgage Loans allocated to the Certificates on future Payment Dates and will be entitled to allocation of Interest Collections on the Mortgage Loans. If the Holder of the Class R-1 Certificates fails to advance to the Trust amounts specified in the previous paragraph, the Sponsor will be required to purchase, and the other Assets has been taken or made; and
(vi) Holder of the proposed Transferor agrees Class R-1 Certificates will be required to sell, the Class R-1 Certificates and the Sponsor will assume all of the obligations imposed pursuant of the Holder of the R-1 Certificates, including the obligation to Section 3make advances as provided in the preceding paragraph.
Appears in 1 contract
Samples: Trust Agreement (CWHEQ Revolving Home Equity Loan Trust, Series 2005-M)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by that Transferor any of them to one of its Affiliates), the Owner Trustee will require either:
(i1) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii2) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder Holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i1) a representation letter from the proposed Transferortransferee, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor transferee is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii2) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by the Transferor any of them to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Class R-1 Certificate after its initial issuance will be made unless:
(i1) the proposed Transferor is organized and existing under the laws of the United States or any State and Holder expressly assumes the performance of every obligation of the existing Transferor Holder under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,, including the obligation to advance funds to the Trust as necessary so that the Trust is able to pay the purchase price for Additional Home Equity Loans;
(ii2) the existing Transferor Holder delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;; and
(iii3) the Rating Agency Condition is satisfied with respect to the transfer;.
(ive) Each person who has or who acquires any ownership interest in a Residual Certificate by accepting its ownership interest agrees to the following provisions, and the rights of each person acquiring any ownership interest in a Residual Certificate are subject to the following provisions:
(1) Only Permitted Transferee may hold an ownership interest in a Residual Certificate and each person holding or acquiring any ownership interest in a Residual Certificate shall promptly notify the Indenture Trustee of any change or impending change in its status as a Permitted Transferee.
(2) No ownership interest in a Residual Certificate may be registered on the Closing Date or thereafter transferred, and the Indenture Trustee shall not register the transfer of any Residual Certificate unless the Indenture Trustee has received a Transfer Affidavit from the initial owner or the proposed Transferor transferee, except in connection with the registration of the Tax Matters Person Certificate in the name of the Indenture Trustee or any registration in the name of, or transfer of a Residual Certificate to, an Affiliate of the Depositor (either directly or through a nominee).
(3) Each person holding or acquiring any ownership interest in a Residual Certificate shall
(A) obtain a Transfer Affidavit from any other person it attempts to transfer its ownership interest in a Residual Certificate to,
(B) obtain a Transfer Affidavit from any person for whom it is acting as nominee, trustee, or agent in connection with any transfer of any ownership interest in a Residual Certificate, and
(C) not transfer its ownership interest in a Residual Certificate to any other person if it has actual knowledge that such person is not a Permitted Transferee.
(4) Any attempted transfer of any ownership interest in a Residual Certificate in violation of this Section 3.10(e) shall be void ab initio and shall vest no rights in the purported transferee. If any purported transferee becomes a Holder of a Residual Certificate in violation of this Section 3.10(e), then the last preceding Permitted Transferee shall be restored to all rights as Holder of the Residual Certificate retroactive to the date of registration of transfer of the Residual Certificate. The Indenture Trustee shall be under no liability to any person for any registration of transfer of a Residual Certificate that is in fact not permitted by this Section 3.10(e) or for making any payments due on the Residual Certificate to its Holder or taking any other action with respect to the Holder under this Agreement so long as the transfer was registered after receipt of the related Transfer Affidavit and any other required documents. The Indenture 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 the Residual Certificate at and after either such time. Any such payments so recovered by the Indenture Trustee shall be paid and delivered by the Indenture Trustee to the last preceding Permitted Transferee of the Residual Certificate.
(5) The Depositor shall use its best efforts to make available, upon receipt of written request from the Indenture Trustee, all information necessary to compute any tax imposed under Section 860E(e) of the Code as a result of a transfer of an ownership interest in a Residual Certificate to any Holder who is not a Permitted Transferee.
(f) Each Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 3.10 of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2007-B. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the Owner Trustee trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2007-B. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to Section 4975 of the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(g) No Certificate shall be transferred except to (i) the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, or the Trust (or an affiliate of them)) to whom a Certificate is proposed to be transferred will be required to certify to the holder of the R-1 Certificates, the Trust, and the Certificate Registrar that it is a qualified institutional buyer. The Class R-1 Certificates may not be transferred except to the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them).
(h) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect thatthat the amendment will not cause the imposition of any tax on any REMIC or the Certificateholders or Noteholders, or cause any REMIC to fail to qualify as a REMIC at any time that any Certificates or Notes are outstanding.
(Ai) The restrictions on transfers of a Residual Certificate in this Section 3.10 shall cease to apply (and the transfer applicable portions of the legend on a Residual Certificate may be deleted) with respect to transfers occurring after delivery to the Owner Trustee of an Opinion of Counsel to the effect that the elimination of the restrictions will not adversely affect cause any REMIC to fail to qualify as a REMIC at any time that the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not Certificates are outstanding or result in the Trust being subject imposition of any tax on the Trust, a Certificateholder, Noteholder, or another person. Each person holding or acquiring any ownership interest in a Residual Certificate consents to tax at any amendment of this Agreement that, based on an Opinion of Counsel furnished to the entity level for federal or applicable State tax purposes,Owner Trustee, is reasonably necessary
(C1) to ensure that the record ownership of, or any beneficial interest in, a Residual Certificate is not transferred, directly or indirectly, to a person that is not a Permitted Transferee or
(2) to provide for a means to compel the transfer will of a Residual Certificate that is held by a person that is not have a Permitted Transferee to a Holder that is a Permitted Transferee.
(j) Pursuant to the Sale and Servicing Agreement, Principal Collections may be applied to purchase Additional Balances for the Trust during a Collection Period. If on any material adverse effect on Collection Period Principal Collections are insufficient to purchase all Additional Balances, the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer Class R-1 Certificates will not result in advance funds to the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of to purchase the Code;
(v) all filings and other actions necessary Additional Balances that were not funded by Principal Collections. The Class R-1 Balance will be repaid to continue the perfection of the interest of the Trust in Class R-1 Certificates from Principal Collections on the Mortgage Loans allocated to the Certificates on future Payment Dates and will be entitled to allocation of Interest Collections on the Mortgage Loans. If the Holder of the Class R-1 Certificates fails to advance to the Trust amounts specified in the previous paragraph, the Sponsor will be required to purchase, and the other Assets has been taken or made; and
(vi) Holder of the proposed Transferor agrees Class R-1 Certificates will be required to sell, the Class R-1 Certificates and the Sponsor will assume all of the obligations imposed pursuant of the Holder of the R-1 Certificates, including the obligation to Section 3make advances as provided in the preceding paragraph.
Appears in 1 contract
Samples: Trust Agreement (CWHEQ Revolving Home Equity Loan Trust, Series 2007-B)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by that Transferor any of them to one of its Affiliates), the Owner Trustee will require either:
(i1) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii2) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder Holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i1) a representation letter from the proposed Transferortransferee, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor transferee is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii2) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by the Transferor any of them to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Class R-1 Certificate after its initial issuance will be made unless:
(i1) the proposed Transferor is organized and existing under the laws of the United States or any State and Holder expressly assumes the performance of every obligation of the existing Transferor Holder under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,, including the obligation to advance funds to the Trust as necessary so that the Trust is able to pay the purchase price for Additional Home Equity Loans;
(ii2) the existing Transferor Holder delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;; and
(iii3) the Rating Agency Condition is satisfied with respect to the transfer;.
(ive) Each person who has or who acquires any ownership interest in a Residual Certificate by accepting its ownership interest agrees to the following provisions, and the rights of each person acquiring any ownership interest in a Residual Certificate are subject to the following provisions:
(1) Only a Permitted Transferee may hold an ownership interest in a Residual Certificate and each person holding or acquiring any ownership interest in a Residual Certificate shall promptly notify the Indenture Trustee of any change or impending change in its status as a Permitted Transferee.
(2) No ownership interest in a Residual Certificate may be registered on the Closing Date or thereafter transferred, and the Indenture Trustee shall not register the transfer of any Residual Certificate unless the Indenture Trustee has received a Transfer Affidavit from the initial owner or the proposed Transferor transferee, except in connection with the registration of the Tax Matters Person Certificate in the name of the Indenture Trustee or any registration in the name of, or transfer of a Residual Certificate to, an Affiliate of the Depositor (either directly or through a nominee).
(3) Each person holding or acquiring any ownership interest in a Residual Certificate shall
(A) obtain a Transfer Affidavit from any other person it attempts to transfer its ownership interest in a Residual Certificate to,
(B) obtain a Transfer Affidavit from any person for whom it is acting as nominee, trustee, or agent in connection with any transfer of any ownership interest in a Residual Certificate, and
(C) not transfer its ownership interest in a Residual Certificate to any other person if it has actual knowledge that such person is not a Permitted Transferee.
(4) Any attempted transfer of any ownership interest in a Residual Certificate in violation of this Section 3.10(e) shall be void ab initio and shall vest no rights in the purported transferee. If any purported transferee becomes a Holder of a Residual Certificate in violation of this Section 3.10(e), then the last preceding Permitted Transferee shall be restored to all rights as Holder of the Residual Certificate retroactive to the date of registration of transfer of the Residual Certificate. The Indenture Trustee shall be under no liability to any person for any registration of transfer of a Residual Certificate that is in fact not permitted by this Section 3.10(e) or for making any payments due on the Residual Certificate to its Holder or taking any other action with respect to the Holder under this Agreement so long as the transfer was registered after receipt of the related Transfer Affidavit and any other required documents. The Indenture 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 the Residual Certificate at and after either such time. Any such payments so recovered by the Indenture Trustee shall be paid and delivered by the Indenture Trustee to the last preceding Permitted Transferee of the Residual Certificate.
(5) The Depositor shall use its best efforts to make available, upon receipt of written request from the Indenture Trustee, all information necessary to compute any tax imposed under Section 860E(e) of the Code as a result of a transfer of an ownership interest in a Residual Certificate to any Holder who is not a Permitted Transferee.
(f) Each Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 3.10 of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2005-L. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the Owner Trustee trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2005-L. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(g) No Certificate shall be transferred except to (i) the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, or the Trust (or an affiliate of them)) to whom a Certificate is proposed to be transferred will be required to certify to the transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer. The Class R-1 Certificates may not be transferred except to the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them).
(h) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect thatthat the amendment will not cause the imposition of any tax on any REMIC or the Certificateholders or Noteholders, or cause any REMIC to fail to qualify as a REMIC at any time that any Certificates or Notes are outstanding.
(Ai) The restrictions on transfers of a Residual Certificate in this Section 3.10 shall cease to apply (and the transfer applicable portions of the legend on a Residual Certificate may be deleted) with respect to transfers occurring after delivery to the Owner Trustee of an Opinion of Counsel to the effect that the elimination of the restrictions will not adversely affect cause any REMIC to fail to qualify as a REMIC at any time that the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not Certificates are outstanding or result in the Trust being subject imposition of any tax on the Trust, a Certificateholder, Noteholder, or another person. Each person holding or acquiring any ownership interest in a Residual Certificate consents to tax at any amendment of this Agreement that, based on an Opinion of Counsel furnished to the entity level for federal or applicable State tax purposes,Owner Trustee, is reasonably necessary
(C1) to ensure that the record ownership of, or any beneficial interest in, a Residual Certificate is not transferred, directly or indirectly, to a person that is not a Permitted Transferee or
(2) to provide for a means to compel the transfer will of a Residual Certificate that is held by a person that is not have a Permitted Transferee to a Holder that is a Permitted Transferee.
(j) Pursuant to the Sale and Servicing Agreement, Principal Collections may be applied to purchase Additional Balances for the Trust during a Collection Period. If on any material adverse effect on Collection Period Principal Collections are insufficient to purchase all Additional Balances, the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer Class R-1 Certificates will not result in advance funds to the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of to purchase the Code;
(v) all filings and other actions necessary Additional Balances that were not funded by Principal Collections. The Class R-1 Balance will be repaid to continue the perfection of the interest of the Trust in Class R-1 Certificates from Principal Collections on the Mortgage Loans allocated to the Certificates on future Payment Dates and will be entitled to allocation of Interest Collections on the Mortgage Loans. If the Holder of the Class R-1 Certificates fails to advance to the Trust amounts specified in the previous paragraph, the Sponsor will be required to purchase, and the other Assets has been taken or made; and
(vi) Holder of the proposed Transferor agrees Class R-1 Certificates will be required to sell, the Class R-1 Certificates and the Sponsor will assume all of the obligations imposed pursuant of the Holder of the R-1 Certificates, including the obligation to Section 3make advances as provided in the preceding paragraph.
Appears in 1 contract
Samples: Trust Agreement (CWHEQ Revolving Home Equity Loan Trust, Series 2005-L)
Restrictions on Transfer; Legends. (a) The Series 2000-D Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Series 2000-D Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Series 2000-D Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Series 2000-D Transferor Certificate desiring to effect a transfer shall indemnify the Series 2000-D Subtrust and the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Series 2000-D Transferor Certificate will be made after its initial issuance unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Series 2000-D Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code, will not result in the assets of the Series 2000-D Subtrust being deemed to be "plan assets" and subject to the prohibited transaction provisions of ERISA and the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this the Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Series 2000-D Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this the Agreement and the other Series 2000-D Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 4.05(d) and that all the conditions in this Section 3.10 4.05(d) have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 4.05(d) have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization treatment of the Series 2000-D Notes after the transfer as debt for federal and applicable State state income tax purposes,
(B) the transfer will not result in the Series 2000-D Subtrust or the Trust being subject to tax at the entity level for federal or applicable State state tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State state income taxation of any Holder of the Series 2000-D Notes or any person who is the beneficial owner of a Series 2000-D book-entry Note, and
(D) the transfer will not result in the Trust arrangement created by the Agreement or any "portion" of the Trust, being characterized treated as a taxable mortgage pool as defined in Section 7701(i) of the Code;
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust Series 2000-D Subtrust in the related Mortgage Loans and the other Assets related property conveyed to the Series 2000-D Subtrust has been taken or made; and
(vi) the proposed Transferor agrees to the obligations imposed pursuant to Section 34.06. The requirement that the proposed Transferor be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition has been satisfied taking that into account.
(e) Each Series 2000-D Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 4.05 of the Series 2000-D Trust Supplement to the CWABS Master Trust Agreement. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code as amended, or a person acting on behalf of or using the assets of any such plan, or that if the transferee is an insurance company, that the transferee is an insurance company that is purchasing this certificate with funds contained in an "insurance company general account" (as defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of this certificate are covered under Sections i and iii of PTCE 95-60; or an opinion of counsel in accordance with Section 4.05(c) of the Series 2000-D Trust Supplement to the CWABS Master Trust Agreement. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(f) No Series 2000-D Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust) to whom a Series 2000-D Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Series 2000-D Trust Supplement or the Master Trust Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 4.05 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of any outstanding Series of Notes and Transferor Certificates,
(ii) the characterization of the Trust as an entity that is not a publicly traded partnership taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Transferor Certificate (Cwabs Inc)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not result in the Trust being subject to tax at the entity level for federal or applicable State tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer will not result in the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of the Code;; and
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust in the Mortgage Loans and the other Assets has been taken or made; and
(vi) . The requirement that the proposed Transferor agrees be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition (without regard to the obligations imposed Policy, as defined in the Indenture) has been satisfied taking that into account.
(e) Each Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 33.10 of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2005-C. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2005-C. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(f) No Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust (or an affiliate of them)) to whom a Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of the outstanding Notes and Transferor Certificates for federal or applicable state income tax purposes,
(ii) the characterization of the Trust as taxable mortgage pool, an entity that is not a publicly traded partnership, or other business entity taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Trust Agreement (CWHEQ Revolving Home Equity Loan Asset Backed Notes, Series 2005-C)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by that Transferor any of them to one of its Affiliates), the Owner Trustee will require either:
(i1) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii2) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder Holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i1) a representation letter from the proposed Transferortransferee, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor transferee is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii2) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by the Transferor any of them to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Class R-[1] Certificate after its initial issuance will be made unless:
(i1) the proposed Transferor is organized and existing under the laws of the United States or any State and Holder expressly assumes the performance of every obligation of the existing Transferor Holder under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,, including the obligation to advance funds to the Trust as necessary so that the Trust is able to pay the purchase price for Additional Home Equity Loans;
(ii2) the existing Transferor Holder delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;; and
(iii3) the Rating Agency Condition is satisfied with respect to the transfer;.
(ive) Each person who has or who acquires any ownership interest in a Residual Certificate by accepting its ownership interest agrees to the following provisions, and the rights of each person acquiring any ownership interest in a Residual Certificate are subject to the following provisions:
(1) Only Permitted Transferee may hold an ownership interest in a Residual Certificate and each person holding or acquiring any ownership interest in a Residual Certificate shall promptly notify the Indenture Trustee of any change or impending change in its status as a Permitted Transferee.
(2) No ownership interest in a Residual Certificate may be registered on the Closing Date or thereafter transferred, and the Indenture Trustee shall not register the transfer of any Residual Certificate unless the Indenture Trustee has received a Transfer Affidavit from the initial owner or the proposed Transferor transferee, except in connection with the registration of the Tax Matters Person Certificate in the name of the Indenture Trustee or any registration in the name of, or transfer of a Residual Certificate to, an Affiliate of the Depositor (either directly or through a nominee).
(3) Each person holding or acquiring any ownership interest in a Residual Certificate shall
(A) obtain a Transfer Affidavit from any other person it attempts to transfer its ownership interest in a Residual Certificate to,
(B) obtain a Transfer Affidavit from any person for whom it is acting as nominee, trustee, or agent in connection with any transfer of any ownership interest in a Residual Certificate, and
(C) not transfer its ownership interest in a Residual Certificate to any other person if it has actual knowledge that such person is not a Permitted Transferee.
(4) Any attempted transfer of any ownership interest in a Residual Certificate in violation of this Section 3.10(e) shall be void ab initio and shall vest no rights in the purported transferee. If any purported transferee becomes a Holder of a Residual Certificate in violation of this Section 3.10(e), then the last preceding Permitted Transferee shall be restored to all rights as Holder of the Residual Certificate retroactive to the date of registration of transfer of the Residual Certificate. The Indenture Trustee shall be under no liability to any person for any registration of transfer of a Residual Certificate that is in fact not permitted by this Section 3.10(e) or for making any payments due on the Residual Certificate to its Holder or taking any other action with respect to the Holder under this Agreement so long as the transfer was registered after receipt of the related Transfer Affidavit and any other required documents. The Indenture 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 the Residual Certificate at and after either such time. Any such payments so recovered by the Indenture Trustee shall be paid and delivered by the Indenture Trustee to the last preceding Permitted Transferee of the Residual Certificate.
(5) The Depositor shall use its best efforts to make available, upon receipt of written request from the Indenture Trustee, all information necessary to compute any tax imposed under Section 860E(e) of the Code as a result of a transfer of an ownership interest in a Residual Certificate to any Holder who is not a Permitted Transferee.
(f) Each Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 3.10 of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 200_-_. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the Owner Trustee trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 200_-_. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(g) No Certificate shall be transferred except to (i) the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, or the Trust (or an affiliate of them)) to whom a Certificate is proposed to be transferred will be required to certify to the holder of the R-[1] Certificates, the Trust, and the Certificate Registrar that it is a qualified institutional buyer. The Class R-[1] Certificates may not be transferred except to the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them).
(h) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 if it receives an Opinion of Counsel to the effect thatthat the amendment will not cause the imposition of any tax on any REMIC or the Certificateholders or Noteholders, or cause any REMIC to fail to qualify as a REMIC at any time that any Certificates or Notes are outstanding.
(Ai) The restrictions on transfers of a Residual Certificate in this Section 3.10 shall cease to apply (and the transfer applicable portions of the legend on a Residual Certificate may be deleted) with respect to transfers occurring after delivery to the Owner Trustee of an Opinion of Counsel to the effect that the elimination of the restrictions will not adversely affect cause any REMIC to fail to qualify as a REMIC at any time that the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not Certificates are outstanding or result in the Trust being subject imposition of any tax on the Trust, a Certificateholder, Noteholder, or another person. Each person holding or acquiring any ownership interest in a Residual Certificate consents to tax at any amendment of this Agreement that, based on an Opinion of Counsel furnished to the entity level for federal or applicable State tax purposes,Owner Trustee, is reasonably necessary
(C1) to ensure that the record ownership of, or any beneficial interest in, a Residual Certificate is not transferred, directly or indirectly, to a person that is not a Permitted Transferee or
(2) to provide for a means to compel the transfer will of a Residual Certificate that is held by a person that is not have a Permitted Transferee to a Holder that is a Permitted Transferee.
(j) Pursuant to the Sale and Servicing Agreement, Principal Collections may be applied to purchase Additional Balances for the Trust during a Collection Period. If on any material adverse effect on Collection Period Principal Collections are insufficient to purchase all Additional Balances, the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer Class R-[1] Certificates will not result in advance funds to the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of to purchase the Code;
(v) all filings and other actions necessary Additional Balances that were not funded by Principal Collections. The Class R-[1] Balance will be repaid to continue the perfection of the interest of the Trust in Class R-[1] Certificates from Principal Collections on the Mortgage Loans allocated to the Certificates on future Payment Dates and will be entitled to allocation of Interest Collections on the Mortgage Loans. If the Holder of the Class R-[1] Certificates fails to advance to the Trust amounts specified in the previous paragraph, the Sponsor will be required to purchase, and the other Assets has been taken or made; and
(vi) Holder of the proposed Transferor agrees Class R-[1] Certificates will be required to sell, the Class R-[1] Certificates and the Sponsor will assume all of the obligations imposed pursuant of the Holder of the R-[1] Certificates, including the obligation to Section 3make advances as provided in the preceding paragraph.
Appears in 1 contract
Samples: Trust Agreement (CWHEQ, Inc.)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by that Transferor any of them to one of its Affiliates), the Owner Trustee will require either:
(i1) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii2) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder Holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i1) a representation letter from the proposed Transferortransferee, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor transferee is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii2) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by the Transferor any of them to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Class R-1 Certificate after its initial issuance will be made unless:
(i1) the proposed Transferor is organized and existing under the laws of the United States or any State and Holder expressly assumes the performance of every obligation of the existing Transferor Holder under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,, including the obligation to advance funds to the Trust as necessary so that the Trust is able to pay the purchase price for Additional Home Equity Loans;
(ii2) the existing Transferor Holder delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;; and
(iii3) the Rating Agency Condition is satisfied with respect to the transfer;.
(ive) Each person who has or who acquires any ownership interest in a Residual Certificate by accepting its ownership interest agrees to the following provisions, and the rights of each person acquiring any ownership interest in a Residual Certificate are subject to the following provisions:
(1) Only Permitted Transferee may hold an ownership interest in a Residual Certificate and each person holding or acquiring any ownership interest in a Residual Certificate shall promptly notify the Indenture Trustee of any change or impending change in its status as a Permitted Transferee.
(2) No ownership interest in a Residual Certificate may be registered on the Closing Date or thereafter transferred, and the Indenture Trustee shall not register the transfer of any Residual Certificate unless the Indenture Trustee has received a Transfer Affidavit from the initial owner or the proposed Transferor transferee, except in connection with the registration of the Tax Matters Person Certificate in the name of the Indenture Trustee or any registration in the name of, or transfer of a Residual Certificate to, an Affiliate of the Depositor (either directly or through a nominee).
(3) Each person holding or acquiring any ownership interest in a Residual Certificate shall
(A) obtain a Transfer Affidavit from any other person it attempts to transfer its ownership interest in a Residual Certificate to,
(B) obtain a Transfer Affidavit from any person for whom it is acting as nominee, trustee, or agent in connection with any transfer of any ownership interest in a Residual Certificate, and
(C) not transfer its ownership interest in a Residual Certificate to any other person if it has actual knowledge that such person is not a Permitted Transferee.
(4) Any attempted transfer of any ownership interest in a Residual Certificate in violation of this Section 3.10(e) shall be void ab initio and shall vest no rights in the purported transferee. If any purported transferee becomes a Holder of a Residual Certificate in violation of this Section 3.10(e), then the last preceding Permitted Transferee shall be restored to all rights as Holder of the Residual Certificate retroactive to the date of registration of transfer of the Residual Certificate. The Indenture Trustee shall be under no liability to any person for any registration of transfer of a Residual Certificate that is in fact not permitted by this Section 3.10(e) or for making any payments due on the Residual Certificate to its Holder or taking any other action with respect to the Holder under this Agreement so long as the transfer was registered after receipt of the related Transfer Affidavit and any other required documents. The Indenture 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 the Residual Certificate at and after either such time. Any such payments so recovered by the Indenture Trustee shall be paid and delivered by the Indenture Trustee to the last preceding Permitted Transferee of the Residual Certificate.
(5) The Depositor shall use its best efforts to make available, upon receipt of written request from the Indenture Trustee, all information necessary to compute any tax imposed under Section 860E(e) of the Code as a result of a transfer of an ownership interest in a Residual Certificate to any Holder who is not a Permitted Transferee.
(f) Each Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 3.10 of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2006-G. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the Owner Trustee trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2006-G. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to Section 4975 of the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(g) No Certificate shall be transferred except to (i) the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, or the Trust (or an affiliate of them)) to whom a Certificate is proposed to be transferred will be required to certify to the holder of the R-1 Certificates, the Trust, and the Certificate Registrar that it is a qualified institutional buyer. The Class R-1 Certificates may not be transferred except to the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them).
(h) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect thatthat the amendment will not cause the imposition of any tax on any REMIC or the Certificateholders or Noteholders, or cause any REMIC to fail to qualify as a REMIC at any time that any Certificates or Notes are outstanding.
(Ai) The restrictions on transfers of a Residual Certificate in this Section 3.10 shall cease to apply (and the transfer applicable portions of the legend on a Residual Certificate may be deleted) with respect to transfers occurring after delivery to the Owner Trustee of an Opinion of Counsel to the effect that the elimination of the restrictions will not adversely affect cause any REMIC to fail to qualify as a REMIC at any time that the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not Certificates are outstanding or result in the Trust being subject imposition of any tax on the Trust, a Certificateholder, Noteholder, or another person. Each person holding or acquiring any ownership interest in a Residual Certificate consents to tax at any amendment of this Agreement that, based on an Opinion of Counsel furnished to the entity level for federal or applicable State tax purposes,Owner Trustee, is reasonably necessary
(C1) to ensure that the record ownership of, or any beneficial interest in, a Residual Certificate is not transferred, directly or indirectly, to a person that is not a Permitted Transferee or
(2) to provide for a means to compel the transfer will of a Residual Certificate that is held by a person that is not have a Permitted Transferee to a Holder that is a Permitted Transferee.
(j) Pursuant to the Sale and Servicing Agreement, Principal Collections may be applied to purchase Additional Balances for the Trust during a Collection Period. If on any material adverse effect on Collection Period Principal Collections are insufficient to purchase all Additional Balances, the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer Class R-1 Certificates will not result in advance funds to the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of to purchase the Code;
(v) all filings and other actions necessary Additional Balances that were not funded by Principal Collections. The Class R-1 Balance will be repaid to continue the perfection of the interest of the Trust in Class R-1 Certificates from Principal Collections on the Mortgage Loans allocated to the Certificates on future Payment Dates and will be entitled to allocation of Interest Collections on the Mortgage Loans. If the Holder of the Class R-1 Certificates fails to advance to the Trust amounts specified in the previous paragraph, the Sponsor will be required to purchase, and the other Assets has been taken or made; and
(vi) Holder of the proposed Transferor agrees Class R-1 Certificates will be required to sell, the Class R-1 Certificates and the Sponsor will assume all of the obligations imposed pursuant of the Holder of the R-1 Certificates, including the obligation to Section 3make advances as provided in the preceding paragraph.
Appears in 1 contract
Samples: Trust Agreement (CWHEQ Revolving Home Equity Loan Trust, Series 2006-G)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not result in the Trust being subject to tax at the entity level for federal or applicable State tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer will not result in the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of the Code;; and
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust in the Mortgage Loans and the other Assets has been taken or made; and
(vi) . The requirement that the proposed Transferor agrees be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition (without regard to the obligations imposed Policy, as defined in the Indenture) has been satisfied taking that into account.
(e) Each Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 33.10 of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 200_-_. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 200_-_. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(f) No Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust (or an affiliate of them)) to whom a Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of the outstanding Notes and Transferor Certificates for federal or applicable state income tax purposes,
(ii) the characterization of the Trust as an entity that is not a publicly traded partnership or other business entity taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Trust Agreement (CWHEQ, Inc.)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not result in the Trust being subject to tax at the entity level for federal or applicable State tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer will not result in the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of the Code;
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust in the Mortgage Loans and the other Assets has been taken or made; and
(vi) the proposed Transferor agrees to the obligations imposed pursuant to Section 3.
Appears in 1 contract
Samples: Trust Agreement (CWABS Revolving Home Equity Loan Trust, Series 2004-N)
Restrictions on Transfer; Legends. (a) The Series 2001-A Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Series 2001-A Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Series 2001-A Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Series 2001-A Transferor Certificate desiring to effect a transfer shall indemnify the Series 2001-A Subtrust and the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Series 2001-A Transferor Certificate will be made after its initial issuance unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Series 2001-A Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code, will not result in the assets of the Series 2001-A Subtrust being deemed to be "plan assets" and subject to the prohibited transaction provisions of ERISA and the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this the Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Series 2001-A Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this the Agreement and the other Series 2001-A Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 4.05(d) and that all the conditions in this Section 3.10 4.05(d) have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 4.05(d) have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization treatment of the Series 2001-A Notes after the transfer as debt for federal and applicable State state income tax purposes,
(B) the transfer will not result in the Series 2001-A Subtrust or the Trust being subject to tax at the entity level for federal or applicable State state tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State state income taxation of any Holder of the Series 2001-A Notes or any person who is the beneficial owner of a Series 2001-A book-entry Note, and
(D) the transfer will not result in the Trust arrangement created by the Agreement or any "portion" of the Trust, being characterized treated as a taxable mortgage pool as defined in Section 7701(i) of the Code;
; (v) all filings and other actions necessary to continue the perfection of the interest of the Trust Series 2001-A Subtrust in the related Mortgage Loans and the other Assets related property conveyed to the Series 2001-A Subtrust has been taken or made; and
and (vi) the proposed Transferor agrees to the obligations imposed pursuant to Section 34.06. The requirement that the proposed Transferor be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition has been satisfied taking that into account.
(e) Each Series 2001-A Transferor Certificate shall bear a legend substantially in the following form: THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933 AND THE SECURITIES LAWS OF ANY STATE OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933 AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH SECTION 4.05 OF THE SERIES 2001-A TRUST SUPPLEMENT TO THE CWABS MASTER TRUST AGREEMENT. NEITHER THIS CERTIFICATE NOR ANY INTEREST IN IT MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT THAT THE TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, A PLAN SUBJECT TO SECTION 4975 OF THE CODE AS AMENDED, OR A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN, OR THAT IF THE TRANSFEREE IS AN INSURANCE COMPANY, THAT THE TRANSFEREE IS AN INSURANCE COMPANY THAT IS PURCHASING THIS CERTIFICATE WITH FUNDS CONTAINED IN AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTCE 95-60")) AND THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I AND III OF PTCE 95-60; OR AN OPINION OF COUNSEL IN ACCORDANCE WITH SECTION 4.05(C) OF THE SERIES 2001-A TRUST SUPPLEMENT TO THE CWABS MASTER TRUST AGREEMENT. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID.
(f) No Series 2001-A Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust) to whom a Series 2001-A Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Series 2001-A Trust Supplement or the Master Trust Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 4.05 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of any outstanding Series of Notes and Transferor Certificates,
(ii) the characterization of the Trust as an entity that is not a publicly traded partnership taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Transferor Certificate (Cwabs Inc)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not result in the Trust being subject to tax at the entity level for federal or applicable State tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer will not result in the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of the Code;; and
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust in the Mortgage Loans and the other Assets has been taken or made; and
(vi) . The requirement that the proposed Transferor agrees be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition (without regard to the obligations Policy, as defined in the Indenture) has been satisfied taking that into account.
(e) Each Transferor Certificate shall bear a legend substantially in the following form: THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933 AND THE SECURITIES LAWS OF ANY STATE OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933 AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH SECTION 3.10 OF THE TRUST AGREEMENT RELATED TO CWHEQ REVOLVING HOME EQUITY LOAN TRUST, SERIES 2005-E. NEITHER THIS CERTIFICATE NOR ANY INTEREST IN IT MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT THAT THE TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, A PLAN SUBJECT TO SECTION 4975 OF THE CODE, AS AMENDED, OR A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN; OR AN OPINION OF COUNSEL IN ACCORDANCE WITH SECTION 3.10(C) OF THE TRUST AGREEMENT RELATED TO CWHEQ REVOLVING HOME EQUITY LOAN TRUST, SERIES 2005-E. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID.
(f) No Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust (or an affiliate of them)) to whom a Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of the outstanding Notes and Transferor Certificates for federal or applicable state income tax purposes,
(ii) the characterization of the Trust as an entity that is not a publicly traded partnership or other business entity taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed pursuant to Section 3on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Trust Agreement (CWHEQ Revolving Home Equity Loan Asset Backed Notes, Series 2005-E)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by that Transferor any of them to one of its Affiliates), the Owner Trustee will require either:
(i1) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii2) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder Holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i1) a representation letter from the proposed Transferortransferee, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor transferee is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii2) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by the Transferor any of them to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Class R-1 Certificate after its initial issuance will be made unless:
(i1) the proposed Transferor is organized and existing under the laws of the United States or any State and Holder expressly assumes the performance of every obligation of the existing Transferor Holder under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,, including the obligation to advance funds to the Trust as necessary so that the Trust is able to pay the purchase price for Additional Home Equity Loans;
(ii2) the existing Transferor Holder delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;; and
(iii3) the Rating Agency Condition is satisfied with respect to the transfer;.
(ive) Each person who has or who acquires any ownership interest in a Residual Certificate by accepting its ownership interest agrees to the following provisions, and the rights of each person acquiring any ownership interest in a Residual Certificate are subject to the following provisions:
(1) Only Permitted Transferee may hold an ownership interest in a Residual Certificate and each person holding or acquiring any ownership interest in a Residual Certificate shall promptly notify the Indenture Trustee of any change or impending change in its status as a Permitted Transferee.
(2) No ownership interest in a Residual Certificate may be registered on the Closing Date or thereafter transferred, and the Indenture Trustee shall not register the transfer of any Residual Certificate unless the Indenture Trustee has received a Transfer Affidavit from the initial owner or the proposed Transferor transferee, except in connection with the registration of the Tax Matters Person Certificate in the name of the Indenture Trustee or any registration in the name of, or transfer of a Residual Certificate to, an Affiliate of the Depositor (either directly or through a nominee).
(3) Each person holding or acquiring any ownership interest in a Residual Certificate shall
(A) obtain a Transfer Affidavit from any other person it attempts to transfer its ownership interest in a Residual Certificate to,
(B) obtain a Transfer Affidavit from any person for whom it is acting as nominee, trustee, or agent in connection with any transfer of any ownership interest in a Residual Certificate, and
(C) not transfer its ownership interest in a Residual Certificate to any other person if it has actual knowledge that such person is not a Permitted Transferee.
(4) Any attempted transfer of any ownership interest in a Residual Certificate in violation of this Section 3.10(e) shall be void ab initio and shall vest no rights in the purported transferee. If any purported transferee becomes a Holder of a Residual Certificate in violation of this Section 3.10(e), then the last preceding Permitted Transferee shall be restored to all rights as Holder of the Residual Certificate retroactive to the date of registration of transfer of the Residual Certificate. The Indenture Trustee shall be under no liability to any person for any registration of transfer of a Residual Certificate that is in fact not permitted by this Section 3.10(e) or for making any payments due on the Residual Certificate to its Holder or taking any other action with respect to the Holder under this Agreement so long as the transfer was registered after receipt of the related Transfer Affidavit and any other required documents. The Indenture 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 the Residual Certificate at and after either such time. Any such payments so recovered by the Indenture Trustee shall be paid and delivered by the Indenture Trustee to the last preceding Permitted Transferee of the Residual Certificate.
(5) The Depositor shall use its best efforts to make available, upon receipt of written request from the Indenture Trustee, all information necessary to compute any tax imposed under Section 860E(e) of the Code as a result of a transfer of an ownership interest in a Residual Certificate to any Holder who is not a Permitted Transferee.
(f) Each Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 3.10 of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2006-I. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the Owner Trustee trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2006-I. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to Section 4975 of the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(g) No Certificate shall be transferred except to (i) the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, or the Trust (or an affiliate of them)) to whom a Certificate is proposed to be transferred will be required to certify to the holder of the R-1 Certificates, the Trust, and the Certificate Registrar that it is a qualified institutional buyer. The Class R-1 Certificates may not be transferred except to the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them).
(h) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect thatthat the amendment will not cause the imposition of any tax on any REMIC or the Certificateholders or Noteholders, or cause any REMIC to fail to qualify as a REMIC at any time that any Certificates or Notes are outstanding.
(Ai) The restrictions on transfers of a Residual Certificate in this Section 3.10 shall cease to apply (and the transfer applicable portions of the legend on a Residual Certificate may be deleted) with respect to transfers occurring after delivery to the Owner Trustee of an Opinion of Counsel to the effect that the elimination of the restrictions will not adversely affect cause any REMIC to fail to qualify as a REMIC at any time that the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not Certificates are outstanding or result in the Trust being subject imposition of any tax on the Trust, a Certificateholder, Noteholder, or another person. Each person holding or acquiring any ownership interest in a Residual Certificate consents to tax at any amendment of this Agreement that, based on an Opinion of Counsel furnished to the entity level for federal or applicable State tax purposes,Owner Trustee, is reasonably necessary
(C1) to ensure that the record ownership of, or any beneficial interest in, a Residual Certificate is not transferred, directly or indirectly, to a person that is not a Permitted Transferee or
(2) to provide for a means to compel the transfer will of a Residual Certificate that is held by a person that is not have a Permitted Transferee to a Holder that is a Permitted Transferee.
(j) Pursuant to the Sale and Servicing Agreement, Principal Collections may be applied to purchase Additional Balances for the Trust during a Collection Period. If on any material adverse effect on Collection Period Principal Collections are insufficient to purchase all Additional Balances, the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer Class R-1 Certificates will not result in advance funds to the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of to purchase the Code;
(v) all filings and other actions necessary Additional Balances that were not funded by Principal Collections. The Class R-1 Balance will be repaid to continue the perfection of the interest of the Trust in Class R-1 Certificates from Principal Collections on the Mortgage Loans allocated to the Certificates on future Payment Dates and will be entitled to allocation of Interest Collections on the Mortgage Loans. If the Holder of the Class R-1 Certificates fails to advance to the Trust amounts specified in the previous paragraph, the Sponsor will be required to purchase, and the other Assets has been taken or made; and
(vi) Holder of the proposed Transferor agrees Class R-1 Certificates will be required to sell, the Class R-1 Certificates and the Sponsor will assume all of the obligations imposed pursuant of the Holder of the R-1 Certificates, including the obligation to Section 3make advances as provided in the preceding paragraph.
Appears in 1 contract
Samples: Trust Agreement (CWHEQ Revolving Home Equity Loan Trust, Series 2006-I)
Restrictions on Transfer; Legends. (a) The Transferor Certificates A Seller Party shall be assignednot transfer (whether by sale, transferredassignment, exchanged, pledged, financed, hypothecated, pledge or otherwise) any Unit Consideration to any Person unless such Person is a citizen of the United States within the meaning of Chapter 505 of Title 46 of the United States Code for the purpose of operating vessels in the coastwise trade of the United States and unless such Person otherwise conveyed (collectively, for purposes of complies with this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section6.18.
(b) No Prior to any proposed transfer (whether by sale, assignment, pledge or otherwise) of the Unit Consideration, the proposed transferor (the “Transferor”) will give written notice to the Partnership of its intention to effect such transfer. Each such notice shall describe the manner and circumstances of the proposed transfer in sufficient detail, contain evidence of citizenship of the proposed transferee and shall be accompanied by a written opinion of legal counsel who shall be reasonably satisfactory to the Partnership, addressed to the Partnership, to the effect that (i) the proposed transfer of the securities in question may be effected without registration under the Securities Act, (ii) such proposed transfer does not call into question the exemption from registration under which such Unit Consideration was initially issued by the Partnership to the Seller Party and (iii) the proposed transferee is a citizen of the United States within the meaning of Chapter 505 of Title 46 of the United States Code for the purpose of operating vessels in the coastwise trade of the United States. Any such legal opinion must be reasonably satisfactory to the Partnership and must state that it may also be relied upon by any applicable transfer agent or stock exchange or counsel to the Partnership. The Partnership may also require a certificate of the Transferor Certificate will that certifies as to matters that assist the Partnership in establishing compliance with securities laws as at the time of the proposed transfer (including, without limitation, representations relating to the proposed transfer and the transferee of the type set forth in Section 3.8 hereto).
(c) Upon compliance with the terms hereof to the reasonable satisfaction of the Partnership, the Transferor shall be made entitled to transfer such securities in accordance with the terms of the notice delivered by the Transferor to the Partnership. Each certificate evidencing the Unit Consideration so transferred shall bear an appropriate restrictive legend reasonably deemed necessary by the Partnership, including any appropriate legend relating to the restrictions and obligations set forth in this Section 6.18 and in Section 3.8 hereto.
(d) The Transferor will, prior to any transfer (unless the such transfer is exempt made pursuant to Rule 144 or an effective registration statement under the Securities Act), cause any transferee of the Unit Consideration to enter into an agreement with the Partnership that the transferee will take and hold such securities subject to the provisions and upon the conditions specified in this Section 6.18 and in Section 3.8 hereto.
(e) The Partnership may issue stop transfer instructions to any transfer agent for the Common Units in order to implement any restriction on transfer contemplated by this Section 6.18 or Section 3.8 hereto. The certificates representing the Unit Consideration shall contain the following legend: THE UNITS REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW. SUCH UNITS MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE PARTNERSHIP AS TO THE AVAILABILITY OF AN EXEMPTION FROM REGISTRATION THAT SUCH REGISTRATION IS NOT REQUIRED AND THAT ANY PROSPECTUS DELIVERY REQUIREMENTS ARE NOT APPLICABLE. THE UNITS WERE ISSUED PURSUANT TO AN AGREEMENT WHICH INCLUDES ADDITIONAL RESTRICTIONS ON THEIR TRANSFER AND COPIES OF SUCH AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE PARTNERSHIP AT THE PRINCIPAL EXECUTIVE OFFICES OF THE PARTNERSHIP.
(f) Without limiting the generality of any other provision hereof, the provisions of this Section shall be binding on successive transferees. The Partnership shall have no obligation to effect any transfer on its books and records (and no such attempted transfer shall be effective) unless such transfer is made in accordance with the terms of this Section 6.18.
(g) The provisions of subsections (a) - (f) of this Section 6.18 shall not apply to any transfer effected on the New York Stock Exchange pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not result in the Trust being subject to tax at the entity level for federal or applicable State tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer will not result in the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of the Code;
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust in the Mortgage Loans and the other Assets has been taken or made; and
(vi) the proposed Transferor agrees to the obligations imposed pursuant to Section 3.
Appears in 1 contract
Samples: Merger Agreement (K-Sea Transportation Partners Lp)
Restrictions on Transfer; Legends. (a) The Series 2004-A Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Series 2004-A Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Series 2004-A Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Series 2004-A Transferor Certificate desiring to effect a transfer shall indemnify the Series 2004-A Subtrust and the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Series 2004-A Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Series 2004-A Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this the Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Series 2004-A Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Series 2004-A Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this the Agreement and the other Series 2004-A Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 4.05(d) and that all the conditions in this Section 3.10 4.05(d) have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 4.05(d) have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization treatment of the Series 2004-A Notes after the transfer as debt for federal and applicable State state income tax purposes,
(B) the transfer will not result in the Series 2004-A Subtrust or the Trust being subject to tax at the entity level for federal or applicable State state tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State state income taxation of any Holder of the Series 2004-A Notes or any person who is the beneficial owner of a Series 2004-A book-entry Note, and
(D) the transfer will not result in the Trust arrangement created by the Agreement or any "portion" of the Trust, being characterized treated as a taxable mortgage pool as defined in Section 7701(i) of the Code;
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust Series 2004-A Subtrust in the related Mortgage Loans and the other Assets related property conveyed to the Series 2004-A Subtrust has been taken or made; and
(vi) the proposed Transferor agrees to the obligations imposed pursuant to Section 34.06. The requirement that the proposed Transferor be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition has been satisfied taking that into account.
(e) Each Series 2004-A Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 4.05 of the Series 2004-A Trust Supplement to the CWABS Master Trust Agreement. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 4.05(c) of the Series 2004-A Trust Supplement to the CWABS Master Trust Agreement. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
Appears in 1 contract
Samples: Transferor Certificate (Cwabs Inc Revolving Home Eq Ln Asst Back NTS Ser 2004-A)
Restrictions on Transfer; Legends. (a) The Series 2004-C Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Series 2004-C Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Series 2004-C Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Series 2004-C Transferor Certificate desiring to effect a transfer shall indemnify the Series 2004-C Subtrust and the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Series 2004-C Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Series 2004-C Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this the Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Series 2004-C Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Series 2004-C Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this the Agreement and the other Series 2004-C Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 4.05(d) and that all the conditions in this Section 3.10 4.05(d) have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 4.05(d) have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization treatment of the Series 2004-C Notes after the transfer as debt for federal and applicable State state income tax purposes,
(B) the transfer will not result in the Series 2004-C Subtrust or the Trust being subject to tax at the entity level for federal or applicable State state tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State state income taxation of any Holder of the Series 2004-C Notes or any person who is the beneficial owner of a Series 2004-C book-entry Note, and
(D) the transfer will not result in the Trust arrangement created by the Agreement or any "portion" of the Trust, being characterized treated as a taxable mortgage pool as defined in Section 7701(i) of the Code;
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust Series 2004-C Subtrust in the related Mortgage Loans and the other Assets related property conveyed to the Series 2004-C Subtrust has been taken or made; and
(vi) the proposed Transferor agrees to the obligations imposed pursuant to Section 34.06. The requirement that the proposed Transferor be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition has been satisfied taking that into account.
(e) Each Series 2004-C Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with section 4.05 of the Series 2004-C Trust Supplement to the CWABS Master Trust Agreement. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 4.05(c) of the Series 2004-C Trust Supplement to the CWABS Master Trust Agreement. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(f) No Series 2004-C Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust (or an affiliate of them)) to whom a Series 2004-C Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Series 2004-C Trust Supplement or the Master Trust Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 4.05 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of any outstanding Series of Notes and Transferor Certificates,
(ii) the characterization of the Trust as an entity that is not a publicly traded partnership taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Transferor Certificate (Cwabs Inc Revolving Home Equity Loan Notes Series 2004-C)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by that Transferor any of them to one of its Affiliates), the Owner Trustee will require either:
(i1) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii2) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder Holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i1) a representation letter from the proposed Transferortransferee, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor transferee is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii2) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by the Transferor any of them to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Class R-1 Certificate after its initial issuance will be made unless:
(i1) the proposed Transferor is organized and existing under the laws of the United States or any State and Holder expressly assumes the performance of every obligation of the existing Transferor Holder under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,, including the obligation to advance funds to the Trust as necessary so that the Trust is able to pay the purchase price for Additional Home Equity Loans;
(ii2) the existing Transferor Holder delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;; and
(iii3) the Rating Agency Condition is satisfied with respect to the transfer;.
(ive) Each person who has or who acquires any ownership interest in a Residual Certificate by accepting its ownership interest agrees to the following provisions, and the rights of each person acquiring any ownership interest in a Residual Certificate are subject to the following provisions:
(1) Only Permitted Transferee may hold an ownership interest in a Residual Certificate and each person holding or acquiring any ownership interest in a Residual Certificate shall promptly notify the Indenture Trustee of any change or impending change in its status as a Permitted Transferee.
(2) No ownership interest in a Residual Certificate may be registered on the Closing Date or thereafter transferred, and the Indenture Trustee shall not register the transfer of any Residual Certificate unless the Indenture Trustee has received a Transfer Affidavit from the initial owner or the proposed Transferor transferee, except in connection with the registration of the Tax Matters Person Certificate in the name of the Indenture Trustee or any registration in the name of, or transfer of a Residual Certificate to, an Affiliate of the Depositor (either directly or through a nominee).
(3) Each person holding or acquiring any ownership interest in a Residual Certificate shall
(A) obtain a Transfer Affidavit from any other person it attempts to transfer its ownership interest in a Residual Certificate to,
(B) obtain a Transfer Affidavit from any person for whom it is acting as nominee, trustee, or agent in connection with any transfer of any ownership interest in a Residual Certificate, and
(C) not transfer its ownership interest in a Residual Certificate to any other person if it has actual knowledge that such person is not a Permitted Transferee.
(4) Any attempted transfer of any ownership interest in a Residual Certificate in violation of this Section 3.10(e) shall be void ab initio and shall vest no rights in the purported transferee. If any purported transferee becomes a Holder of a Residual Certificate in violation of this Section 3.10(e), then the last preceding Permitted Transferee shall be restored to all rights as Holder of the Residual Certificate retroactive to the date of registration of transfer of the Residual Certificate. The Indenture Trustee shall be under no liability to any person for any registration of transfer of a Residual Certificate that is in fact not permitted by this Section 3.10(e) or for making any payments due on the Residual Certificate to its Holder or taking any other action with respect to the Holder under this Agreement so long as the transfer was registered after receipt of the related Transfer Affidavit and any other required documents. The Indenture 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 the Residual Certificate at and after either such time. Any such payments so recovered by the Indenture Trustee shall be paid and delivered by the Indenture Trustee to the last preceding Permitted Transferee of the Residual Certificate.
(5) The Depositor shall use its best efforts to make available, upon receipt of written request from the Indenture Trustee, all information necessary to compute any tax imposed under Section 860E(e) of the Code as a result of a transfer of an ownership interest in a Residual Certificate to any Holder who is not a Permitted Transferee.
(f) Each Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 3.10 of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2006-C. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the Owner Trustee trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2006-C. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to Section 4975 of the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(g) No Certificate shall be transferred except to (i) the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, or the Trust (or an affiliate of them)) to whom a Certificate is proposed to be transferred will be required to certify to the holder of the R-1 Certificates, the Trust, and the Certificate Registrar that it is a qualified institutional buyer. The Class R-1 Certificates may not be transferred except to the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them).
(h) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect thatthat the amendment will not cause the imposition of any tax on any REMIC or the Certificateholders or Noteholders, or cause any REMIC to fail to qualify as a REMIC at any time that any Certificates or Notes are outstanding.
(Ai) The restrictions on transfers of a Residual Certificate in this Section 3.10 shall cease to apply (and the transfer applicable portions of the legend on a Residual Certificate may be deleted) with respect to transfers occurring after delivery to the Owner Trustee of an Opinion of Counsel to the effect that the elimination of the restrictions will not adversely affect cause any REMIC to fail to qualify as a REMIC at any time that the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not Certificates are outstanding or result in the Trust being subject imposition of any tax on the Trust, a Certificateholder, Noteholder, or another person. Each person holding or acquiring any ownership interest in a Residual Certificate consents to tax at any amendment of this Agreement that, based on an Opinion of Counsel furnished to the entity level for federal or applicable State tax purposes,Owner Trustee, is reasonably necessary
(C1) to ensure that the record ownership of, or any beneficial interest in, a Residual Certificate is not transferred, directly or indirectly, to a person that is not a Permitted Transferee or
(2) to provide for a means to compel the transfer will of a Residual Certificate that is held by a person that is not have a Permitted Transferee to a Holder that is a Permitted Transferee.
(j) Pursuant to the Sale and Servicing Agreement, Principal Collections may be applied to purchase Additional Balances for the Trust during a Collection Period. If on any material adverse effect on Collection Period Principal Collections are insufficient to purchase all Additional Balances, the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer Class R-1 Certificates will not result in advance funds to the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of to purchase the Code;
(v) all filings and other actions necessary Additional Balances that were not funded by Principal Collections. The Class R-1 Balance will be repaid to continue the perfection of the interest of the Trust in Class R-1 Certificates from Principal Collections on the Mortgage Loans allocated to the Certificates on future Payment Dates and will be entitled to allocation of Interest Collections on the Mortgage Loans. If the Holder of the Class R-1 Certificates fails to advance to the Trust amounts specified in the previous paragraph, the Sponsor will be required to purchase, and the other Assets has been taken or made; and
(vi) Holder of the proposed Transferor agrees Class R-1 Certificates will be required to sell, the Class R-1 Certificates and the Sponsor will assume all of the obligations imposed pursuant of the Holder of the R-1 Certificates, including the obligation to Section 3make advances as provided in the preceding paragraph.
Appears in 1 contract
Samples: Trust Agreement (CWHEQ Revolving Home Equity Loan Asset Backed Notes, Series 2006-C)
Restrictions on Transfer; Legends. (a) The Series 2002-A Class A-IO Certificates and their accompanying Series 2002-A Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Series 2002-A Class A-IO Certificate and its accompanying Series 2002-A Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Series 2002-A Class A-IO Certificate and its accompanying Series 2002-A Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Series 2002-A Class A-IO Certificate and its accompanying Series 2002-A Transferor Certificate desiring to effect a transfer shall indemnify the Series 2002-A Subtrust and the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Series 2002-A Class A-IO Certificate and its accompanying Series 2002-A Transferor Certificate will be made after its initial issuance unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Series 2002-A Class A-IO Certificate and its accompanying Series 2002-A Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code, will not result in the assets of the Series 2002-A Subtrust being deemed to be "plan assets" and subject to the prohibited transaction provisions of ERISA and the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this the Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Series 2002-A Class A-IO Certificate and its accompanying Series 2002-A Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this the Agreement and the other Series 2002-A Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 4.05(d) and that all the conditions in this Section 3.10 4.05(d) have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 4.05(d) have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization treatment of the Series 2002-A Class A Notes after the transfer as debt for federal and applicable State state income tax purposes,
(B) the transfer will not result in the Series 2002-A Subtrust or the Trust being subject to tax at the entity level for federal or applicable State state tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State state income taxation of any Holder of the Series 2002-A Notes or any person who is the beneficial owner of a Series 2002-A book-entry Note, and
(D) the transfer will not result in the Trust arrangement created by the Agreement or any "portion" of the Trust, being characterized treated as a taxable mortgage pool as defined in Section 7701(i) of the Code;
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust Series 2002-A Subtrust in the related Mortgage Loans and the other Assets related property conveyed to the Series 2002-A Subtrust has been taken or made; and
(vi) the proposed Transferor agrees to the obligations imposed pursuant to Section 34.06. The requirement that the proposed Transferor be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition has been satisfied taking that into account.
(e) Each Series 2002-A Class A-IO Certificate and Series 2002-A Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 4.05 of the Series 2002-A Trust Supplement to the CWABS Master Trust Agreement. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 4.05(c) of the Series 2002-A Trust Supplement to the CWABS Master Trust Agreement. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void. This Certificate is one of a pair of joined certificates that generally may not be held or transferred separately. Unless the Owner Trustee receives an Opinion of Counsel to the effect provided in Section 4.05(d)(iv) of the Series 2002-A Trust Supplement to the CWABS Master Trust Agreement for non-joined sales, the Series 2002-A Class A-IO Certificates and the Series 2002-A Transferor Certificates are joined securities and may not be held or transferred separately. If all or less than all of the interest in either of them is pledged or transferred, then the percentage of the whole interest in each of them to be pledged or transferred must be the same and must be pledged or transferred to the same person. Consequently, no interest in one class may be pledged or transferred separately from the concomitant interest in the other class, and any purported pledge or transfer that does not comply with this requirement is void ab initio.
(f) No Series 2002-A Class A-IO Certificate or Series 2002-A Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust (or an affiliate of any of them)) to whom a Series 2002-A Class A-IO Certificate or Series 2002-A Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Series 2002-A Trust Supplement or the Master Trust Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 4.05 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of any outstanding Series of Notes and Transferor Certificates,
(ii) the characterization of the Trust as an entity that is not a publicly traded partnership taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by that Transferor any of them to one of its Affiliates), the Owner Trustee will require either:
(i1) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii2) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder Holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i1) a representation letter from the proposed Transferortransferee, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor transferee is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii2) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor Master Servicer or the Depositor (or an affiliate of any of them) (and any subsequent transfer by the Transferor any of them to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Class R-1 Certificate after its initial issuance will be made unless:
(i1) the proposed Transferor is organized and existing under the laws of the United States or any State and Holder expressly assumes the performance of every obligation of the existing Transferor Holder under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,, including the obligation to advance funds to the Trust as necessary so that the Trust is able to pay the purchase price for Additional Home Equity Loans;
(ii2) the existing Transferor Holder delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;; and
(iii3) the Rating Agency Condition is satisfied with respect to the transfer;.
(ive) Each person who has or who acquires any ownership interest in a Residual Certificate by accepting its ownership interest agrees to the following provisions, and the rights of each person acquiring any ownership interest in a Residual Certificate are subject to the following provisions:
(1) Only a Permitted Transferee may hold an ownership interest in a Residual Certificate and each person holding or acquiring any ownership interest in a Residual Certificate shall promptly notify the Indenture Trustee of any change or impending change in its status as a Permitted Transferee.
(2) No ownership interest in a Residual Certificate may be registered on the Closing Date or thereafter transferred, and the Indenture Trustee shall not register the transfer of any Residual Certificate unless the Indenture Trustee has received a Transfer Affidavit from the initial owner or the proposed Transferor transferee, except in connection with the registration of the Tax Matters Person Certificate in the name of the Indenture Trustee or any registration in the name of, or transfer of a Residual Certificate to, an Affiliate of the Depositor (either directly or through a nominee).
(3) Each person holding or acquiring any ownership interest in a Residual Certificate shall
(A) obtain a Transfer Affidavit from any other person it attempts to transfer its ownership interest in a Residual Certificate to,
(B) obtain a Transfer Affidavit from any person for whom it is acting as nominee, trustee, or agent in connection with any transfer of any ownership interest in a Residual Certificate, and
(C) not transfer its ownership interest in a Residual Certificate to any other person if it has actual knowledge that such person is not a Permitted Transferee.
(4) Any attempted transfer of any ownership interest in a Residual Certificate in violation of this Section 3.10(e) shall be void ab initio and shall vest no rights in the purported transferee. If any purported transferee becomes a Holder of a Residual Certificate in violation of this Section 3.10(e), then the last preceding Permitted Transferee shall be restored to all rights as Holder of the Residual Certificate retroactive to the date of registration of transfer of the Residual Certificate. The Indenture Trustee shall be under no liability to any person for any registration of transfer of a Residual Certificate that is in fact not permitted by this Section 3.10(e) or for making any payments due on the Residual Certificate to its Holder or taking any other action with respect to the Holder under this Agreement so long as the transfer was registered after receipt of the related Transfer Affidavit and any other required documents. The Indenture 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 the Residual Certificate at and after either such time. Any such payments so recovered by the Indenture Trustee shall be paid and delivered by the Indenture Trustee to the last preceding Permitted Transferee of the Residual Certificate.
(5) The Depositor shall use its best efforts to make available, upon receipt of written request from the Indenture Trustee, all information necessary to compute any tax imposed under Section 860E(e) of the Code as a result of a transfer of an ownership interest in a Residual Certificate to any Holder who is not a Permitted Transferee.
(f) Each Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 3.10 of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2005-J. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the Owner Trustee trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 2005-J. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(g) No Certificate shall be transferred except to (i) the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, or the Trust (or an affiliate of them)) to whom a Certificate is proposed to be transferred will be required to certify to the transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer. The Class R-1 Certificates may not be transferred except to the Master Servicer, the Depositor, or the Trust (or an affiliate of any of them).
(h) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect thatthat the amendment will not cause the imposition of any tax on any REMIC or the Certificateholders or Noteholders, or cause any REMIC to fail to qualify as a REMIC at any time that any Certificates or Notes are outstanding.
(Ai) The restrictions on transfers of a Residual Certificate in this Section 3.10 shall cease to apply (and the transfer applicable portions of the legend on a Residual Certificate may be deleted) with respect to transfers occurring after delivery to the Owner Trustee of an Opinion of Counsel to the effect that the elimination of the restrictions will not adversely affect cause any REMIC to fail to qualify as a REMIC at any time that the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not Certificates are outstanding or result in the Trust being subject imposition of any tax on the Trust, a Certificateholder, Noteholder, or another person. Each person holding or acquiring any ownership interest in a Residual Certificate consents to tax at any amendment of this Agreement that, based on an Opinion of Counsel furnished to the entity level for federal or applicable State tax purposes,Owner Trustee, is reasonably necessary
(C1) to ensure that the record ownership of, or any beneficial interest in, a Residual Certificate is not transferred, directly or indirectly, to a person that is not a Permitted Transferee or
(2) to provide for a means to compel the transfer will of a Residual Certificate that is held by a person that is not have a Permitted Transferee to a Holder that is a Permitted Transferee.
(j) Pursuant to the Sale and Servicing Agreement, Principal Collections may be applied to purchase Additional Balances for the Trust during a Collection Period. If on any material adverse effect on Collection Period Principal Collections are insufficient to purchase all Additional Balances, the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer Class R-1 Certificates will not result in advance funds to the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of to purchase the Code;
(v) all filings and other actions necessary Additional Balances that were not funded by Principal Collections. The Class R-1 Balance will be repaid to continue the perfection of the interest of the Trust in Class R-1 Certificates from Principal Collections on the Mortgage Loans allocated to the Certificates on future Payment Dates and will be entitled to allocation of Interest Collections on the Mortgage Loans. If the Holder of the Class R-1 Certificates fails to advance to the Trust amounts specified in the previous paragraph, the Sponsor will be required to purchase, and the other Assets has been taken or made; and
(vi) Holder of the proposed Transferor agrees Class R-1 Certificates will be required to sell, the Class R-1 Certificates and the Sponsor will assume all of the obligations imposed pursuant of the Holder of the R-1 Certificates, including the obligation to Section 3make advances as provided in the preceding paragraph.
Appears in 1 contract
Samples: Trust Agreement (CWHEQ Revolving Home Equity Loan Trust, Series 2005-J)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "“transferred" ” or a "“transfer"”) only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "“Act"”) and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor Certificateholders (and any subsequent transfer by that Transferor any Certificateholder to one of its Affiliates), the Owner Certificate Trustee will require either:
(i1) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Certificate Trustee certifying to the Owner Certificate Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Certificate Trustee or
(ii2) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Certificate Trustee and the Depositor Depositors that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Certificate Trustee, the Owner Trustee or the DepositorDepositors. The holder Holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust Trust, the Certificate Trustee and the Owner Trustee against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Certificate Trustee has received either:
(i1) a representation letter from the proposed Transferortransferee, acceptable to and in form and substance satisfactory to the Owner Certificate Trustee, to the effect that the proposed Transferor transferee is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Trust, the Certificate Trustee or the Owner Trustee; or
(ii2) an Opinion of Counsel acceptable to the Owner Certificate Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Trust, the Certificate Trustee or the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Trust, the Certificate Trustee, the Owner Trustee or the DepositorDepositors; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor Certificateholder (and any subsequent transfer by the Transferor Certificateholder to one of its Affiliates), the representation in clause (iSection 3.10(i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Certificate after its initial issuance will be made unless:
(i1) the proposed Transferor Holder is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor Holder under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Certificate Trustee,
(ii2) the existing Transferor Holder delivers to the Owner Certificate Trustee an Officer's ’s Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;; and
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv3) the proposed Transferor Holder delivers to the Owner Certificate Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) that the transfer will not result in the Trust being subject to tax at the entity level for federal or applicable State state or local tax purposes,.
(Ci) Each Certificate shall bear a legend substantially in the following form:
(ii) Each Certificate which is subject to a security interest under the Legacy Loan Agreement and the Loan Documents (as defined therein) shall bear a legend in the following form:
(f) No Certificate shall be transferred except to (1) the transfer Depositors or the Trust (or one of their respective affiliates) or (2) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Depositors or the Trust (or one of their respective affiliates)) to whom a Certificate is proposed to be transferred will be required to certify to the Depositors, the Trust, and the Certificate Trustee that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Agreement to the contrary, the Depositors, without the consent of any Certificateholder but with the consent of the Administrator, may amend this Section 3.10 if it receives an Opinion of Counsel to the effect that the amendment will not
(1) cause the Trust to be treated as a publicly traded partnership or other business entity (including a taxable mortgage pool) taxable as a corporation for federal, state or local income tax purposes and will not have any material adverse effect result in a federal, state or local withholding tax being imposed on the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry NoteTrust, and
(D2) cause the Trust’s exemptions from any registration requirement of the federal securities laws to be affected.
(h) To the extent permitted by applicable law, after initial issuance of the Certificates, no Class A Certificate or Class REO Certificate shall be separately transferable. With respect to any transfer will not result of a Class A Certificate or a Class REO Certificate, the Transferor must transfer a like Percentage Interest in the Trust being characterized transferred Class A Certificate and the transferred Class REO Certificate.
(i) Each Holder of a Certificate, by virtue of the acquisition and holding thereof, shall be deemed to have represented and agreed as a taxable mortgage pool as defined in follow:
(1) It has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificate (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7701(i7704(b)(2) of the Code;
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust in the Mortgage Loans and the other Assets has been taken , including, without limitation, an over-the-counter market or madean interdealer quotation system that regularly disseminates firm buy or sell quotations; and
(vi2) It either (a) is not, and will not become a partnership, Subchapter S corporation or grantor trust for U.S. federal income tax purposes or (b) is such an entity, but none of the proposed Transferor agrees direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 50% or more (or such other percentage as the Certificate Trustee may establish prior to the obligations imposed pursuant time of such proposed transfer) of the value of such interests to Section 3be attributable to such transferee’s ownership of the Certificates.
Appears in 1 contract
Restrictions on Transfer; Legends. (a) The Transferor Certificates Seller shall be assignednot transfer (whether by sale, transferredassignment, exchangedpledge or otherwise) any Closing Common Units to any Person unless such Person is a citizen of the United States within the meaning of Section 2 of the Shipping Act, pledged1916, financed, hypothecated, or otherwise conveyed (collectivelyas amended, for purposes the purpose of operating vessels in the coastwise trade of the United States and unless such Person otherwise complies with this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section5.11.
(b) No Prior to any proposed transfer (whether by sale, assignment, pledge or otherwise) of the Closing Common Units, the proposed transferor (the “Transferor”) will give written notice to the Partnership of its intention to effect such transfer. Each such notice shall describe the manner and circumstances of the proposed transfer in sufficient detail, contain evidence of citizenship of the proposed transferee and shall be accompanied by a written opinion of legal counsel who shall be reasonably satisfactory to the Partnership, addressed to the Partnership, to the effect that (i) the proposed transfer of the securities in question may be effected without registration under the Securities Act, (ii) such proposed transfer does not call into question the exemption from registration under which such Closing Common Units were initially issued by the Partnership to Seller and (iii) the proposed transferee is a citizen of the United States within the meaning of Section 2 of the Shipping Act, 1916, as amended, for the purpose of operating vessels in the coastwise trade of the United States. Any such legal opinion must be reasonably satisfactory to the Partnership and must state that it may also be relied upon by any applicable transfer agent or stock exchange or counsel to the Partnership. The Partnership may also require a certificate of the Transferor Certificate will that certifies as to matters that assist the Partnership in establishing compliance with securities laws as at the time of the proposed transfer (including, without limitation, representations relating to the proposed transfer and the transferee of the type set forth in Section 3.31 hereto).
(c) Upon compliance with the terms hereof to the reasonable satisfaction of the Partnership, the Transferor shall be made entitled to transfer such securities in accordance with the terms of the notice delivered by the Transferor to the Partnership. Each certificate evidencing the Closing Common Units so transferred shall bear an appropriate restrictive legend reasonably deemed appropriate by the Partnership, including any appropriate legend relating to the restrictions and obligations set forth in this Section 5.11 and in Section 3.31 hereto.
(d) The Transferor will, prior to any transfer (unless the such transfer is exempt made pursuant to Rule 144 or an effective registration statement under the Securities Act), cause any transferee of the Closing Common Units to enter into an agreement with the Partnership that the transferee will take and hold such securities subject to the provisions and upon the conditions specified in this Section 5.11 and in Section 3.31 hereto.
(e) The Partnership may issue stop transfer instructions to any transfer agent for the Common Units in order to implement any restriction on transfer contemplated by this Section 5.11 or Section 3.31 hereto. The Closing Common Units shall contain the following legend: THE UNITS REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW. SUCH UNITS MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE PARTNERSHIP AS TO THE AVAILABILITY OF AN EXEMPTION FROM REGISTRATION THAT SUCH REGISTRATION IS NOT REQUIRED AND THAT ANY PROSPECTUS DELIVERY REQUIREMENTS ARE NOT APPLICABLE. THE UNITS WERE ISSUED PURSUANT TO AN AGREEMENT WHICH INCLUDES ADDITIONAL RESTRICTIONS ON THEIR TRANSFER AND COPIES OF SUCH AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE PARTNERSHIP AT THE PRINCIPAL EXECUTIVE OFFICES OF THE PARTNERSHIP.
(f) Without limiting the generality of any other provision hereof, the provisions of this Section shall be binding on successive transferees. The Partnership shall have no obligation to effect any transfer on its books and records (and no such attempted transfer shall be effective) unless such transfer is made in accordance with the terms of this Section 5.11.
(g) The provisions of subsections (a) - (d) of this Section 5.11 shall not apply to any transfer effected on the New York Stock Exchange pursuant to an effective registration statement under the Securities Act or an exemption from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not result in the Trust being subject to tax at the entity level for federal or applicable State tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer will not result in the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of the Code;
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust in the Mortgage Loans and the other Assets has been taken or made; and
(vi) the proposed Transferor agrees to the obligations imposed pursuant to Section 3.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (K-Sea Transportation Partners Lp)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not result in the Trust being subject to tax at the entity level for federal or applicable State tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer will not result in the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of the Code;; and
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust in the Mortgage Loans and the other Assets has been taken or made; and
(vi) . The requirement that the proposed Transferor agrees be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition (without regard to the obligations imposed Policy, as defined in the Indenture) has been satisfied taking that into account.
(e) Each Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 33.10 of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 200_-_. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWHEQ Revolving Home Equity Loan Trust, Series 200_-_. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(f) No Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust (or an affiliate of them)) to whom a Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of the outstanding Notes and Transferor Certificates for federal or applicable state income tax purposes,
(ii) the characterization of the Trust as a taxable mortgage pool, an entity that is not a publicly traded partnership or other business entity taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Trust Agreement (CWHEQ, Inc.)
Restrictions on Transfer; Legends. (a) The Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Transferor Certificate desiring to effect a transfer shall indemnify the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Transferor Certificate will be made unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor or a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this Agreement and the other Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee an Officer's Certificate stating that the transfer complies with this Section 3.10 and that all the conditions in this Section 3.10 have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization of the Notes after the transfer as debt for federal and applicable State income tax purposes,
(B) the transfer will not result in the Trust being subject to tax at the entity level for federal or applicable State tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State income taxation of any Holder of the Notes or any person who is the beneficial owner of a book-entry Note, and
(D) the transfer will not result in the Trust being characterized as a taxable mortgage pool as defined in Section 7701(i) of the Code;; and
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust in the Mortgage Loans and the other Assets has been taken or made; and
(vi) . The requirement that the proposed Transferor agrees be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition (without regard to the obligations imposed Policy, as defined in the Indenture) has been satisfied taking that into account.
(e) Each Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 33.10 of the Trust Agreement related to CWABS Revolving Home Equity Loan Trust, Series 2004-R. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code, as amended, or a person acting on behalf of or using the assets of any such plan; or an opinion of counsel in accordance with Section 3.10(c) of the Trust Agreement related to CWABS Revolving Home Equity Loan Trust, Series 2004-R. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
(f) No Transferor Certificate shall be transferred except to (i) the Master Servicer, the Transferor, the Depositor, or the Trust (or an affiliate of any of them) or (ii) a qualified institutional buyer (as defined in Rule 144A under the Securities Act). Each person (other than the Master Servicer, the Transferor, or the Trust (or an affiliate of them)) to whom a Transferor Certificate is proposed to be transferred will be required to certify to the Transferor, the Trust, and the Certificate Registrar that it is a qualified institutional buyer.
(g) Notwithstanding anything in this Agreement to the contrary, the Depositor, without the consent of any Noteholder or Certificateholder, may amend this Section 3.10 with the consent of the Credit Enhancer if it receives an Opinion of Counsel to the effect that the amendment will not adversely affect in any material respect
(i) the tax characterization of the outstanding Notes and Transferor Certificates for federal or applicable state income tax purposes,
(ii) the characterization of the Trust as an entity that is not a publicly traded partnership or other business entity taxable as a corporation for United States federal income tax purposes and will not result in a United States federal withholding tax being imposed on the Trust, or
(iii) the Trust's exemptions from any registration requirement of the federal securities laws.
Appears in 1 contract
Samples: Trust Agreement (CWABS Revolving Home Equity Loan Trust Series, 2004-R)
Restrictions on Transfer; Legends. (a) The Series 2002-E Transferor Certificates shall be assigned, transferred, exchanged, pledged, financed, hypothecated, or otherwise conveyed (collectively, for purposes of this Section and any other Section referring to the Transferor Certificates, "transferred" or a "transfer") only in accordance with this Section.
(b) No transfer of a Series 2002-E Transferor Certificate will be made unless the transfer is exempt from the registration requirements of the Securities Act of 1933 (the "Act") and any applicable state securities laws or is made in accordance with the Act and those laws. Except for the initial issuance of a Series 2002-E Transferor Certificate to the Transferor (and any subsequent transfer by that Transferor to one of its Affiliates), the Owner Trustee will require either:
(i) the transferee to execute an investment letter acceptable to and in form and substance satisfactory to the Owner Trustee certifying to the Owner Trustee the facts surrounding the transfer, which investment letter shall not be an expense of the Owner Trustee or
(ii) an Opinion of Counsel acceptable to and in form and substance satisfactory to the Owner Trustee and the Depositor that the transfer may be made pursuant to an exemption from the Act, describing the applicable exemption and its basis, or is being made pursuant to the Act, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor. The holder of a Series 2002-E Transferor Certificate desiring to effect a transfer shall indemnify the Series 2002-E Subtrust and the Trust against any liability that may result if the transfer is not so exempt or is not made in accordance with any federal and state laws.
(c) No transfer of an interest in a Series 2002-E Transferor Certificate will be made after its initial issuance unless the Owner Trustee has received either:
(i) a representation letter from the proposed Transferor, acceptable to and in form and substance satisfactory to the Owner Trustee, to the effect that the proposed Transferor is not an employee benefit plan subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code, nor a person acting on behalf of, or investing plan assets of, any such plan, which representation letter shall not be an expense of the Owner Trustee; or
(ii) an Opinion of Counsel acceptable to the Owner Trustee to the effect that the purchase or holding of the Series 2002-E Transferor Certificate will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Owner Trustee to any obligation in addition to those undertaken in this the Agreement, which Opinion of Counsel shall not be an expense of the Owner Trustee or the Depositor; except that, in the case of the initial issuance of a Transferor Certificate to the Transferor (and any subsequent transfer by the Transferor to one of its Affiliates), the representation in clause (i) shall be deemed to have been made.
(d) No transfer of an interest in a Series 2002-E Transferor Certificate after its initial issuance will be made unless:
(i) the proposed Transferor is organized and existing under the laws of the United States or any State and expressly assumes the performance of every obligation of the existing Transferor under this the Agreement and the other Series 2002-E Transaction Documents pursuant to an agreement acceptable to the Owner Trustee,
(ii) the existing Transferor delivers to the Owner Trustee and the Credit Enhancer an Officer's Certificate stating that the transfer complies with this Section 3.10 4.05(d) and that all the conditions in this Section 3.10 4.05(d) have been complied with, and an Opinion of Counsel stating that all the conditions in this Section 3.10 4.05(d) have been complied with;
(iii) the Rating Agency Condition is satisfied with respect to the transfer;
(iv) the proposed Transferor delivers to the Owner Trustee and the Credit Enhancer an Opinion of Counsel to the effect that
(A) the transfer will not adversely affect the characterization treatment of the Series 2002-E Notes after the transfer as debt for federal and applicable State state income tax purposes,
(B) the transfer will not result in the Series 2002-E Subtrust or the Trust being subject to tax at the entity level for federal or applicable State state tax purposes,
(C) the transfer will not have any material adverse effect on the federal or applicable State state income taxation of any Holder of the Series 2002-E Notes or any person who is the beneficial owner of a Series 2002-E book-entry Note, and
(D) the transfer will not result in the Trust arrangement created by the Agreement or any "portion" of the Trust, being characterized treated as a taxable mortgage pool as defined in Section 7701(i) of the Code;
(v) all filings and other actions necessary to continue the perfection of the interest of the Trust Series 2002-E Subtrust in the related Mortgage Loans and the other Assets related property conveyed to the Series 2002-E Subtrust has been taken or made; and
(vi) the proposed Transferor agrees to the obligations imposed pursuant to Section 34.06. The requirement that the proposed Transferor be organized and existing under the laws of the United States or any State shall not apply if the Rating Agency Condition has been satisfied taking that into account.
(e) Each Series 2002-E Transferor Certificate shall bear a legend substantially in the following form: This certificate has not been and will not be registered under the Securities Act of 1933, as amended, or the securities laws of any state and may not be resold or transferred unless it is registered pursuant to the Securities Act of 1933 and the securities laws of any state or is sold or transferred in transactions that are exempt from registration under the Securities Act of 1933 and under applicable state law and is transferred in accordance with Section 4.05 of the Series 2002-E Trust Supplement to the CWABS Master Trust Agreement. Neither this certificate nor any interest in it may be transferred unless the transferee delivers to the trustee either a representation letter to the effect that the transferee is not an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended, a plan subject to Section 4975 of the Code as amended, or a person acting on behalf of or using the assets of any such plan, or an opinion of counsel in accordance with Section 4.05(c) of the Series 2002-E Trust Supplement to the CWABS Master Trust Agreement. Notwithstanding anything else to the contrary herein, any purported transfer of this certificate to or on behalf of an employee benefit plan subject to ERISA or to the Code without the opinion of counsel satisfactory to the trustee as described above shall be void.
Appears in 1 contract
Samples: Transferor Certificate (Cwabs Inc)
