Transfer of Subordinate Certificates. (a) The Subordinate Certificates shall only be offered, sold, pledged or otherwise transferred in a sale that does not involve a public offering, and to a person(s) whom the Transferee reasonably believes is a (are) Qualified Institutional Buyer(s). (b) No transfer of a Subordinate Certificate shall be made unless the Transferor provides the Transfer Agent and the Trustee with a Transferee’s Agreement, substantially in the form of this Agreement from the proposed transferee. A failure to provide the Transfer Agent and the Trustee with the foregoing shall cause a transfer to be void. (c) The Transferee hereby agrees to indemnify and hold harmless the Transfer Agent and Xxxxxx Xxx against any liability arising out of any transfer by the Transferee (i) to a person that is not a Qualified Institutional Buyer or (ii) permitted by this Agreement that is not otherwise made in accordance with federal and state laws. (d) Transferee acknowledges that the certificate evidencing its Subordinate Certificates will bear a legend setting forth the applicable restrictions on transfer. (e) The Transferee: (i) is not an employee benefit plan subject to Section 406 of ERISA nor a plan or other arrangement subject to Section 406 of ERISA nor a plan or other arrangement subject to Section 4975 of the Code (collectively, a “Plan”), nor is acting on behalf of any Plan nor using the assets of any Plan to effect such transfer; or (ii) is an insurance company using assets of its general account to purchase the Subordinate Certificates and the purchase and holding of the Subordinate Certificates are exempt under Section III of Prohibited Transaction Class Exemption 95-60; provided that, if the proposed Transferee is a Plan, or a person or entity acting on behalf of any Plan or using the assets of any Plan to effect such transfer (including, unless it has made the certification contemplated by clause (ii), the assets of any Plan held in an insurance company separate or general account), in lieu of making the certifications contemplated by clauses (i) and (ii), the proposed Transferee has provided an Opinion of Counsel, which has not been rendered by counsel to Xxxxxx Mae or the Trustee, acceptable to and in form and substance satisfactory to the Certificate Registrar, Xxxxxx Xxx, and the Trustee, which Opinion of Counsel shall not be at the expense of the Certificate Registrar, Xxxxxx Mae, the Trustee, the Trust or the Lower Tier REMIC, to the effect that the purchase or holding of any Subordinate Certificates will not result in the assets of the Trust, the Middle Tier REMIC or the Lower Tier REMIC being deemed to be “plan assets” of any Plan, will not cause the Trust, the Middle Tier REMIC or the Lower Tier REMIC to be subject to the fiduciary requirements and prohibited transaction provisions of ERISA and the Code, and will not subject the Certificate Registrar, Xxxxxx Xxx or the Trustee to any obligation or liability in addition to those expressly undertaken under the Trust Agreement. (f) For purposes of this Transferee Agreement, “Qualified Institutional Buyer” shall mean:
Appears in 1 contract
Samples: Trust Agreement
Transfer of Subordinate Certificates. (a) The Subordinate Certificates shall only be offered, sold, pledged or otherwise transferred in a sale that does not involve a public offering, offering and to a person(s) whom the Transferee reasonably believes is a (are) Qualified Institutional Buyer(s).
(b) No transfer of a Subordinate Certificate shall be made unless the Transferor provides the Transfer Agent and the Trustee with a Transferee’s 's Agreement, substantially in the form of this Agreement from the proposed transferee. A failure to provide the Transfer Agent and the Trustee with the foregoing shall cause a transfer to be void.
(c) The Transferee hereby agrees to indemnify and hold harmless the Transfer Agent and Xxxxxx Xxx Xxx, against any liability losses, claims, damages, or liabilities (including the cost of any investigation, legal or other expenses incurred in connection with any amounts paid in settlement of any action, suit, proceeding or claim asserted) arising out of any transfer by the Transferee (i) to a person that is not a Qualified Institutional Buyer or (ii) permitted by this Agreement that is not otherwise made in accordance with federal and state lawssuch transfer.
(d) Transferee acknowledges that the certificate evidencing its Subordinate Certificates will bear a legend setting forth the applicable restrictions on transfer.
(e) The Transferee:
(i) Transferee is not an employee benefit plan subject to Section 406 of ERISA nor a plan or other arrangement subject to Section 406 of ERISA nor a plan or other arrangement subject to Section 4975 of the Code (collectively, a “Plan”), nor Plan that is acting on behalf of any Plan nor using the assets of any Plan to effect such transfer; or
(ii) is an insurance company using assets of its general account to purchase the Subordinate Certificates and the purchase and holding of the Subordinate Certificates are exempt under Section III of Prohibited Transaction Class Exemption 95-60; provided that, if the proposed Transferee is a Plan, or a person or entity acting on behalf of any Plan or using the assets of any Plan to effect such transfer (including, unless it has made the certification contemplated by clause (ii), the assets of any Plan held in an insurance company separate or general account), in lieu of making the certifications contemplated by clauses (i) and (ii), the proposed Transferee has provided an Opinion of Counsel, which has not been rendered by counsel to Xxxxxx Mae or the Trustee, acceptable to and in form and substance satisfactory to the Certificate Registrar, Xxxxxx Xxx, and the Trustee, which Opinion of Counsel shall not be at the expense of the Certificate Registrar, Xxxxxx Mae, the Trustee, the Trust or the Lower Tier REMIC, to the effect that the purchase or holding of any Subordinate Certificates will not result in the assets of the Trust, the Middle Tier REMIC or the Lower Tier REMIC being deemed to be “plan assets” of any Plan, will not cause the Trust, the Middle Tier REMIC or the Lower Tier REMIC to be subject to the fiduciary requirements and prohibited transaction provisions Department of ERISA and Labor regulations set forth in 29 C.F.R. Subsection 2510.3-101 or has provided the Code, and will not subject the Certificate Registrar, Xxxxxx Xxx or the Trustee to any obligation or liability in addition to those expressly undertaken under opinion required by Section 5.02(h) of the Trust Agreement.
(f) For purposes of this Transferee Agreement, “"Qualified Institutional Buyer” " shall mean:
(i) Any of the following entities, acting for its own account or the accounts of other Qualified Institutional Buyers, that in the aggregate owns and invests on a discretionary basis at least $100 million in securities of issuers that are not affiliated with the entity:
(A) Any insurance company as defined in section 2(13) of the Securities Act of 1933 (the "Act");
(B) Any investment company registered under the Investment Company Act of 1940, as amended the "1940 Act" or any business development company as defined in section 2(a)(48) of the 1940 Act;
(C) Any Small Business Investment Company licensed by the U.S. Small Business Administration under section 301(c) or (d) of the Small Business Investment Act of 1958;
(D) Any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees;
(E) Any employee benefit plan within the meaning of Title I of the Employment Retirement Income Security Act of 1974;
(F) Any trust fund whose trustee is a bank or trust company and whose participants are exclusively plans of the types identified in paragraph (D) or (E) above, except trust funds that include as participants individual retirement accounts or H.R. 10 plans;
(G) Any business development company as defined in section 202(a)(22) of the Investment Advisers Act of 1940;
(H) Any organization described in section 501(c)(3) of the Internal Revenue Code, corporation (other than a bank as defined in section 3(a)(2) of the Act or a savings and loan association or other institution referenced in section 3(a) (5) (A) of the Act or a foreign bank or savings and loan association or equivalent institution), partnership, or Massachusetts or similar business trust; and
(I) Any investment adviser registered under the Investment Advisers Act of 1940.
(ii) Any dealer registered pursuant to section 15 of the Securities Exchange Act of 1934 (the "Exchange Act"), acting for its own account or the accounts of other Qualified Institutional Buyers, that in the aggregate owns and invests on a discretionary basis at least $10 million of securities of issuers that are not affiliated with the dealer, provided that securities constituting the whole or a part of an unsold allotment to or subscription by a dealer as a participant in a public offering shall not be deemed to be owned by such dealer;
(iii) Any dealer registered pursuant to section 15 of the Exchange Act acting in a riskless principal transaction on behalf of a Qualified Institutional Buyer;
(iv) Any investment company registered under the 1940 Act, acting for its own account or for the accounts of other Qualified Institutional Buyers, that is part of a family of investment companies which own in the aggregate at least $100 million in securities of issuers, other than issuers that are affiliated with the investment company or are part of such family of investment companies. "Family of investment companies" means any two or more investment companies registered under the 1940 Act, except for a unit investment trust whose assets consist solely of shares of one or more registered investment companies, that have the same investment adviser (or, in the case of unit investment trusts, the same depositor), provided that, for purposes of this section:
(A) Each series of a series company (as defined in Rule 18f-2 under the Investment Company Act) shall be deemed to be a separate investment company; and
(B) Investment companies shall be deemed to have the same adviser (or depositor) if their advisers (or depositors) are majority-owned subsidiaries of the same parent, or if one investment company's adviser (or depositor) is a majority-owned subsidiary of the other investment company's adviser (or depositor);
(v) Any entity, all of the equity owners of which are qualified institutional buyers, acting for its own account or the accounts of other qualified institutional buyers;
(vi) Any bank as defined in section 3(a)(2) of the Act, any savings and loan association or other institution as referenced in section 3(a)(5)(A) of the Act, or any foreign bank or savings and loan association or equivalent institution, acting for its own account or the accounts of other qualified institutional buyers, that in the aggregate owns and invests on a discretionary basis at least $100 million in securities of issuers that are not affiliated with it and that has an audited net worth of at least $25 million as demonstrated in its latest annual financial statements, as of a date not more than 15 months preceding the date of sale in the case of a U.S. bank or savings and loan association, and not more than 18 months preceding such date of sale for a foreign bank or savings and loan association or equivalent institution; and
(vii) Any other entity that constitutes a Qualified Institutional Buyer under Rule 144A of the Act as of the date of this Transferee Agreement.
Appears in 1 contract
Samples: Trust Agreement
Transfer of Subordinate Certificates. (a) The Subordinate Certificates shall only be offered, sold, pledged or otherwise transferred in a sale that does not involve a public offering, offering and to a person(s) whom the Transferee reasonably believes is a (are) Qualified Institutional Buyer(s).
(b) No transfer of a Subordinate Certificate shall be made unless the Transferor provides the Transfer Agent and the Trustee with (i) a Transferee’s Agreement, substantially in the form of this Agreement from the proposed transfereetransferee and (ii) either (A) an affidavit substantially in the form of Exhibit A hereto that the proposed transferee is not a “benefit plan investor” subject to the Plan Asset Regulations or (B) a Benefit Plan Opinion. A failure to provide the Transfer Agent and the Trustee with the foregoing items shall cause a transfer to be void.
(c) The Transferee hereby agrees to indemnify and hold harmless the Transfer Agent and Xxxxxx Xxx Xxx, against any liability losses, claims, damages, or liabilities (including the cost of any investigation, legal or other expenses incurred in connection with any amounts paid in settlement of any action, suit, proceeding or claim asserted) arising out of any transfer by the Transferee (i) to a person that is not a Qualified Institutional Buyer or (ii) permitted by this Agreement that is not otherwise made in accordance with federal and state lawssuch transfer.
(d) Transferee acknowledges that the certificate evidencing its Subordinate Certificates will bear a legend setting forth the applicable restrictions on transfer.
(e) The Transferee:
Either (a) (i) the Transferee is not an employee benefit a Plan and (ii) it is not a Person who is directly or indirectly purchasing the Subordinate Certificate on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan (including any insurance company using funds in its general or separate account that may constitute “plan subject to Section 406 of ERISA nor a plan or other arrangement subject to Section 406 of ERISA nor a plan or other arrangement subject to Section 4975 of the Code (collectively, a “Planassets”), nor or (b) (i) the Transferee is acting on behalf of any Plan nor using the assets of any Plan to effect such transfer; or
an insurance company, and (ii) is an insurance company using assets (x) all of its general account the funds to be used by it to purchase the Subordinate Certificates to be purchased by it are held in its general account and each of the policies held by Plans and supported by assets in such general account is a “guaranteed benefit policy,” within the meaning of section 401(b)(2) of ERISA, and its purchase of such Subordinate Certificates will not result in a violation of Section 406 of ERISA or Section 4975 of the Code, or (y) it is purchasing such Subordinate Certificates with funds contained in an “insurance company general account” (as such term is defined in Section V(e) of the Prohibited Transaction Class Exemption 95-60 (“PTE 95-60”)) and the purchase and holding of the Subordinate such Certificates are exempt covered under Section Sections I and III of Prohibited Transaction Class Exemption PTE 95-60; provided that, if the proposed Transferee is a Plan, or a person or entity acting on behalf of any Plan or using the assets of any Plan to effect such transfer (including, unless it has made the certification contemplated by clause (ii), the assets of any Plan held in an insurance company separate or general account), in lieu of making the certifications contemplated by clauses (i) and (ii), the proposed Transferee has provided an Opinion of Counsel, which has not been rendered by counsel to Xxxxxx Mae or the Trustee, acceptable to and in form and substance satisfactory to the Certificate Registrar, Xxxxxx Xxx, and the Trustee, which Opinion of Counsel shall not be at the expense of the Certificate Registrar, Xxxxxx Mae, the Trustee, the Trust or the Lower Tier REMIC, to the effect that the purchase or holding of any Subordinate Certificates will not result in the assets of the Trust, the Middle Tier REMIC or the Lower Tier REMIC being deemed to be “plan assets” of any Plan, will not cause the Trust, the Middle Tier REMIC or the Lower Tier REMIC to be subject to the fiduciary requirements and prohibited transaction provisions of ERISA and the Code, and will not subject the Certificate Registrar, Xxxxxx Xxx or the Trustee to any obligation or liability in addition to those expressly undertaken under the Trust Agreement.
(f) For purposes of this Transferee Agreement, “Qualified Institutional Buyer” shall mean:
Appears in 1 contract
Samples: Trust Agreement
Transfer of Subordinate Certificates. (a) The Subordinate Certificates shall only be offered, sold, pledged or otherwise transferred in a sale manner that does not involve a public offering, offering and to a person(s) whom the Transferee reasonably believes is a (are) Qualified Institutional Buyer(s), or, (ii) is (are) capable of making the representations set forth in Section 2 of the form of Permitted Institutional Accredited Investor Transferee Agreement attached as Exhibit E to the Trust Agreement .
(b) No transfer of a Subordinate Certificate shall be made unless the Transferor Transferee provides the Certificate Registrar, the Transfer Agent Agent, the Issuer and the Trustee with a Transferee’s Agreement, substantially in the form of this Agreement from the proposed transfereetransferee or, in the case of the transfer of a Subordinate Certificate to a Permitted Institutional Accredited Investor, a Permitted Institutional Accredited Investor Transferee Agreement attached as Exhibit III to the Trust Agreement. A failure to provide the Certificate Registrar, the Transfer Agent Agent, the Issuer and the Trustee with the foregoing shall cause a transfer to be void.
(c) The Transferee hereby agrees to indemnify and hold harmless the Certificate Registrar, the Transfer Agent Agent, the Issuer and Xxxxxx Xxx the Trustee, against any liability losses, claims, damages, or liabilities (including the cost of any investigation, legal or other expenses incurred in connection with any amounts paid in settlement of any action, suit, proceeding or claim asserted) arising out of any transfer by it of the Transferee (i) to a person that is not a Qualified Institutional Buyer or (ii) permitted by this Agreement that is not otherwise made in accordance with federal and state lawsSubordinate Certificates.
(d) Transferee acknowledges that (i) its decision to invest in the Subordinate Certificates has been made solely in reliance upon the Private Placement Memorandum dated June 23, 1998, and any other written information provided to the Transferee and (ii) the certificate evidencing its Subordinate Certificates will bear a legend setting forth the applicable restrictions on transfer.
(e) The Transferee:
(i) is not an employee benefit plan subject to Section 406 of ERISA nor a plan or other arrangement subject to Section 406 of ERISA nor a plan or other arrangement subject to Section 4975 of the Code (collectively, a “Plan”), nor is it acting on behalf of any Plan nor or using the assets of any Plan to effect such transfer; or
(ii) is an insurance company using assets of its general account to purchase the Subordinate Certificates and the purchase and holding of the such Subordinate Certificates are exempt under Section III of Prohibited Transaction Class Exemption 95-60; provided that, if the proposed Transferee is a Plan, or a person or entity acting on behalf of any Plan or using the assets of any Plan to effect such transfer (including, unless it has made the certification contemplated by clause (ii), the assets of any Plan held in an insurance company separate or general account), in lieu of making the certifications contemplated by clauses (i) and (ii), the proposed Transferee has provided an Opinion of Counsel, which has not been rendered by counsel to Xxxxxx Mae Xxx or the Trustee, acknowledged to be acceptable to and in form and substance satisfactory to the Certificate Registrar, Xxxxxx XxxMae, and the Trustee, which Opinion of Counsel shall not be at the expense of the Certificate Registrar, Xxxxxx Mae, the Trustee, the Trust or the Lower Tier REMIC, to the effect that the purchase or holding of any Subordinate Certificates by the Transferee will not result in the assets of the Trust, the Middle Tier REMIC or the Lower Tier REMIC Trust being deemed to be “plan assets” of any Plan, will not cause the Trust, the Middle Tier REMIC or the Lower Tier REMIC Trust to be subject to the fiduciary requirements and prohibited transaction provisions of ERISA and the Code, and will not subject the Certificate Registrar, Xxxxxx Xxx or the Trustee to any obligation or liability in addition to those expressly undertaken under the Trust Agreement.
(f) For purposes of this Transferee Agreement, “Qualified Institutional Buyer” shall mean:
Appears in 1 contract
Samples: Trust Agreement
