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

Registration of Certificates; Registration of Transfer and Exchange of Certificates. (a) The Depositor hereby appoints [ ] as the initial certificate registrar, and in such capacity or any successor certificate registrar thereof (such entity, the “Certificate Registrar”), as an agent for the Trust, shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.8, a register (such register, the “Certificate Register”), in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of Certificates and of transfers and exchanges of Certificates as provided herein. Upon any resignation of a Certificate Registrar, the Depositor shall promptly appoint a successor or, if it elects not to make such an appointment, any court of competent jurisdiction may appoint a successor Certificate Registrar. The entries in the Certificate Register shall be conclusive absent manifest error, and the Trust, the Owner Trustee, the Certificate Registrar and the Paying Agent shall treat each Person whose name is recorded in the Certificate Register pursuant to the terms hereof as a Certificateholder hereunder for all purposes of this Agreement. This Section 3.4 shall be construed so that the Certificates under this Agreement are at all times maintained in “registered form” within the meaning of Section 5f.103-1(c) of the United States Treasury Regulations. The Certificate Registrar shall record (a) the Percentage Interest assigned to each Certificate and (b) all distributions made to each Certificateholder with respect to the Trust’s assets. (b) [The][Any] Certificateholder may at any time, without consent of the Noteholders, sell, transfer, convey or assign in any manner its rights to and interests in the Certificates (including its right to distributions from the Reserve Account), provided that: (A)(i) such transfer, conveyance or assignment is made to the Depositor or an Affiliate thereof, or such entity pledges its rights and interests in the Certificates or (B)(i) such [action will not result in a reduction or withdrawal of the rating of any class of Notes, (ii) such transferee or assignee agrees to take positions for tax purposes consistent with the tax positions agreed to be taken by the Certificateholder, (iii) the conditions set forth in Section 3.4(h) and (j) have been satisfied and (iv) in connection with any transfer of less than all of the interests in the Certificates, the transferor and transferee shall specify the respective interests in the Certificates to be held by the transferor and transferee, which interests may be determined by a formula or on any other basis agreed by the transferor and transferee; and provided, further, that, after the [Initial] Closing Date, no Retained Certificate shall be sold, transferred, conveyed or assigned unless counsel satisfactory to the Owner Trustee and the Certificate Registrar has rendered an Opinion of Counsel to the effect that (1) such sale, transfer, conveyance or assignment by the Depositor would not cause the Trust to fail to qualify as a grantor trust for United States federal income tax purposes and (2) all Retained Notes (excluding for this purpose Retained Notes to the extent such Retained Notes are not treated as outstanding for federal income tax purposes) will be characterized as indebtedness for United States federal income tax purposes, provided, that the Opinion of Counsel required by clauses (1) and (2) shall not be required if (I) the Depositor sells, transfers, conveys or assigns such Retained Certificate to (y) an Affiliate of the Depositor treated as the Depositor for federal income tax purposes or (z) an Affiliate of the Depositor where such Retained Certificates transferred to such Affiliate represents all of the issued Certificates of the Trust and such Affiliate (including a person treated as an Affiliate for federal income tax purposes) also owns all of the Retained Notes or (II) prior to the date of the effectiveness of such sale, transfer, conveyance or assignment by the Depositor, the Owner Trustee and the Certificate Registrar have received an Opinion of Counsel to the effect that all Retained Notes (excluding for this purpose Retained Notes to the extent such Retained Notes are not treated as outstanding for federal income tax purposes) will be characterized as indebtedness for United States federal income tax purposes. In addition, (i)] [such sale, pledge or other transfer shall be made to a person whom the transferor reasonably believes is a “qualified institutional buyer” (as defined in Rule 144A), acting for its own account (and not for the account of others) or as a fiduciary or agent for others (which others also are “qualified institutional buyers”) to whom notice is given that the sale, pledge or other transfer is being made in reliance on Rule 144A, (ii) such sale, pledge or other transfer shall occur outside of the United States to a Non-U.S. Person in accordance with Rule 903 or Rule 904 of Regulation S of the Securities Act and that person delivers any necessary certifications pursuant to this Agreement, or (iii) such sale, pledge or other transfer shall otherwise be made in a transaction exempt from the registration requirements of the Securities Act, and, in the case of this clause (iii), (A) the Certificate Registrar shall require that both the prospective transferor and the prospective transferee certify to the Owner Trustee, Certificate Registrar and the Depositor in writing the facts surrounding such transfer, which certification shall be in form and substance satisfactory to the Owner Trustee, Certificate Registrar, and the Depositor, and (B) the Certificate Registrar shall require a written opinion of counsel (which shall not be at the expense of the Depositor, the Indenture Trustee, the Servicer, the Trust, the Owner Trustee, the Administrator, Certificate Registrar or any other provider of services to the Trust), satisfactory to the Depositor and the Certificate Registrar to the effect that such transfer will not violate the Securities Act.] (c) [The Owner Trustee and the Certificate Registrar may conclusively rely upon advice of the Depositor in reviewing the form and substance of the certifications and opinions required by Sections 3.4(b)(iii)(A) and 3.4(b)(iii)(B).] [In the event that the Depositor is no longer the sole Certificateholder, the Administrator will promptly prepare amendments (subject to the provisions regarding amendments in the applicable Transaction Documents) to the Transaction Documents to the extent necessary to reflect the establishment of the Certificate Distribution Account and the making of distributions to the Certificateholders and such other matters as shall be agreed between the Depositor and the Owner Trustee. The expense of the foregoing amendments shall be paid by the Administrator.] (d) [Reserved.] (e) Upon surrender for registration of transfer of any Certificate at the office or agency maintained pursuant to Section 3.8 and upon compliance with any provisions of this Agreement relating to such transfer, the Owner Trustee shall execute on behalf of the Trust, authenticate and deliver (or shall cause its authenticating agent to authenticate and deliver), in the name of the designated transferee or transferees, one or more new Certificates of a like aggregate Percentage Interest in the Trust dated the date of authentication by the Owner Trustee or any authenticating agent. (f) At the option of a Holder, Certificates may be exchanged for other Certificates of a like aggregate Percentage Interest, as shown on the applicable Certificates, upon surrender of the Certificates to be exchanged at the office or agency maintained pursuant to Section 3.8. Whenever any Certificates are so surrendered for exchange, the Owner Trustee shall execute on behalf of the Trust, authenticate and deliver (or shall cause its authenticating agent to authenticate and deliver) one or more Certificates dated the date of authentication by the Owner Trustee or any authenticating agent. Such Certificates shall be delivered to the Holder making the exchange. (g) Every Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by the Holder or his attorney duly authorized in writing and such other documents and instruments as may be required by Section 3.4(b). Each Certificate surrendered for registration of transfer or exchange shall be canceled and subsequently destroyed or otherwise disposed of by the Owner Trustee or Certificate Registrar in accordance with its customary practice. (h) The Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed and any other expenses of the Owner Trustee or the Certificate Registrar in connection with any transfer or exchange of Certificates. (i) The Certificates may not be held by or for the account of a Benefit Plan Investor other than an “insurance company general account,” as defined in Prohibited Transaction Class Exemption 95-60 (“PTCE 95-60”), whose underlying assets include less than 25% “plan assets” subject to ERISA, who is not and is not an affiliate of a person that has discretionary authority or control with respect to the assets of the Trust or provides investment advice for a fee (direct or indirect) with respect to such assets, and for which the purchase and holding of Certificates is eligible and satisfies all conditions for relief under PTCE 95-60. The Certificates also may not be acquired or held by or for the account of any other plan that is subject to any law that is substantially similar to Title I of ERISA or Section 4975 of the Code (“Similar Law”) (including non-U.S. or governmental plans) if such acquisition and holding would result in a violation of any Similar Law. (j) [[The Certificates may (A) only be acquired by or for the account of a Person who is a United States Person (within the meaning of Section 7701(a)(30) of the Code) and (B) not be acquired by or for the account of a Special Pass Through Entity. For the purposes of this Section 3.5(j), “Special Pass Through Entity” means a grantor trust, S corporation, or partnership (or a disregarded entity, the single owner of which is any of the foregoing) where more than 50% of the value of a beneficial owner’s interest in such pass through entity is attributable to the pass through entity’s interest in the Certificates.] [Each Certificateholder that is a United States person (as defined in Section 7701(a)(30) of the Code) shall deliver to the Owner Trustee, Paying Agent, and the Administrator on or prior to the date such person becomes a Certificateholder under this Agreement (and from time to time thereafter upon the reasonable request of the Owner Trustee, Paying Agent, or the Administrator), executed originals of Internal Revenue Service Form W-9 certifying that such Certificateholder is exempt from U.S. federal backup withholding tax. Each Certificateholder that is not a United States person (as defined in Section 7701(a)(30) of the Code) shall deliver to the Owner Trustee, Paying Agent, and the Administrator on or prior to the date such person becomes a Certificateholder under this Agreement (and from time to time thereafter upon the reasonable request of the Owner Trustee, Paying Agent, or the Administrator), executed originals of Internal Revenue Service Form W-8BEN, W-8BEN-E or W-8ECI, and to the extent such Certificateholder is not the beneficial owner of the Certificate, Internal Revenue Service Form W-8IMY accompanied by Internal Revenue Service Form W-8ECI, W-8BEN-E or W-8BEN. In the case of a Certificateholder that is not a United States person (as defined in Section 7701(a)(30) of the Code) and provides an Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable (or Internal Revenue Service Form W-8IMY accompanied with a Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable) under this Section 3.4(i) in order to claim the benefits of the exemption for portfolio interest under Section 881(c) of the Code (instead of, for example, claiming the benefits of an income tax treaty to which the United States is a party), such Certificateholder (or in the case of a Certificateholder providing such Internal Revenue Service Form W-8IMY, the beneficial owner of the Certificate) hereby represents and warrants that it is not a (i) “bank” within the meaning of Section 881(c)(3)(A) of the Code, (ii) “10 percent shareholder” of the Trust within the meaning of Section 881(c)(3)(B) of the Code or (iii) “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code.]

Registration of Certificates; Registration of Transfer and Exchange of Certificates. (a) The Depositor hereby appoints [ ] the Indenture Trustee as the initial certificate registrar, and in such capacity or any successor certificate registrar thereof (such entity, the “Certificate Registrar”), as an agent for the Trust, shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.8, a register (such register, the “Certificate Register”), in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of Certificates and of transfers and exchanges of Certificates as provided herein. Upon any resignation of a Certificate Registrar, the Depositor shall promptly appoint a successor or, if it elects not to make such an appointment, any court of competent jurisdiction may appoint a successor Certificate Registrar. The entries in the Certificate Register shall be conclusive absent manifest error, and the Trust, the Owner Trustee, the Certificate Registrar and the Paying Agent shall treat each Person whose name is recorded in the Certificate Register pursuant to the terms hereof as a Certificateholder hereunder for all purposes of this Agreement. This Section 3.4 shall be construed so that the Certificates under this Agreement are at all times maintained in “registered form” within the meaning of Section 5f.103-1(c) of the United States Treasury Regulations. The Certificate Registrar shall record (ai) the Percentage Interest assigned to each Certificate and (bii) all distributions made to each Certificateholder with respect to the Trust’s assets. (b) [The][Any] Certificateholder may at any time, without consent of the Noteholders, sell, transfer, convey or assign in any manner its rights to and interests in the Certificates (including its right to distributions from the Reserve Account), provided that: (A)(i) such transfer, conveyance or assignment is made to the Depositor or an Affiliate thereof, or such entity pledges its rights and interests in the Certificates or (B)(i) such [action will not result in a reduction or withdrawal of the rating of any class of Notes, (ii) such transferee or assignee agrees to take positions for tax purposes consistent with the tax positions agreed to be taken by the Certificateholder, (iii) the conditions set forth in Section 3.4(h) and (j) have been satisfied and (iv) in connection with any transfer of less than all of the interests in the Certificates, the transferor and transferee shall specify the respective interests in the Certificates to be held by the transferor and transferee, which interests may be determined by a formula or on any other basis agreed by the transferor and transferee; and provided, further, that, after the [Initial] Closing Date, no Retained Certificate shall be sold, transferred, conveyed or assigned unless counsel satisfactory to the Owner Trustee and the Certificate Registrar has rendered an Opinion of Counsel to the effect that (1) such sale, transfer, conveyance or assignment by the Depositor would not cause the Trust to fail to qualify as a grantor trust for United States federal income tax purposes and (2) all Retained Notes (excluding for this purpose Retained Notes to the extent such Retained Notes are not treated as outstanding for federal income tax purposes) will be characterized as indebtedness for United States federal income tax purposes, provided, that the Opinion of Counsel required by clauses (1) and (2) shall not be required if (I) the Depositor sells, transfers, conveys or assigns such Retained Certificate to (y) an Affiliate of the Depositor treated as the Depositor for federal income tax purposes or (z) an Affiliate of the Depositor where such Retained Certificates transferred to such Affiliate represents all of the issued Certificates of the Trust and such Affiliate (including a person treated as an Affiliate for federal income tax purposes) also owns all of the Retained Notes or (II) prior to the date of the effectiveness of such sale, transfer, conveyance or assignment by the Depositor, the Owner Trustee and the Certificate Registrar have received an Opinion of Counsel to the effect that all Retained Notes (excluding for this purpose Retained Notes to the extent such Retained Notes are not treated as outstanding for federal income tax purposes) will be characterized as indebtedness for United States federal income tax purposes. In addition, (i)] [such sale, pledge or other transfer shall be made to a person whom the transferor reasonably believes is a “qualified institutional buyer” (as defined in Rule 144A), acting for its own account (and not for the account of others) or as a fiduciary or agent for others (which others also are “qualified institutional buyers”) to whom notice is given that the sale, pledge or other transfer is being made in reliance on Rule 144A, (ii) such sale, pledge or other transfer shall occur outside of the United States to a Non-U.S. Person in accordance with Rule 903 or Rule 904 of Regulation S of the Securities Act and that person delivers any necessary certifications pursuant to this Agreement, or (iii) such sale, pledge or other transfer shall otherwise be made in a transaction exempt from the registration requirements of the Securities Act, and, in the case of this clause (iii), (A) the Certificate Registrar shall require that both the prospective transferor and the prospective transferee certify to the Owner Trustee, Certificate Registrar and the Depositor in writing the facts surrounding such transfer, which certification shall be in form and substance satisfactory to the Owner Trustee, Certificate Registrar, and the Depositor, and (B) the Certificate Registrar shall require a written opinion of counsel (which shall not be at the expense of the Depositor, the Indenture Trustee, the Servicer, the Trust, the Owner Trustee, the Administrator, Certificate Registrar or any other provider of services to the Trust), satisfactory to the Depositor and the Certificate Registrar to the effect that such transfer will not violate the Securities Act.] (c) [The Owner Trustee and the Certificate Registrar may conclusively rely upon advice of the Depositor in reviewing the form and substance of the certifications and opinions required by Sections 3.4(b)(iii)(A) and 3.4(b)(iii)(B).] [In the event that the Depositor is no longer the sole Certificateholder, the Administrator will promptly prepare amendments (subject to the provisions regarding amendments in the applicable Transaction Documents) to the Transaction Documents to the extent necessary to reflect the establishment of the Certificate Distribution Account and the making of distributions to the Certificateholders and such other matters as shall be agreed between the Depositor and the Owner Trustee. The expense of the foregoing amendments shall be paid by the Administrator.] (d) [Reserved.] (e) Upon surrender for registration of transfer of any Certificate at the office or agency maintained pursuant to Section 3.8 and upon compliance with any provisions of this Agreement relating to such transfer, the Owner Trustee shall execute on behalf of the Trust, authenticate and deliver (or shall cause its authenticating agent to authenticate and deliver), in the name of the designated transferee or transferees, one or more new Certificates of a like aggregate Percentage Interest in the Trust dated the date of authentication by the Owner Trustee or any authenticating agent. (f) At the option of a Holder, Certificates may be exchanged for other Certificates of a like aggregate Percentage Interest, as shown on the applicable Certificates, upon surrender of the Certificates to be exchanged at the office or agency maintained pursuant to Section 3.8. Whenever any Certificates are so surrendered for exchange, the Owner Trustee shall execute on behalf of the Trust, authenticate and deliver (or shall cause its authenticating agent to authenticate and deliver) one or more Certificates dated the date of authentication by the Owner Trustee or any authenticating agent. Such Certificates shall be delivered to the Holder making the exchange. (g) Every Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by the Holder or his attorney duly authorized in writing and such other documents and instruments as may be required by Section 3.4(b). Each Certificate surrendered for registration of transfer or exchange shall be canceled and subsequently destroyed or otherwise disposed of by the Owner Trustee or Certificate Registrar in accordance with its customary practice. (h) The Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed and any other expenses of the Owner Trustee or the Certificate Registrar in connection with any transfer or exchange of Certificates. (i) The Certificates may not be held by or for the account of a Benefit Plan Investor other than an “insurance company general account,” as defined in Prohibited Transaction Class Exemption 95-60 (“PTCE 95-60”), whose underlying assets include less than 25% “plan assets” subject to ERISA, who is not and is not an affiliate of a person that has discretionary authority or control with respect to the assets of the Trust or provides investment advice for a fee (direct or indirect) with respect to such assets, and for which the purchase and holding of Certificates is eligible and satisfies all conditions for relief under PTCE 95-60. The Certificates also may not be acquired or held by or for the account of any other plan that is subject to any law that is substantially similar to Title I of ERISA or Section 4975 of the Code (“Similar Law”) (including non-U.S. or governmental plans) if such acquisition and holding would result in a violation of any Similar Law. (j) [[The Certificates may (A) only be acquired by or for the account of a Person who is a United States Person (within the meaning of Section 7701(a)(30) of the Code) and (B) not be acquired by or for the account of a Special Pass Through Entity. For the purposes of this Section 3.5(j), “Special Pass Through Entity” means a grantor trust, S corporation, or partnership (or a disregarded entity, the single owner of which is any of the foregoing) where more than 50% of the value of a beneficial owner’s interest in such pass through entity is attributable to the pass through entity’s interest in the Certificates.] [Each Certificateholder that is a United States person (as defined in Section 7701(a)(30) of the Code) shall deliver to the Owner Trustee, Paying Agent, and the Administrator on or prior to the date such person becomes a Certificateholder under this Agreement (and from time to time thereafter upon the reasonable request of the Owner Trustee, Paying Agent, or the Administrator), executed originals of Internal Revenue Service Form W-9 certifying that such Certificateholder is exempt from U.S. federal backup withholding tax. Each Certificateholder that is not a United States person (as defined in Section 7701(a)(30) of the Code) shall deliver to the Owner Trustee, Paying Agent, and the Administrator on or prior to the date such person becomes a Certificateholder under this Agreement (and from time to time thereafter upon the reasonable request of the Owner Trustee, Paying Agent, or the Administrator), executed originals of Internal Revenue Service Form W-8BEN, W-8BEN-E or W-8ECI, and to the extent such Certificateholder is not the beneficial owner of the Certificate, Internal Revenue Service Form W-8IMY accompanied by Internal Revenue Service Form W-8ECI, W-8BEN-E or W-8BEN. In the case of a Certificateholder that is not a United States person (as defined in Section 7701(a)(30) of the Code) and provides an Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable (or Internal Revenue Service Form W-8IMY accompanied with a Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable) under this Section 3.4(i) in order to claim the benefits of the exemption for portfolio interest under Section 881(c) of the Code (instead of, for example, claiming the benefits of an income tax treaty to which the United States is a party), such Certificateholder (or in the case of a Certificateholder providing such Internal Revenue Service Form W-8IMY, the beneficial owner of the Certificate) hereby represents and warrants that it is not a (i) “bank” within the meaning of Section 881(c)(3)(A) of the Code, (ii) “10 percent shareholder” of the Trust within the meaning of Section 881(c)(3)(B) of the Code or (iii) “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code.]